Model Rules for Judicial Disciplinary Enforcement

Section IV. Special Proceedings
Rule 26. Complaint Against A Member Of {Highest Court}

  1. Proceedings Generally. A complaint against a member of {highest court} shall proceed in the same manner as a complaint against any other judge except as set forth in this Rule.
  2. Special Supreme Court. Upon either a motion by disciplinary counsel or {highest court}'s own motion for interim suspension of a member of {highest court} pursuant to Rule 15.A or a finding of reasonable cause to believe misconduct was committed by a member of {highest court} pursuant to Rule 17.B(2), a special supreme court shall be constituted. The special supreme court shall consist of a number of judges equal to the number of justices of the {highest court}.
  3. Stipulated Dispositions. Final review of a stipulation pursuant to Rule 23 shall be by the full commission.
  4. Final Disposition. If neither the disciplinary counsel nor the respondent objects to the decision of the hearing panel pursuant to Rule 24.D, the decision shall be final and the special supreme court shall not review the matter. If either the disciplinary counsel or the respondent objects, the hearing panel shall file its report and conclusions, any minority opinion and the record of the proceedings with the special supreme court which shall review the matter pursuant to Rule 25.

Commentary
The highest court is a collegial body. Granting it the authority to discipline its own members would create appearances of impropriety and of conflicts of interest. Under this Rule the commission has the authority to impose a sanction on a member of {highest court} if the commission, the disciplinary counsel and the respondent agree to the sanction. Under any other circumstances the commission does not have the authority to impose a public sanction. If the respondent or disciplinary counsel object, a special supreme court must be appointed to decide the case.

When a criminal charge is filed against a member of the highest court, the highest court should direct the appointment of a special supreme court either on its own motion or on the motion of disciplinary counsel, so that an independent decision maker may determine whether the charge raises a substantial question of fitness to hold office so as to require interim suspension.

The special supreme court may be composed of judges from trial courts, appellate courts or a mixture of the two. Various schemes exist in the states for the selection of special supreme court members. Selection by lot of each category of judge is a simple and quick method. Selection should occur when the decision is made to file formal charges even though the case may be concluded by the commission pursuant to Rule 26.C or 26.D. Selection must be made earlier if a motion for interim suspension has been filed, as noted above.

As in other cases, the commission, disciplinary counsel and the judge may agree to a deferred discipline agreement, private admonition or discipline by consent. If the commission approves an agreement for discipline by consent, no further approval is needed.

Nothing in these Rules is intended to preclude the legislature from initiating impeachment proceedings against a judge under any authority existing under the constitution of the jurisdiction. If, however, the constitution limits removal of judicial officers to the legislative impeachment process, a constitutional amendment is necessary to effectuate this Rule.

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