Model Rules for Judicial Disciplinary Enforcement

Section I. Organization and Structure
Rule 3. Organization And Authority Of The Commission

  1. Panels and Meetings. The commission shall divide itself into a hearing panel of [9] members and an investigative panel of [3] members. Investigative and hearing panels include members from each category of membership - lawyer, judge and public members. [Membership on the panels may rotate in a manner determined by the commission provided that no member shall sit on both the hearing and investigative panel for the same proceeding.] Panels shall meet when scheduled by the commission. The full commission shall meet periodically as determined by the commission to consider administrative matters. Meetings of the commission other than periodic meetings may be called by the chair upon the chair's own motion and shall be called by the chair upon the written request of three members of the commission.
  2. Officers. The commission shall elect one of its members to serve as chair and another to serve as vice-chair for such terms as the commission shall determine. The vice-chair shall perform the duties of the chair whenever the chair is absent or unable to act.
  3. Quorum. [7] members of the full commission, [5] members of a hearing panel and [3] members of an investigative panel shall constitute a quorum for the transaction of business. A quorum of the commission or any panel must include one member from each category of membership. Alternate members should be appointed where necessary to fulfill the quorum requirements.
  4. Expenses. Members shall be reimbursed for reasonable and necessary expenses incurred pursuant to their duties.
  5. Powers and Duties.
    (1) The commission shall have the duty and authority to:
    (a) adopt its own rules of procedure for discipline and incapacity proceedings subject to the approval of the highest court;
    (b) propose amendments to the {code of judicial conduct} and these Rules For Judicial Disciplinary Enforcement to the highest court;
    (c) appoint disciplinary counsel; and
    (d) appoint commission counsel.
    (2) In addition to the duties assigned to disciplinary counsel and commission counsel in Rules 4 and 5, the commission may delegate to either the disciplinary counsel or commission counsel the duty and authority to:
    (a) maintain the commission's records;
    (b) maintain statistics concerning the operation of the commission and make them available to the commission and the highest court;
    (c) prepare the commission's budget for its approval and administer the funds;
    (d) notify the appropriate appointing authority of vacancies on the commission;
    (e) prepare an annual report of the commission's activities for presentation to the highest court and the public; and
    (f) inform the public of the existence and operation of the judicial discipline system, including the commission's address and telephone number and the disposition of each matter in which public discipline is imposed.
    (3) An investigative panel shall have the duty and authority to:
    (a) review the recommendations of disciplinary counsel after preliminary investigation and either authorize a full investigation or dismiss the complaint; and
    (b) review the recommendations of disciplinary counsel after full investigation and approve, disapprove or modify the recommendations as provided in Rule 17.D(2).
    (4) a hearing panel shall have the duty and authority to:
    (a) rule on pre-hearing motions, conduct hearings on formal charges and make findings, conclusions and recommendations to the highest court for sanctions or dismiss the case, pursuant to Rule 24;
    (b) appoint a hearing officer or a subpanel of the hearing panel to conduct the hearing in appropriate cases; and
    (c) review findings of the hearing officer or subpanel if one has been appointed, and make findings, conclusions and recommendations to the highest court for sanctions or dismiss the case.
  6. Recusal. A member of the commission shall recuse himself or herself in any matter in which recusal would be required of a judicial officer under the {code of judicial conduct}.
  7. Complaints Against Members of the Commission. If a complaint is filed against a member of the commission who is a judge subject to the jurisdiction of the commission, the commission member against whom the complaint has been filed shall not participate in the investigation or adjudication of the matter.

Commentary
The Rules seek to separate the investigative and adjudicative functions of commission members. No matter how fair individual members can be, the system cannot convey the appearance of fairness when members have full access to investigative materials, formulate their decisions to file charges in reliance on the investigative files and then make adjudicative decisions based on the evidence presented in formal proceedings. This process is in conflict with the fundamental division of investigative and adjudicative responsibilities that is a hallmark of our judicial system. The indicting grand jury does not hear and determine the evidence presented at trial.

Such a process could not be regarded as fair by a defendant who is indicted and convicted by the same body.

The commission divides itself into panels so that no member of the commission is involved both in deciding whether to file formal charges and in hearing the case on those charges. The rotation of membership provides that all members of the commission will be involved in both investigation of complaints and the hearing of charges. Each commission should decide the method of rotation. The panels could rotate on a per case, per meeting, per quarter, or even semiannual or annual basis as the case load and convenience of the commission dictates.

Investigative and hearing panels should meet frequently enough to efficiently dispose of all complaints. Periodic meetings of investigative panels eliminate scheduling difficulties and provide adequate advance notice of scheduled meetings.

The independence of the commission will be enhanced if the commission chooses its own leadership.

No qualified person should be deterred from serving on the commission by the expenses incurred for service.

It is essential that the commission have the authority to promulgate its own rules of procedure to achieve uniformity, continuity and the equitable and expeditious resolution of recurring issues.

Rules of procedure may include matters such as the grounds and procedures for disqualification of a member, the method of appointing hearing officers, the procedures to be followed by hearing officers and other matters related to the proceedings. Each commission will develop the expertise necessary to adopt its own rules. Since administrative procedures and civil rules may not be appropriate to all aspects of these proceedings (see Rule 8), it is essential that the commission have this authority.

The commission may appoint a hearing officer or a subpanel of the hearing panel in cases where taking evidence would be burdensome on a hearing panel. Hearing officers could be members of the hearing panel or lawyers or former judges who are not members of the commission. If a subpanel of the hearing panel is used, there should be equal representation of categories of members: one lawyer, one judge and one non-lawyer member. The hearing officer or subpanel makes findings of fact and submits a report to the full hearing panel with a time provided for the disciplinary counsel and the respondent to file objections. The hearing panel then reviews the report and record and makes its own findings, conclusions and recommendations to the highest court for sanction or dismissal. If a subpanel of the hearing panel conducts the hearing, the members of the subpanel may sit with the full hearing panel when it reviews the report of the subpanel. If hearing officers are used, they should have knowledge of the principles of judicial ethics and discipline.

The commission appoints disciplinary counsel and commission counsel but disciplinary counsel can be removed only with the concurrence of the commission and the highest court. See Rule 4. The duties of disciplinary counsel and commission counsel are specified in Rules 4 and 5. The commission can delegate the functions in Rule 3.E(2) to either disciplinary counsel or commission counsel.

Educating the public, bar and judiciary should be an integral part of the enforcement function. Distribution of a detailed annual report is essential to this purpose. To fulfill its educational function, the annual report should contain: a description of the commission's purpose and function, basic statistics, descriptions of proper and improper judicial conduct, a discussion of the cases decided during the year including private sanctions (without identifying the judges), an explanation of any recommendations for changes in procedure or in the code of judicial conduct and an explanation of how to bring a matter before the commission. The annual report should be widely distributed and available, upon request, free of charge.

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