Model Rules for Judicial Disciplinary Enforcement

Section IV. Special Proceedings
Rule 27. Cases Involving Allegations Of Mental Or Physical Incapacity

1. Initiation of Incapacity Proceeding. An incapacity proceeding can be initiated by complaint, by a claim of inability to defend in a disciplinary proceeding or by an order of involuntary commitment or adjudication of incompetency.
2. Proceedings to Determine Incapacity Generally. All incapacity proceedings shall be conducted in accordance with the procedures for disciplinary proceedings, except:
   (1) the purpose of the incapacity proceedings shall be to determine whether the judge suffers from a physical or mental condition that adversely affects the judge's ability to perform judicial functions;
   (2) all of the proceedings shall be confidential;
   (3) the commission may appoint a lawyer to represent the judge if the judge is without representation; and
   (4) if the highest court concludes that the judge is incapacitated to hold judicial office, it may enter any order appropriate to the circumstances, the nature of the incapacity and the probable length of the period of incapacity, including:

   (a) retiring the judge;
   (b) transferring the judge to judicial incapacity inactive status;
   (c) if the highest court concludes that the judge is incapacitated to practice law, transferring the judge to lawyer incapacity inactive status; and
   (d) if a judicial disciplinary proceeding against the judge is pending and the highest court concludes that the judge is incapacitated to defend, deferring the disciplinary proceeding, pursuant to Rule 27.D(2).
3. Involuntary Commitment or Adjudication of Incompetency. If a judge has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or incapacity by a final judicial order after a judicial hearing, the highest court, upon receipt of a certified copy of the order, shall enter an order immediately transferring the judge to both lawyer and judicial incapacity inactive status. A copy of the order shall be served, in the manner the highest court shall direct, upon the judge, his or her guardian or the director of the institution to which the judge has been committed.
4. Inability to Properly Defend in a Disciplinary Proceeding.
   (1) If in the course of a disciplinary proceeding a judge alleges an inability to assist in the defense due to mental or physical incapacity, disciplinary counsel shall notify the highest court. The highest court shall immediately transfer the judge to lawyer and judicial incapacity inactive status pending a determination by the highest court of the incapacity pursuant to Rule 27.B. A determination by the commission that the judge is able to assist in his or her own defense is interlocutory and may not be appealed before entry of a final order in the proceeding.
   (2) If, pursuant to Rule 27.B, the highest court determines the claim of inability to defend is valid, the disciplinary proceeding shall be deferred. Any investigation of the disciplinary complaint may continue. The judge shall be retained on lawyer and judicial incapacity inactive status until the highest court grants a petition for reinstatement to active status as a lawyer or judge. If the highest court considering the petition for reinstatement to active status determines that the petition shall be granted, the highest court shall also determine the disposition of the interrupted disciplinary proceedings.
   (3) If, pursuant to Rule 27.B, the highest court determines that the claim of inability to defend is invalid but that the judge is incapacitated to hold judicial office, the disciplinary proceeding shall resume. The judge shall be retained on judicial incapacity inactive status.
   (4) The raising of mental or physical condition as a defense to or in mitigation of formal charges constitutes a waiver of medical privilege.
5. Stipulated Disposition.
   (1) The hearing panel shall designate one or more qualified medical, psychiatric or psychological experts to examine the judge prior to the hearing on the matter. The hearing panel may designate an expert agreed upon by disciplinary counsel and the judge. The expert or experts shall report to the highest court and the parties.
   (2) After receipt of the examination report, disciplinary counsel and the judge may agree upon proposed findings of fact, conclusions, and order. The stipulated disposition shall be submitted to the hearing panel for a recommendation to the highest court of approval or rejection. The final decision on the recommendation shall be made by the highest court.
   (3) If the highest court accepts the stipulated disposition, the highest court shall enter an order in accordance with its terms. If the stipulated disposition is rejected by the highest court, it shall be withdrawn and cannot be used against the judge in any proceedings. If the highest court rejects the stipulated disposition, the highest court shall order that the hearing proceed.
6. [Appointment to Fill Vacancy. Upon ordering a judge transferred to judicial incapacity inactive status pursuant to Rule 27.B or 27.C, a replacement judge may be appointed by [the appropriate appointing authority] to serve during the period of incapacity, whether the incapacity is temporary or permanent.]
7. Reinstatement from Incapacity Inactive Status.
   (1) No judge transferred to incapacity inactive status may resume active status except by order of the highest court.
   (2) Any judge transferred to incapacity inactive status shall be entitled to petition for transfer to active status [once a year] or at whatever shorter intervals the highest court may direct in the order transferring the judge to incapacity inactive status or any modifications thereof.
   (3) Upon the filing of a petition for transfer to active status, the highest court may take or direct whatever action it deems necessary or proper to determine whether the incapacity has been removed, including a direction for an examination of the judge by qualified medical or psychological experts designated by the highest court.
   (4) With the filing of a petition for reinstatement to active status, the judge shall be required to disclose the name of each psychiatrist, psychologist, physician and hospital or other institution by whom or in which the judge has been examined or treated since the transfer to incapacity inactive status. The judge shall furnish to the highest court written consent to the release of information and records relating to the incapacity if requested by the highest court or court-appointed medical or psychological experts.
   (5) If a judge transferred to lawyer incapacity inactive status on the basis of a judicial determination of incompetence has been declared to be competent, the highest court may dispense with further evidence that the incapacity to practice law has been removed and may immediately direct reinstatement to active status as a lawyer.

Commentary
Incapacity to perform judicial functions must be distinguished from a disability that does not adversely affect a judge's ability to perform judicial functions. Incapacity proceedings should be initiated any time information comes to the attention of the disciplinary counsel, the commission or the highest court that a judge is incapacitated. This information can come from any source, including a complainant, a judicial adjudication in a civil or criminal action or a claim of inability to defend by a respondent judge in a judicial disciplinary proceeding. If, during the course of a judicial disciplinary proceeding, disciplinary counsel receives information that the judge is incapacitated, disciplinary counsel should initiate an incapacity investigation.

"Involuntary commitment" does not include a temporary commitment for purposes of evaluation or examination.

It is important that incapacity not be treated as misconduct. Willful conduct should be clearly distinguished from conduct that is beyond the control of the judge.

The order transferring the judge to incapacity inactive status should clearly state the conditions the judge must meet to be reinstated to active status.

If the judge in a disciplinary proceeding alleges inability to conduct a defense because of present incapacity, the judge should be transferred immediately to incapacity inactive status to protect the administration of justice. A proceeding to determine whether the judge is in fact incapacitated should be initiated immediately. If the judge is found to be incapacitated, the transfer to incapacity inactive status remains in force until the judge establishes that the incapacity has terminated. Once the incapacity has terminated, the proceedings alleging misconduct should be determined. If it is determined that the claim of current incapacity is unsubstantiated, the proceedings predicated on the allegations of misconduct should be immediately resumed.

Incapacity proceedings remain confidential until a final order is issued by the highest court, because the proceedings involve medical or psychological evidence or other personal information about the judge.

Petitions for reinstatement from incapacity inactive status should be filed with the commission.

Factual issues underlying petitions for reinstatement should be assigned to a hearing panel for recommendation to the highest court.

The filing of a petition for reinstatement from incapacity inactive status must be accompanied by a waiver of doctor-patient or other privilege so that the highest court may obtain the information needed to evaluate the claim of rehabilitation. This waiver applies only to information relating to the incapacity upon which the transfer to incapacity inactive status was predicated.

Depending on the method for selection of judges and the length of the judge's term, the highest court [or other appropriate appointing authority] may need to appoint a replacement judge. The Rule does not express a preference for the method of selection of the replacement.

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