IN THE MATTER OF
RULES OF PROCEDURE OF THE ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION
Supreme Court of Arkansas
Delivered May 8, 1989 and amended on May 14, 1990, July 16,
1990, March 16, 1992, July 6, 1992 and July 12, 1993
PER CURIAM. In the General Election held November 8, 1988,
the people of Arkansas adopted Ark. Const. amend. 66 which created the Arkansas Judicial
Discipline and Disability Commission. The general assembly adopted Act 637 of 1988
expanding upon the provisions of the amendment and stating, as permitted by the amendment,
the grounds for suspension and removal of judges. Subsection (f) of the amendment
provides: "Rules: The Supreme Court shall make procedural rules implementing this
amendment and setting the length of terms on the Commission." The following rules for
the Commission are hereby promulgated.
RULE 1. ORGANIZATION OF COMMISSION
A. Composition of Commission. In accordance with Ark.
Const. amend. 66 and Act 637 of 1989, the Commission on Judicial Discipline and Disability
shall have nine members who shall be residents of Arkansas. Three members shall be
justices or judges appointed by the Supreme Court (judicial members); three shall be
lawyers admitted to practice in this state, who are not justices or judges, one appointed
by the Attorney General, one by the President of the Senate, and one by the Speaker of the
House of Representatives (lawyer members); and three members who are neither lawyers nor
sitting or retired justices or judges shall be appointed by the Governor (public members).
B. Meetings. The Commission shall hold an organization
meeting immediately upon establishment and biannually thereafter, and shall meet at least
monthly at announced dates and places, except when there is no business to be conducted.
Meetings shall be called by the chairman or upon the written request of three members of
C. Terms of Commission Members and Alternates. With the
exception of the initial appointees, whose initial terms shall be made so that
reappointments and later appointments are to be staggered, Commission members and
alternates shall serve for terms of six (6) years and shall be eligible for reappointment
to second full terms. (Initial appointees shall be eligible for second terms of six (6)
years.) At its organization meeting, the members of the Commission shall draw for lengths
of initial terms so that one member in each group of members, judicial, lawyer, and
public, shall have a four (4) year initial term, one member in each group shall have a
five (5) year term, and one member in each group shall have a six (6) year term. After the
terms of the initial appointees have been established, slips of paper, each with the name
of an alternate, shall be placed in a container. Each member shall draw one of the slips
of paper, and the alternate whose name is thus drawn shall have the same length of term as
the member who drew his or her name.
D. Officers. At the organization meeting the members of the
Commission shall elect one among them to serve as chairman and another to serve as
vice-chairman. The vice-chairman shall perform the duties of the chairman whenever he is
absent or unable to act.
E. Quorum; Voting Requirements. Five members of the
Commission shall constitute a quorum for the transaction of business. A finding of
probable cause shall require the concurrence of a majority of the members present.
An alternate member shall serve in the place of the member
of the same category whenever such member is disqualified or unable to serve and upon the
call of, or on behalf of, the chairman. An alternate member who is present at a Commission
meeting but who has not been called to serve may neither be included in a quorum count nor
vote on any matter being considered at such meeting. Whenever an alternate member is
called to serve in the place of a member of the Commission, an announcement with respect
thereto shall be made at the commencement of the meeting.
A recommendation that discipline be imposed shall require
the concurrence of a majority of the members of the Commission.
RULE 2. POWERS AND DUTIES OF THE COMMISSION
A. Rules and Forms. The Commission may recommend to the
Supreme Court adoption or amendment of rules with regard to all disciplinary and
disability proceedings, promulgate additional rules of procedure not inconsistent with
these rules, and require the use of appropriate forms.
B. Annual Report. The Commission shall have prepared an
annual report of its activities for presentation to the Supreme Court and the public at
the end of each calendar year.
RULE 3. FINANCIAL ARRANGEMENTS FOR COMMISSION
A. Compensation Proscribed. The Commission members shall
serve without compensation for their services.
B. Expenses Allowed. The Commission members shall be
reimbursed for expenses necessarily incurred in the performance of their duties.
C. Authorization for Payments. Expenses of the Commission
as provided in section 2.(d) of Act 637 of 1989, shall be authorized to be paid in
accordance with the approved Commission budget.
RULE 4. COMMISSION OFFICE
The Commission shall establish a permanent office in a
building open to the public. The office shall be opened and staffed at announced hours.
RULE 5. DUTIES OF THE DIRECTOR
The Commission shall prescribe the duties and
responsibilities of the director which shall include the authority to:
(1) Consider information from any source and receive
allegations and complaints;
(2) Make preliminary evaluations;
(3) Screen complaints;
(4) Conduct investigations;
(5) Maintain and preserve the Commission's records,
including all complaints, files and written dispositions;
(6) Maintain statistics concerning the operation of the
Commission and make them available to the Commission and to the Supreme Court;
(7) Prepare the Commission's budget for its approval and
administer its funds;
(8) Employ and supervise other members of the Commission's
(9) Prepare an annual report of the Commission's
(10) Employ, with the approval of the Commission, special
counsel, private investigators or other experts as necessary to investigate and process
matters before the Commission and before the Supreme Court
RULE 6. JURISDICTION
A. Judge in Office. The authority of the Commission extends
to judges and justices in office, and the term "judge" includes anyone, whether
or not a lawyer, who is an officer of the judicial system performing judicial functions,
including an officer such as a referee, special master, court commissioner, magistrate,
whether full-time or part-time. Allegations regarding conduct of a judge or justice
occurring prior to or during service in judicial office, including the service of a
retired judge who has been recalled, are within the jurisdiction of the Commission and
shall be considered by it.
B. Former Judge. Conduct of a former judge which has been
adjudicated by a final decision reached by the Commission shall not become the subject of
disciplinary proceedings before the Supreme Court Committee on Professional Conduct.
RULE 7. DISCLOSURE
A. Any action taken by the Commission after investigation
of a judge shall be communicated to the judge by letter which shall become public
information. If the allegations leading to the investigation have proven to be groundless,
the letter to the judge shall so state. [See Rule 8.B. and Rule 9.E.(1)] If the Commission
decides not to proceed to formal charges but to admonish the judge, to recommend a change
in conduct, or to impose conditions upon future conduct, such as obtaining treatment or
counseling, the letter shall set forth the facts leading to the admonition or required
B. If the Commission finds it necessary to file formal
charges against a judge and to proceed to a hearing, the charges and the hearing shall be
opened to the public as shall the records of formal proceedings. The Commission may,
however, conduct its deliberations in executive session which shall not be open to the
public. Any decision reached by the Commission in such an executive session shall be
announces in a session open to the public.
C. Investigatory records, files, and reports of the
Commission shall be confidential, and no disclosure of information written, recorded, or
oral, received or developed by the Commission in the course of an investigation relating
to alleged misconduct or disability of a judge, shall be made except at stated in A. and
B. above or as follows:
(1) Upon waiver in writing by the judge under consideration
at any stage of the proceedings;
(2) Upon inquiry by an appointing authority or by a state
or federal agency conducting investigations on behalf of such authority in connection with
the selection or appointment of judges;
(3) In cases in which the subject matter or the fact of the
filing of charges has become public, if deemed appropriate by the Commission, it may issue
a statement in order to confirm the pendency of the investigation, to clarify the
procedural aspects of the proceedings, to explain the right of the judge to a fair
hearing, and to state that the judge denies the allegations;
(4) Upon inquiry in connection with the assignment or
recall of a retired judge to judicial duties, by or on behalf of the assigning authority;
(5) Where the circumstances necessitating the initiation of
an inquiry include notoriety, or where the conduct in question is a matter of public
record, information concerning the lack of cause to proceed shall be released by the
(6) If during the course of or after an investigation or
hearing the Commission reasonably believes that there may have been a violation of any
rules of professional conduct of attorneys at law, the Commission may release such
information to any committee, commission, agency or body within or outside of the State
empowered to investigate, regulate or adjudicate matters incident to the legal profession;
(7) If during the course of or after an investigation or
hearing, the Commission reasonably believes that there may have been a violation of
criminal law, the Commission shall release such information to the appropriate prosecuting
D. It shall be the duty of the Commission and its staff to
inform every person who appears before the Commission or who obtains information about the
Commission's work of the confidentiality requirements of this rule.
E. Any person who violates the confidentiality requirements
of this rule shall be subject to punishment for contempt of the Arkansas Supreme Court.
RULE 8. PROCEDURES OF COMMISSION REGARDING CONDUCT
OF A JUDGE
A. Initiation of Inquiry. In accordance with these rules,
any information submitted by a complainant or otherwise brought to the attention of the
Commission stating facts that, it true, would be grounds for discipline shall initiate an
inquire relating to the conduct of the judge. The Commission on its own motion may make
inquiry with respect to the conduct of a judge.
B. Screening. Upon receipt of a complaint or other
information as to conduct that might constitute grounds for discipline of a judge, the
executive officer shall make a prompt, discreet, and confidential investigation and
evaluation. Under guidelines approved by the Commission, and in light of the initial
investigation and evaluation, the executive officer shall determine whether there exists
sufficient cause to proceed to a probable cause determination.
The executive officer shall dismiss all complaints for
which sufficient cause to proceed is not found. A report as to matters so dismissed shall
be furnished to the Commission at its next meeting. The complainant, if any, and the
judge, if he has been given notice thereof, shall be informed in writing of the dismissal.
C. Optional Notice to the Judge. Notice to the judge that a
complaint has been received or an inquiry undertaken may be given at any time.
D. Mandatory Notice to the Judge. Except upon good cause
shown and with the approval of the Commission, no action other than dismissal of the
complaint shall be taken as to any complaint about which the judge is not notified within
ninety (90) days of the receipt of such complaint.
E. Sworn Complaint or Statement in Lieu of Complaint. If,
after initial investigation and evaluation, it appears that there is sufficient cause to
proceed, the complainant, if any, shall be asked to file a detailed, signed, sworn
complaint against the judge. The sworn complaint shall state the names and addresses of
the complainant and the judge, the facts constituting the alleged misconduct and, so far
as is known, whether the same or a similar complaint by that complainant against the judge
has ever been made to and considered by the Commission. Immediately upon receipt of the
sworn complaint, the executive officer shall make written acknowledgment thereof to the
When a sworn complaint is not obtained, a clear statement
of the allegations against the judge and the alleged facts forming their basis shall be
prepared by the executive officer.
When more than one act of misconduct is alleged, each
should be clearly set forth in the sworn complaint or in the statement in lieu of
complaint, as the case my be.
F. Commencement of the Case. Upon receipt of each sworn
complaint or the preparation of a statement in lieu thereof, a file shall be opened in the
G. Required Notice. The judge shall immediately be served
with a copy of the sworn complaint or statement of allegations.
H. Answer. Within twenty (20) days after the service upon
him of the sworn complaint or statement, the judge shall file a written answer with the
executive officer. The answer may include a description of circumstances of a mitigating
nature bearing on the charge. A personal appearance before the Commission shall be
permitted in lieu of or in addition to a written response. If the judge elects to appear
personally his statement shall be recorded verbatim.
I. Review Prior to Probable Cause Determination. Upon
receipt and review of the judge's answer, the Commission may terminate the proceeding and
dismiss the complaint and, in that event, shall give notice to the judge and each
complainant that it has found insufficient cause to proceed.
J. Amending Allegations. Amendment of the allegations
regarding the misconduct of a judge, whether presented to the Commission in a sworn
complaint or in a statement in lieu thereof, shall be permitted prior to a finding of
probable cause, provided that notice thereof and an opportunity further to respond within
ten (10) days is given to the judge.
K. Right to Counsel. The judge shall be entitled to counsel
of his own choice.
L. Subpoenas and Summonses. The Commission has the
authority to issue summonses for any person(s) and subpoenas for any witness(es),
including the judge concerned, and for the production of papers, books, accounts,
documents, records, or other evidence and testimony relevant to an investigation or
proceeding. Such process shall be issued by and under the seal of the Commission and be
signed by the Chairman, Vice-Chairman or the Executive Director. The summonses or
subpoenas shall be served in any manner provided by the Arkansas Rules of Civil Procedure
for service of process. Upon receiving notice from the Commission of the pendency of a
proceeding, the judge concerned shall be entitled to compel, by subpoena issued in the
same manner, the attendance and testimony of witnesses, and the production of papers,
books, accounts, documents and testimony relevant to the investigation or the proceeding.
The Commission shall provide for its use a seal of such design as it may deem appropriate.
The Circuit Court of Pulaski County shall have the power to enforce process.
M. The Commission is authorized to request the appropriate
prosecuting authorities to seek to obtain immunity from criminal prosecution for a
reluctant witness, using the procedure outlined in A.C.A. section 16-43-601, et seq.
RULE 9. PROBABLE CAUSE
A. Establishment of Grounds of Discipline. The grounds for
discipline are those established in part (b) of Ark. Const. amend. 66 and those
established by Act 637 of 1989.
B. Distinguished from Appeal. In the absence of fraud,
corrupt motive or bad faith, the Commission shall not take action against a judge for
making findings of fact, reaching a legal conclusion or applying the law as he understands
it. Claims of error shall be considered only in appeals from court proceedings.
C. Probable Cause Determination. The Commission shall
promptly schedule and hold a formal meeting at which the strict rules of evidence need not
be observed. A complete verbatim record shall be made. All witnesses shall be duly sworn.
A complainant and the judge against whom he has complained shall have the right to be
present, with their attorneys, if any, except during Commission deliberations.
D. Findings and Report. The Commission shall prepare a
written report containing its findings of fact and its conclusions on each issue
presented, and shall file its report with the executive officer.
E. Disposition. In its report the Commission shall dispose
of the case in one of the following ways:
(1) If it finds that there has been no misconduct, the
director shall be instructed to send the judge and each complainant notice of dismissal.
(2) If it finds, by concurrence of a majority of members
present, that there has been conduct that is or might be or might become cause for
discipline but for which an admonition or informal adjustment is appropriate, it may so
inform or admonish the judge, direct professional treatment, counseling, or assistance for
the judge, or impose conditions on the judge's future conduct.
(3) If it finds, by concurrence of a majority of members
present, that there is probable cause to believe that there has been misconduct of a
nature requiring a formal disciplinary proceeding, the director shall cause the judge to
be served with the report, the formal statement of the charges, the record of the probable
cause determination, and all documents upon which the determination was based. The service
upon the judge constitutes notice that he must respond within (20) days.
RULE 10. INTERIM SANCTIONS
A. Suspension with Pay. In instances of the (1) filing of
an indictment or information charging a judge with a felony under state or federal law, or
(2) the filing of a misdemeanor charge against a judge or justice where his ability to
perform the duties of his office is adversely affected, the Commission shall convene
within ten (10) days for the purpose of considering a recommendation to the Supreme Court
that the judge or justice be temporarily suspended with pay pending the outcome of any
B. Effect on Commission Action. A temporary suspension with
pay as an interim sanction shall not preclude action by the Commission with respect to the
conduct that was the basis for the felony or misdemeanor charge, nor shall the disposition
of the charge in any manner preclude such action.
RULE 11. FORMAL DISCIPLINARY HEARING
A. Scheduling. The Commission shall, upon receipt of the
judge's response or upon expiration of the time to answer, schedule a public hearing not
less than thirty (30) nor more than forty-five (45) days thereafter, unless continued for
good cause shown. The judge and all counsel shall be notified promptly of the date, time,
and place of the hearing.
B. Discovery. The judge and the Commission shall be
entitled to discovery in accordance with the Arkansas Rules of Civil Procedure.
C. Fact finder. The formal hearing shall be conducted
before a fact finder which may be the entire Commission or a three-member panel thereof
appointed by the Commission chairman.
D. Conduct of Hearing. The Arkansas Rules of Evidence apply
and all testimony shall be under oath. Commission attorneys, or special counsel retained
for the purpose, shall present the case to the factfinder. The judge whose conduct is in
question shall be permitted to adduce evidence and cross-examine witnesses. Facts
justifying action shall be established by clear and convincing evidence. The proceedings
shall be recorded verbatim.
E. Amendment of Allegations. By leave of the Commission or
by consent of the judge, the formal charges my be amended after commencement of the public
hearing only if the amendment is technical in nature and if the judge and his counsel are
given adequate time to prepare a response.
F. Determination. A factfinder other than the entire
Commission shall, within sixty (60) days after the hearing, submit its findings and
recommendation, together with the record and transcript of the proceedings, to the
Commission for review and shall contemporaneously serve them upon the judge.
The judge, or Commission counsel, may submit written
objections to the findings and recommendations.
The findings, conclusions and accompanying materials,
together with the objections, if any, shall be promptly reviewed by the Commission.
The Commission may make independent findings of fact from
the record or, if the entire Commission served as factfinder, it shall prepare its
findings and recommendations.
G. Commission Decision. The recommendation for discipline
shall be concurred in by a majority of all members of the Commission and may include one
or more of the following:
(1) A recommendation to the Supreme Court that the judge be
removed from office;
(2) A recommendation to the Supreme Court that the judge be
suspended, with or without pay;
(3) Upon a finding of physical or mental disability, a
recommendation to the Supreme Court that the judge be granted leave with pay;
(4) Upon a finding of physical or mental disability, a
recommendation to the Supreme Court that the judge be retired and considered eligible for
his retirement benefits, pursuant to Arkansas Code Annotated 24-8-217 (1987);
(5) Reprimand or censure;
H. Dissent. If a member or members of the Commission
dissent from a recommendation as to discipline, a minority recommendation shall be
transmitted with the majority recommendation to the Supreme Court.
I. No Disciplinary Recommendation. If a majority of the
members of the Commission recommend no discipline the case shall be dismissed.
J. Opinion to be Filed. The final decision in any case
which has been the subject of a formal disciplinary hearing shall be in writing and shall
be filed with the Clerk of Arkansas Supreme Court, along with any dissenting or concurring
opinion by any Commission member. The opinion or opinions in any case must be filed within
seven days of rendition.
K. Witness Fees. All witnesses shall receive fees and
expenses in the amount allowed by rule or statute for witnesses in civil cases. Expenses
of witnesses shall be borne by the party calling them.
RULE 12. SUPREME COURT REVIEW
A. Filing and Service. The Commission shall file its
report, record, findings, and recommendations to the Supreme Court and shall serve copies
thereof upon the judge no later than thirty (30) days after the report of the factfinder
is submitted. On application by the Commission, the court may direct the withholding of a
recommendation regarding discipline pending the determination of other specified matters.
B. Prompt Court Considerations. The Clerk of the Supreme
Court shall docket any Commission matter for expedited consideration.
C. Brief and Supplementary Filings. The Commission and the
judge shall file with the Supreme Court briefs in accordance with court rules within
twenty (20) days of filing and service of the Commission report. No responsive briefs
shall be filed unless requested by the court. If the court desires an expansion of the
record or additional findings, either with respect to the recommendation for discipline or
sanction to be imposed, it shall remand the case to the Commission for the appropriate
directions, retaining jurisdiction, and shall withhold action pending receipt of the
The Supreme Court may order additional filings or oral
argument as to the entire case or specified issues. The Supreme Court may accept or
solicit supplementary filings with respect to medical or other information without remand
and prior to an imposition of discipline provided that the parties have notice and an
opportunity to be heard thereon.
D. Scope of Discipline. The Supreme Court, when considering
removal of a judge, shall determine whether discipline as a lawyer also is warranted. If
removal is deemed appropriate, the court shall notify the judge, the Commission and the
Supreme Court Committee on Professional Conduct and give each an opportunity to be heard
on the issue of the imposition of lawyer discipline.
E. Decision. Based upon review of the entire record the
Supreme Court shall file a written opinion and judgement directing such disciplinary
action as it finds just and proper. If may accept, reject, or modify in whole or in part,
the findings and recommendation of the Commission. In the event that more than one
recommendation for discipline for the judge is filed, the court may render a single
decision or impose a single sanction with respect to all recommendations. The court may
direct that no motion for rehearing will be entertained, in which event its decision shall
be final upon filing. If the court does not so direct, the respondent by file a motion for
rehearing within fifteen (15) days of the filing of the decision.
F. Certiorari. The Supreme Court may bring up for review
any action taken upon any complaint filed with the Commission, and my also bring up for
review a case in which the Commission has failed to act.
RULE 13. CASES INVOLVING ALLEGATIONS OF MENTAL AND
A. Procedure. In considering allegations of mental and
physical disability, the Commission shall, insofar as applicable and except as provided in
Paragraph B., follow procedure established by these rules.
B. Special Provisions.
(1) If a complaint or statement of allegation involves the
mental or physical health of a judge, a denial of the alleged disability or condition
shall constitute a waiver of medical privilege and the judge shall be required to produce
his medical records.
(2) In the event of a waiver of medical privilege, the
judge shall be deemed to have consented to an examination by a qualified medical
practitioner designated by the Commission.
(3) The Commission shall bear the costs of the proceedings,
including the cost of a physical or mental examination ordered by it.
RULE 14. INVOLUNTARY RETIREMENT
A judge who is advised to retire voluntarily and who
refuses may be retired involuntarily by the Supreme Court following the filing of a formal
complaint, a public hearing thereon before the Commission, and a report containing a
finding that he is physically or mentally disabled, and recommendation to the court that
such action be taken.
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