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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 the Commission.

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 staff;

(9) Prepare an annual report of the Commission's activities; and

(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 adjustment.

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 Commission;

(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; or

(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 attorney.

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 complainant.

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 Commission office.

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 disciplinary determination.

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 additional filing.

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 PHYSICAL DISABILITY

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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