No. 27332 (New Rule): R595-3. Procedure

DAR File No.: 27332
Filed: 08/04/2004, 02:34
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The change is proposed after comprehensive revision of the rule pursuant to division review, recent legislative changes (S.B. 161 (2004)), the Supreme Court's opinion, In re Anderson, and Legislative Audit 2003-10. (DAR NOTE: S. B. 161 is found at UT L 2004 Ch 293, and was effective 05/03/2004.)

 

Summary of the rule or change:

The changes involve repealing the current rule and replacing it with four new rules. This proposed new rule provides procedures for the Judicial Conduct Commission. (DAR NOTE: The proposed repeal of Rule R595-1 in under DAR No. 27329, and the proposed new rules are R595-1 under DAR No. 27330, R595-2 under DAR No. 27331, R595-3 under DAR No. 27332, and R595-4 under DAR No. 27333 all in this issue.)

 

State statutory or constitutional authorization for this rule:

Art. VIII, Sec 13; and Sections 78-8-101 through 78-8-108

 

This rule or change incorporates by reference the following material:

None

 

Anticipated cost or savings to:

the state budget:

None--This comprehensive revision does not alter the basic operations or functions of the Judicial Conduct Commission, and therefore, does not result in either cost or savings to the State.

 

local governments:

None--Judicial Conduct Commission operations do not affect local governments and therefore, there are no costs or savings.

 

other persons:

None--This comprehensive revision does not alter the basic operations or functions of the Judicial Conduct Commission, and therefore, does not result in either cost or savings to other persons.

 

Compliance costs for affected persons:

None--This comprehensive revision does not alter the basic operations or functions of the Judicial Conduct Commission, and therefore, does not result in either compliance costs or compliance savings to affected persons.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

None--Judicial Conduct Commission operations do not affect businesses.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Judicial Conduct Commission
Administration
645 S 200 E
SALT LAKE CITY UT 84111-3837

 

Direct questions regarding this rule to:

Colin Winchester at the above address, by phone at 801-533-3200, by FAX at 801-533-3208, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/01/2004

 

This rule may become effective on:

10/02/2004

 

Authorized by:

Colin Winchester, Director

 

 

RULE TEXT

R595. Judicial Conduct Commission, Administration.

R595-3. Procedure.

R595-3-1. Proof.

Formal charges shall be established by a preponderance of the evidence.

 

R595-3-2. Applicability of Other Rules.

Except as otherwise provided in these rules, the Utah Rules of Evidence apply in all proceedings. Except as otherwise provided in these rules, the Utah Rules of Civil Procedure do not apply in Commission proceedings.

 

R595-3-3. Right to Counsel.

A judge shall be entitled to retain and have the assistance of counsel at every stage of the proceedings.

 

R595-3-4. Service.

Service of the formal complaint shall be made by personal service or certified mail upon the judge or judge's counsel. Service of all other papers or notices shall be made by regular mail with the envelope marked "confidential."

 

R595-3-5. Subpoena Power.

The issuance and service of subpoenas for Commission proceedings is governed by state statute.

 

R595-3-6. Effect of Judge's Resignation or Retirement during Proceedings.

If a judge resigns or retires during the proceedings, the Commission shall determine whether to proceed or dismiss the proceedings.

 

R595-3-7. Investigation.

A. Preliminary Investigation.

1. The executive director shall review all written complaints, and shall, regardless of whether the allegations contained therein would constitute misconduct or disability if true, conduct a preliminary investigation.

2. When information is received indicating judicial misconduct or disability from a source other than a written complaint, the executive director shall summarize and submit the information in writing to the Commission, but shall not conduct a preliminary investigation unless authorized by the Commission.

3. The scope of the preliminary investigation shall be determined by these rules and the assigned investigator, subject to the direction of the executive director.

4. Upon completion of the preliminary investigation, the investigator shall recommend a full investigation if there is reasonable cause to support a finding of misconduct or disability. In all other cases, the investigator shall recommend that the proceedings be dismissed.

B. Full Investigation. Within ten days after a full investigation is authorized by the Commission, the executive director shall notify the judge that a full investigation has been authorized. The notice shall:

1. inform the judge of the allegations being investigated and the canons or statutory provisions allegedly violated;

2. inform the judge that the investigation may be expanded if appropriate;

3. invite the judge to respond to the allegations in writing within 20 days; and

4. include a copy of the complaint, the preliminary investigation report(s), and any and all other documentation reviewed by the Commission in determining whether to authorize a full investigation.

 

R595-3-8. Formal Charges.

The Commission may, upon reasonable cause to support a finding of misconduct or disability, direct the executive director to file a formal complaint. The formal complaint shall give fair and adequate notice of the nature of the alleged misconduct or disability. The executive director shall file the formal complaint with the Commission, cause a copy to be served upon the judge or judge's counsel, and file proof of service with the Commission.

 

R595-3-9. Pre-Hearing Procedures.

A. Answer. Within 20 days after service, the judge may file an answer to the formal complaint.

B. Scheduling of Confidential Hearing. After receipt of the judge's answer or after expiration of the time to answer, the hearing panel or masters shall schedule a confidential hearing and notify the judge of the date, time, and place of the confidential hearing.

C. Witnesses and Exhibits. Not later than 20 days before the confidential hearing, the examiner and the judge shall: confer and attempt to agree upon uncontroverted and refuted facts and uncontested and contested issues of law; and exchange all proposed exhibits and a list of all potential witnesses.

D. Exculpatory Evidence. The examiner shall provide the judge with exculpatory evidence relevant to the formal charges.

E. Duty of Supplementation. Both parties have a continuing duty to supplement information required to be exchanged under this rule.

F. Failure to Disclose. The hearing panel chair or presiding master may preclude either party from calling a witness at the confidential hearing if the party has not provided the opposing party with the witness's name and address, any statements taken from the witness, or summaries of any interviews with the witness.

 

R595-3-10. Discipline by Consent.

At any time after the filing of formal charges and before final disposition by the Commission, the judge may, with the consent of the examiner, admit to any or all of the formal charges in exchange for a stated sanction. The agreement shall be submitted to the Commission, which shall either approve or reject it.

 

R595-3-11. Confidential Hearing.

A. Authority of Hearing Panel Chair or Presiding Master. The hearing panel chair or presiding master shall rule on all motions and objections raised at the confidential hearing, may limit the time allowed for the presentation of evidence and arguments, may bifurcate any and all issues to be presented, and may make any and all other rulings regarding the procedure not contrary to statute or these rules.

B. Hearing Procedures.

1. All testimony shall be under oath.

2. The examiner and the judge shall be permitted to present evidence and produce and cross-examine witnesses, present rebuttal evidence and produce and cross-examine rebuttal witnesses, and summarize the evidence and legal issues.

3. The confidential hearing shall be recorded by a certified court reporter or other means used or allowed by courts of record in this state.

4. Panel hearing members or masters may ask questions of any witness or the judge.

5. Immediately following the conclusion of the evidence and arguments, the hearing panel or masters shall deliberate and make a decision. Any such decision shall require a majority of the hearing panel or masters participating in the confidential hearing.

C. Post-Hearing Procedures if the Decision is to Dismiss the Formal Charges. The hearing panel chair or presiding master shall prepare and sign an order of dismissal, and shall serve the same upon the judge.

D. Post-Hearing Procedures if the Decision is to Impose any Level of Sanction or Involuntary Retirement.

1. Within 60 days from the conclusion of deliberations:

a. the hearing panel chair or presiding master shall prepare a memorandum decision, which must be approved by a majority of the hearing panel or masters participating in the confidential hearing, then signed by the hearing panel chair or presiding master and served on the examiner and the judge;

b. The examiner shall prepare findings of fact, conclusions of law, and an order consistent with the memorandum decision; and

c. The findings of fact, conclusions of law, and order shall be approved and signed by the hearing panel chair or presiding master, and served on the judge.

2. The judge shall have ten days, after service of the findings of fact, conclusions of law, and order, to lodge any objections with the Commission. If no objections are lodged, the executive director shall submit the record to the Supreme Court upon the expiration of the objection period. If objections are lodged, the Commission may either resolve the objections or refer them to the Supreme Court without resolution, along with the record.

3. A copy of the record shall be provided to the judge at no cost.

 

R595-3-12. Amendments to Formal Complaint or Answer.

At any time before the hearing panel chair or presiding master signs the findings of fact, conclusions of law, and order, the formal complaint or answer may be amended to conform to the proof or to allege additional facts. If the formal complaint is amended, the judge shall be given reasonable time to answer and present evidence in defense of the amended charges.

 

R595-3-13. Reinstatement of Proceedings after Dismissal.

A. Reinstatement upon Request by Complainant.

1. If the Commission dismisses the proceedings at any time prior to the commencement of a confidential hearing, the complainant may, within 30 days of the date of the letter notifying the complainant of the dismissal, file a written request that the Commission reinstate the proceedings. The request shall include the specific grounds upon which reinstatement is sought.

2. The request shall be presented to the Commission at the next available meeting of the Commission, at which time the Commission shall determine whether to reinstate the proceedings.

3. A determination not to reinstate the proceedings is not appealable.

B. Reinstatement upon Request by Executive Director.

1. If the Commission dismisses the proceedings at any time prior to the filing of formal charges, the executive director may, at any time upon the receipt of newly discovered evidence, request that the Commission reinstate the proceedings. The request shall include the specific grounds upon which reinstatement is sought.

2. The request shall be presented to the Commission at the next available meeting of the Commission, at which time the Commission shall determine whether to reinstate the proceedings.

 

R595-3-14. Proceedings Involving Allegations of Mental or Physical Disability.

A. Initiation of Disability Proceeding. A disability proceeding can be initiated by: written complaint; a claim of inability to defend in a disciplinary proceeding; an order of involuntary commitment or adjudication of incompetency; or upon authorization by the Commission upon the receipt of other information as provided in these rules.

B. Proceedings to Determine Disability Generally. All disability proceedings shall be conducted in accordance with these rules, except:

1. the purpose of disability 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; and

2. all of the proceedings shall be confidential.

 

KEY: judicial conduct commission

2004

Art. VIII, Sec. 13

78-8-101 through 78-8-108