DAR File No. 27580

Judicial Conduct Commission, Administration

R595-1

Rules of Procedure

NOTICE OF PROPOSED RULE

DAR File No.: 27580
Filed: 12/06/2004, 11:28
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The repeal of this rule is proposed after a comprehensive revision of the rule was done pursuant to division review, recent legislative changes (S.B. 161 (2004)), and the Supreme Court's opinion: In re Anderson, and Legislative Audit 2003-10. (DAR NOTES: S.B. 161 is found at UT L 2004 Ch 293, and was effective 05/03/2004. A proposed repeal of this rule was originally published in the September 1, 2004, issue of the Bulletin under DAR No. 27329. Four proposed new rules were also published in that Bulletin to take the place of this one. Additional changes have been filed to those four new rules (Changes in Proposed Rules (CPRs) in the December 15, 2004, Bulletin) which extends the effective date of those filings past when the original proposed repeal could still have been made effective. The agency needs this rule to be in place until the other ones have been made effective so that original filing (DAR No. 27329) will be allowed to lapse on 12/30/2004 and this filing takes its place and all five filings (this repeal and the four CPRs) will be made effective together.)

Summary of the rule or change:

The changes involve repealing the current rule and replacing it with four new rules. This rule is repealed in its entirety. (DAR NOTE: The four proposed new rules were published in the September 1, 2004, issue of the Bulletin under DAR No. 27330 (R595-1), DAR No. 27331 (R595-2), DAR No. 27332 (R595-3), and DAR No. 27333 (R595-4), and additional changes to these rules were published in the December 15, 2004, issue of the Bulletin under the same DAR numbers.)

State statutory or constitutional authorization for this rule:

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

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 a cost or savings to the State.

local governments:

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

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 a 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--The Judicial Conduct Commission's 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:

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 colin.winchester@utahbar.org

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:

01/31/2005

This rule may become effective on:

02/01/2005

Authorized by:

Colin Winchester, Director

RULE TEXT

R595. Judicial Conduct Commission, Administration.

[R595-1. Rules of Procedure.

R595-1-1. Definitions.

In addition to terms defined in Section 78-8-101 et seq. of the Utah Code:

A. "Chair" means the chair of the Judicial Conduct Commission and includes the vice chair or acting chair.

B. "Examiner" means the lawyer designated by the Commission to gather and present evidence before the masters or hearing panel on formal charges against a judge.

C. "Formal Charges" means the document that formally charges the judge with misconduct or disability.

D. "Hearing" means the proceeding at which the issues of law and fact raised by the formal charges and answer are tried.

E. "Hearing Panel" means a panel of at least a quorum of the Commission designated to conduct a hearing on formal charges.

F. "Investigation" means an inquiry into allegations of misconduct, including a search for and examination of evidence concerning the allegations, divided into two stages: (1) a preliminary investigation conducted by the executive director after the receipt of a complaint; and (2) a full investigation in which the judge is asked to respond to specific allegations.

G. "Masters" means the special masters appointed by the Commission to conduct a hearing on formal charges.

H. "Misconduct" means a violation of the Utah Code of Judicial Conduct and Section 78-8-103(a), (b), (c), or (e) of the Utah Code. Disability is not misconduct.

I. "Presiding Master" means the special master designated to preside over a hearing conducted by masters.

J. "Proceeding" means all steps in the Commission's discipline and disability process.

K. "Reasonable Cause" means a reasonable ground for belief in the existence of facts that support a finding of judicial misconduct or disability.

L. "Record" means all documents required to be submitted to the Utah Supreme Court under In re Richard Worthen, 926 P.2d 853 (Utah 1996).

M. "Respondent" means a judge or former judge against whom formal charges have been filed.

N. "Supreme Court" means the Utah Supreme Court.

R595-1-2. Jurisdiction.

A. Judges. Pursuant to Section 78-8-101 et seq. of the Utah Code, the Commission has jurisdiction over judges in evaluating allegations that misconduct occurred before or during service as a judge and in evaluating allegations of disability during service as a judge.

B. Former judges. Pursuant to Section 78-8-101 et seq. of the Utah Code, the Commission has continuing jurisdiction over former judges regarding allegations that misconduct occurred before or during service as a judge if a complaint is made before the judge left office.

R595-1-3. Executive Director.

Powers and Duties. The executive director shall have the authority and duty to:

1. Receive and review complaints, refer complaints to the Chief Justice of the Utah Supreme Court in accordance with Section 78-8-104 of the Utah Code, the Utah State Bar pursuant to Section 78-8-105 of the Utah Code, and the local prosecuting attorney having jurisdiction as provided by Subsections 78-8-107(1)(b) and (2) of the Utah Code, conduct preliminary investigations, recommend full investigations, notify complainants about the status and disposition of their complaints, make recommendations to the Commission on the disposition of complaints after investigation, file formal charges when directed to do so by the Commission, and act as examiner in prosecuting formal charges;

2. Maintain permanent records of the operations of Commission's office, including receipt of complaints, screening, investigation, and filing of formal charges in judicial discipline and disability matters, subject to the requirements of Rule 16;

3. Compile statistics to aid in the administration of the system, including a log of all complaints received, investigative files, and statistical summaries of docket processing and case dispositions;

4. Prepare the Commission's budget for submission to the Commission and legislature, and administer the funds;

5. Supervise other members of the Commission's staff;

6. With the Commission's approval, engage experts in connection with proceedings; and

7. Perform other duties at the direction of the Commission.

R595-1-4. Proof.

Pursuant to In re Worthen, 926 P.2d 853 (Utah 1996), charges of misconduct and disability shall be established by a preponderance of the evidence.

R595-1-5. Evidence Rules Applicable.

Except as otherwise provided in these rules, the Utah Rules of Evidence apply in all proceedings.

R595-1-6. Right to Counsel.

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

R595-1-7. Confidentiality.

A. All papers filed with, and proceedings before the Commission or before the masters appointed by the Commission, shall not be disclosed except in accordance with Subsections 78-8-107(9)(c)(iii) and (d), U.C.A.

B. Information.

1. All information relating to a complaint that has not been dismissed shall be held confidential by the Commission and its staff, except that the Commission may disclose information:

a. When the Commission has determined that there is a need to notify a government agency in order to protect the public or the administration of justice; or

b. Upon waiver in writing by the judge.

2. All information relating to a complaint that has been dismissed without formal charges being filed shall be held confidential by the Commission and its staff.

3. The examiner's work product and records of the Commission's deliberations shall not be disclosed.

R595-1-8. Service.

Service of formal charges in any disciplinary or disability proceeding shall be made by personal service upon the judge or judge's counsel or by registered or certified mail. Delivery of all other papers or notices shall be made by regular mail with the envelope marked "confidential."

R595-1-9. Subpoena Power.

A. Oaths. In accordance with the provisions of Section 78-8-1(2) of the Utah Code, oaths may be administered by any member of the Commission, the executive director in matters under investigation, or any other person authorized by law.

B. Subpoenas for Investigation. The Commission may compel by subpoena the attendance of the judge or witnesses and the production of pertinent books, papers, and documents for purposes of investigation.

C. Enforcement of Subpoenas. A subpoena issued by the Commission shall have the same authority as an order of the district court.

D. Issuance of Subpoenas. Commission subpoenas shall be issued and served in the same manner and form prescribed for subpoenas by the Utah Rules of Civil Procedure.

E. Quashing Subpoena. Any attack on the validity of a subpoena shall be heard and determined by the district court in which enforcement of the subpoena is being sought. Any resulting order is not appealable prior to entry of a final order in the proceeding.

F. Witnesses and Fees. Subpoena fees and costs shall be the same as those provided for in the Utah Rules of Civil Procedure.

R595-1-10. Notification to Complainant.

The executive director shall provide written acknowledgment of every complaint, if the complainant is known, and notify the complainant in writing of the final disposition of a proceeding.

R595-1-11. Review and Investigation.

A. Review. The executive director shall evaluate all information coming to the Commission's attention alleging judicial misconduct or disability by complaint. Regardless of whether the information would constitute misconduct or disability if true, the executive director shall conduct a preliminary investigation.

B. Preliminary Investigation.

1. As directed by the Commission, the executive director and the Commission's investigators may conduct interviews and examine evidence to determine whether grounds exist to believe the allegations of complaints.

2. When there is credible evidence supporting the allegations against a judge, the executive director shall recommend a full investigation. The executive director may recommend a full investigation when there are grounds to believe that evidence supporting the allegations could be obtained by subpoena or further investigation. In all other cases, the executive director shall recommend that the matter be dismissed.

C. Full Investigation.

1. Within ten (10) days after a full investigation is authorized, the executive director shall give the following notice to the judge:

a. A specific statement of the allegations being investigated and the canons of the Code of Judicial Conduct allegedly violated, with the provision that the investigation can be expanded if appropriate;

b. The judge's opportunity to respond; and

c. The name of the complainant, unless the Commission determines there is good cause to withhold the name.

2. The executive director shall request that the judge file a written response within fifteen (15) days after service of the notice.

3. The chair of the Commission is authorized to issue subpoenas once a full investigation has been approved.

4. The executive director shall direct all investigations. If the executive director enters a disqualification, or if other circumstances arise justifying the executive director's disqualification, the Commission shall appoint another person to direct an investigation as provided by with Section 78-8-102(8) of the Utah Code.

D. Disposition After Full Investigation.

1. Upon the conclusion of a full investigation, the executive director shall recommend to the Commission one or more of the following:

a. Dismissal;

b. Informal order of reprimand;

c. The filing of formal charges for misconduct or disability;

2. The Commission shall adopt, reject, or modify the recommendations of the executive director. If the Commission finds reasonable cause to believe the judge committed misconduct, it shall take such action as is authorized by statute.

R595-1-12. Use of Allegations from Dismissed Cases.

If additional information becomes known to the executive director regarding a complaint that has been dismissed before the filing of formal charges, the Commission may authorize reinvestigation of the allegations.

R595-1-13. Formal Charges.

The formal charges shall give fair and adequate notice of the nature of the alleged misconduct or disability. The executive director shall file the formal charges with the Commission, cause a copy to be served upon the respondent or respondent's counsel, and file proof of service with the Commission.

R595-1-14. Pre-Hearing Procedures.

A. Answer. Within 15 days after service, the respondent may file an answer to the formal charges.

B. Witnesses and Exhibits. Before the hearing commences, the Commission and the respondent shall enter into a stipulation identifying uncontroverted facts, contested issues of fact, contested issues of law, witnesses, and exhibits. Not later than 15 days before the hearing, the examiner and respondent shall exchange all documents identified as proposed exhibits.

C. Exculpatory Evidence. The examiner shall provide respondent with exculpatory evidence relevant to the formal charges.

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

E. Failure to Disclose. The hearing panel may preclude either party from calling a witness at the 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.

F. Civil Rules Not Applicable. Except for the issuance and service of subpoenas as prescribed by Section 78-8-108 of the Utah Code, the Utah Rules of Civil Procedure do not apply to judicial-conduct proceedings.

R595-1-15. Discipline by Consent.

A. At any time after the filing of formal charges and before final disposition, the respondent may agree with the examiner that the respondent shall 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:

1. Reject the agreement; or

2. Submit the agreement to the Supreme Court for approval.

B. Order of Discipline. Pursuant to In re Richard Worthen, 926 P.2d 853 (Utah 1996), the Commission shall file the proposed agreement, findings of fact, conclusions of law, other pertinent documents, and order of sanction with the Supreme Court. These documents shall remain confidential until the Supreme Court has entered its final order except:

1. Upon order of the Supreme Court; or

2. Upon the request of the respondent.

R595-1-16. Hearing.

A. Scheduling. Upon receipt of the respondent's answer or upon expiration of the time to answer, the hearing panel of the Commission or masters shall schedule a hearing and notify respondent of the date, time, and place of the hearing.

B. Hearing Body. The hearing shall be conducted by a hearing panel or three special masters.

C. Conduct of Hearing.

1. All testimony shall be under oath.

2. The examiner shall present evidence supporting the formal charges.

3. Both parties shall be permitted to present evidence and produce and cross-examine witnesses.

4. The hearing shall be recorded by a certified court reporter.

5. When the hearing is before a hearing panel, not fewer than a quorum of the Commission shall be present when the evidence is presented.

6. Immediately following the conclusion of the hearing, the hearing panel or special masters shall deliberate and make a preliminary decision.

7. A letter setting forth the preliminary decision, signed by the hearing panel chair or presiding master, shall be served on the respondent and examiner as soon as possible after the conclusion of the hearing.

8. As soon as possible after the preliminary decision has been served on the respondent and examiner, the hearing panel chair or presiding master shall prepare a memorandum decision to be signed by all the panel members or masters.

9. The memorandum decision shall be served on the respondent and examiner, and the examiner shall prepare findings of fact, conclusions of law, and an order consistent with the memorandum decision.

10. The findings of fact, conclusions of law, and order shall be reviewed by a quorum of the Commission and approved by a majority of a quorum of the Commission.

11. Upon approval, the findings of fact, conclusions of law, and order shall be signed by the Commission chair and served on the respondent.

12. After the findings of fact, conclusions of law, and order have been signed by the Commission chair and served on the respondent, the record shall be submitted to the Supreme Court for review. The record shall include all documents required by In re Richard Worthen, 926 P.2d 853 (Utah 1996). A copy of the record shall be provided to the respondent without cost.

D. Dismissal or Recommendation for Sanction. The hearing panel or masters shall either dismiss the formal charges or recommend a sanction to the Supreme Court. The hearing panel or masters shall decide a matter only upon the concurrence of a majority of all members.

R595-1-17. Amendments to Notice or Answer.

The masters, at any time before the conclusion of the hearing, or the Commission, at any time before the entry of its findings of fact, conclusions of law, and order, may allow or require amendments to the formal charges and may allow amendments to the answer. The formal charges may be amended to conform to proof or to allege additional facts. If the formal charges are amended, the respondent shall be given reasonable time to answer and present evidence in defense of the amended charges.

R595-1-18. Objection to Findings of Fact, Conclusions of Law, and Order.

Within 15 days after service of the Commission's findings of fact, conclusions of law, and order, the respondent may file objections. Pursuant to Section 78-8-107(4) of the Utah Code, and upon request of the respondent or examiner, the Commission may schedule oral argument on the objections.

R595-1-19. Extension of Time.

The chair of the Commission may, for good cause shown, re-schedule or extend for a single period not to exceed 60 days in the aggregate the time for filing an answer to formal charges, for the commencement of a hearing, or for filing objections to the findings of fact, conclusions of law, and order. The presiding master may similarly re-schedule or extend the time for the commencement of a hearing.

R595-1-20. Cases Involving Allegations of Mental or Physical Disability.

A. Initiation of Disability Proceeding. A disability 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.

B. Proceedings to Determine Disability Generally. All disability proceedings shall be conducted in accordance with the procedures for disciplinary proceedings, except:

1. The purpose of the 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;

2. All of the proceedings shall be confidential; and

3. The Commission may appoint a lawyer to represent the judge if the judge is without representation.

KEY: judges, judicial ethics, proceedings, sanctions

April 16, 2002

Notice of Continuation August 12, 2002

78-8-102

78-8-107]

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Colin Winchester at the above address, by phone at 801-533-3200, by FAX at 801-533-3208, or by Internet E-mail at colin.winchester@utahbar.org

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.