Guidelines and Operating Policies for Commission Members, Alternates, Commission Counsel and Staff
Initial substantive contacts with the Commission come by telephone, correspondence or a personal visit to the office. The Executive Director is authorized to screen inquiries and dismiss those that do not raise issues within the Commission’s jurisdiction.
When after initial investigation and inquiry it appears that there is sufficient cause to proceed, the complainant is asked to file a sworn complaint. If a sworn complaint is not received, the inquiry is regarded as closed unless the Executive Director determines that the matter nevertheless warrants Commission attention. A complaint may also be triggered by an anonymous contact, a media report, or a referral from another agency. The Commission does not accept oral complaints. If an individual comes to the Commission offices and needs assistance to file a complaint, appropriate assistance will be provided. The Commission reviews all the closed inquiries to insure that they have been properly handled by the staff.
During the initial investigation, when the Executive Director believes there is sufficient cause to proceed to a probable cause determination, the Executive Director may request a sworn complaint from the complaining party or prepare a statement of allegations. The sworn complaint or statement of allegations is then served upon the judge.
The Executive Director prepares an evaluation report (usually written) on each allegation, which generally includes a review of the information and documents submitted by the complainant. Additional information may be gathered at this stage through phone calls or letters to the complainant or the attorney. The judge generally is asked at this stage for an informal preliminary response. Except for unusual circumstances, a judge must be notified of a complaint within 90 days of the Commission’s receipt of a complaint. Legislation enacted in 1993 also permits the Commission to request the appropriate prosecuting attorney to grant immunity from criminal prosecution to a reluctant witness appearing before the Commission.
After reviewing the evaluation report, the Commission decides whether to dismiss or further investigate the matter by proceeding to a probable cause hearing.
Most dismissals by the Executive Director at this stage occur for one of the following reasons: (1) the complaint is obviously frivolous or unfounded, or proves so after preliminary inquiry; (2) it represents only an effort by a disappointed litigant to secure review of a judge’s decision; (3) it is based on a misunderstanding of judicial proceedings, the proper role of the court, or the extent of a judge’s discretion; (4) the Commission has no jurisdiction (e.g., complaints against attorneys, other court personnel, federal judicial officers); or (5) it clearly presents no claim of possible judicial misconduct under the applicable statutes and rules. Complaints may also be dismissed on preliminary evaluation because in the judgment of the Commission: (1) there is little likelihood of obtaining reliable evidence to support the allegation; (2) the alleged misconduct would constitute, at most, a single and very minor violation; (3) the judge already took corrective action on what was at most a minor violation; or (4) the alleged conduct is not prohibited by the Code of Judicial Conduct or other applicable law or rule.
When a complaint proceeds to further investigation, the judge is notified and allowed to submit relevant material to the Executive Director. On occasions, notice may be delayed so that court proceedings may be monitored or certain evidence obtained. During the investigation, the judge may be asked to meet with the Commission’s Executive Director or Investigator, and sometimes to appear informally before the full Commission. The judge may be represented by counsel during the investigation.
Investigations typically include interviews with complainants, attorneys, or other witnesses, and examination of relevant transcripts and other documents. A sample of transcripts of certain types of proceedings may be ordered for review. In past investigations, court reporters, court employees, and attorneys have voluntarily complied with Commission requests for information and documents related to a matter under investigation. The Commission and the judge under investigation have the power to subpoena witnesses and records. An investigation sometimes uncovers matters in addition to the initial complaint and may be expanded accordingly.
Upon concluding the preliminary investigation, the Commission may dismiss the allegations. Alternatively, the Commission may find that there is sufficient cause to proceed further to a probable cause hearing. The judge is then formally notified of the substance of the allegations and given an opportunity to respond both in writing and at a formal appearance before the Commission.
After considering the judge’s response and other evidence, the Commission may find no misconduct and dismiss the allegation. If the Commission finds misconduct of a relatively minor nature, it may dispose of the matter with a public admonition or informal adjustment such as direct professional counseling or assistance for the judge or impose conditions on the judge’s future conduct. However, if at this point the Commission finds that there is probable cause that the judge has engaged in misconduct warranting a formal disciplinary procedure or has a permanent disability substantially affecting the performance of judicial duties, then it causes a formal statement of charges to be served upon the judge. At this point the investigative portion of the complaint is completed.
In a formal disciplinary hearing before the Commission, the proceedings are open to the public and the rules of evidence apply. The Commission bears the burden of proving its allegations by clear and convincing evidence. The Commission and judge have full discovery in accordance with the Rules of Civil Procedure. A hearing is conducted before a fact finder which may be the entire Commission or a three- member panel. The Commission may order the case to be dismissed. Alternatively, it may reprimand or censure the judge, or recommend to the Supreme Court that the judge be suspended with or without pay or removed from office. If the Commission makes a finding of physical or mental disability, it may recommend to the Supreme Court that the judge be granted leave with pay or retired. The Commission and the judge file briefs with the Supreme Court. The court may order additional information, filings or oral argument.
The Supreme Court, when considering removal of a judge, also determines whether discipline as a lawyer is warranted. Based upon a review of the entire record, the Supreme Court files a written opinion and judgment directing such disciplinary action as it finds just and proper. By legislative enactment, a judge who is removed for misconduct cannot be appointed thereafter to serve as a judge.