Judicial Standards Commission Rules ( 2015 )

AF14-035fi FILED
July 23
20 2015
Ed Smith
CLERK OF THE SUPREME COURT
Rule 1— Scope, Purpose and Title STATE OF MONTANA
Case Number: AF 14-0356
a) Scope. These rules apply to aIl of the functions, responsibilities, and proceedings of the
Judicial Standards Commission involving the removal, retirement, suspension, censure,
reprimand, or other discipline of judges pursuant to Section 11, Article VII of the Montana
Constitution, and the provisions of Title 3, Chapter 1, Part 11, MCA.
b) Purpose. The purpose of the Judicial Standards Commission and these rules is to
-protect the public from improper conduct or behavior of judges; preserve the integrity of the
judicial process; maintain public confidence in the judiciary; create a greater awareness of
proper judicial conduct on the part of the judiciary and the public; and provide for the
expeditious and fair disposition of complaints of judicial misconduct.
c) Title. These rules shall be known as the Procedural Rules of the Judicial Standards
Commission and may be abbreviated as "PRJSC".
Rule 2 — Definitions
In these rules, unless context or subject matter otherwise requires:
(a) "Commission" means the Judicial Standards Commission of the State of Montana.
(b) "Judge" means the Chief Justice, Supreme Court Justice, District Judge, Justice of the
Peace, City Judge, Municipal Court Judge, Standing Master, Small Claims Judge, Judge
Pro Tempore, or Special Master appointed by a District Judge. "Judge" does not include
an administrative law judge or hearings officer appointed by the legislature or any
department or commission.
(c) "Chairperson" includes the Acting Chairperson.
(d) "Shall" is mandatory. "May" is permissive.
(e) "Mail" and "Mailed" include ordinary or postal mail, personal delivery, and email,
provided the parties agree to notification by email.
(f) "Registered mail" means either registered or certified mail deposited with the United
States Postal Service with postage prepaid and with a request for a return receipt.
(g) "Oath" is synonymous with "affirmation" and "swear" is synonymous with "affirm".
(h) "Supreme Court" means the Montana Supreme Court.
Rule 3 — Organization of the Commission
(a) The Commission shall select from its members a Chairperson, a Vice Chairperson, and
such other officers as the Commission may consider necessary and proper in carrying
out its functions and duties, who shall serve at the pleasure of the Commission. A
member may be selected for more than one office.
(b) The Chairperson or designee of the Chairperson shall preside at the meetings of the
Commission as well as at formal hearings concerning the conduct or disability of a judge.
In the event the Chairperson is absent or is otherwise unable to attend a meeting or to
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perform the duties of Chairperson, those duties shall be performed by the Vice
Chairperson, and in the absence of the Vice Chairperson, by a member of the
Commission designated by the members who are present.
(c) Any member of the Commission is authorized to administer oaths or affirmations to all
witnesses appearing before the Commission.
(d) All records of the Commission shall remain confidential except as hereinafter specified
and shall be under the exclusive and continuing control of the Judicial Standards
Commission and its staff. In the conduct of the business of the Commission, including
the appointment of an investigator or attorney, and to facilitate the coordination of
investigations with other agencies, the Commission is authorized to utilize the same
personnel that are involved in an agency investigation of the same factual allegations of
misconduct or disability that is before the Commission to avoid duplicative expense
relative to investigation. The Chief Justice of the Supreme Court and the Supreme Court
Administrator are allowed access to investigative files and may address the Commission
on matters under investigation impacting the judicial branch. The permission of the
Chairperson of the Commission is required prior to the release of records to anyone
other than Commission members, the Chief Justice, or the Supreme Court
Administrator.
(e) The records of the Commission shall be maintained in the Court Administrator's office
pursuant to these rules.
(f) Records concerning a complaint against a judge, other than a formal complaint ordered
filed by the Commission as hereinafter set forth or records of discipline imposed as
described in these rules, shall be maintained for ten (10) years after such judge has
ceased to act as a judicial officer. At the expiration of ten (10) years, such records may
be destroyed. Records concerning a formal complaint filed against a judge, and records
of discipline administered as described in these rules, shall be maintained during the
lifetime of the judge named therein.
Rule 4 — Staff of the Commission
(a) The Court Administrator shall select an Executive Secretary whose duty it shall be to
record minutes of the meetings and hearings which shall be a permanent record of the
actions of the Commission. The Executive Secretary shall be responsible for the custody
and safekeeping of all the records of the Commission. The Executive Secretary shall
promptly furnish to members of the Commission copies of all complaints, notices,
answers and other documents filed in connections with proceedings before the
Commission. The Executive Secretary's salary and benefits are established by the
Judicial Branch Pay Plan pursuant to §3-1-130, MCA.
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(b) The Commission may appoint a qualified adult to investigate charges against a judicial
officer and to report findings to the Commission, and to otherwise assist the
Commission in its inquiry into the conduct or disability of a judicial officer.
(c) The Commission may appoint an attorney licensed to practice law in the State of
Montana to marshal and present evidence, to file a formal complaint, and to prosecute
a formal complaint before the Commission in its inquiry into the conduct or disability of
a judicial officer.
(d) An individual or attorney appointed by the Commission under (b) or (c) above shall be
paid as determined from time to time by the Commission from funds provided for the
operation of the Commission.
Rule 5 — Meetings
(a) The Commission shall meet four (4) times a year or more often as the business of the
Commission shall require.
(b) The Chairperson may, and upon the request of three members shall, call a meeting of
the Commission. The Chairperson shall give reasonable notice to each member by
telephone or other means of the time and place of the meeting.
(c) A quorum for the transaction of business of the Commission shall be three members
and no action of the Commission shall be valid unless agreed to by no less than three
members thereof.
(d) Decisions by the Commission to conduct an investigation of a judge, order a judge to
submit to a physical examination, proceed against a person for contempt for failing to
respond to a subpoena of the Commission, issue a public opinion or statement, hold or
dispense with a formal hearing, hear additional evidence, make a report to the Supreme
Court recommending removal, retirement, or other discipline of a judge, or determine
after a formal hearing not to make such a report, shall be made at a meeting of the
Commission. Other matters before the Commission may be determined by
communication among the members of the Commission, but a report of such action
shall be made by the Chairperson at the next meeting of the Commission and entered in
the minutes of that meeting.
Rule 6 — Interested Members of Commission
In the event a judicial officer who is a member of the Commission is disqualified by the
terms of § 3-1-1108, MCA, or recuses himself or herself from acting in a particular proceeding,
the Chairperson may appoint another judge from a court of record to act as a member of the
Commission to sit and act in the place of the disqualified or recused judge.
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In the event a lay member of the Commission recuses himself or herself for a particular
proceeding, the Chairperson of the Commission, or in the Chairperson's absence, the Vice-chair,
may appoint a qualified adult citizen of the State of Montana to act as a member of the
Commission for the recused Iay member. The Commission may proceed in the absence of not
more than two members.
Rule 7 - Proceedings Confidential
(a) All papers filed herewith and all proceedings before the Commission shall be
confidential while pending before the Commission. A Complaint dismissed by the
Commission under Rule 10(e)-(f) is no longer confidential, and a complainant may
disclose the complaint and the Commission's response. If an investigation results in
formal proceedings, then the record filed by the Commission with the Supreme Court
loses its confidential character upon its filing. Further, a proceeding Ioses its
confidentiality if §§ 3-1-1121 through 1126, MCA, are invoked in accordance with the
terms thereof.
(b) All notices, pleadings and papers mailed to a judge and to other persons pursuant to
these Rules shall be marked "personal and confidential."
(c) Every witness in every proceeding under these Rules shall be sworn to tell the truth and
not to disclose the existence of the proceeding or the identity of the judge until the
proceedings are no longer confidential under these rules. Violation of the
confidentiality proceedings may result in summary dismissal of the complaint.
(d) If a judge voluntarily retires or resigns prior to the institution of formal proceedings, and
agrees not to act as a judge at any time in the future, all proceedings against such judge
shall terminate, or, in the discretion of the Commission, may be held in abeyance to a
date certain determined by the Commission, and the files of the Commission concerning
said judge shall remain confidential.
(e) A judge shall, upon request, be given all information concerning complaints that have
been filed against the judge.
Rule 8 — Immunity
Members of the Commission, investigators, special or appointed counsel, and staff
members shall be immune from suit for any conduct in the course of their official duties. All
persons referenced above are deemed officers and/or agents of the Commission for all
purposes mentioned in these rules.
Rule 9 —Jurisdiction and Grounds for Discipline
(a) The Commission shall have jurisdiction over the conduct of all judges and standing
masters as defined herein, including part-time judges, and those retired district judges
that may be called to hear cases as provided by § 19-5-103, MCA. Jurisdiction of the
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Commission also extends to conduct that occurred while a judge is in office, or acting as
a retired judge, and may include conduct that is not in connection with judicial duties.
(b) Grounds for discipline or removal include, but are not limited to:
(1) Any disability that seriously interferes with the performance of the officer's duty
and is or may become permanent;
(2) Willful and persistent failure to perform judicial duties, including consistent
failure to make decisions in a timely manner;
(3) Willful misconduct in office;
(4) Impropriety or other conduct prejudicial to the administration of justice that
brings the judicial office into disrepute;
(5) Habitual intemperance;
(6) Ex parte communications except as allowed by statute or rule; or
(7) Violation of the provisions of the Code of Judicial Conduct adopted by the
Supreme Court.
(c) The Commission may impose, or recommend to the Supreme Court, the following:
(1) Admonition: A private communication from the Commission to a judge
reminding the judge of ethical responsibilities and giving a warning to avoid
future misconduct or inappropriate practices. An admonition may be used to
give authoritative advice and encouragement or to express disapproval of
behavior that suggests the appearance of impropriety even though it meets
minimum standards of judicial conduct.
(2) Private Reprimand: A private communication from the Commission to a judge
that declares the judge's conduct unacceptable under one of the grounds for
judicial discipline but not so serious as to merit a public sanction.
(3) Public Reprimand: A public reprimand administered by the Supreme Court, upon
report and recommendation of the commission, which declares a judge's
conduct unacceptable under one of the grounds for judicial discipline but not so
serious as to warrant a censure.
(4) Censure: A public declaration by the Supreme Court that a judge is guilty of
misconduct that does not require suspension or removal from office. Censure
may be ordered in conjunction with other sanctions.
(5) Suspension: A decision by the Supreme Court to suspend a judge from office
temporarily, with or without pay, for serious misconduct that merits more than
censure but less than removal. This sanction is flexible, and there are no
restrictions on the length of a suspension.
(6) Removal: A decision by the Supreme Court to remove a judge from office for
serious misconduct.
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(7) Permanent Removal: A decision by the Supreme Court to remove a judge
permanently from office for serious misconduct and declares that such person
may never again hold a judicial office in the State of Montana.
(8) Retirement: A decision by the Supreme Court to retire a judge for a
disability that seriously interferes with the performance of judicial duties that is
or is likely to become permanent.
Rule 10 — Complaints — Initial Investigations
(a) Written complaints to the commission shall be submitted substantially as provided on
the attached "Form A". Complaints shall be lodged with the Executive Secretary of the
Commission.
(b) A written complaint shall not be a prerequisite to initiation of disciplinary proceedings
that the Commission, in its discretion, deems appropriate.
(c) Upon receiving a complaint or otherwise receiving information alleging judicial
misconduct or that the commission should take some action, the Commission may
request written comments from the judge with respect to the matters involved as the
judge may wish to make, or may request a response from the judge. At the discretion of
the Commission, the Commission may conduct an investigation into the conduct or
condition of the judge for the purpose of determining whether formal proceedings
should be instituted and a hearing held with or without provision of notice or other
information to the judge. However, prior to any determination that a formal hearing
will be held, the judge shall be sent a copy of the complaint, or a synopsis of the matters
to be or that have been investigated, and the judge shall thereafter have reasonable
opportunity to provide a statement to the Commission as the judge considers
appropriate. The judge may elect to make the statement personally or through counsel,
verbally or in writing, and the statement may or may not be given under oath. In
exercising this right to respond, the judge shall not have the right to call witnesses or to
confront or cross-examine the person making the complaint or any person interviewed
by the Commission or its duly authorized representative. After notification from the
Commission, if the judge does not respond within a reasonable time or within the time
fixed by the Commission, the right to make a responsive statement shall be deemed
waived.
(d) In making an investigation, the Commission shall have the authority to issue subpoenas
for witnesses to appear before the Commission or its representative for the purpose of
making a sworn statement and may also issue subpoenas for the production of books,
papers and other evidence that may be pertinent to the Commission's inquiry.
(e) Whenever the Commission reaches the conclusion that facts developed upon an initial
investigation fail to show any reason for the institution of disciplinary proceedings, the
Commission shall dismiss the complaint, terminate the inquiry, and so advise the
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complainant. At the same time, the complainant shall be informed of the confidentiality
provisions of Rule 7. The Commission shall also notify the judge of the Commission's
decision.
(f) A complaint may be summarily rejected and dismissed by the Commission if, in the
judgment of the Commission, the complaint fails to state adequate grounds for
disciplinary proceedings or is a matter for appellate review. The Commission may, but it
is not required to, advise the judge of the summary dismissal of the complaint.
(g) After receipt of a complaint or of information indicating that a judge may have engaged
in judicial misconduct, or that a judge may be disabled, the Commission, before voting
to hold a formal hearing, may delegate to one or more of its members or to the
Commission's attorney or investigator, the authority and responsibility to personally and
confidentially confer with the judge subject to the inquiry, and to make informal
recommendations to the judge or to the judge's attorney concerning the subject matter
of the inquiry and a satisfactory disposition thereof. If the judge agrees to the
Commission's suggested disposition, the matter may be disposed of on the basis of the
agreement reached. If the agreed disposition is to be made public, the Commission
shall file a report of such disposition in the office of the Clerk of the Supreme Court and
the disposition shall become a matter of public record.
(h) The Commission may at any time entertain and act upon a proposal from a judge for
disposition of any matter pending before the Commission concerning such judge. If the
proposal is made after the filing of a formal complaint, and is acceptable to the
Commission, a report thereof shall be filed in the office of the Clerk of the Supreme
Court, and the report shall be a matter of public record.
Rule 11 — Formal Complaint
(a) lf, after an initial investigation, a majority of the Commission find grounds to conduct
formal proceedings concerning a complaint or other facts brought to the attention of
the Commission, the Commission shall appoint an attorney, as provided in Rule 4(c), to
file a formal complaint against the judicial officer in the office of the Clerk of the
Supreme Court and to prosecute the formal complaint before the Commission.
(b) Upon the filing of a formal complaint, the complaint and all proceedings subsequent to
its filing are not considered confidential and shall become a matter of public record.
Rule 12 — Procedure on Formal Complaint
(a) The formal complaint shall be styled substantially as provided on the attached "Form B"
and shall state the name(s) of the complainant(s), the nature of the alleged grounds for
discipline, the time of actions giving rise to alleged wrongdoing and a brief summary of
the facts upon which allegations of misconduct are based.
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(b) A notice of the filing of the formal complaint together with a copy of said complaint shall
be served on the judge. The notice shall advise the judge of the name, address, and
telephone number of the attorney appointed by the Commission and of the right to file
a written response with the Clerk of the Supreme Court within fifteen (15) days after the
complaint has been served upon the judge.
(c) Service of the notice and copy of the formal complaint shall be made on the judge by
personal service as provided in Rule 4(d)(2), (3), M.R.Civ.P. Service of the notice and
copy of the complaint may be acknowledged by the judge or the judge's attorney.
Service and filing of orders, pleadings, and other papers shall be made as provided in
Rule 5, M.R.Civ.P.
(d) The judge may file a written response to the allegations of the formal complaint, within
fifteen (15) days after service. Thereafter, the Commission may set a hearing on the
complaint. The hearing shall be set no sooner than thirty (30) days after the time for
filing a response has expired or after a response is filed. The hearing shall be set as
promptly as possible considering the particular circumstances of the matter.
(e) The Chairperson shall appoint a member of the Commission, who may be the
Chairperson, to hear and determine preliminary matters prior to hearing, set dates,
make necessary rulings, make discovery orders, order subpoenas issued, and make such
orders as are necessary to assure the hearing is conducted promptly and that both the
complainant and the responding judge have opportunity to fully and fairly prepare for
the hearing. The orders of the member selected shall have the same force as an order
of the Commission unless quashed by a majority of the members thereof.
(f) The responding judge shall, upon request, be provided access to the information upon
which the formal complaint is based, including the initial complaint, statements of the
complainant, witnesses, and other physical and documentary evidence. The responding
judge shall, upon request, be provided with the names and last known address of
witnesses that shall be called to testify at the hearing together with copies of all
evidence the attorney appointed by the Commission intends to introduce at the
hearing. The judge shall, upon request, provide the attorney appointed by the
Commission with the names and addresses of the witnesses the judge intends to call to
testify at the hearing, together with copies of all documentary evidence intended to be
introduced by the judge at the hearing. Except as specifically stated in these rules,
discovery procedures contained in the Montana Rules of Civil Procedure and Montana
Code of Criminal Procedure do not apply to proceedings before the Commission.
Depositions may be taken only upon order of the Commission upon application showing
the necessity therefor. Other discovery procedures such as interrogatories, requests for
admissions, or requests for production may be undertaken only upon order of the
Commission after application and a showing of the necessity therefor.
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(g) Upon written request, the Commission may direct the Clerk of the Supreme Court to
issue subpoenas that may be served as provided in Rule 45, M.R.Civ.P., except the clerk
shall not be required to issue any subpoena except upon direct order of the
Commission. Payment of witness fees and mileage shall be as provided for witnesses in
a district court proceeding.
Rule 13 — Hearing on Formal Complaint
(a) At the time and place set for hearing, the attorney appointed by the Commission shall
present the case in support of the charges in the formal complaint.
(b) A verbatim record shall be made of the hearing by stenographic or other means. The
Commission may, in its discretion, order that a transcript of the proceedings be made.
When a transcript of the hearing has been prepared at the expense of the Commission,
a copy thereof shall, upon request, be available for use by the judge and counsel. The
judge shall have the right, without any order or approval, to have alI or any testimony in
the proceedings transcribed at the judge's expense.
(c) The Chairperson or designee shall preside at the hearing. The hearing shall be
conducted according to the Montana Rules of Evidence.
(d) The responding judge shall appear at the hearing and may, in the judge's discretion,
testify at the hearing.
(e) The attorney appointed by the Commission shall have the burden of proof and shall
open and close the evidence. Any misconduct or incapacity alleged against the
responding judge must be proven by clear and convincing evidence as defined by § 27-1-
221(5), MCA. The responding judge shall have the right, but is not required, to present
evidence in defense of the complaint.
(f) At the conclusion of the hearing, the Commission may order further written arguments
or submissions as it deems appropriate, including proposed findings of fact and
conclusions of law. Thereafter, the matter shall be deemed submitted for decision,
unless the Commission orders otherwise.
(g) Deliberations of the Commission shall be confidential. The Commission shall render its
decision, and any recommendation(s) to the Supreme Court in writing. The
Commission's decision shall be filed in the office of the Clerk of the Supreme Court and
the charges dismissed or recommendation(s) transmitted to the Court, whichever is
necessary.
(h) Should less than a majority of the commission vote affirmatively for the censure,
suspension, retirement, or removal of a responding judge, the formal complaint shall be
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dismissed in favor of the judge, who shall be entitled to the costs paid or incurred for
subpoenas, witness fees and mileage, and any depositions ordered by the Commission.
Any costs payable under this rule shall be paid from funds allocated by the office of the
Supreme Court Administrator to the Commission for the discharge of the Commission's
constitutionally prescribed duties.
Rule 14 — Interim Disqualification of Judicial Officers
Upon the Commission's filing with the Supreme Court a recommendation that a judicial
officer be removed or retired, the judge shall forthwith be disqualified to serve as a judicial
officer, without loss of salary, pending the Supreme Court's review of the record and
proceedings, and its order thereon. Section 3-1-1109(2), MCA. If a judge is reinstated to office,
the terms of the reinstatement shall be as ordered by the Supreme Court.
Rule 15 — Effective Date and Amendment
(a) These rules shall be approved by a majority of the Commission and filed in the office of
the Clerk of the Supreme Court. The rules shall be effective upon approval thereof by
the Commission or, if required, by the Supreme Court. Amendments hereto may be
made from time to time by the Commission, and such amendments shall be approved
by a majority of the Commission and filed in the office of the Clerk of the Supreme
Court. The amendments shall become effective upon approval thereof by the
Commission or, if required, by the Supreme Court.
(b) Upon approval of these rules or amendments thereto, all previous rules or amendments
of the Judicial Standards Commission inconsistent therewith are repealed.
Approval certified this 17th day of July, 2015.
Judicial Standards Commission
Blair Jones - C,hiirman
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