(a) Appointment of hearing panel. Formal proceedings shall be conducted before a hearing panel consisting of the members of the commission who were not appointed to the investigative panel assigned to review the case.(b) Duties of presiding member. The presiding member of the hearing panel shall oversee all pre-hearing proceedings, rule on pre-hearing motions, and preside over the formal hearing. To facilitate the prompt and timely resolution of the case, the presiding member shall prepare a case management order setting forth a schedule and deadlines for each stage of the proceedings, and may order a settlement conference, review discovery procedures with the parties, rule on pre-hearing motions, and conduct pre-hearing conferences to obtain admissions or narrow the issues presented by the pleadings.(c) Use of hearing officer. If a hearing panel is unable to function within the intent of these rules, the commission shall appoint a hearing officer to perform the functions of the hearing panel as set forth in these rules.(d) Notice of hearing. The presiding member of the hearing panel or the hearing officer, if one has been appointed pursuant to paragraph (c), shall designate the time and place of the hearing and shall give the judge at least fifteen days' notice thereof.(e) Settlement conference. Any time prior to the hearing, the presiding member of the hearing panel or the hearing officer, as the case may be, may order the parties to participate in a settlement conference conducted by a member of the investigative panel or a former commission member who agrees to serve as settlement judge. Any proposed agreement for discipline by consent shall conform with the requirements of Rule 30.(f) Conduct of hearing. The following rules shall apply to formal hearings: (1) Findings of fact shall be based on clear and convincing evidence as that term has been defined by the supreme court.(2) The Arizona Rules of Evidence shall apply as far as practicable in all commission proceedings, and Rule 122 of the Rules of the Supreme Court shall apply to all requests for electronic and photographic coverage of such proceedings. In determining the applicability of evidentiary rules in a particular case, where there is no precedent in the judicial discipline context in Arizona, the hearing panel shall look to Arizona Supreme Court authority in the attorney discipline context for guidance in interpreting the phrase "as far as practicable."(3) Procedural errors or defects not affecting the substantive rights of a judge shall not be grounds for invalidation of commission proceedings.(4) All testimony shall be under oath.(5) The judge may be called as a witness.(6) The parties may present evidence and produce and cross-examine witnesses.(7) The parties may recommend and argue for a discipline appropriate to the misconduct supported by the evidence, including argument on aggravating and mitigating factors.(8) The panel or hearing officer may instruct the parties to submit proposed findings, conclusions, and recommendations for discipline or order of dismissal.(9) The hearing shall be digitally recorded using court recording software similar to that in use in superior court, and a copy of the digital recording shall be filed with the commission's recommendations. Any party may obtain a copy of the digital recording at his or her own expense.(10) Where a member of a hearing panel has not heard the evidence, that member shall not participate in any deliberations or decisions unless he or she has personally considered the whole record, including any recording from portions of the hearing from which that member was absent.(g) Ex parte communications. Members of an investigative panel, commission staff, the complainant, the judge, and the judge's counsel shall not engage in improper ex parte communications, as defined in Canon 2, Rule 2.9 of the code, with members of a hearing panel or a hearing officer as to the merits of a case in which the investigative panel has been involved. This rule does not preclude commission staff from providing administrative assistance to a hearing panel or hearing officer, nor related administrative or scheduling communications between staff and a hearing panel or hearing officer.(h) Failure to appear. If the judge fails to appear at the hearing, either in person or through counsel, he or she shall be deemed to have admitted the factual allegations that were to be the subject of such appearance and to have conceded the merits of any motion or recommendations to be considered at such appearance. Absent good cause, the proceedings shall not be continued or delayed based on the judge's failure to appear.Ariz. R. Comm. Jud. Cond. 27
Added by Order dated Oct. 11, 2001, effective 1/1/2002. Amended6/8/2004, effective 12/1/2004;6/15/2004, nunc pro tunc6/8/2004. Amended and effective 6/28/2004. Amended and effective 1/20/2006. Adopted in final form9/18/2006. Amended and effective9/18/2006. Amended9/18/2006, effective 1/1/2007;8/30/2012, effective 1/1/2013;9/2/2014, effective 1/1/2015.