PREAMBLE
Pursuant to Article V, Section 25, Constitution of 1974, and to Rule XXIII of the Rules of the Supreme Court of Louisiana, the following rules for the conduct of the business of The Judiciary Commission, State of Louisiana, are adopted. The appropriate citation form for these rules shall be "JCL Rule___."
RULE I. SESSIONS.
The Commission shall convene at least once per quarter. Upon notice to all members, the Chair may call a special session or dispense with a scheduled session as the business of the Commission may necessitate.
RULE II. ATTENDANCE AND QUORUM.
A quorum for the conduct of any official business shall be six members of the Commission.
The Commission is enhanced by the participation of all members; therefore, members are encouraged to set aside time for each meeting and to participate during the entire meeting. Members may participate in regularly scheduled meetings by telephone only in the event of illness of the member that precludes travel to the site of the meeting; provided however, the Chair shall have the discretion to permit a member to participate in a Commission meeting by telephone if the Chair reasonably decides that extraordinary circumstances exist that permit such participation. Under no circumstances may a Commission member participate in a hearing by telephone.
RULE III. FORM OF COMPLAINTS AND SELF-REPORTED MISCONDUCT.
Complaints made to the Commission concerning the misconduct or disability of a judge shall be in writing, or reduced to writing, and shall specify the misconduct or disability complained of, and should be signed by the complainant. A judge may self-report potential misconduct, which may serve as mitigating evidence if the Commission later determines that conduct was unethical. If a judge chooses to self-report, to qualify as a "self-report" the information must (1) be communicated in writing, (2) specifically identify conduct that the judge suspects is potential misconduct, and (3) be sent to the Commission's Chief Executive Officer, Commission Counsel, or Special Counsel.
The Commission, however, may consider alleged misconduct or disability of any judge from whatever source, including anonymous complaints and news reports, and may do so on its own motion.
RULE IV. RECEIPT OF COMPLAINTS; SCREENED OUT COMPLAINTS.
All complaints should be directed to the Chief Executive Officer of the Commission, who is the Judicial Administrator of the State of Louisiana, at 400 Royal Street, Suite 1213, New Orleans, Louisiana 70130-8145 or to Special Counsel, who is the legal counsel whose duties are described in JCL Rule XI B. Any member of the Commission, however, may receive a complaint or bring any matter to the attention of the Commission on his or her own motion.
The Chief Executive Officer may (1) direct such complaints to Special Counsel, for further screening and preliminary investigation, or (2) in his or her discretion, bring such complaints directly to the attention of the Chair for other action, as the circumstances may require. Special Counsel shall maintain a docket of all complaints and shall provide (a) to the Commission, upon the completion of each reporting stage of the proceedings, a full written report as to pending open files; and (b) a full written and/or other report upon the specific request of the Chair and/or the Chief Executive Officer of the Commission.
Rule XXIII, Sec. 3 of the Rules of the Louisiana Supreme Court requires the Commission to commence a preliminary inquiry concerning complaints that are not obviously unfounded or frivolous, or conclusory or contradictory on their face, or disproved by the contents of or the attachments to the complaint, and that allege facts that, if true, could constitute judicial conduct in violation of the Code of Judicial Conduct or of 1974 La. Const. art. V, Sec. 25C. Complaints that are deemed obviously unfounded or frivolous, or conclusory or contradictory on their face, or disproved by the contents of or the attachments to the complaint, or which solely criticize a judge's official decision making or claim judicial error, unless the legal error was egregious, made in bad faith, or was part of a pattern and practice of legal error, are screened out by Special Counsel. Screened out complaints are later confirmed and ratified by a majority of the Commission, who may choose to open a file that was screened out by Special Counsel. If a file has been screened out and the Commission has not reversed the screen out decision, and a complainant objects, he or she may lodge a written appeal of the screen out decision, which shall be directed to the Chief Executive Officer or to Special Counsel. The request for appeal must state the basis for his or her disagreement with the screen out decision, and may provide further information to the Commission concerning the facts underlying the original complaint. The Commission will review the original complaint and the written request for appeal at a subsequent regularly scheduled meeting of the Commission. The decision made by the Commission concerning the appeal shall be final. Absent extraordinary circumstances, the Commission will not consider a request for appeal received more than ninety days after the date of the screen out letter.
RULE V. ANSWERING COMPLAINTS AND RESPONDING TO REPETITIVE, VEXATIOUS, THREATENING OR ABUSIVE COMMUNICATIONS OR COMPLAINTS.
All complaints received by the Commission shall be answered in writing with such commentary or explanation as the Commission may deem advisable, to the extent there is no conflict with confidentiality imposed by the Louisiana Constitution and the Rules of the Supreme Court of Louisiana.
This rule shall not be applicable to repetitive, vexatious, threatening, or abusive communications or complaints. Commission staff is not required to respond to repetitive, vexatious, threatening, or abusive communications or complaints.
RULE VI. CONDUCT OF PRELIMINARY INQUIRIES AND INVESTIGATIONS.
The preliminary inquiry shall ordinarily consist of Special Counsel sending the respondent judge a copy of the written complaint, and inviting the respondent judge to respond to the allegations in the complaint. Once the respondent judge has responded or the time for responding has passed without a response, the matter will be submitted to the full Commission for its decision concerning further action, if any. However, the Commission may cause the preliminary inquiry to be made in any manner it deems proper under the circumstances. It may be made by the Chief Executive Officer, by Special Counsel, or by any other person designated by the Commission who is not a member of the Commission, such as a Special Counsel Ad Hoc.
With respect to an investigation for the purpose of determining whether a notice of hearing concerning allegations of misconduct or disability should be authorized, the Commission may cause such investigation to be made in any manner it deems proper. It may be made by Special Counsel or by any other person designated by the Commission who is not a member of the Commission, such as a Special Counsel Ad Hoc.
RULE VII. SUBPOENAS, PRODUCTION OF EVIDENCE; OATHS; FILINGS MADE WITH THE COMMISSION; BENCH BOOKS AND PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW; JUDGE'S DUTY TO COOPERATE; CASE MANAGERS; PREHEARING MOTIONS; AND EXHIBITS.
A. The Commission authorizes its Chief Executive Officer, Commission Chair, and Commission Counsel to exercise its statutory authority under La. R.S. 13:36 to issue subpoenas for witnesses or the production of books, records, documents or other evidence deemed relevant or material to an investigation, at the request of Special Counsel, or deemed relevant and material to a hearing, at the request of Special Counsel or the respondent judge. In addition to service by other legal means, subpoenas or other process issued by the Commission may also be served (1) by an employee of the Office of Special Counsel other than either Special Counsel or an Assistant Special Counsel, or (2) at the notice of hearing stage of proceedings, by a person designated by the respondent judge, after written notice of such designation has been filed with the Commission. If a subpoena is served by a member of the staff of the Office of Special Counsel or by a person designated by a respondent judge in accordance with this rule, the person requesting the subpoena shall file with the Commission a fully executed affidavit of service with respect to such subpoena. With respect to oaths:
(1) Before testifying every witness shall be required to declare that he or she will testify truthfully by oath or affirmation.(2) Any member of the Commission may administer oaths or affirmations. B. All pleadings filed with the Commission must be filed in the Commission's office (and not with the Office of Special Counsel). On the date hereof, the Commission's office is located at 400 Royal Street, Suite 1213, New Orleans, LA 70130-8145. Filings may not be made by facsimile transmission. Filings must conform to the requirements of La. Sup. Ct. Rule XXIII, Sec. 4(b), directing that an original and nine legible copies of pleadings be presented for filing when the pleading relates to a matter to be decided by the Commission pursuant to La. Sup. Ct. Rule XXIII, Sec. 29(c), and that an original and one legible copy of a pleading be presented for filing when the pleading relates to a matter to be decided by the hearing officer pursuant to La. Sup. Ct. Rule XXIII, Sec. 29(c). No filing presented after 4:00 p.m. will be filed on the day of submission, but will be clocked in and considered filed on the next succeeding business day. Other than pursuant to an order to file a pleading by a specific date, for a pleading to be considered at a Commission meeting, it must be filed with the Commission more than seven days prior to such meeting. C. Both Special Counsel and the respondent judge may prepare and submit to the Commission in advance of a scheduled hearing: (a) a bench book of exhibits and other materials that may be used at the hearing concerning the allegations of misconduct or disability contained in the notice of hearing in the case; and/or (b) proposed findings of fact and conclusions of law for consideration by the Commission. Any bench books and/or proposed findings of fact and conclusions of law must be filed in four counterparts (original and three legible copies) if the hearing is held before a hearing officer, or in ten counterparts (original and nine legible copies) if the hearing is held before the Commission. D. The failure or refusal of a judge to cooperate in an investigation, or the use of dilatory practices, frivolous or unfounded responses or arguments, or other uncooperative behavior may be considered by the Commission in determining whether or not to recommend discipline to the Louisiana Supreme Court and may bear on the severity of the discipline actually recommended. E. The Chair, in his or her discretion, may name one Commission member to serve as case manager once a notice of hearing has been filed concerning a judge. The case manager's purpose is to facilitate movement of the case through the system and to address procedural problems and issues. The case manager shall not discuss the merits of the case with Special Counsel or legal counsel for the judge or with the judge himself or herself. When a judge whose conduct has been alleged to be violative of the Code of Judicial Conduct or the Louisiana Constitution expresses interest in entering into a deferred recommendation of discipline agreement (DRDA) with the Commission, the judge may request, or the judge and Special Counsel may jointly request, a DRDA. As set forth in Supreme Court Rule XXIII, 31, such request shall be submitted in the form of a pleading or by letter to the Commission, in care of Commission Counsel. Commission Counsel shall communicate the judge's request or the joint request to the Commission members at the next scheduled meeting of the Commission, with a recommendation to the members concerning the request. If the request is not a joint request, Special Counsel will be given the opportunity to file a response to the request before the Commission considers the request. F. Motions made prior to hearing must be made in writing and filed with the Commission's office (not with the Office of Special Counsel), due regard being given to filing requirements of these and other applicable rules. Except in extraordinary circumstances as determined by the Chair, the Commission decides motions based upon the written pleadings filed, and oral argument is not permitted. Upon receipt of service of a written motion, the attorney for the respondent judge, or the attorney representing the Office of Special Counsel, shall respond immediately. In order to determine a deadline for responding, the attorney in question may contact Commission Counsel so a deadline may be set for a response. Because all pleadings to be considered at a meeting of the Commission must be filed at least seven days prior to the meeting, if a motion is filed on the seventh day before a meeting and a responsive pleading is appropriate, the Commission may allow the responder to file a pleading within a short time period (if necessary within the three days of the upcoming meeting), or delay making a decision on the motion and the response thereto until a date after the upcoming Commission meeting. G. Prior to a hearing, the Office of Special Counsel and the legal counsel for the respondent judge shall meet to review exhibits that each side proposes to introduce into evidence at the hearing. Following such meeting, and at least ten (10) days prior to the scheduled hearing, the Office of Special Counsel and the legal counsel for the respondent judge shall file a memorandum of understanding with regard to the proposed exhibits, indicating no objection to the proposed exhibits, or stating with specificity any objections either counsel may have. In the case of a failure by legal counsel to agree to the memorandum of understanding concerning the proposed exhibits, such objecting counsel may make a separate filing as to his or her position as to the exhibits of opposing counsel. Failure to make a timely filing (whether the preferred memorandum of understanding or a separate submission) may result in the hearing officer or the Commission refusing to accept any exhibits of the non-filing party into evidence, although such excluded exhibits may be proffered for review by the Commission and the Louisiana Supreme Court. RULE VIII. CONDUCT OF HEARINGS, ADMISSIBILITY OF EVIDENCE; NO RECORDING OF PROCEEDINGS.
A. Unless a hearing is occurring before a hearing officer selected pursuant to La. S. Ct. Rule XXIII, Section 29 and JCL Rule XVI, the Chair, or other Commission member designated by the Commission, shall preside over hearings to inquire into allegations of misconduct or disability contained in a notice of hearing concerning a judge. The Chair or presiding member shall conduct the proceedings, rule on objections to evidence, subject to being overruled by a majority of members present at the hearing or at a subsequent deliberation. If a Commission member wishes to discuss an evidentiary ruling by the Chair, or the presiding member, such discussion and vote of the Commission members with respect to the challenged ruling shall be conducted outside of the presence of the parties and their legal counsel. The Chair or presiding member may defer ruling on an objection and admit evidence subject thereto. B. Hearings to inquire into allegations of misconduct or disability contained in a notice of hearing concerning a judge shall proceed in the following order, subject to change, which may include eliminating statements of both Special Counsel and the judge, in the discretion of the Chair: (1) Brief opening statements by Special Counsel and the judge whose conduct is the subject of the proceeding, in that order;(2) All proposed exhibits of both Special Counsel and the judge whose conduct is the subject of the proceedings shall be numbered and marked, with a list of the exhibits attached. All exhibits shall be introduced into evidence en globo at the commencement of the hearing, except in the case of objections to admissibility. The Chair may either rule on any objection to the admissibility of one or more exhibits or defer the ruling until a later specific time in the proceedings. Any exhibit sought to be introduced that contains information that is privileged and confidential by law, such as case records from juvenile courts that are subject to statutory confidentiality rules, shall only be admitted if the confidential portions of the exhibits are marked out or otherwise excerpted from the exhibit. When an audio or video tape constitutes an exhibit, except in exigent circumstances (decided in the discretion of the Chair), such tape must be introduced along with a transcription thereof made by a certified court reporter. (3) Presentation of evidence by Special Counsel and the judge whose conduct is the subject of the proceeding, in that order;(4) Presentation of evidence by Special Counsel in rebuttal; and (5) Argument by Special Counsel and by the judge whose conduct is the subject of the proceeding and then rebuttal by Special Counsel, in that order, unless a party's request to adjust the order is granted by the Commission. To support a recommendation of discipline to the Supreme Court, Special Counsel shall establish the grounds therefor by the standard of clear and convincing evidence.
C.(1) Witnesses shall be subject to direct examination, cross examination, and re-direct examination. Re-direct examination shall be limited to matters inquired into on cross examination. The Commission may permit inquiry into new matters on re-direct subject to the right of the other party to conduct cross examination of the witness on the new matters. (2) A witness who appears but refuses to testify without proper cause shall be in contempt of the Commission and shall be immediately referred to the Louisiana Supreme Court. (3) Testimony regarding the character of a respondent judge shall be taken solely by affidavit except on a showing of good cause in the discretion of the Commission, in which case the Commission may permit live testimony. Testimony by judges other than the respondent judge that the respondent did or did not violate the Code of Judicial Conduct or the Louisiana Constitution or that the Code should be interpreted in any particular manner will not be admitted into evidence, the Commission itself being vested with the sole authority to make such a determination as part of its recommendation to the Louisiana Supreme Court. If subpoenaed to testify, a judge other than the respondent may be called as a witness to testify to relevant facts about the underlying basis for the complaint that gave rise to the allegations of misconduct or disability contained in the notice of hearing or to otherwise give relevant factual testimony to try to provide to the Commission a contextual perspective about the respondent's conduct. The Commission does not deem such testimony by a judge to be "expert testimony." | Comment: The Commission views expert testimony as rarely relevant or necessary in Commission proceedings. One example of when expert testimony might be relevant and admitted in Commission proceedings would be with regard to an alleged physical or mental disability of a respondent judge, when such judge's health is at issue before the Commission. |
D.(1) The Commission and hearing officers shall not be bound by the technical rules of evidence and may admit material and relevant evidence, including hearsay.(2) The principles underlying the Louisiana Code of Evidence shall serve as a guide to the admissibility of evidence in hearings before the Commission. The specific exclusionary rules and other provisions shall be applied only to the extent that they tend to promote the purposes of proceedings before the Commission, in the discretion of the Chair or the presiding member. Nothing shall prevent the introduction of sworn testimony from administrative proceedings, civil or criminal trials, or hearings of a contradictory nature (1) where the respondent judge has cross-examined or had the opportunity to cross-examine the witnesses whose testimony is sought to be introduced; (2) where the parties have stipulated to the admissibility of the sworn testimony; or (3) where the sworn testimony is being introduced at the hearing for impeachment or as evidence of a failure to cooperate with the investigation. The certified transcripts of all proceedings over which the respondent judge has presided are admissible. (3)(a) Procedures applicable in Commission hearings shall be limited to those (i) set forth or incorporated by reference into these rules and Rule XXIII of the Rules of the Supreme Court of Louisiana and (ii) employed by the Chair in his or her discretion. If the hearing is held before the Commission, the Commission may entertain a motion for dismissal of the case by the respondent judge at the time the Office of Special Counsel rests or at the close of all the evidence, on the ground that the evidence is insufficient to prove the allegations of misconduct or disability contained in the notice of hearing by a clear and convincing standard. If the hearing is held before a hearing officer, the respondent judge may make such a motion for dismissal at the close of all the evidence. After the conclusion of the hearing, the motion for dismissal shall be referred by the hearing officer to the Commission for decision, in accordance with La. Sup. Ct. Rule XXIII, Sec. 29(c)(1)(i). The hearing officer shall include with the referral the hearing officer's recommendation as to whether the motion for dismissal should be granted or denied, but the ruling on the motion for dismissal shall be made by the Commission. The hearing officer's recommendation and the Commission's ruling on the motion for dismissal shall be based solely on the evidence presented by the Office of Special Counsel. Such a motion for dismissal shall not relieve the hearing officer of the duty to submit proposed findings of fact and conclusions of law to the Commission, in accordance with La. Sup. Ct. Rule XXIII, Sec. 29(e), based on the evidence presented by the Office of Special Counsel and the respondent judge.(b)(i) Special Counsel may enter into proposed stipulations of fact with the respondent judge and the judge's legal counsel. Unless the provisions of La. Sup. Ct. Rule XXIII, Sec. 29(g) apply, the stipulations need not be approved by the hearing officer or the Commission. The fact that Special Counsel and the respondent judge have entered into stipulations of fact shall not affect the right of the Commission to remand all or part of a case back to the hearing officer for further testimony after the case heard before the hearing officer has been lodged with the Commission. (ii) Special Counsel and the respondent judge may enter into joint recommendations as to conclusions of law for submission to the hearing officer assigned to the relevant case or to the Commission if the Commission is conducting the hearing in lieu of a hearing officer. Neither the Commission nor the hearing officer shall be bound to accept such joint recommendations as to legal conclusions, and may reject them without comment. After a case heard by a hearing officer has been lodged with the Commission (or after the Commission conducts a hearing), legal arguments regarding the appropriate recommendation of discipline may be included in the respective briefs of Special Counsel and the respondent judge. E.(1) When the Commission rules against the admissibility of any testimonial evidence, it shall permit the party offering the evidence to submit the evidence by deposition taken pursuant to the provisions of the Louisiana Code of Civil Procedure. The Commission may, in its discretion, allow a party to make a sworn proffer of testimony during a break in the formal proceedings (such as lunch or the end of the day), when the Commission and its counsel are not present. The party requesting the proffer of testimony during such break shall pay all costs (including court reporter and hearing room costs) associated with the proffer. When the Commission rules against the admissibility of any documentary evidence, it shall permit the party offering the evidence to proffer it into the record. Proffers of testimonial evidence shall be submitted within thirty (30) calendar days subsequent to the completion of the hearing, and proffers of documentary evidence shall be submitted by the completion of the hearing. (2) Proffered evidence shall be filed into the record within a separate volume of proffered exhibits and shall not be included within the main volume(s) of the record unless the Commission grants the motion of a party or on its own motion determines that the proffered evidence shall be admitted. (3) No counsel to a proceeding before the Commission shall refer to the substance of proffered testimony or documentary evidence unless the Commission has affirmatively voted to admit the proffered evidence. This prohibition does not preclude a party from referencing proffered evidence within a motion to the Commission to admit the excluded evidence. F. Following a hearing the Commission will not accept any further filings or pleadings, except in the case where the Commission has granted specific authority to either Special Counsel or to the judge whose conduct is at issue to file a pleading (which permission shall include a certain number of days in which to submit the filings or pleadings). Any unauthorized filing or pleading submitted after a hearing will not become part of the record of the proceeding and will not be considered by the Commission in its deliberations in a particular case. G. Unless authorized by the Commission, no camera, recording equipment, or other type of electrical or electronic device shall be brought into the premises where a hearing of the Commission is being conducted or used to record such proceedings. RULE IX. VOTING AND POLLS.
Each Commission member present at a meeting of the Commission should vote in favor of or in opposition to each motion called for a vote during a Commission meeting or other proceeding, except when such member has grounds for recusal and has actually recused herself or himself in the matter. Abstention from voting should only be exercised in exceptional circumstances, such as when a new member commences service and a vote is called upon a matter not reviewed by the new member.
The Chair shall vote on all matters submitted to the Commission in the same manner as any other Commission member. A vote of a majority of the Commission is required to issue closure letters and letters of reminders, cautions and admonishments, using procedures consistent with Supreme Court Rule XXIII, Section 3.
There shall be no voting by proxy by any Commission member. Except as set forth in paragraph immediately following, a Commission member who was not present either in person or by teleconference at a meeting where a particular issue was discussed or heard shall not be entitled to vote on that particular issue or matter previously submitted for review where the vote is taken at a subsequent meeting.
In the case where a Commission hearing is convened and the term of a Commission member expires or otherwise terminates prior to deliberation and vote on the matters heard, the successor to the outgoing Commission member may vote on such matters only if such successor member has read in full the transcript of the relevant hearing. Further, in the case of a hearing or other appearance of a judge or judicial officer where a full transcript of the proceeding is prepared, a Commission member who is not present at the hearing or other appearance may vote on the matter after reviewing the entire transcript.
Except as set forth hereinafter, routine business of the Commission, including authorization of an investigation requiring approval of the members, may be transacted by a video conference, telephone, or other poll of at least six members, with at least five members agreeing on a course of action. No notice of hearing shall be instituted except upon deliberation at a Commission meeting. If a judge has been indicted or charged with a serious crime under state or federal law, the Commission may vote by video conference, telephone, or other poll, with at least five members concurring, on the issue of whether to recommend to the Supreme Court that such judge be disqualified on an interim basis, pursuant to La. Sup. Ct. Rule XXIII, Sec. 27. A serious crime, for purposes of this rule means (1) any felony; or (2) any other lesser crime that reflects adversely on the judge's honesty, trustworthiness, or fitness as judge.
Following a decision to issue a notice of hearing, drafts of the notice of hearing shall be circulated to the members, who shall indicate a vote of approval or disapproval by mail or any other means approved by at least five members of the Commission.
| Note: See also, Rule XXIII of the Rules of the Supreme Court of Louisiana, including Sections 3(c) and 10, which address voting by the Commission. |
RULE X. CONFIDENTIALITY AND MEDIA COMMUNICATIONS.
A. Every effort shall be made by members of the Commission to keep confidential the fact that a complaint has been made or that an investigation is taking place. All Commission proceedings, meetings, meeting agendas and materials, discussions, deliberations, and communications among Commission members are confidential and should not be disclosed to any person, including respondent judges, other than Commission members or staff. No statement may be issued by any member of the Commission, or by any staff member, or by Special Counsel, concerning a particular complaint or investigation, unless the statement is authorized by and made in accordance with La. Sup. Ct. Rule XXIII, Sec. 23.B. No Commission member shall have private communications with the Office of Special Counsel or any respondent judge about any pending open or investigation files outside of the presence of the full Commission. C. No respondent judge or legal counsel shall contact a Commission member directly concerning any complaint, investigation, or pending Commission matter. All correspondence or other written communications to be provided to Commission members shall be addressed to the Chief Executive Officer or Commission Counsel for processing and response. D. No Commission member may make or respond to contacts with the media, the general public, or persons involved in Commission proceedings concerning allegations, investigations or other Commission proceedings, or the administration of the Commission, unless so authorized by the Commission. Such contacts made to a Commission member should be referred to the Chief Executive Officer, who shall respond at his or her discretion, or direct his or her designee or the Supreme Court's Deputy Judicial Administrator - Public Information & Community Relations to respond, with regard to matters that are not confidential. In the event of the unavailability of the Chief Executive Officer at the time a response should be made, the Chair may respond for the Commission. This policy does not preclude Commission members or the Commission's specific designee from publicly discussing general, non-confidential matters concerning the Commission, unrelated to a specific case, such as its purpose, history, or composition.E. Prior to a proceeding concerning the discipline of a judge being lodged in the Supreme Court by the Commission, pursuant to Supreme Court Rule XXIII, Sections 10 through 12, all inquiries from the media concerning a respondent judge should be forwarded to the Chief Executive Officer who may, if he/she so desires, refer the matter to a designee, including Commission Counsel or Special Counsel. F. When sources other than the Commission cause notoriety concerning a judge or the Commission itself and the Commission deems that extreme circumstances dictate that the best interests of the judge or the Commission would be served, it may issue a public statement through its Chief Executive Officer. Such a statement shall never infringe upon Rule XXIII, Section 23 of the Rules of the Supreme Court of Louisiana that all documents, evidence, and proceedings before the Commission are to be confidential. G. Subsequent to the filing of a proceeding in the Supreme Court concerning the discipline of a judge, pursuant to Supreme Court Rule XXIII, Sections 10 through 12, the members, staff, and Special Counsel of the Commission shall refer or forward all inquiries regarding that filing to the Chief Executive Officer, who may, at his or her discretion, refer the matter to a designee, which may include Commission Counsel or Special Counsel, for proper and timely response. In the event that Commission Counsel or Special Counsel is designated to make such a response, counsel shall comply with the provisions of Rule 3.6 of the Rules of Professional Conduct and La. R.S. 37, Ch.4, App. art. XVI.H. The Commission, or any other person authorized by the Commission, may give an oath or affirmation of secrecy to any investigator, witness, clerk, deponent, or any other person involved in a hearing or investigation. RULE XI. CHAIR, VICE CHAIR, CHIEF EXECUTIVE OFFICER, AND LEGAL COUNSEL.
A. The Chair shall be elected by a majority of the members of the Commission and shall serve a term of one year beginning with the date he or she takes office. No member of the Commission may serve as Chair for more than one year during the member's four-year term. The Commission shall also elect a Vice-Chair who shall serve as Chair whenever the Chair is absent, recused, or disabled. In addition to the other responsibilities of the Chair as set forth in these rules, the Chair shall preside at meetings and shall decide administrative matters and requests presented to the Commission consistent with its established policies. It shall be the duty of the Vice Chair to review reports on the status of the docket submitted by Special Counsel, and use all reasonable efforts to keep the docket current. B. The Chief Executive Officer shall have the duty to:(1) Take any action on behalf of the Commission that is authorized by the Rules of the Louisiana Supreme Court or these rules, including review and signing of subpoenas and notices of hearing; (2) Attend Commission meetings and be present during deliberations of the Commission;(3) Advise the Commission with respect to the issuance of notices of hearing, considering investigations, recommendations to the Supreme Court with regard to discipline, and any other matter on which the Commission must make a decision or ruling; (4) Supervise Special Counsel, Commission Counsel, and Hearing Officer Counsel, as directed by the Chair; (5) Provide management support in the daily operations of the Commission, the Office of Special Counsel, the Office of Commission Counsel, and the Office of Hearing Officer Counsel, as directed by the Chair; and (6) Perform such other duties as the Commission may direct. The Chief Executive Officer shall at all times conduct himself or herself in a dignified manner befitting an officer of the court.
C. The Commission shall have on its staff a Special Counsel, to be engaged primarily in conducting inquiries into, and investigation of complaints submitted to the Commission and the presentation of evidence and arguments to the Commission in cases in which a notice of hearing alleging judicial misconduct or disability has been filed. When the Commission recommends discipline, Special Counsel also presents evidence and arguments to the Supreme Court. The Commission shall also have on its staff a Commission Counsel, whose primary function shall be to advise the Commission with respect to matters coming before the Commission, including those presented by Special Counsel, and to draft written findings of fact and conclusions of law, orders, correspondence, and other documents required by the Commission, and a Hearing Officer Counsel, whose primary function shall be to advise the hearing officers assigned to cases in which a notice of hearing has been filed, with respect to matters coming before them and to draft the hearing officer's proposed findings of fact and conclusions of law, orders, correspondence, and other documents required by the hearing officer. (1) Special Counsel shall have the duty to: (a) Receive and screen complaints, conduct preliminary inquiries and recommend dispositions of such complaints to the Commission without further inquiry, and, if authorized by the Commission, conduct full investigations to seek evidence that supports and evidence that disproves the allegations contained in the complaint, make recommendations to the Commission on the disposition of complaints after full investigation, prepare notices of hearing when directed to do so by the Commission, present evidence and arguments in support of the allegations specified in the notice of hearing before the hearing officer (including oral argument, filing of briefs, and the submission of proposed Findings of Fact and Conclusions of Law) and before the Commission (including oral argument, filing of briefs and the submission of proposed Findings of Fact, Conclusions of Law and Recommendations for Discipline), and file briefs and other appropriate pleadings for the Commission and orally argue the Commission's position to the Supreme Court; (b) Maintain records of the operations of the Special Counsel's office, including records of complaints, screenings, investigations, and notices of hearing with regard to judicial discipline; (c) Compile statistics to aid in the administration of Commission business, with respect, but not limited, to (i) logging of all complaints received, (ii) investigative files, and (iii) statistical summaries of docket processing and case disposition. In this regard, Special Counsel shall submit to the Chair and Vice Chair of the Commission at least quarterly, and more frequently if requested by the Chair or Vice Chair, a list of outstanding matters before the Commission, which list shall include sufficient information to indicate the nature of the pending matter and the status thereof as of the time of the report, including the docketing of complaints described in JCL Rule IV; (d) Supervise such other attorneys, investigators, and staff as the Supreme Court may provide to the Commission for the Office of Special Counsel; and (e) Perform such other duties as the Commission may direct. (2) Special Counsel: (a) Shall not be present during any deliberations of the Commission with respect to (i) the decision to issue a notice of hearing, (ii) the Commission's recommendation of discipline to the Supreme Court, or (iii) any other decision pertaining to a particular judge following the filing of a notice of hearing; (b) Shall not engage in ex parte communications with the Commission as a whole or with any individual Commission member as to a complaint against a judge from the time a notice of hearing is filed and so long as any such matter remains pending before the Commission, except as may be necessary for scheduling purposes; and shall not engage in private communications with individual Commission members about any pending open or investigation files outside of the presence of the full Commission, provided, however, the following communications are authorized: (1) communications concerning a matter in which the Commission member is the complainant, a witness, or the respondent; (2) communications with the Chair or Vice Chair regarding administrative matters; (3) communications authorized by Rule XXIII or elsewhere in these rules; (4) communications expressly authorized by the Commission or the Chief Executive Officer. Both Special Counsel and the members of the Commission shall take all necessary steps to avoid such ex parte communications; and (c) Shall at all times conduct himself or herself in a dignified manner befitting an officer of the Court.(3) Commission Counsel shall have the duty to: (a) (i) Advise the Commission with respect to all matters submitted to its members by Special Counsel or others; (ii) be present during deliberations of the Commission and advise the Commission with respect to the issuance of notices of hearing, considering investigations, recommendations to the Supreme Court with regard to discipline, and any other matter on which the Commission must make a decision or ruling; (iii) advise the Commission with respect to policy matters, including drafting rules and policies; (iv) assist the Chair and the Vice Chair in reviewing Special Counsel's docket reports and in maintaining a current docket; and (v) issue subpoenas, notices, citations, and other process, as described in La. Sup. Ct. Rule XXIII, Sec. 5 and JCL Rule VII; (b) Put into writing the Commission's Findings of Fact and Conclusions of Law as to Recommendations for Discipline to the Supreme Court, and to draft orders, reports, correspondence, and other documents requested by and on behalf of the Commission; (c) Draft the minutes of Commission meetings and maintain records of the Commission, other than those created and maintained in the office of Special Counsel and in the office of Hearing Officer Counsel; (d) Supervise such other staff as the Supreme Court may provide to the Commission for Commission Counsel's office;(e) Perform such other duties as the Commission may direct; and(f) Not engage in ex parte communications with Special Counsel, a respondent judge, the respondent judge's attorney, the hearing officer, or Hearing Officer Counsel as to a complaint against a judge from the time a notice of hearing is filed and so long as any such matter remains pending before the Commission, except where circumstances require, for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits, and provided that Commission Counsel reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communications. Commission Counsel shall take all necessary steps to avoid such ex parte communications. (4) Commission Counsel shall at all times conduct himself or herself in a dignified manner befitting an officer of the court. (5) Hearing Officer Counsel shall have the duty to:(a) Advise the hearing officers assigned to cases in which a notice of hearing has been filed with respect to all matters submitted to them by Special Counsel and the respondent judge; (ii) be present during hearings before hearing officers and advise the hearing officers with respect to all issues associated with such hearings that are within the authority of the hearing officer to decide; (iii) advise the hearing officers with respect to any other matter on which the hearing officer must make a decision or ruling; (iv) advise the hearing officers regarding rules applicable to hearing procedures and the proper conduct of hearing officers, including but not limited to La. Sup. Ct. Rule XXIII, Sec. 29; and (v) issue subpoenas, notices, citations, and other process, as described in La. Sup. Ct. Rule XXIII, Sec. 5, and JCL Rule XVI; (b) If requested by the hearing officer, draft Proposed Findings of Fact and Conclusions of Law concerning the allegations of misconduct or disability contained in a notice of hearing, and draft orders, reports, correspondence, and other documents requested by and on behalf of the hearing officers; (c) Maintain records of cases pending before hearing officers and file such records and the hearing officer's Proposed Findings of Fact and Conclusions of Law with the Commission; (d) Supervise such other staff as the Supreme Court may provide to the Commission for Hearing Officer Counsel's office; and (e) Perform such other duties as the Commission may direct.(6) Hearing Officer Counsel: (a) Shall not be present during any deliberations of the Commission with respect to (i) the decision to issue a notice of hearing, (ii) the Commission's recommendation of discipline to the Supreme Court, or (iii) any other decision pertaining to a particular judge following the filing of a notice of hearing; (b) Shall not engage in ex parte communications with the Commission as a whole or with any individual Commission member as to a complaint against a judge from the time a notice of hearing is filed and so long as any such matter remains pending before a hearing officer, except, where circumstances require, for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits, and provided that Hearing Officer Counsel reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communications. Both Hearing Officer Counsel and the members of the Commission shall take all necessary steps to avoid such ex parte communications. (c) Shall not engage in ex parte communications with Special Counsel or with the respondent judge and his or her counsel from the time a notice of hearing is filed and so long as any such matter remains pending before a hearing officer, except as may be necessary for scheduling purposes; and (d) Shall at all times conduct himself or herself in a dignified manner befitting an officer of the court. (7) The limitations and restrictions set forth in this rule that apply to Special Counsel, Commission Counsel, and Hearing Officer Counsel also apply to all members of their staff. RULE XII. RECUSAL OR DISQUALIFICATION.
A. A Commission member shall recuse himself or herself in any matter in which recusal would be required by a judge under the Code of Judicial Conduct or where his or her impartiality might reasonably be questioned. In all other cases, a member shall not recuse himself or herself. A Commission member is automatically recused from any matter in which he or she is the complainant, or the respondent, or a witness. B. If a respondent judge or Special Counsel believes there are grounds to recuse a Commission member or a member of the Commission's staff, he or she may file with the Commission a written motion requesting such recusal. In the event the Commission member or staff member does not recuse himself or herself in response to the motion, the motion to recuse shall be considered at the next regularly scheduled Commission meeting or may be decided by the Commission by video conference, telephone, or other poll, in the discretion of the Chair or the Chief Executive Officer, as circumstances may require. C. If a Commission member believes there are grounds to recuse another Commission member or a member of the Commission's staff, he or she may raise the issue to the Commission Chair, who will present the recusal issue to the Commission member or staff member for response. In the event the Commission member or staff member does not recuse himself or herself in response to the motion or recusal issue, the Commission member-initiated recusal issue (if the Commission member wishes to pursue the issue) shall be considered at the next regularly scheduled Commission meeting or may be decided by the Commission by video conference, telephone, or other poll, in the discretion of the Chair or the Chief Executive Officer, as circumstances may require. D. In the case of a Commission member-initiated recusal, the person whose recusal is sought shall have the right to submit a written response to the recusal issue, to attend the meeting during which his or her recusal is discussed, and to speak prior to the Commission's deliberation on the recusal issue. E. The Commission may, but shall not be obligated to, grant a hearing on a motion to recuse. F. During deliberation on the motion to recuse or member-initiated recusal issue, the Commission member or staff member whose recusal is sought shall not be present or otherwise participate. | Note: See also, La. C.Cr.P. art. 671 and C.C.P. art. 151(B). |
RULE XIII. BUDGET.
The Chief Executive Officer shall prepare the annual budget of the Commission and shall thereafter supervise administration of funds, subject to recommendation and approval by the Commission.
RULE XIV. MEMBERS AND FORMER MEMBERS; DISPOSITION OF FILES; NO PARTICIPATION IN JUDICIAL RACES.
When a disciplinary matter before the Commission has been closed or otherwise terminated, each member of the Commission shall destroy his or her file on that matter.
As soon as practicable after a Commission member's term of membership terminates, the former member shall deliver all Commission files and documents in his or her possession to Commission staff or his or her successor or shall destroy same.
During a Commissioner's term he or she shall not support a candidate for judicial office. Support for a candidate includes, among other things, (1) making a monetary or in-kind contribution, (2) public endorsement of the candidate and/or permitting his or her name to be used by another in support of the candidate, (3) reacting to or commenting about a candidate on any social media sites or posts in a manner that a reasonable person could interpret as an endorsement, or (4) posting a campaign sign or other communication in support of the candidate in his or her yard, structure, or on his or her vehicle.
RULE XV. NOTICE TO JUDGE THAT THE COMMISSION WILL RECOMMEND DISCIPLINE; NOTICE TO THE PRESS.
As soon as practicable after the Commission votes to submit to the Louisiana Supreme Court a recommendation of judicial discipline and has approved related written findings of fact and conclusions of law, Commission Counsel shall prepare the record of the Commission for filing with the Louisiana Supreme Court. Thereafter, the judge shall receive at least seventy-two (72) hours' prior notice, exclusive of weekends and official holidays, of the anticipated filing. Such notice of imminent filing shall be transmitted to the judge by facsimile or other electronic means of communication, if possible, and otherwise in writing in a manner that will assure his or her receipt. In the discretion of the Chief Executive Officer, a press release may be prepared regarding the upcoming filing. If a press release will issue, it shall be sent to the Associated Press, United Press International, and all other applicable state and local news services at the same time. No member of the Commission or the Commission's staff shall communicate to the press the fact of a filing in the Supreme Court, and only the person or persons designated by the Commission to have media contact shall respond to any questions from the press with respect to the filing. Notwithstanding the foregoing, where the judge who has been the subject of a recommendation of judicial discipline sits on a bench where there is more than one judge, the Chief Executive Officer may, in his or her discretion, contact the chief judge of the relevant court (or the second in seniority if the chief judge is the respondent judge) no earlier than 48 hours, exclusive of holidays and weekends, prior to the filing of a recommendation of discipline by the Commission, and disclose the fact of the imminent filing in order to prepare the court for the possibility of media attention.
RULE XVI. HEARING OFFICERS.
A. The Commission authorizes the hearing officer and the attorney designated as legal counsel to the hearing officer to exercise the Commission's authority under La. R.S. 13:36 to subpoena witnesses, compel their attendance, examine them under oath or affirmation, and require the production of books, records, documents or other evidence deemed relevant or material to an investigation or hearing. B. When a hearing officer is selected in a case, the following provisions shall be applicable: (1) except as otherwise noted therein, the functions of the case manager set forth in JCL Rule VII shall be performed by the hearing officer;(2) all references in JCL Rule VIII to the Chair, the presiding member or any other decision maker shall apply to the hearing officer; and(3) the authority granted to the Commission in JCL Rule VIII G shall apply to the hearing officer; C. Notwithstanding the provisions of JCL Rule VIII F, following a hearing before a hearing officer, the Commission shall accept the filings permitted by La. Sup. Ct. Rule XXIII, Sec. 29(d). D. Hearing officers are bound by JCL Rules X (Confidentiality and Media Communications), XII (Recusal or Disqualification), and XIV (Members and Former Members; Disposition of Files) to the same extent as are members of the Commission. E. To the extent that this JCL Rule XVI at any time conflicts with La. Sup. Ct. Rule XXIII, La. Sup. Ct. Rule XXIII shall be controlling. RULE XVII. ENFORCEMENT OF FINANCIAL DISCLOSURE RULES
A. This rule shall apply to proceedings related to the financial statements required to be filed by La. Sup. Ct. Rule XXXIX (Financial Disclosure) or by La. Sup. Ct. Rule XL (Financial Disclosure by Non-Incumbent Candidates for Elective Judicial Office). B. Whenever a matter pertaining to financial disclosure is referred to the Commission by the judicial administrator's office pursuant to the provisions of Sec. 4 (C)(1) or 4(C)(2) of La. Sup. Ct. Rule XXXIX, and the Commission finds that a person may have failed to file a financial statement or may have failed to disclose or disclose accurately the required information, the Commission shall direct the Office of Special Counsel to prepare and process a notice of hearing, and a hearing on the allegations specified in the notice of hearing shall be held before a hearing officer. C. Whenever the Commission receives a written complaint from a source other than the judicial administrator that is directed to the accuracy or completeness of a financial statement that has been filed pursuant to La. S.Ct. Rule XXXIX, and the Commission has determined that the complaint is not frivolous, the Commission shall mail the complaint by certified mail to the judge who is the subject of the complaint. The judge shall be asked to answer the complaint within fourteen business days after the complaint is received.1 A five-day extension may be granted for good cause. If the Commission finds in connection with a written answer that no violation of the financial disclosure requirements has occurred, no penalties shall be assessed against the person. If the Commission finds that the person may have failed to file a financial statement or may have failed to disclose or accurately disclose the required information, the Commission shall direct the Office of Special Counsel to prepare and process a notice of hearing, and a hearing on the allegations specified in the notice of hearing shall be held before a hearing officer. D. A hearing on the allegations specified in a notice of hearing shall be conducted before a hearing officer designated pursuant to La. Sup. Ct. Rule XXIII, Sec. 29(a). The hearing officer shall be selected for the hearing in accordance with La. Sup. Ct. Rule XXIII, Sec. 29(b), and the hearing shall be convened and conducted in accordance with La. Sup. Ct. Rule XXIII, Sec. 29. E. The hearing will be limited to the following issues: (1) whether or not the person failed to file a financial statement; (2) whether or not the person failed to disclose or accurately disclose the required information; and/or (3) whether the failure was willful and knowing.F. Within fifteen days after the conclusion of the hearing, the hearing officer shall submit a report to the Commission that contains proposed findings of fact and, if applicable, conclusions of law. The hearing officer shall not include in the report a recommendation regarding discipline, sanctions, or penalties. G. Notwithstanding the provisions of La. Sup. Ct. Rule XXIII, Sec. 29(d), the hearing officer shall not give the respondent judge and the Office of Special Counsel any more than five days after the completion of the hearing to submit briefs and proposed findings of fact and, if applicable, proposed conclusions of law. H. If, after the Commission has considered the hearing officer's report, the Commission decides that no violation of the financial disclosure requirements has occurred, the Commission shall issue a written determination to that effect, no penalties shall be assessed, and no recommendation shall be made to the Supreme Court. I. If, after the Commission has considered the hearing officer's report, the Commission determines that a person has failed to file a required financial disclosure statement, or has failed to disclose or accurately disclose the required information, the Commission shall file the record and a recommendation with the Supreme Court. The Commission shall recommend the imposition of civil penalties in accordance with La. Sup. Ct. Rule XXXIX, Sec. 4(F)(7) and shall also make a recommendation regarding whether or not the violation was willful and knowing. J. When a non-incumbent candidate for elective judicial office fails to file a financial disclosure statement required by La. Sup. Ct. Rule XL, or omits any information required to be included in the financial disclosure statement, or the judicial administrator has reason to believe any information included in the financial disclosure statement is inaccurate, the matter shall proceed in accordance with the provisions of La. Sup. Ct. Rule XXXIX, Sec. 4 and with this rule. K. If a non-incumbent candidate for elective judicial office either loses the election or withdraws his or her candidacy while a financial disclosure proceeding is pending before the judicial administrator, the Commission, or a hearing officer: (1) the proceeding shall be transferred to the Louisiana Attorney Disciplinary Board in accordance with the provisions La. Sup. Ct. Rule XL, Sec. 4(B), if the candidate is a lawyer, or(2) the judicial administrator shall inform the Supreme Court, which shall assign a retired judge to conduct the hearing and report to the Supreme Court in accordance with the provisions of La. Sup. Ct. Rule XL, Sec. 4(C). L. To the extent reasonably possible, all proceedings involving financial disclosure statements shall be handled on an expedited basis and shall take precedence over other matters. M. To the extent this JCL Rule XVII at any time conflicts with La. Sup. Ct. Rule XXXIX or with La. Sup. Ct. Rule XL, the Supreme Court rule shall be controlling. N. To the extent this rule conflicts with any other Commission rule, this rule shall be controlling. --------------------------------------------------------------------------------
1 As to submissions reviewed by the judicial administrator's office, it is noted that this procedure is conducted by that office prior to referral to the Commission. See Sec. 4 of La. Sup. Ct. Rule XXXIX.
La. R. Sup. Ct. Rules of the Judiciary Commission
Amended effective 7/1/2016, December 2, 2016; February 17, 2017; and 3/24/2017 .