Rule 9 - Proceedings after the filing of a Formal Complaint(1) Within twenty-one days of service of a Formal Complaint, the judge may file an answer with the Board in a manner consistent with Rule 6(19)(a). The answer shall contain all defenses. No further pleadings need be filed. Failure to answer or to deny misconduct or disability shall be deemed an admission of the charges. The Chair may permit late filing of an answer upon a showing of mistake, inadvertence, surprise or excusable neglect. (2) At any time prior to its final order of recommendation, the Board or investigative panel may allow or require amendments to the Formal Complaint or answer. The Formal Complaint may be amended to conform to the proof or to state additional facts, either before or after the commencement of the hearing. If the Formal Complaint is amended, the judge shall be given reasonable time to answer the amendment and to prepare and present a defense against the matters charged thereby. (3) If the Board concludes that a judge who is the subject of a complaint is incompetent to defend against the charges, it shall appoint a guardian ad litem unless the judge has a guardian who will represent the judge. In appointing a guardian ad litem, the Board shall consult with and consider the wishes of the judge's immediate family. The guardian or guardian ad litem may claim and exercise any right or privilege and make any defense for the judge with the same force and effect as if claimed, exercised, or made by the judge, if competent, and whenever these rules provide for serving or giving notice or sending any matter to the judge, a copy of the notice or matter shall also be served upon the guardian or guardian ad litem. (4) Discovery shall be permitted as provided for in the Rules of Civil Procedure. No materials made confidential by Rule 6.(7) shall be discoverable, and no depositions may be taken of Board members or counsel to the Board. However, all records reviewed by the Board in its initial inquiry shall be discoverable. This shall not be construed to make public any communications among Board members, the Board and special or disciplinary counsel, or other records otherwise made confidential by law or rule. (5) Upon the filing of an answer or upon the expiration of the time for its filing, the Board shall set a deadline for any discovery. The evidentiary hearing shall be held before a hearing panel consisting of at least five members of the Board, at least one of whom shall be a lay member. The Board shall set a time and place for the hearing and shall give notice of the hearing to the judge at least twenty days prior to the hearing date. The Board may preside remotely and may allow or require remote participation by the judge, witnesses, and other necessary participants as provided in Vermont Rule of Civil Procedure 43.1. The Chair shall name the hearing panel and shall preside or designate a member to serve as the presiding officer. (6) The judge shall have the right to appear personally or remotely, if authorized under Rule 9(5), and by attorney and to answer the charge, to present evidence in his or her defense, to examine and cross-examine witnesses, to secure subpoenas, to have a guardian ad litem appointed if indicated, and to secure a transcript of the evidence, findings, conclusions and recommendations. (7) The hearing shall conform to the rules of procedure and evidence governing the trial of civil actions. Special counsel or disciplinary counsel shall be designated by the Board to present the evidence in support of the Formal Complaint. The failure of the judge to appear in person or by counsel may be treated as a waiver of all defenses and a concession of the violation. (8) The presiding officer shall make rulings on procedure and evidence during the hearing. (9) The panel may initiate contempt proceedings before a single justice of the Supreme Court if a witness or judge fails to appear or fails to comply with any order of the Board or the Supreme Court in connection with a Board proceeding.(10) Oral evidence shall be taken only on oath or affirmation. (a) Witnesses summoned by the panel shall be paid the same fees and mileage for attendance and travel as are paid in civil actions. Unless otherwise provided for by law, the Board shall not pay fees for attendance and travel to witnesses summoned by a party other than the Board. The party summoning the witnesses shall pay the fees. Any expert witness appointed by the panel shall receive a fee as an expert witness which shall be set by the Board.(b) When the judge has been exonerated of the charges, upon application, the Supreme Court may direct, at its discretion, that such portion of the costs and expenses of the judge as it deems equitable shall be borne by the state. (11) The formal hearing shall be recorded by a stenographic reporter or by other means designated by the Chair. The judge may arrange to procure a copy of the transcript at his or her own expense. The judge shall have the right, without any order or approval, to record the proceeding or to have all or any portion of the testimony in the proceeding transcribed at the judge's expense, except that the taking of photographs in the hearing room or radio or television broadcasting or transmitting of the formal hearing during the progress of the hearing or during any recess shall not be permitted except upon order of the Board in accordance with V.R.C.P. 79.2. Vt. Disc. Control of Judges R. 9
Adopted Feb. 17, 1978, eff. 3/1/1978; amended Aug. 31, 1981, eff. 11/3/1981; 9/17/2001, eff. 1/1/2002; 12/21/2010, eff. 2/21/2011; amended September 13, 2022, eff. 10/1/2022.Reporter's Notes-2022 Amendment
Rule 9 is amended to incorporate provisions related email filing and remote participation that were first implemented in response to the COVID-19 pandemic under Administrative Order 49, ¶ 15(c) and (d). Rule 9(1) is amended to provide that a judge's answer may be filed by the same means as provided under 6(19)(a), which is simultaneously amended to include email. Rule 9(5) and (6) are amended to allow the Board to preside remotely or to allow or require remote participation pursuant to V.R.C.P. 43.1.