JUDICIAL CONDUCT COMMISSION – RULES, STATUTES, PROCEDURES

 

                      
Judicial conduct commission
Does The Judicial Conduct Commission Have Jurisdiction Over Senior Status Judges?These resources raise an interesting question…is the JCC overreaching by trying to discipline Senior Status Judges?
AUTHORITIES RE: JUDICIAL CONDUCT ISSUES AND CANON 2 U.S. Supreme Court, State Courts, discuss examples of violation, appellate grounds, vagueness and Overbreadth issues, standard for applying Canon 2- discussion of why ethic rules for judges are necessary
 OHIO CASE CHARGING VIOLATIONS OF CANON 2 This detailed case discusses tyrannical conduct of judge, and her abuse of attorney and litigants rights by bullying them, and many more abuses.  The Ohio Canon 2 is similar to the Ky. version. This is a great tool to see abuses that may fall under Canon 2.
  "Appearance of Impropriety" Article by Encyclopedia of Public Administration
PROCEDURES OF THE JUDICIAL CONDUCT COMMISSION  By Judge Stan Billingsley(Judge Billingsley served on the Commission for five years.)
QUICK OUTLINE FOR UNDERSTANDING JUDGE’S RIGHTS WHEN APPEARING BEFORE JUDICIAL CONDUCT COMMISSION   You might want to print out this guideline and take it to the hearing with you.
 
 

 
 (1) The members of the Judicial Retirement and Removal Commission to be selected from among the Judges of the Court of Appeals, the Circuit Judges, and the District Judges, shall be selected according to rules promulgated by the Supreme Court.
(2) The member of the commission to be appointed by the governing body of the bar shall be appointed according to rules promulgated by the Supreme Court.
(3) The members of the commission appointed by the Governor shall include one (1) person from each of the two (2) political parties of the Commonwealth having the largest number of registered voters.
(4) All members of the commission shall serve until their successors are elected or appointed, as the case may be.
History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 9. — Created 1976 Ky. Acts ch. 68, sec. 1.
 
 
Members of the Judicial Retirement and Removal Commission who do not otherwise receive a salary from the State Treasury shall receive sixty dollars ($60) for each day they are in session or on official duty. All members shall be reimbursed for their necessary expenses for each day they are in session or on official duty. All claims shall be approved by the Chief Justice or his designee and shall be paid out of the State Treasury.
Effective: March 23, 1976
History: Created 1976 Ky. Acts ch. 68, sec. 4, effective March 23, 1976.
 
 
34.330 Oaths — Testimony — Evidence — Contempt proceedings.
In the exercise of its powers and duties, the Judicial Retirement and Removal Commission may administer necessary oaths, take testimony under oath, compel the attendance of witnesses, and compel the production of records and other evidence. If any witness refuses to testify concerning any matter on which he may lawfully be interrogated, any Circuit Judge, on application of the commission may compel obedience by proceedings for contempt as in the case of disobedience of a subpoena issued from the Circuit Court.
Effective: March 9, 1976
History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 10. — Created 1976 Ky. Acts ch. 68, sec. 3, effective March 9, 1976.
 
 
34.340 Majority vote required.
No justice or judge shall be retired for disability or suspended without pay or removed for good cause except upon a majority vote of members of the Judicial Retirement and Removal Commission.
Effective: March 23, 1976
History: Created 1976 Ky. Acts ch. 68, sec. 2, effective March 23, 1976.
 
 
SCR 4.020 Jurisdiction
(1) Commission shall have authority:
(a) To order a temporary or permanent retirement of any judge whom it finds to be suffering from a mental or physical disability that seriously interferes with the performance of his duties, and to suspend temporarily from the performance of his duties, without affecting his pay status, any judge (i) against whom there is pending in any court of the United States an indictment or information charging him with a crime punishable as a felony, or (ii) after notice and an opportunity to be heard, and upon a finding that it will be in the best interest of justice that he be suspended from acting in his official capacity as a judge until final adjudication of the complaint, any judge against whom formal proceedings have been initiated under Rule 4.180.
(b) To impose the sanctions, separately or collectively of (1) admonition, private reprimand, public reprimand or censure; (2) suspension without pay or removal or retirement from judicial office, upon any judge of the Court of Justice or lawyer while a candidate for judicial office, who after notice and hearing the Commission finds guilty of any one or more of the following:
(i) Misconduct in office.
(ii) Persistent failure to perform his duties.
(iii) Incompetence.
(iv) Habitual intemperance.
(v) Violation of The Code of Judicial Conduct, Rule 4.300.
(vi) Any willful refusal or persistent failure to conform to official policies and directives adopted by the Supreme Court and issued by the Chief Justice in his constitutional capacity as Chief Executive Officer of the Court of Justice.
(vii) Conviction of a crime punishable as a felony.
(c) After notice and hearing, to remove a judge whom it finds to lack the constitutional and statutory qualifications for the judgeship in question.
(d) To refer any judge of the Court of Justice or lawyer while a candidate for judicial office, after notice and hearing found by the Commission to be guilty of misconduct, to the Kentucky Bar Association for possible suspension or disbarment from the practice of law.
(2) Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission.
HISTORY: Amended by Order 89-1, eff. 8-28-89; prior amendments eff. 3-8-83, 9-1-80, 1-1-78; adopted eff. 10-1-76
 
 
 
SCR 4.210 Procedural rights of judge
(1) In proceedings involving his censure, retirement or removal, a judge shall have the right and reasonable opportunity to defend against the charges by the introduction of evidence, to be represented by counsel, and to examine and cross-examine witnesses. He shall also have the right to the issuance of subpoenas for attendance of witnesses to testify or produce books, papers, and other evidentiary matter.
(2) When a transcript of the testimony has been prepared at the expense of the commission, a copy thereof shall, upon request, be available for use by the judge and his counsel in connection with the proceedings. The judge shall have the right, without any order or approval, to have all or any portion of the testimony in the proceedings transcribed at the expense of the commission.
(3) Except as herein otherwise provided, whenever these rules provide for giving notice or sending any matter to the judge, such notice or matter shall be sent to the judge at his residence unless he requests otherwise, and a copy thereof shall be mailed to his counsel of record.
(4) If the judge is adjudged insane or incompetent, or if it appears to the commission at any time during the proceedings that he is not competent to act for himself, it shall appoint a guardian ad litem unless the judge has a committee who will represent him. In the appointment of such guardian ad litem, preference shall be given, whenever possible, to members of the judge’s immediate family. The committee or guardian ad litem may claim and exercise any right and 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, such notice or matter shall be served, given, or sent to the committee or guardian ad litem.
HISTORY: Amended eff. 1-1-78; adopted eff. 10-1-76
 
 
 
 
SCR 4.170 Complaint; preliminary investigation
(1) Upon its own motion or upon receiving a written complaint alleging facts indicating that there is probable cause for action concerning a judge, the Commission shall make a preliminary investigation to determine whether formal proceedings should be initiated.
(2) Notice of the investigation shall be given to the judge, and he shall be given an opportunity to appear informally before the commission. The name of the complainant shall not be included in the notice.
(3) If the commission concludes after its preliminary investigation that formal proceedings should not be initiated, it shall so inform the judge.
(4) After the preliminary investigation is completed and before formal proceedings are initiated under Rule 4.180, the Commission shall afford the judge under investigation an opportunity to examine all factual information, including the name of the complainant if relevant, and shall afford the judge an opportunity to furnish to the Commission any information the judge may desire bearing on the investigation.
(5) The Commission shall decide whether to initiate formal proceedings under SCR 4.180 within 180 days of commencement of preliminary investigation, unless within such period or extension thereof the Commission for good cause shown and with the agreement of the judge extends such period for a period or periods not exceeding an additional 180 days. The judge shall be informed of such extensions.
HISTORY: Amended by Order 98-2, eff. 1-1-99; prior amendment eff. 1-1-78; adopted eff. 10-1-76
 
 
 
SCR 4.180 Formal proceedings
If the commission concludes that formal proceedings should be initiated, it shall notify the judge. He may file an answer within 15 days after service of the notice. Upon the filing of his answer, or the expiration of time for so filing, the commission shall set a time and place for the hearing and shall give reasonable notice thereof to the judge.
HISTORY: Adopted eff. 10-1-76
 
 
 
 
SCR 4.220 Hearing
(1) At the time and place set for hearing, the commission shall proceed with the hearing whether or not the judge has filed an answer or appears at the hearing. Counsel shall present the case in support of the charges.
(2) The failure of the judge to answer or to appear at the hearing shall not, standing alone, be taken as evidence of the truth of the facts alleged to constitute grounds for censure, suspension, retirement or removal. The failure of the judge to testify in his own behalf or to submit to a medical examination requested by the commission may be considered, unless it appears that such failure was occasioned by circumstances beyond his control.
(3) In a hearing before the commission not less than five members shall be present when the evidence is produced.
HISTORY: Amended eff. 1-1-78; adopted eff. 10-1-76
 
 
 
SCR 4.290 Judicial review
(1) To the extent applicable and not inconsistent with SCR 4, the Rules of Civil Procedure (CR) applicable to other types of proceedings shall apply to the judicial review of commission orders by the Supreme Court.
(2) A notice of appeal of the commission’s final order shall be filed with the clerk of the Supreme Court within ten days after service of notice of the order upon the judge. A copy of the notice of appeal shall be served on the commission.
(3) The commission shall thereupon promptly transmit to the court the entire original record upon which the order is based, unless by stipulation of the commission and the judge an abbreviated or substitute record is agreed upon. A transcript of testimony shall not be included in the record unless designated by the commission or the judge, but may be ordered by the Supreme Court at any time.
(4) The judge shall file his brief within 20 days after the record is filed and the commission shall file its brief within 20 days thereafter. The time for filing of briefs may be extended by the court upon motion of either party.
(5) The court shall have power to affirm, modify or set aside in whole or in part the order of the commission, or to remand the action to the commission for further proceedings.
HISTORY: Amended eff. 1-1-78; adopted eff. 10-1-76
 
 
 
 
 
 
PROCEDURES OF THE JUDICIAL CONDUCT COMMISSION
 
By Judge Stan Billingsley – (Judge Billingsley served on the Commission for five years.)
 
The first thing that should be noted is that the jurisdiction of the Commission is limited. The Supreme Court Rules clearly declare:
 
Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission.”

This means that a judge cannot be sanctioned by the Commission merely because they disagree with a decision made by the judge.   If a judge makes an erroneous decision the remedy is to appeal that decision. A judge is required to be knowledgeable in the law, but the Commission does not have the right to sanction a judge merely because they believe he made a wrong decision.
 
Anyone can drop a poison pen letter over the transom of the Commission. The Commission does not have to disclose the name of the complainant until the filing of formal charges, and then only if the name of the complainant "is relevant". 
 
When the Secretary receives a complaint from any source, it is placed in the portfolio for the next Commission meeting. The Commission members then determine if it has enough substance to make further inquiries. Most claims are so off the mark that they are dismissed at this point. The Commission has the option to assign an investigator to investigate the claim or they may write the judge and ask for his response.
 
Often the judges response will dispose of the matter. But if it doesn’t they invite the judge to attend their next meeting and have a private informal conference with him to discuss the facts of the complaint. Often this meeting will dispose of the matter.
 
We would suggest that in most instances it is important for the Judge to keep his cool at this hearing, and consider it an informal discussion.   He should for his own protection consult with an attorney about all issues, and understand the procedures before this informal meeting.    We have seen many Judges who came to these hearings and were immediately hostile and overly defensive. This attitude is usually detrimental to his interest.    Many judges spend considerable time trying to show who filed the complaint and to discredit them. While that may be relevant it is not determinative of the issue before the Commission. They are not concerned about who filed a complaint or why a complaint was filed…they are concerned with determining if it alleges an issue in their jurisdiction and if the claim has any merit. Often the Judge can explain the procedures and show that the complaint has no factual basis. He should focus on a discussion of the merits of the claim and not the party who filed the claim.
 
After the hearing, the Commission has 180 days in which to determine if they are going to find merit to the allegations.  If they choose to do so, they may offer to settle the matter with a private reprimand, a public reprimand, or they may determine that the charge is so serious that they must seek a full hearing and therefore pursue temporary or permanent removal from office. If the charge is not resolved at this level the Commission then files a formal charge (in the nature of an indictment) and schedules a formal due process hearing conducted subject to the Rules of Civil Procedure.
 
Through the informal hearing process, all procedures are private and confidential.
If no agreement is reached and the Commission chooses to pursue the complaint and if they file a formal charge, then the subsequent hearing is public and the cloak of confidentiality is removed.
 
After the formal public hearing, the judge has the right to appeal the Commission’s recommendations to the Supreme Court.   The Supreme Court has on many occasions failed to follow the recommendations of the Commission. So a judge who has been sanctioned should consider appealing to the Supreme Court.
 
(On one occasion the Commission was sued in Federal Court by a State Senator who alleged that their rules denied him his First Amendment Rights. The Commission had taken no action against the Senator and there was no complaint pending against him. The Federal Court essentially upheld the Commission but awarded the Senators attorneys fees against the Commission.)
 
The makeup of the Commission assures that one District and one Circuit judge are on the panel. They usually provide the best understanding of procedures in the courts. The citizen members appointed by the Governor usually are in the dark about legal matters as they are usually not attorneys, and they may tend to be concerned about the general nature of the charge and less likely to appreciate the way things really work in the trenches.   The Bar has a representative on the Commission as does the Court of Appeals.
 
We often found that the Court of Appeals representative was more likely to be less informed about how things work in the trial courts, and less forgiving, but is more likely than not to be the unofficial leader of the Commission. The Supreme Court does not have a representative on the Commission.
 
The only “full time” employee is the Secretary. He does not have a vote, but attends the meetings and prepares all of the paperwork for the Commission.
 
From time to time the Commission employs outside counsel and may employ investigators. Usually the outside counsel acts as the prosecutor at the formal hearings.  
 
In past years the number of complaints against judges ran about 100 or so a year. Most were complaints in the nature of a claim that the judge was biased because he ruled against the complainant. These complaints are quickly dismissed as they involve a claim outside the jurisdiction of the Commission. Perhaps a dozen remaining complaints proceeded to the informal hearing process. And usually only one or two a year resulted in a formal due process hearing.   You can just assume that if you are a judge at some point someone will file a complaint against you.  
 
It was never my experience that the Commission was biased against a judge. They usually try to find a way to resolve the issues with a minimum amount of embarrassment to the judge, but if the charge is legitimate and serious, then they are resolute in pursuing the complaint to conclusion.
 
The Supreme Court pretty much treats recommendations from the Commission as de nova proceedings, and although not allowed to do so, have on at least one occasion considered facts that were never presented to the Commission. (See:  Doyle v. Judicial Retirement and Removal Commission, 885 S.W.2d 917 (Ky. 09/01/1994) )
 
 
 
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