In re R. of P. of the Jud. Discipline & Disability Comm'n

2013 Ark. 361

• Court: Supreme Court of Arkansas
• Decided: September 26, 2013
• Status: Published

Opinion

Cite as 2013 Ark. 361

SUPREME COURT OF ARKANSAS

Opinion Delivered September 26, 2013

IN RE RULES OF PROCEDURE OF THE JUDICIAL DISCIPLINE AND DISABILITY COMMISSION

PER CURIAM

We published for comment recommendations of the Judicial Discipline and Disability

Commission for amendments to Rules 8 and 9 of the Rules of Procedure of the Arkansas

Judicial Discipline and Disability Commission. See In re Recommendations of the Judicial

Discipline and Disability Commission, 2013 Ark. 297 (per curiam). Today, we adopt the

recommendations and republish the rules as set out below. The amendments are effective

immediately.

Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission

Rule 8. Procedures of Commission Regarding Conduct of a Judge.

....

C. Investigation of Complaints. All complaints not summarily dismissed by the Executive

Director shall then be presented to an Investigation Panel. The Investigation Panel shall

dismiss all complaints for which sufficient cause to proceed is not found by that Panel. If the

complaint is not dismissed, the Panel shall then direct the staff to make a prompt, discreet, and Cite as 2013 Ark. 361

confidential investigation. In no instance may the staff undertake any investigation or make

any contact with anyone other than the complainant and the judge unless authorized to do

so by the Investigation Panel. If authorized by the Investigation Panel, subpoenas may be used

to obtain documents, procure witness statements, and collect other evidence requested by the

Panel. Upon completion, the Panel shall review the findings from the investigation. The Panel

shall dismiss all complaints for which sufficient cause to proceed is not found. A report as to

matters so dismissed shall be furnished to the Commission at its next meeting. The

complainant and the judge shall be informed in writing of the dismissal.

D. Mandatory Notice to the Judge. If a complaint, or any portion of it, is not dismissed by the

Investigation Panel following the discreet and confidential investigation, then the Panel shall

notify the judge in writing immediately of those portions of the complaint that the Panel has

concluded warrant further examination and attention. The judge shall receive the complaint,

or any portion of the complaint that is not dismissed, along with any information prepared

by or for the Panel or Staff to enable the judge to adequately respond to the issues in the

complaint. The judge shall be invited to respond to each of the issues from the complaint that

the Panel has identified as possible violations of the Arkansas Code of Judicial Conduct. The

time for the judge to respond shall be within 30 days unless shortened or enlarged by the

Investigation Panel for good cause.

E. Dismissal or Formal Statement of Allegations. The Investigation Panel may dismiss the

complaint with notice to the complainant and the judge, or, upon a finding of probable cause

that the judge violated the Code of Judicial Conduct, it may direct that a formal statement

2 Cite as 2013 Ark. 361

of allegations, citing specific provisions of the Code of Judicial Conduct alleged to have been

violated and the specific facts offered in support of the alleged violation(s), be prepared and

served on the responding judge along with all materials prepared by the Panel or Staff. Service

may be by any means provided for service of process in the Arkansas Rules of Civil

Procedure.

F. Answer. The judge shall file a written answer with the Executive Director within thirty (30)

days after the service upon him/her of the statement of allegations, unless such time is

enlarged by the Executive Director. The answer may include a description of circumstances

of a mitigating nature bearing on the charge.

Rule 9. Hearing on Formal Statement of Allegations.

...

COMMENT

The sanctions authorized by this rule are explained below:

“Informal Adjustment” is a sanction for conduct that is cause for discipline but falls

short of conduct that is cause for formal discipline. The purpose is to inform the responding

judge of an issue of concern, remind a judge of ethical obligations, recommend changes in

behavior or procedures, or suggest an appearance of impropriety that could be avoided.

“Admonishment” is more corrective than an Informal Adjustment. Conduct also falls

short of conduct that is cause for formal discipline. An expression of disapproval of a judge’s

conduct, and may contain a proscription to follow a corrective course of conduct, and may

direct professional treatment, counseling, or assistance.

3 Cite as 2013 Ark. 361

“Reprimand” is a formal sanction of a judge for violating the Code of Judicial

Conduct. It is a rebuke for one or more violations that does not require censure. A reprimand

usually involves an isolated incident or behavior that can be easily corrected. It could involve

misconduct that is more serious but the judge presented substantial mitigating factors.

“Censure” is a formal sanction for violating the Code of Judicial Conduct. It is a

declaration that a judge is guilty of misconduct that does not require suspension or removal.

A stern rebuke that finds the conduct of the judge violates a rule of judicial conduct,

detrimentally affects the integrity of the judiciary, and undermines public confidence in the

administration of justice. It could involve misconduct that is more serious but the judge

presented substantial mitigating factors. A censure may include a requirement that the judge

follow a specified corrective course of action. A censure also serves as a public warning to

other judges.

“Suspension with Pay” is a decision by the Commission that must be reviewed and

affirmed by the Supreme Court. Recommendation by the Commission to suspend a judge,

with or without pay, is based on serious misconduct that merits more than a censure but less

than removal. This sanction is flexible, and there are no restrictions on the length of a

suspension. It can be imposed for egregious or repetitive conduct. It could involve

misconduct that is more serious but the judge presented substantial mitigating factors. A

suspension may require that the judge follow a specified corrective course of action before

being reinstated.

“Suspension without Pay” is a decision by the Commission that must be reviewed and

4 Cite as 2013 Ark. 361

affirmed by the Supreme Court. Recommendation by the Commission to suspend a judge,

with or without pay, is based on serious misconduct that merits more than a censure but less

than removal. This sanction is flexible, and there are no restrictions on the length of a

suspension. It can be imposed for egregious or repetitive conduct. It could involve

misconduct that is more serious but the judge presented substantial mitigating factors. A

suspension may require that the judge follow a specified corrective course of action before

“Removal from Office” is a decision by the commission reviewed and affirmed by the

Supreme Court, to permanently remove a judge for extreme or gross misconduct involving

a judge’s integrity, fitness for office, substantial harm to public confidence and trust, damage

to the reputation of the judiciary, or ability to perform judicial duties. Mitigating factors, if

any, presented by the judge were unable to affect the decision to remove the judge from

office. The judge is no longer eligible to be elected, appointed, or otherwise serve in the

judiciary of the State of Arkansas.