§ 1.4665 — Procedures for allegation of incapacity; informal resolution of complaint relating to incapacity; medical, psychiatric or psychological testing by physician; burden of proof

1. Except as otherwise provided in this section or in the procedural rules adopted by the Commission, the Commission shall use the same procedures with respect to allegations of incapacity as it uses with respect to allegations of misconduct.
2. The Commission shall attempt to resolve the following matters informally:
(a) A complaint received by the Commission which alleges that a judge is incapacitated;
(b) A matter in which the preliminary investigation reveals that a judge may have a physical or mental disability; and
(c) A matter in which the judge raises a mental or physical disability as an issue before the filing of the formal statement of charges.
3. An informal resolution by the Commission pursuant to subsection 2 includes, without limitation:
(a) Voluntary retirement by the judge; and
(b) If the disability can be adequately addressed through treatment, a deferred discipline agreement pursuant to NRS 1.468 .
4. In attempting to resolve a matter informally, the Commission may request that the judge named in the complaint submit to medical, psychiatric or psychological testing by a physician licensed to practice medicine in this State who is selected by the Commission.
5. If the Commission is unable to resolve the matter informally pursuant to subsection 2, the Commission shall:
(a) Proceed as set forth in NRS 1.4667 , 1.467 and 1.4673 .
(b) Unless the judge has retained counsel at his or her own expense, appoint an attorney to represent the judge at public expense.
6. If a judge raises a mental or physical disability as an affirmative defense or in mitigation, the judge shall be deemed to have consented to medical, psychiatric or psychological testing and to have waived the psychologist-patient privilege, doctor-patient privilege, marriage and family therapist-client privilege and social worker-client privilege set forth in chapter 49 of NRS, as applicable. The Commission shall require the judge to produce relevant medical records and to submit to medical, psychiatric or psychological testing by a physician licensed to practice medicine in this State who is selected by the judge. If the judge refuses to produce medical records or submit to an examination, the Commission shall preclude the judge from presenting the medical records or evidence of the results of medical examinations conducted on behalf of the judge and may consider the refusal as evidence that the judge has an incapacity that seriously interferes with the performance of judicial duties of the judge and is likely to become permanent, or as evidence contradicting the claim of a disability by the judge as an affirmative defense or mitigating factor.
7. If a judge raises a mental illness or other disability as a defense or mitigating factor in a proceeding alleging misconduct, the judge has the burden of proving by a preponderance of the evidence that:
(a) He or she has a serious mental illness or other disability;
(b) The mental illness or other disability caused the misconduct;
(c) He or she has undergone or is undergoing treatment for the mental illness or other disability;
(d) The treatment has abated the cause of the misconduct; and
(e) The misconduct is not likely to recur.
8. The findings of a physician selected by the Commission pursuant to this section are not privileged communications.
9. The provisions of this section do not prohibit a judge from having legal counsel and a physician of his or her choice present at a medical, psychiatric or psychological examination conducted pursuant to this section.
10. The Commission shall adopt procedural rules to carry out the provisions of this section.

Legislative History

(Added to NRS by 1997, 1089 ; A 2009, 1341 )