Initiation of and Pre-hearing Disciplinary Proceedings

If, after completion of the formal investigation, the investigative panel determines that probable cause exists that a judge has violated the Code of Judicial Conduct or any other conduct described above, the investigative panel will initiate disciplinary proceedings.  The Commission does so by filing a Statement of Charges and personally serving it on the respondent judge.

The respondent judge must file a verified Answer within twenty (20) days after service of the Statement of Charges, unless the time is extended by order of the Commission. The Commission’s rules provide that: the Statement of Charges and Answer constitute the pleadings, no further pleadings may be filed, and no motions may be filed against any of the pleadings; the assertion of a mental or physical condition as a defense by the respondent judge constitutes a waiver of medical privilege for the purpose of the Commission proceeding; and a respondent judge’s failure to answer the Statement of Charges will constitute an admission of the factual allegations contained in the Statement of Charges.

On written demand after the time for filing an Answer has expired, Commission Counsel and respondent judge or his/her counsel will each disclose to the other, within 20 days of the demand, the following:

(1)  the name and address of each witness the party expects to offer at the disciplinary hearing;

(2)  a brief summary of the expected testimony of each witness;

(3)  copies of any written statement and a transcript of any electronically recorded statement made by any person the party anticipates calling as a witness; and

(4)  copies of documentary evidence which may be offered.

Commission Counsel will also provide the respondent judge with any exculpatory evidence of which he or she is aware and which is relevant to the allegations of the complaint. The taking of depositions, serving of requests for admission, and other discovery procedures authorized by the Rules of Civil Procedure, are permitted only by stipulation of the parties or by order of the Commission Chairperson for good cause shown, and in such manner as the Chairperson may prescribe. Unless the time is extended by order of the Commission, all discovery will be completed within 60 days of the filing of the answer.

Disciplinary Hearing

After the filing of an Answer, or on the expiration of the time allowed for filing one, the hearing panel will set a disciplinary hearing date, which will be held no sooner than 60 days after filing of the Answer or deadline for doing so, unless the judge consents to an earlier disciplinary hearing. The Commission will serve a notice of the disciplinary hearing.

At least six Commission members must be present at the disciplinary hearing. Commission Counsel, or other counsel appointed by the Commission for that purpose, will present evidence in support of the charges alleged in the Statement of Charges. Commission Counsel may call the respondent judge as a witness. The disciplinary hearing is recorded verbatim.

The respondent judge has the right to representation by counsel and the opportunity to defend against the charges by the introduction of evidence, examination and cross-examination of witnesses and to address the hearing panel in argument at the conclusion of the disciplinary hearing. The respondent judge also has the right to the issuance of subpoenas to compel the attendance of witnesses or the production of documents and other evidentiary material.  Many respondent judges decide that they need to retain a firm or attorney at the formal disciplinary stage, if they have not done so already.

Stipulations

At any time prior to the conclusion of a disciplinary hearing, the respondent judge may stipulate to any or all of the allegations of the Statement of Charges in exchange for a stated disposition, which may include a stated recommendation to the Supreme Court for discipline. The stipulation must be approved by the respondent judge, his or her counsel, and by Commission Counsel. The stipulation is then submitted to the hearing panel, which will either approve the stipulation or reject it. If the stipulation is rejected by the hearing panel, it will be deemed withdrawn and will not be considered in any proceedings before, or deliberations of, the hearing panel. If the hearing panel approves the stipulation, the Commission will prepare a written recommendation to the N.C. Supreme Court.

Review by Supreme Court