Responding to an Inquiry and Investigation

If a complaint has been submitted to the Commission, which may include potentially supporting evidence, the process is as follows: The Executive Director and Commission Counsel review the complaint and information received. They determine whether the complaint or information, if true, discloses facts indicating that a judge has engaged in conduct which is in violation of the Code of Judicial Conduct.  Such allegations include: (1) willful misconduct in office, (2) failure to perform the duties of the judicial office, (3) conduct prejudicial to the administration of justice that brings the judicial office into disrepute, (4) habitual intemperance, or (5) allegations of a mental or physical incapacity interfering with the performance of judicial duties.

If a complaint or information is not dismissed as frivolous or unfounded, the Executive Director and Investigator will conduct a preliminary review to apprise the investigative panel of the nature of the complaint, and the panel will review the complaint or information at the next meeting after the complaint or information is received.  If the investigative panel determines that the complaint alleges, or the information discloses, facts indicating a judge has engaged in the conduct described above, the panel will order a formal investigation to determine whether disciplinary proceedings should be instituted.

At this point in the process, the judge is notified of the formal investigation, the nature of the allegations the Commission is investigating, and whether the formal investigation is on the Commission’s own motion or on written complaint. The written notice provides the judge a reasonable opportunity to respond and present relevant information. If you received an inquiry letter from the Commission, the investigative panel has made this initial determination and ordered a formal investigation prior to sending out the letter.

You are required to fully cooperate with the Commission in connection with any inquiry the Commission makes. In drafting a response to an inquiry, it is important for you to include all information and documentation necessary to fairly and fully respond to the allegations.  However, it is equally important for you to include only the pertinent information and documentation.  We help our clients make these judgments and determinations from an objective standpoint and with knowledge of and experience with the process in defending complaints against judges before the Commission.

Summary Suspension

In exceptional cases, if the investigative panel determines that immediate suspension of the judge is required for the proper administration of justice, it may recommend to the Chief Justice that the judge be temporarily suspended from the performance of his or her judicial duties pending final disposition of the inquiry. A copy of such recommendation will be provided to the judge by certified mail. If the Chief Justice enters the Order, the judge must immediately cease acting in a judicial capacity upon service of such an order.  The Commission should then promptly give notice of a formal hearing.  Typically, the suspension will remain in effect pending a final decision after the formal hearing, although in some instances the Commission may recommend lifting the suspension based on additional information provided by the respondent judge.

Letter of Caution by the Commission

If the inquiry discloses conduct by a judge which requires attention but is not of such a nature as to warrant a recommendation by Commission that the judge be disciplined by the Supreme Court, the investigative panel may issue a letter of caution to the judge. No letter of caution may be issued after a disciplinary proceeding has been initiated, however.  The letter of caution is a not public record.

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.

Procedure Following Disciplinary Hearing

If no stipulation is reached, a hearing will be held and the hearing panel will determine whether to dismiss the proceeding or to file a recommendation with the N.C. Supreme Court. In all cases, the Executive Director will notify the respondent judge in writing of the decision of the hearing panel within 60 days after the conclusion of the disciplinary hearing, unless the time is extended by order of the Chairperson.

If the hearing panel reaches a decision to recommend the discipline of a judge, the Executive Director will prepare a proposed record of the proceedings and a written decision setting forth the hearing panel’s findings of fact, conclusions of law, and recommendation. Within 10 days after the official record has been settled, the Executive Director will certify the record and decision of the Commission and submit to the N.C. Supreme Court.

Possible Discipline and Outcomes of the Public Hearing

Upon recommendation of the Commission, the Supreme Court may reprimand, censure, suspend, or remove any judge for violation of the Code of Judicial Conduct for: willful misconduct in office; willful and persistent failure to perform the judge’s duties; habitual intemperance; conviction of a crime involving moral turpitude; or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. A judge who is suspended for any of the foregoing reasons will not receive compensation during the period of that suspension. A judge who is removed for any of the foregoing reasons will not receive retirement compensation and is disqualified from holding further judicial office.

Upon recommendation of the Commission, the Supreme Court also may suspend, for a period of time the Supreme Court deems necessary, any judge for temporary physical or mental incapacity interfering with the performance of the judge’s duties, and may remove any judge for physical or mental incapacity interfering with the performance of the judge’s duties which is, or is likely to become, permanent. A judge who is suspended for temporary incapacity may continue to receive compensation during the period of the suspension. A judge removed for mental or physical incapacity is entitled to retirement compensation if the judge has accumulated the years of creditable service required for incapacity or disability retirement under any provision of State law, but he may not sit as an emergency justice or judge.

Impact of Decision of Whether to Retain an Experienced Law Firm

If you have received a letter from the Commission or have a pending disciplinary hearing, you should consider retaining a firm like ours that has experience with the Commission.  Disciplinary action could have a significant and permanent impact on your reputation and status as a judge.  Representation at the inquiry stage is significantly less expensive than in a formal evidentiary hearing.  Our firm’s best and most cost-effective opportunity to assist you in obtaining a favorable or acceptable outcome typically is in the early informal stages.