RULE 10.

FORMAL PROCEEDINGS.


(a) NOTICE.

(1) If after the investigation has been completed the commission concludes that formal proceedings should be instituted, the matter shall be entered in a docket to be kept for that purpose and written notice of the institution of formal proceedings shall be issued to the judge without delay. Such proceedings shall be entitled: "Before the State Commission on Judicial Conduct Inquiry Concerning a Judge, No. "

(2) The notice shall specify in ordinary and concise language the charges against the judge, and the alleged facts upon which such charges are based and the specific standards contended to have been violated, and shall advise the judge of his right to file a written answer to the charges against him within 15 days after service of the notice upon him.

(3) The notice shall be served by personal service of a copy thereof upon the judge by a member of the commission or by some person designated by the chairman, and the person serving the notice shall promptly notify the commission in writing of the date on which the same was served. If it appears to the chairman upon affidavit that, after reasonable effort during a period of 10 days, personal service could not be had, service may be made by mailing, by registered or certified mail, copies of the notice addressed to the judge at his chambers and at his last known residence, and the date of mailing shall be entered in the docket.

(b) ANSWER. Within 15 days after service of the notice of formal proceedings, the judge may file with the commission an original answer, which shall be verified, and 12 legible copies thereof.

(c) SETTING DATE FOR HEARING AND REQUEST FOR APPOINTMENT OF A SPECIAL MASTER.

(1) Upon the filing of an answer or upon expiration of the time for its filing, the commission shall set a time and place for hearing before itself or before a special master and shall give notice of such hearing by mail to the judge at least 20 days prior to the date set.

(2) If the commission directs that the hearing be before a special master, the commission shall, when it sets a time and place for the hearing, transmit a written request to the supreme court to appoint a special master for such hearing, and the supreme court shall, within 10 days from receipt of such request, appoint an active or retired district judge, a judge of a court of civil appeals, either active or retired, or a retired justice of the court of criminal appeals or supreme court to hear and take evidence in such matters.

(d) HEARING.

(1) At the time and place set for hearing, the commission, or the special master when the hearing is before a special master, shall proceed with the hearing as nearly as may be according to the rules of procedure governing the trial of civil causes in this state, subject to the provisions of Rule 5, whether or not the judge has filed an answer or appears at the hearing. The examiner or other authorized officer shall present the case in support of the charges in the notice of formal proceedings.

(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 removal or retirement. The failure of the judge to testify in his own behalf or his failure to submit to a medical examination requested by the commission or the master may be considered, unless it appears that such failure was due to circumstances unrelated to the facts in issue at the hearing.

(3) The proceedings at the hearing shall be reported by a phonographic reporter or by some qualified person appointed by the commission and taking the oath of an official court reporter.

(4) When the hearing is before the commission, not less than six members shall be present while the hearing is in active progress. The chairman, when present, the vice-chairman in the absence of the chairman, or the member designated by the chairman in the absence of both, shall preside. Procedural and other interlocutory rulings shall be made by the person presiding and shall be taken as consented to by the other members unless one or more calls for a vote, in which latter event such rulings shall be made by a majority vote of those present.

(e) EVIDENCE. At a hearing before the commission or a special master, legal evidence only shall be received as in the trial of civil cases, except upon consent evidenced by absence of objection, and oral evidence shall be taken only on oath or affirmation.

(f) AMENDMENTS TO NOTICE OR ANSWER. The special master, at any time prior to the conclusion of the hearing, or the commission, at any time prior to its determination, may allow or require amendments to the notice of formal proceedings and may allow amendments to the answer. The notice may be amended to conform to proof or to set forth additional facts, whether occurring before or after the commencement of the hearing. In case such an amendment is made, the judge shall be given reasonable time both to answer the amendment and to prepare and present his defense against the matters charged thereby.

(g) PROCEDURAL RIGHTS OF JUDGES.

(1) In the proceedings for his removal or retirement a judge shall have the right to be confronted by his accusers, 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, or the judge may arrange to procure a copy at his expense. 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 his expense.

(3) 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, the commission shall appoint a guardian ad litem unless the judge has a guardian who will represent him. In the appointment of a guardian ad litem, preference shall be given, so far as practicable, to members of the judge's immediate family. The guardian 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.

(h) REPORT OF SPECIAL MASTER.

(1) After the conclusion of the hearing before a special master, he shall promptly prepare and transmit to the commission a report which shall contain a brief statement of the proceedings had and his findings of fact based on a preponderance of the evidence with respect to the issues presented by the notice of formal proceedings and the answer thereto, or if there be no answer, his findings of fact with respect to the allegations in the notice of formal proceedings. The report shall be accompanied by an original and two copies of a transcript of the proceedings before the special master.

(2) Upon receiving the report of the special master, the commission shall promptly send a copy to the judge, and one copy of the transcript shall be retained for the judge's use.

(i) OBJECTIONS TO REPORT OF SPECIAL MASTER. Within 15 days after mailing of the copy of the special master's report to the judge, the examiner or the judge may file with the commission an original and 12 legible copies of a statement of objections to the report of the special master, setting forth all objections to the report and all reasons in opposition to the findings as sufficient grounds for removal or retirement. A copy of any such statement filed by the examiner shall be sent to the judge.

(j) APPEARANCE BEFORE COMMISSION. If no statement of objections to the report of the special master is filed within the time provided, the findings of the special master may be deemed as agreed to, and the commission may adopt them without a hearing. If a statement of objections is filed, or if the commission in the absence of such statement proposes to modify or reject the findings of the special master, the commission shall give the judge and the examiner an opportunity to be heard orally before the commission, and written notice of the time and place of such hearing shall be sent to the judge at least 10 days prior thereto.

(k) EXTENSION OF TIME. The chairman of the commission may extend for periods not to exceed 30 days in the aggregate the time for filing an answer, for the commencement of a hearing before the commission, and for filing a statement of objections to the report of a special master, and a special master may similarly extend the time for the commencement of a hearing before him.

(l) HEARING ADDITIONAL EVIDENCE.

(1) The commission may order a hearing for the taking of additional evidence at any time while the matter is pending before it. The order shall set the time and place of hearing and shall indicate the matters on which the evidence is to be taken. A copy of such order shall be sent to the judge at least 10 days prior to the date of the hearing.

(2) The hearing of additional evidence may be before the commission itself or before the special master, as the commission shall direct; and if before a special master, the proceedings shall be in conformance with the provisions of Rule 10(d) to 10(g) inclusive.

(m) COMMISSION VOTE. If, after hearing, upon considering the record and report of the special master, the commission finds good cause therefore, by affirmative vote of six of its members, it shall recommend to the review tribunal the removal, or retirement, as the case may be; or in the alternative, the commission may dismiss the case or publicly order a censure, reprimand, warning, or admonition. Six votes are required for a recommendation of removal or retirement.