Ind. Admission & Discipline Rule 25

Effective January 1, 2018

Preamble.

The regulation of judicial conduct is critical to the integrity of the judiciary and to public confidence in the judicial system. The purpose of this rule is to provide a mechanism for the discipline of judicial officers of the State of Indiana.

I. Jurisdiction.

A. Pursuant to Article 7, Section 4 of the Constitution of Indiana, the Supreme Court of Indiana (the Supreme Court) has exclusive, original jurisdiction for the discipline, removal, and

retirement of all judicial officers of this state.

B. The Indiana Commission on Judicial Qualifications (the Commission), established by Article

7, Section 9 of the Constitution of Indiana, shall receive and investigate complaints against all

judicial officers of the state, regardless of the origin of such judicial position, and shall, in

accordance with the procedures established under these rules, forward to the Supreme

Court of Indiana any recommendation for the discipline, removal, or retirement of any judicial officer of this state. This provision shall not in any way curtail the authority of Judicial

Nominating Commissions appointed in any county of this state.

C. The Commission shall have jurisdiction over conduct committed by a judicial officer,

whether or not related to the judicial office and whether or not committed during the judicial

officer's term of office.

D. The Commission may refer to the Indiana Supreme Court Disciplinary Commission allegations of misconduct committed by a judicial officer while an attorney and not during the judicial officer's term of office.

E. The Commission shall have jurisdiction over violations of Canon 4 of the Code of Judicial

Conduct committed by a candidate for judicial office.

F. The jurisdiction of the Commission survives the resignation or retirement of a judicial

officer.

II. Application and Definitions.

These rules shall apply to all judicial officers of the State of Indiana regardless of the origin of

their judicial office.

For the purposes of this rule the following definitions shall apply:

“Deferred Resolution”—A confidential agreement between the Commission and a judicial

officer entered into prior to the filing of formal proceedings which defers the resolution of a

complaint for a specific period of time upon condition that the judicial officer take appropriate specified corrective action.

“Judicial Officer”—A Justice of the Indiana Supreme Court, Judge of the Indiana Court of

Appeals, Judge of the Indiana Tax Court, Judge of any Circuit, Superior, County, City or Town

Court of the State, and a pro tempore or senior judge, magistrate, commissioner, master or

referee thereof, and any person eligible to perform a judicial function, whether or not a lawyer, whether part-time or full-time, temporary or permanent, excluding mediators and arbit-

rators and administrative law judges of independent state agencies. This rule applies to

candidates for judicial office who are subject to the jurisdiction of the Commission as if they

were judicial officers.

“Private Caution”—A confidential statement from the Commission to a judicial officer stating

that the Commission has inquired into or investigated a complaint and has considered the

judicial officer's written response to the allegations, and has voted to close the inquiry or

investigation by cautioning the judicial officer that misconduct was established which, in light

of all the circumstances, does not warrant further inquiry.

“Public Admonition”—A public statement from the Commission concluding that misconduct

occurred, which is issued by the Commission after a determination that formal proceedings

are warranted and which is issued in lieu of formal proceedings and with the written consent

of the judicial officer.

“Settlement Agreement”—A written agreement submitted to the Supreme Court after the

Commission has filed charges, and after the judicial officer has had an opportunity to answer,

in which the parties agree to facts which establish grounds for discipline under this rule and

to an appropriate sanction.

III. Grounds for Discipline or Involuntary Retirement.

A. Any judicial officer may be disciplined for any of the following acts:

(1) conviction of any felony, or any crime which involves moral turpitude or conduct that

adversely affects the ability to perform the duties of judicial office;

(2) willful and persistent failure to perform duties;

(3) willful misconduct in office;

(4) willful misconduct unrelated to the judicial office that brings such office into disrepute;

(5) habitual intemperance;

(6) conduct prejudicial to the administration of justice, including the repeated failure to

adhere to the rules of procedure; or

(7) a violation of the Code of Judicial Conduct, the Rules of Professional Conduct, or other

professional rules duly adopted by the Indiana Supreme Court.

B. A judicial officer may be involuntarily retired when a physical or mental disability seriously

interferes with the performance of judicial duties.

C. A judicial officer involuntarily retired by the Supreme Court shall be considered to have

retired voluntarily. A judicial officer removed from office by the Supreme Court under an

order of discipline, excluding retirement or disability, shall be ineligible for judicial office and,

pending further order of the Supreme Court, shall be suspended from the practice of law in

the State of Indiana.

D. These rules shall not be construed to impair any vested right or benefit of a judicial officer,

now or hereafter existing as provided by law.

IV. Sanctions.

Upon a finding of misconduct pursuant to Section III A. or disability pursuant to Section III B.,

the Supreme Court may impose any of the following:

(1) removal;

(2) retirement;

(3) suspension;

(4) discipline as an attorney;

(5) limitations or conditions on the performance of judicial duties;

(6) private or public reprimand or censure;

(7) fine;

(8) assessment of reasonable costs and expenses; or

(9) any combination of the above sanctions.

V. Interim Suspension.

A. A judicial officer shall be suspended with pay by the Supreme Court without the necessity

of action by the Commission upon the filing of an indictment or information charging the judicial officer in any court in the United States with a crime punishable as a felony under the

laws of Indiana or the United States.

B. A judicial officer shall be suspended with pay while there is pending before the Supreme

Court a recommendation from the Commission for the retirement or removal of the judicial

officer.

C. Upon a finding of guilty, plea of guilty, or plea of no contest to a crime punishable as a

felony under the laws of Indiana or the United States, or any crime that involves moral

turpitude under the law, a judicial officer may be suspended without pay by the Supreme

Court.

D. A judicial officer may be suspended with pay by the Supreme Court without the necessity

of action by the Commission upon the filing of an indictment or information charging the

judicial officer with a misdemeanor which suggests conduct that adversely affects the ability

to perform the duties of the judicial office. In the event the Supreme Court suspends a judicial officer under this provision without a hearing, the suspended judicial officer shall thereafter be permitted a hearing and review of the basis for the suspension.

E. Upon petition by the Commission, the Supreme Court may impose, pending the disposition of formal charges, an interim suspension with pay if the Court deems the interim suspension necessary to protect public confidence in the integrity of the judiciary. This provision

is applicable in proceedings involving the disability of the judge as well as proceedings

involving discipline.

VI. Staff.

A. The Indiana Office of Judicial Administration (IOJA) shall serve the Commission in the performance of the Commission's constitutional and statutory duties. Any attorney specifically

appointed by the Supreme Court for such purpose may serve as Counsel for the Commission

in the course of a judicial disciplinary proceeding. In the event a judicial disciplinary proceeding involves a current member of the Supreme Court, a regular employee of the

Supreme Court shall not serve as Counsel.

B. A quorum of the Commission shall have the authority to employ investigators and such

experts and staff as the Commission, in its discretion, determines necessary to the performance of its duties.

VII. Immunity.

Members of the Commission, Masters, Commission Counsel, and staff are absolutely

immune from suit for all conduct in the course of their official duties.

VIII. Disciplinary Procedure.

A. Meetings of Commission.

(1) The Commission shall meet from time to time as may be necessary to discharge its

responsibilities. The Commission shall elect a Vice-Chair to perform the duties of the Chair

when the Chair is absent or unable to act by reason of unavailability or disqualification. Meetings of the Commission shall be called by the Chair, or the Vice-Chair, whenever deemed

necessary or upon the request of any four members of the Commission, and each member

of the Commission shall be given at least five days' written notice by mail of the time and

place of every meeting, unless the Commission at its previous meeting designated the time

and place of its next meeting. A quorum for the transaction of business shall be four members of the Commission.

(2) Meetings of the Commission are to be held at such place in Indiana as the Chair of the

Commission, or the Vice-Chair, may arrange.

(3) The Commission shall act only at a meeting. Meetings may be conducted by telephone

conference, electronic mail, written and facsimile communication, or other means of communication, on all matters that do not involve deliberating and voting on whether to file

formal charges, when the Commission shall meet in person. The Commission shall have the

power to adopt reasonable and proper rules and regulations for the conduct of its meeting

and the discharge of its duties.

B. Confidentiality.

(1) Before the filing and service of formal charges, the Commission shall not publicly disclose

information relating to a complaint, inquiry, or investigation, except that the Commission

may disclose information:

(a) upon waiver or agreement by the judicial officer; or

(b) where the Commission has determined that there is a need to notify another person or

agency in order to protect the public or to assure the proper administration of justice; or

(c) where the Commission elects to respond to publicly disseminated statements by a complainant or a judicial officer.

(2) After the filing of formal charges, all pleadings and proceedings are public unless the

Masters or Supreme Court find extraordinary circumstances warranting limitations on the

public nature of the proceedings.

(3) Commission deliberations, settlement conferences, and proposed settlement agreements

shall remain confidential. Settlement agreements submitted to the Supreme Court for

approval shall become public when the Supreme Court accepts the agreement in whole or in

part and issues an order or opinion resolving the judicial disciplinary case.

C. Civil Immunity.

Each person shall be immune from civil suit for all sworn or written statements, if made

without malice, and intended for transmittal only to the Commission, Counsel, or staff, or

made in the course of investigatory, hearing, or review proceedings under this rule.

D. Complaint.

Any person may file a complaint with the Commission about the judicial activities, fitness, or

qualifications of any judicial officer. Complaints directed to the Commission or to any member of the Commission concerning a judicial officer shall be in writing and verified. No specified form of complaint shall be required.

E. Consideration of Complaint.

(1) The Commission shall provide written acknowledgment of the complaint and shall notify

the complainant in writing of its final disposition.

(2) The Commission shall make such initial inquiry as is necessary to determine if the complaint is founded and within the jurisdiction of the Commission. The Commission, without

receiving a complaint, may make such an initial inquiry on its own motion. The Commission

shall dismiss any complaint or inquiry which is frivolous, groundless, not within the Commission's jurisdiction, or upon a finding that no misconduct occurred. The notification of dismissal to the complainant shall contain the basis for the Commission's decision. The

Commission may also conduct further inquiry, begin an investigation, agree to a deferred resolution, or issue a private caution. If the final disposition is by deferred resolution or private

caution, the judicial officer shall have had the opportunity to respond to the allegations in

writing and the complainant shall be notified that appropriate action was taken without spe-

cifying the nature of the disposition.

(3) If the Commission deems it necessary as the result of its initial inquiry to conduct an

investigation, the judicial officer involved shall be notified of the investigation, the nature of

the charge, and the name of the person making the complaint, if any, or that the investigation

is on the Commission's own motion, and shall be afforded a reasonable opportunity in the

course of the investigation to present such matters as the judicial officer may choose. Such

notice shall be given by certified mail addressed to the judicial officer's chambers or address

of record and shall be clearly marked “Personal and Confidential.” Delivery of all other papers

or notices shall be made in accordance with the Rules of Procedure.

(4) The Commission shall have such jurisdiction and powers as are necessary to conduct the

proper and speedy disposition of any investigation, including the power to compel the attendance of witnesses, to take or cause to be taken the deposition of witnesses, and to order the

production of books, records, or other documentary evidence. Any member of the Commission shall have the power to subpoena witnesses or the production of evidence and may

administer oaths and affirmations to witnesses in any matter within the jurisdiction of the

Commission. The quashing and enforcement of subpoenas, and the enforcement of any

other power delegated to the Commission shall be upon application to the Supreme Court or

to the Masters, if appointed.

(5) If the investigation does not disclose probable cause to warrant further proceedings, the

Commission may dismiss the complaint with a finding that no misconduct occurred, may conduct further investigation, or may issue a deferred resolution or private caution, and the judicial officer shall be so notified. Where a deferred resolution or private caution is imposed, the

judicial officer shall have had an opportunity to respond in writing to the allegations. The

Commission shall have the power to make investigations by members of the Commission,

staff, or by special investigators employed by the Commission and to hold confidential hearings with the judicial officer involved.

(6) During the course of an investigation by the Commission, the judicial officer whose conduct is being investigated may demand, in writing, that the Commission either institute

formal proceedings or enter a formal finding that there is not probable cause to believe that

the judicial officer is guilty of misconduct, and the Commission shall, within sixty days after

such demand, comply therewith.

(7) If, upon the conclusion of a full investigation, the Commission does not find probable

cause to believe that misconduct has occurred, the Commission shall dismiss the complaint.

If the Commission determines the existence of probable cause, the Commission may vote

that one or more of the following is appropriate:

(a) dismissal;

(b) deferred resolution or private caution;

(c) formal charges;

(d) petition for suspension;

(e) a stay.

At any time after the Commission has determined the existence of probable cause to file

charges, the judicial officer may demand that the charges be filed within sixty days rather

than consent to a private caution, a public admonition, deferred resolution, or a stay.

If the Commission votes to file formal charges against a judicial officer, it may, with the judicial officer's written consent, dismiss the complaint after issuing a public admonition of the

judicial officer's conduct.

F. Notice of Formal Proceedings.

(1) After the investigation has been completed and the Commission concludes that there is

probable cause to believe in the existence of grounds for discipline or involuntary retirement

under Section III of this Rule and that formal proceedings should be instituted, it shall give

written notice to the judicial officer advising of the institution of formal proceedings. This

notice shall be filed as an original action in the Supreme Court.

(2) The notice shall be issued in the name of the Commission, shall specify in ordinary and

concise language the charges against the judicial officer and the alleged facts upon which

such charges are based, and shall advise the judicial officer of the right to file a written

answer to the charges within twenty days after service of notice. No charge shall be sufficient

if it merely recites the general language of the original complaint, but must specify the facts

relied upon to support a particular charge.

(3) The notice shall be made by certified mail to the judicial officer's chambers or address of

record and shall be clearly marked “Personal and Confidential”.

(4) In the event the notice filed under Rule VIIIF(1) is directed toward a member of the

Supreme Court, the provisions of this paragraph shall apply.

(a) At the time the notice is filed, all Justices of the Supreme Court, except the Chief Justice,

shall recuse themselves from the proceedings. Should the Chief Justice, for any reason, be

unable to participate in such proceedings, the most senior member of the Supreme Court,

not otherwise disqualified, shall continue to serve. The Chief Justice or the member of the

Supreme Court continuing to serve under this provision shall be the presiding member of

the Supreme Court for all proceedings relating to the notice.

(b) The vacancies on the Supreme Court created by the above procedure shall be filled for

the limited purpose of the judicial disciplinary proceedings by members of the Indiana

Court of Appeals chosen pursuant to this provision. Six Judges of the Court of Appeals

shall be randomly selected by the Clerk of the Supreme Court and Court of Appeals.

Advisement of the members of the Court of Appeals selected under this procedure shall

be given to the Commission and the judicial officer. Within seven days after advisement of

the selection is issued, the Commission shall strike one judge selected and within seven

days after the judge is stricken by the Commission, the judicial officer shall strike one

judge. If the Commission or the judicial officer fails to strike a judge under this procedure,

the Clerk of the Supreme Court shall strike at random in their stead.

(c) In the event all members of the Supreme Court are unable to participate in a judicial

disciplinary proceeding, the Clerk of the Supreme Court and Court of Appeals shall randomly select seven members of the Indiana Court of Appeals to serve in such proceedings

and each side shall strike one judge under the procedure set forth in Rule VIIIF(4)(b)

above.

G. Answer.

Within twenty days after service of the notice of formal proceedings, the judicial officer may

file with the Supreme Court, under the cause initiated by the filing of the notice of formal proceedings, an answer, and serve a copy of the answer on Counsel for the Commission by mail.

All pleadings shall be filed with the Clerk of the Supreme Court and shall be served to the

Commission at its published address.

H. Settlement Agreements.

The Commission and the judicial officer may enter into a settlement agreement, either prior

to the appointment of Masters, or at any time prior to a final disposition by the Supreme

Court. The Supreme Court may accept the agreement resolving the case or it may reject the

agreement and return the matter to the Commission for further action.

I. Masters.

Upon the filing of an answer or upon the expiration of the time for its filing, the Supreme

Court shall, within thirty days, appoint three Masters and designate a Presiding Master. Each

Master shall be an active or retired member of a court of record in the State of Indiana. The

Masters shall hear and take evidence in the judicial disciplinary proceeding and report

thereon to the Supreme Court. The appointed Masters shall set a time and place for a hearing, to be conducted within ninety days of their appointment, and shall give notice of such

hearing to the judicial officer charged and Counsel for the Commission at least twenty days

prior to the date set. At the discretion of the Masters, the cause may be set for a pretrial conference or such other hearing as may be deemed necessary under the circumstances.

Continuances shall be granted only by agreement or upon good cause shown. All differences

of opinion by the Masters shall be resolved by majority vote, except that a minority opinion

may be submitted to the Supreme Court with the final report and the recommended findings

of fact and conclusions of law.

J. Pretrial Procedure.

(1) In all formal proceedings, discovery shall be available to the Commission and to the judicial officer in accordance with the Indiana Rules of Trial Procedure. Any motions requesting

court orders for discovery shall be made to the Masters appointed to hear the case.

(2) In all formal proceedings, Counsel for the Commission shall furnish to the judicial officer

not less than twenty days prior to any hearing the following, unless modified by agreement

or by an order on discovery:

(a) The names and addresses of all witnesses whose testimony Counsel expects to offer at

the hearing, together with copies of all written statements and transcripts of testimony of

such witnesses in the possession of Counsel or the Commission and copies of all documentary evidence which Counsel expects to offer in evidence at the hearing. The testimony of any witness whose name and address has not been furnished to the judicial

officer, and documentary evidence copies of which have not been furnished to the judicial

officer, as provided above, shall not be admissible in evidence at said hearing over objection.

(b) After formal proceedings have been instituted, Counsel shall furnish to the judicial

officer, within ten days, the names and addresses of all witnesses, then or thereafter

known to Counsel, who have information which may be relevant to any charge against the

judicial officer, and to any defense. Counsel shall also furnish copies of such written statements, transcripts of testimony, and documentary evidence as are then or thereafter in

the possession of Counsel for the Commission, which are relevant to any such charge or

defense and which have not previously been furnished to the judicial officer.

K. Hearing.

(1) At the time and place set for hearing, the Masters may proceed with the hearing whether

or not the judicial officer has filed an answer or appears at the hearing.

(2) The failure of the judicial officer to answer or to appear at the hearing, standing alone,

shall not be taken as evidence of the facts alleged or constitute grounds for discipline, retirement, or removal, however the failure to cooperate in the prompt resolution of a complaint

by the refusal to respond to Commission requests or by the use of dilatory practices, frivolous or unfounded arguments, or other obdurate behavior may be considered as aggravating

factors affecting sanctions or may be the basis for the filing of separate counts of judicial misconduct.

(3) In any proceeding for involuntary retirement for disability, the failure of the judicial officer

to testify in his or her own behalf or to submit to medical examination requested by the Commission or Masters may be considered, unless it appears that such failure was due to circumstances beyond the judicial officer's control.

(4) The proceedings shall be reported verbatim.

(5) At the hearing before the Masters for the taking of testimony with regard to the pending

charges, the Indiana Rules of Evidence shall apply.

(6) The Commission shall have the burden to prove misconduct on the part of the judicial

officer by clear and convincing evidence.

(7) Whenever a witness invokes the privilege against self-incrimination as a basis for refusing

to answer a question or to produce other evidence that may be relevant to a disciplinary or

disability proceeding, the Commission may apply in a court of record for a grant of immunity

from criminal prosecution, and shall give notice of the application to the judicial officer and to

the prosecuting attorney of the jurisdiction. If the court grants the order, the witness may not

refuse to comply with the order on the basis of the privilege of the witness against self-incrimination, but no testimony or other evidence compelled under such an order shall be used

against the witness in any criminal case. The witness may be prosecuted for perjury or contempt committed in answering or failing to answer in accordance with the order.

(8) The Masters shall have such jurisdiction and powers as are necessary to conduct a hearing, including the power to compel the attendance of witnesses, to administer oaths and

affirmations, to make findings and issue sanctions for contempt, to take or cause to be taken

the deposition of witnesses, and to order the production of books, records, or other documentary evidence. The quashing and enforcement of subpoenas shall be upon application

to the Masters.

L. Defense Rights of Judicial Officer.

(1) In formal proceedings involving discipline, retirement, or removal, a judicial officer shall

have the right to defend against the charges by the introduction of evidence, to be represented by counsel, and to examine and cross-examine witnesses. A judicial officer shall also

have the right to the issuance of subpoenas for the attendance of witnesses to testify or to

produce books, papers, and other evidentiary matters.

(2) Whenever a transcript of any proceedings hereunder is requested by the judicial officer,

the Commission or Commission Counsel, the Masters or the Supreme Court, it shall be produced promptly, and it shall be provided to the judicial officer without cost.

(3) If the judicial officer has been adjudicated incompetent, the Supreme Court shall appoint

an attorney ad litem unless a guardian has been appointed. The guardian or attorney ad

litem shall exercise any right and privilege, make any defense and receive process for the

judicial officer.

M. Amendments to Notice or Answer.

The Masters, at any time prior to the conclusion of the hearing, 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 judicial officer shall be given reasonable time both to answer the amendment and to prepare and present a defense against the matters charged thereby.

N. Report of Hearing by Masters.

(1) After the conclusion of the hearing, the Masters shall, within forty-five days, file with the

Supreme Court a report which shall contain a brief statement of the proceedings, recommended findings of fact and conclusions of law, and any minority opinion. The recommended

findings of fact and conclusions of law are not binding upon the Supreme Court. An original

and six copies of the report and the original transcript of the testimony together with all

exhibits shall be filed with the Supreme Court.

(2) The Masters may include a recommendation in the report to the Supreme Court as to the

discipline, removal, or retirement of the judicial officer involved in the proceeding. The recommended sanction is not binding on the Supreme Court.

(3) At the time the report and transcript is filed with the Supreme Court, the Masters shall

serve a copy of the report and transcript on the judicial officer and Counsel for the Commission.

O. Recommendation of Commission.

Within twenty days of the filing of the report by the Masters, the Commission shall make a

recommendation to the Supreme Court as to the disposition of the judicial disciplinary proceeding under consideration. If the Commission does not concur in the proposed findings of

fact, conclusions of law, and, if appropriate, the recommended sanction, the Commission's

recommendation as to disposition shall specifically set forth all objections to the report of the

Masters and shall be accompanied by a memorandum brief in support of the recommended

disposition.

P. Petition for Review.

(1) Within twenty days of the filing of the Commission's recommendation, the judicial officer

may file with the Supreme Court a petition for review setting forth all objections to the report

or recommendation and the reasons in opposition to the recommended findings of fact, conclusions of law, and, if appropriate, the recommended sanction contained in the report and

recommendation. A copy of the petition for review shall be served on all other parties to the

proceeding.

(2) The petition shall be verified, shall be based on the record, shall specify the grounds relied

on, and shall be accompanied by a brief in support of the arguments offered. Within ten days

of service of the petition for review and brief, the Commission may file a reply brief.

(3) Failure to file a petition for review within the time provided may be deemed by the

Supreme Court as agreement on the Commission's recommendation. The Supreme Court,

however, conducts its review de novo and retains the discretion to adopt or reject all or part

of the proposed findings of fact, conclusions of law, or recommended disposition with or

without objection by a party.

(4) To the extent necessary to implement this provision and if not inconsistent with this provision, the Indiana Rules of Appellate Procedure shall be applicable to reviews by the

Supreme Court in judicial disciplinary proceedings.