R. Judi. Qual. Commi. Ga. 27

As amended through October 9, 2024

Rule 27 - Cases Involving Allegations of Mental or Physical Incapacity

A.Initiation of Incapacity Proceeding. An incapacity proceeding can be initiated by complaint, by a claim of inability to defend in a disciplinary proceeding, or by an order of involuntary commitment or adjudication of incompetency.

B.Proceedings to Determine Incapacity Generally. All incapacity proceedings shall be conducted in accordance with the procedures for disciplinary proceedings, except:

(1) the purpose of the incapacity proceedings shall be to determine whether the judge suffers from a physical or mental condition that adversely affects the judge's ability to perform judicial functions;

(2) all of the proceedings shall be confidential, except as provided in Rule 11.E; and

(3) if the Supreme Court concludes that the judge is incapacitated to hold judicial office, it may enter any order appropriate to the circumstances, the nature of the incapacity, and the probable length of the period of incapacity, including:

(a) retiring the judge, if the incapacity is a disability that constitutes a serious and likely permanent interference with the performance of the duties of office;

(b) transferring the judge to judicial incapacity inactive status; and

(c) if a judicial disciplinary proceeding against the judge is pending and the Supreme Court concludes that the judge is incapacitated to defend, deferring the disciplinary proceeding, pursuant to Rule 27.D (2).

C.Involuntary Commitment or Adjudication of Incompetency. If a judge has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or incapacity by a final judicial order after a judicial hearing, the Supreme Court, upon receipt of a certified copy of the order, shall enter an order immediately transferring the judge to temporary judicial incapacity inactive status. A copy of the order shall be served, in the manner the Supreme Court shall direct, upon the judge, his or her guardian, or the director of the institution to which the judge has been committed.

D.Inability to Properly Defend in a Disciplinary Proceeding.

(1) If in the course of a disciplinary proceeding a judge alleges an inability to assist in the defense due to mental or physical incapacity, the Director shall notify the Supreme Court. The Supreme Court shall immediately transfer the judge to temporary judicial incapacity inactive status pending a determination by the Supreme Court of the incapacity pursuant to Rule 27.B. A determination by the Hearing Panel that the judge is able to assist in his or her own defense is interlocutory and may not be appealed before entry of a final order in the proceeding.

(2) If, pursuant to Rule 27.B, the Supreme Court determines the claim of inability to defend is valid, the disciplinary proceeding shall be deferred. Any investigation of the disciplinary complaint may continue, as may the investigation of an incapacity complaint. The judge shall be retained on judicial incapacity inactive status until the Supreme Court grants a petition for reinstatement to active status. If the Supreme Court considering the petition for reinstatement to active status determines that the petition shall be granted, the Supreme Court shall also determine the disposition of the interrupted disciplinary proceedings.

(3) If, pursuant to Rule 27.B, the Supreme Court determines that the claim of inability to defend is invalid but that the judge is incapacitated to hold judicial office, the disciplinary proceeding shall resume. The judge shall be retained on temporary judicial incapacity inactive status.

(4) The raising of mental or physical condition as a defense to or in mitigation of formal charges constitutes a waiver of medical privilege.

E.Stipulated Disposition.

(1) The Hearing Panel shall designate a qualified medical, psychiatric, or psychological expert to examine the judge prior to the hearing on the matter. The Hearing Panel may designate an expert agreed upon by the Director and the judge. The expert or experts shall report to the Supreme Court and the parties.

(2) After receipt of the examination report, the Director and the judge may agree upon proposed findings of fact, conclusions, and order. The stipulated disposition shall be submitted to the Hearing Panel for a recommendation to the Supreme Court of approval or rejection. The final decision on the recommendation shall be made by th.e Supreme Court.

(3) If the Supreme Court accepts the stipulated disposition, the Supreme Court shall enter an order in accordance with its terms. If the stipulated disposition is rejected by the Supreme Court, it shall be withdrawn and cannot be used against the judge in any proceedings. If the Supreme Court rejects the stipulated disposition, the Supreme Court shall order that the hearing proceed.

F.Reinstatement from Incapacity Inactive Status.

(1) No judge transferred to temporary incapacity inactive status may resume active status except by order of the Supreme Court.

(2) Upon the filing of a petition for transfer to active status, the Supreme Court may take or direct whatever action it deems necessary or proper to determine whether the incapacity has been removed, including a direction for an examination of the judge by qualified medical or psychological experts designated by the Supreme Court.

(3) With the filing of a petition for reinstatement to active status, the judge shall be required to disclose the name of each psychiatrist, psychologist, physician, and hospital or other institution by whom or in which the judge has been examined or treated since the transfer to incapacity inactive status. The judge shall furnish to the Supreme Court written consent to the release of information and records relating to the incapacity if requested by the Supreme Court or court-appointed medical or psychological experts.

R. Judi. Qual. Commi. Ga. 27

Adopted effective January 1, 2018.

Commentary

[1] Incapacity to perform judicial functions must be distinguished from a disability that does not adversely affect a judge's ability to perform judicial functions. Incapacity proceedings should be initiated any time information comes to the attention of the Director, the Commission, or the Supreme Court that a judge is incapacitated. This information can come from any source, including a complainant, a judicial adjudication in a civil or criminal action, or a claim of inability to defend by a respondent judge in a judicial disciplinary proceeding. If, during the course of a judicial disciplinary proceeding, the Director receives information that the judge is incapacitated, the Director should initiate an incapacity investigation.

[2] "Involuntary commitment" does not include a temporary commitment for purposes of evaluation or examination.

[3] It is important that incapacity not be treated as misconduct. Willful conduct should be clearly distinguished from conduct that is beyond the control of the judge.

[4] The order transferring the judge to temporary incapacity inactive status should clearly state the conditions the judge must meet to be reinstated to active status.

[5] If the judge in a disciplinary proceeding alleges inability to conduct a defense because of present incapacity, the judge should be transferred immediately to temporary incapacity inactive status to protect the administration of justice. A proceeding to determine whether the judge is in fact incapacitated should be initiated immediately. If the judge is found to be incapacitated, the Supreme Court may remove or retire the judge or allow the transfer to temporary incapacity inactive status to remain in force until the judge establishes that the incapacity has terminated. Once the incapacity has terminated, the proceedings alleging misconduct should be determined. If it is determined that the claim of current incapacity is unsubstantiated, the proceedings predicated on the allegations of misconduct should be immediately resumed.

[6] With the exceptions provided in Rule 11.E, incapacity proceedings should remain confidential, because the proceedings involve medical or psychological evidence or other personal information about the judge.

[7] Petitions for reinstatement from incapacity inactive status should be filed with the Supreme Court.

[8] Factual issues underlying petitions for reinstatement should be assigned to the Hearing Panel for recommendation to the Supreme Court.

[9] The filing of a petition for reinstatement from temporary incapacity inactive status must be accompanied by a waiver of doctor-patient or other privilege so that the Supreme Court may obtain the information needed to evaluate the claim of rehabilitation. This waiver applies only to information relating to the incapacity upon which the transfer to incapacity inactive status was predicated.