Rule 8.9 - Formal hearing(a) Formal Complaint or Statement of the Allegations. Formal disciplinary proceedings shall be initiated by special counsel by filing with the Commission a detailed sworn Formal Complaint signed by the complainant. If a sworn Formal Complaint is not obtained, a clear Statement of the Allegations against the judge and the alleged facts forming their basis shall be prepared by special counsel and submitted to the Commission. Where more than one act of misconduct is alleged, each shall be clearly set forth. A copy of the Formal Complaint or Statement of the Allegations shall be served upon the judge by personal service unless the judge cannot be located within the State, in which case service may be accomplished by certified or registered mail to the judge's address registered with the Hawai.i State Bar.(b) Answer. The judge shall serve the judge's answer upon special counsel and file the original with the Commission within 20 days after the service of the Formal Complaint or the Statement of the Allegations unless such time is extended by the chairperson. In the event the judge fails to answer, the charges shall be deemed admitted; provided, however, that a judge who fails to answer within the time provided may obtain permission of the chairperson to file an answer if such failure to file an answer was attributable to mistake, inadvertence, surprise or excusable neglect.(c) Termination after answer. The Commission may terminate the proceeding and dismiss the Formal Complaint or the Statement of the Allegations with the approval of the supreme court, and shall in that event give notice to each complainant and to the judge.(d) Hearing officer and notice of hearing. Following service of the answer the matter may be set for hearing before a hearing officer, chosen by the Commission from the list maintained by the Disciplinary Board of the Hawai'i Supreme Court for attorney disciplinary proceedings. A hearing officer shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. The Commission shall serve a notice of hearing upon special counsel and the judge, or the judge's counsel, stating the date and place of the hearing and the proposed identity of the hearing officer. Any motion for the disqualification of any proposed hearing officer shall be made within 10 days of service of the notice upon special counsel and the judge, or the judge's counsel, after which time any objection shall be deemed waived.(e) Presentation; cross-examination; evidence. At the hearing, the judge shall be entitled to counsel of the judge's own choice, shall be entitled to compel by subpoena the attendance and testimony of witnesses and to provide for the inspection of documents, books, accounts, and other records, and shall have a full opportunity to confront and cross-examine the complainant and other witnesses presented by special counsel and to present evidence on the judge's own behalf. Absent good cause warranting the use of a court reporter, the hearing officer shall electronically record the disciplinary hearings, to preserve the record of the hearings for transcription at a later time, if necessary. The hearing officer shall not be bound by the formal rules of evidence, but shall admit only trustworthy evidence, nor shall any evidence outside the formal record be relied upon in reaching a decision. The findings of the hearing officer shall be supported by clear and convincing evidence.
The hearing officer shall, in every case, submit a report containing findings supported by citations to the record, conclusions of law, and recommendations, together with a record of the proceedings, including a transcription of the audio recordings of the hearing if requested, to the Commission within 30 days after the conclusion of the hearing, unless such time is extended by the Commission chairperson for no more than one 30-day extension, for good cause shown. A hearing is concluded when all of the evidence has been submitted or, if post-hearing pleadings have been ordered or authorized, when the last authorized pleading is filed.
(f) Findings and recommendations. Upon receipt of such a report from a hearing officer, the Commission will not entertain briefs or oral argument except: (1) within the Commission chairperson's discretion, upon application of special counsel, the judge, or the judge's counsel, submitted within 10 days after service of the report of the hearing officer; or(2) upon a vote of a majority of the Commission. If such application is granted or vote occurs, the Commission chairperson shall set the dates for the timely submission of briefs and for the expeditious hearing of any oral argument before the Commission.
After a review of the report of the hearing officer, the Commission shall itself compose a report, making Findings of Fact, based upon clear and convincing evidence, entering Conclusions of Law regarding any violations found, and making a recommendation for the disposition of the matter and shall thereafter promptly file that report, together with a transcribed record of its proceedings and the proceedings before the hearing officer, to the supreme court after the conclusion of proceedings before the Commission or after the submission to the Commission of the hearing officer's report if no proceedings are held at the Commission. The Commission may, at its discretion, rely upon the report of the hearing officer in the drafting of its report to the supreme court. In its report, the Commission may recommend to the supreme court any of the following sanctions:
(C) Imposition of limitations or conditions on the performance of judicial duties, including suspension with or without pay; (D) Direct professional counseling or assistance for the judge;(E) Private informal admonition;(H) that the matter be referred to the Office of Disciplinary Counsel and the Disciplinary Board for investigation pursuant to Rule 2 of these Rules; or(I) Any combination of the above sanctions. Renumbered September 1984; amended effective 9/16/1997; amended September 13, 2022, effective 1/1/2023.