Section 29 - Hearing Officers(a)Designation; authority. This Court may designate no less than ten, and no more than thirty, sitting, former, or retired judges to serve as hearing officers to hear and report to the Commission in accordance with the provisions of Sections 5 through 9, 11, and 31 of this rule. The Court may also designate to serve as hearing officers sitting, former, or retired judges who are serving, or have served, on courts of limited jurisdiction, such as city courts and juvenile courts. Justices of the peace may not be appointed as hearing officers. Such hearing officer shall be empowered to conduct hearings, administer oaths or affirmations, subpoena witnesses, compel their attendance, examine them under oath or affirmation and require the production of any books, records, documents, or other evidence that the hearing officer may deem relevant or material to the subject of the hearing. Except as provided hereafter, in each case wherein the Commission authorizes the filing of a notice of hearing concerning the alleged misconduct or disability of a judge, a hearing officer shall be appointed to commence proceedings, as more fully set forth below.
(b)Random Allotment and Venue. From the hearing officer designees of the Court, the Commission shall select a hearing officer for each case by random allotment to conduct hearings pursuant to Sections 5 through 9 and 11 of this rule. The random allotment procedure shall not, however, include any designee from the Supreme Court district where the respondent judge presides. Furthermore, in order to help insure that the hearing officers receive an equivalent number of cases, any designated hearing officer to whom a case has been randomly allotted shall not be included in the next four case allotments in which the hearing officer is eligible to serve. The venue of hearing officer proceedings and any hearing to be conducted by a hearing officer shall be governed by Section 7 of this rule.
(c)Exceptions and motions; hearing officer bound by Code of Judicial Conduct.(1) The Commission shall decide all exceptions and the following motions: (i) any motion which would be determinative of the merits of the case; (ii) a motion to confirm or disaffirm the findings of the hearing officer;(iii) a motion made prior to the appointment of the hearing officer, except that the Commission may refer such motion to the hearing officer when such referral is not inconsistent with the other provisions of this section;(iv) a motion to proceed without appointing a hearing officer for a particular proceeding, as more fully set forth below;(v) the Commission may on its own motion review any decision by a hearing officer that would substantially delay, impede, or prolong the resolution of the proceedings, including but not limited to the hearing officer's decision to grant a motion that indefinitely stays the hearing or continues the hearing without date when the basis for the motion is the Commission's impending loss of jurisdiction over the judicial officer;(vi) the Commission may on its own motion, or upon the motion of any party or any person from whom the information was obtained, review any decision by a hearing officer regarding a requested protective order under Section 8(e) of this rule; and(vii) a motion to compel a hearing officer to discharge his or her duties.(2) In each case where the Commission is designated to decide a motion, such decision shall be made by a majority of the Commission at the next regularly scheduled meeting, except that in cases where the hearing officer notifies the Commission of a motion which he or she believes should be decided expeditiously, the hearing officer shall notify the Commission in writing through its Chief Executive Officer or Commission Counsel, who shall poll the Commission for disposition on the motion.(3) The designated hearing officer may decide all other motions, subject to the hearing officer's right to request that for good cause, the Commission decide a motion other than those described in Subsection (c)(1). All motions shall be in writing and there shall be no absolute right to oral argument, which shall only be had in the discretion of the hearing officer, as to motions to be heard by him or by her, or of the Chair of the Commission as to motions to be decided by the Commission.(4) Motions for the disqualification or recusal of a hearing officer are to be made to the designated hearing officer within ten calendar days of the parties' receipt of notification of the appointment of the hearing officer. If the hearing officer deems the recusal motion meritless, he or she shall provide written reasons therefor and the motion shall be automatically referred to the Commission for decision at the next regularly scheduled meeting, except where the respondent judge or the Office of Special Counsel withdraws the request for disqualification after reviewing the hearing officer's reasons. So long as the motion is pending, all proceedings will be stayed until the Commission has rendered its decision.(5) In deciding a motion, the hearing officer shall not engage in ex parte communications with the Special Counsel or with the respondent judge and his or her counsel. In this regard, as to exceptions, motions, and all other matters, during the time the hearing officer is serving with regard to notices of hearing filed, the hearing officer shall be subject to the Code of Judicial Conduct. Retired and former judges who serve as hearing officers shall be subject to the Code of Judicial Conduct to the same extent that the Code applies to retired judges.(d)The conduct of hearings. The hearing officer shall set a prompt hearing date; regulate the course of the hearing; make appropriate rulings; set the time for adjourned or continued hearings and fix the time for filing proposed findings, briefs, and other documents; and shall have such other authority as specified by the Commission, not inconsistent with the provisions of this rule. The respondent judge who is the subject of the hearing, and the Special Counsel, shall be afforded a reasonable opportunity to present to the hearing officer written argument on issues of law and fact, including but not limited to briefs and/or proposed findings of facts and conclusions of law. The respondent judge and the Special Counsel may file briefs and/or proposed findings with the hearing officer at the office of the Commission no later than thirty days after their receipt of the transcript of the hearing. For good cause, the hearing officer may grant a reasonable extension or may shorten the period.
(e)Proposed findings of fact and conclusions of law. The hearing officer shall submit a report to the Commission with proposed findings of fact and conclusions of law. The Commission shall review the report de novo, and may on its own motion remand the case to the hearing officer for the taking of further evidence on any issue presented by the notice of hearing. No recommendation shall be made with respect to a sanction to be considered by the Commission. The hearing officer shall endeavor to submit such report: (i) no later than thirty days after receipt of the briefs and/or proposed findings of fact and conclusions of law referred to in subsection (d) of this section; or (ii) no later than thirty days after the failure of the respondent or the Special Counsel to file such brief and/or proposed findings of fact and conclusions of law within the time prescribed in subsection (d) of this section. A copy of the hearing officer's report shall be sent to the respondent judge and the Special Counsel.(f)Procedure to consider hearing officer's proposed findings of fact and conclusions of law.(1) The Commission shall consider the hearing officer's report and/or agreed statement of uncontested material facts and shall provide reasonable opportunity for the submission of briefs and oral argument by the respondent judge and the Special Counsel with respect to such report or agreed statement of uncontested material facts and with respect to possible sanctions. The Office of Special Counsel shall file an original and three copies of any brief submitted to the Commission. Thereafter, the respondent judge shall file an original and three copies of any reply brief submitted to the Commission.(2) The respondent judge may request an appearance before the Commission to make a statement about the case, and the Commission, on its own motion, may require the respondent judge to appear to answer questions about the allegations pending and/or about the hearing officer's report or about any stipulations of fact. The Commission may require any witness who appeared before the hearing officer to appear before the Commission for questioning. The respondent judge or his or her counsel and the Office of Special Counsel may ask questions of the judge and any other witnesses who appear before the Commission, but such questioning shall be limited to the subject matter of the examination by the Commission and shall not exceed the amount of time allocated for such questioning in the order notifying the parties of the proceedings before the Commission. Each side shall be given a set amount of time, as set forth in the order, to present an opening statement, a closing statement, or a combination of the two, and may choose how to allocate their time, subject to the discretion of the Chair to grant additional time as needed.(g)Stipulations. Special Counsel to the Commission may enter into proposed stipulations of fact with the respondent judge and the judge's legal counsel as to some or all of the allegations contained in the notice of hearing. If the proposed stipulations relate to all factual allegations in the notice of hearing, they must be approved by the Commission, even if the case is pending before a hearing officer. If the proposed stipulations relate to some but not all of the factual allegations in the notice of hearing, the stipulations need not be approved by the hearing officer or the Commission.(h)Procedure to consider proceedings without appointment of a hearing officer.(1) If the respondent judge and the Special Counsel have presented for approval a statement of uncontested material facts (as to all factual allegations contained in the notice of hearing) and such stipulation has been accepted, a motion to dispense with the services of a hearing officer shall be granted, reserving to the Commission the decision whether to permit or require the respondent judge to address the Commission in person. The parties may further present a stipulation as to the relevant law, or if there is a failure to agree, each side may brief such law. If the parties have presented for approval a statement of uncontested facts as to less than all of the alleged factual allegations, the motion to dispense with appointment of a hearing officer shall be decided by majority vote of the Commission and may be decided at a meeting or by poll voting.(2) If for any reason there is no qualified person designated to serve as hearing officer and such circumstance persists for a period of thirty days after the filing of a notice of hearing in a particular case, the Commission shall proceed to hear the case without the benefit of a hearing officer.(i)Remuneration. A retired or former judge who serves as a hearing officer shall be entitled to remuneration for his or her services in the same manner as the Court compensates retired judges.(j)Commission Authority to Re-assign a Hearing Officer from a Case. The Commission retains authority to ensure that a matter progresses toward resolution. The unwillingness or inability of a hearing officer to discharge his or her duties as hearing officer may be grounds for the Commission to re-assign the hearing officer. After receiving notice that the hearing officer is not sufficiently discharging his or her duties, the Commission will request a written explanation from the hearing officer regarding his or her handling of the matter. Based upon the submissions of the hearing officer, the Commission will then consider whether the hearing officer should be reassigned during its next scheduled meeting or during a meeting specially called for that purpose. If the Commission determines that the hearing officer has failed to discharge his or her duties, the Commission may assign another hearing officer through random allotment pursuant to Section 29(b) or may hear the matter directly.Amended effective 11/1/2007 enacted effective 12/1/2007 effective date amended October 11, 2007 amended September 30, 2009; amended effective 7/1/2016; amended effective 9/4/2019; amended effective 5/1/2020; amended effective 11/19/2021.