Section 3 - Complaints, Inquiries, and Investigations(a)(1) The Commission, upon receiving a complaint that is not obviously unfounded or frivolous, or conclusory or contradictory on its face, or disproved by the contents of or the attachments to the complaint, and that alleges facts indicating that a judge has engaged in willful misconduct relating to his or her official duty, or willful and persistent failure to perform his or her duty, or persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, or conduct while in office which would constitute a felony, or that he or she has a disability that seriously interferes with the performance of his or her duties and said disability is or is likely to become permanent, or has violated the Code of Judicial Conduct, shall make a preliminary inquiry to determine whether further investigation of the allegations of judicial misconduct or disability is warranted. The Commission may make such preliminary inquiry on its own motion on the basis of information coming to the Commission's attention from sources other than a complaint, including but not limited to news reports (upon authorization by the Chief Executive Officer) or correspondence from persons with an ethical duty to report potential violations of the Code of Judicial Conduct or Article V, § 25(C) of the Constitution. If the Chief Executive Officer declines to authorize a preliminary inquiry regarding a news report, subsequent review of the news report occurs pursuant to the Commission's internal rules.(2) An anonymous complaint is a complaint submitted without a name and contact information. An anonymous complaint may not be the subject of a preliminary inquiry unless it states facts, not mere conclusions, that can be independently verified and the Chair authorizes a preliminary inquiry to be made. If the Chair declines to authorize a preliminary inquiry, the complaint is processed pursuant to the Commission's internal rules.(3) Regardless of the source of the allegations, a preliminary inquiry is not required concerning allegations which solely criticize a judge's official decision-making or claim judicial error, unless the legal error was egregious, made in bad faith, or was part of a pattern and practice of legal error.(4) The judge shall be notified of the preliminary inquiry, provided with a copy of the complaint or other document containing allegations of judicial misconduct or disability, or notified that the preliminary inquiry is made on the Commission's own motion, and shall be afforded a reasonable opportunity to respond to the preliminary inquiry. If the Commission finds that further investigation is warranted following a preliminary inquiry, the Commission may authorize an investigation to determine whether formally specified allegations of misconduct or disability should be filed and a hearing should be held on the question of whether judicial misconduct or disability has occurred and, if so, whether a recommendation of discipline or involuntary retirement is warranted.
(5) The judge shall be entitled to have the assistance of counsel at every stage of these proceedings.(b) If an investigation is authorized, the judge shall be notified of the investigation, the issues being investigated, 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 reasonable opportunity in the course of the investigation to present such relevant and/or material matters as he or she may choose. During the investigation stage of the proceedings, the Office of Special Counsel may compel by subpoena the attendance of witnesses for questioning by the Office of Special Counsel and the production of books, papers, documents, and other evidence deemed relevant or material to the investigation. Except for good cause shown, a respondent judge who has given a sworn statement during an investigation shall be entitled to a copy of the judge's sworn statement from the Office of Special Counsel, upon request to that office and at the judge's cost.(c) If, in the opinion of a majority of the Commission, the preliminary inquiry or investigation does not disclose sufficient cause to warrant further proceedings, none shall be had, and the judge and the complainant shall be so notified.(d) Upon the affirmative vote of a majority of the Commission, and in an effort to expeditiously resolve matters that the Commission has determined do not warrant further proceedings and to assist the judge in avoiding conduct or practices that may give rise to future ethical violations, the Commission may include in such notice to the respondent judge: (i) a reminder concerning certain provisions in the Code of Judicial Conduct for future guidance, despite finding no ethical violation in the present matter; or(ii) a caution that the Commission regarded the judge's conduct as an ethical violation but did not consider it to be serious enough to warrant further proceedings, and mitigating factors are present (such as where the judge was new to the bench when the conduct occurred, or where the judge has acknowledged that the conduct was improper and has taken steps to prevent a recurrence, or where the judge has limited or no prior history before the Commission); or(iii) an admonishment that the Commission regarded the judge's conduct as either a clear ethical violation, regardless of whether mitigating factors are present, or as an ethical violation without mitigating factors present, but did not consider it to be serious enough to warrant further proceedings. Any such caution or admonishment is not considered discipline, but may be referenced in any subsequent proceeding before the Commission in accordance with Section 3(e) of this rule. Moreover, admonishments may be publicly issued in accordance with Section 3(f) of this rule.
If the Commission proposes to close the file with a caution or an admonishment after an inquiry but prior to conducting an investigation, or after an investigation, the judge shall be notified in writing of the proposed disposition and of the right to consent or object within fourteen days of receipt of the notice. Failure of the respondent judge to respond within fourteen days after written notice shall be deemed consent. If within fourteen days the judge responds that he does not consent to the issuance of the caution or admonishment, the Commission will either (1) close the file with a reminder, or (2) continue to the next stage of the proceedings, including an investigation, or the issuance of a notice of hearing as provided for in Section 4 of this rule.
The right of a judge to accept or object to a proposed caution or admonishment shall be prospective only and shall not apply to cautions or admonishments issued before the July 1, 2016, effective date of this amendment.
(e) Closed files of prior proceedings concerning a judge may be referred to by the Commission at any stage of the current proceedings. In cases in which a notice of hearing is filed, the notice of hearing may contain allegations relating to the Commission's closure of files involving the respondent judge with either a caution or an admonishment as part of the judge's prior history before the Commission. The Office of Special Counsel may present evidence of the Commission's closure of files involving the respondent judge with a caution or an admonishment at the hearing before a hearing officer, or before the Commission if no hearing officer is appointed, for consideration by the Commission in deciding whether to make a recommendation of discipline, and by this Court if a recommendation of discipline is made. However, from the July 1, 2016, effective date of this amendment, unless the caution or admonishment was issued after a formal hearing, a Deferred Recommendation of Discipline Agreement (DRDA), or after the dispensation of a hearing before a hearing officer pursuant to Section 29(g) and (h), the cautions and admonishments issued before July 1, 2016, as well as the underlying findings that led to the cautions or admonishments, will not be used for any purpose by the Commission and will not be forwarded to the Supreme Court for consideration regarding a subsequent disciplinary matter.(f) (1) A judge of a court of appeal or a justice of the Louisiana Supreme Court shall be eligible to receive only one confidential admonishment during any ten-year period. All other judges shall be eligible to receive only one confidential admonishment during any six-year period. If a judge has received an admonishment in a previous file during the applicable time period prior to the date the complaint is received by the Commission in a subsequent file (or during the time between the receipt of the complaint and the Commission's disposition of such), the judge shall not be eligible for a confidential admonishment in the subsequent file.(2) If a judge is not eligible to receive a confidential admonishment, the Commission may propose the issuance of a public admonishment, and the judge shall be notified in writing of the proposal and of the right to consent or object in accordance with the procedures set forth in Section 3(d) of this rule. If the judge does not consent, the Commission may continue to the next stage of the proceedings, including an investigation or the issuance of a notice of hearing as provided for in Section 4 of this rule. If the judge consents or if the judge's failure to respond is deemed consent pursuant to Section 3(d), the Commission shall file under seal a petition to the Louisiana Supreme Court to approve the public issuance of the admonishment. The respondent judge and the Commission may append to the petition a joint memorandum that provides support justifying the granting of the petition.(3) If the Court grants the petition, the Court shall enter an order approving the public issuance of the admonishment, and the petition shall become public. The Court's granting of the petition shall automatically make public any prior confidential admonishment, which shall be appended to the petition, issued to the judge during the applicable period referenced in subsection (f)(1).(4) If the Court denies the petition, the judge's consent to the proposed admonishment shall be considered withdrawn and cannot be used against the respondent judge in any subsequent proceedings. The petition shall remain sealed and shall not be disclosed or made available for use in any other proceeding. The Court order in this instance shall also remain under seal, and the Court may, in its discretion, provide reasons to the Commission for the denial. If the Court denies the petition, the Commission may continue to the next stage of the proceedings, including an investigation or the issuance of a notice of hearing as provided for in Section 4 of this rule.(5) Admonishments issued before the May 1, 2020, effective date of this amendment, unless the admonishment was issued after a formal hearing or after the dispensation of a hearing before a hearing officer pursuant to Section 29(g) and (h), shall not count against a judge's eligibility to receive a confidential admonishment under Section 3(f)(1) of this rule.(6) The Commission may, in its discretion, consolidate two or more files for disposition as one admonishment, especially if the files involve the same or similar allegations of misconduct against the judge.(g) During any stage of a proceeding before the Commission, either before or after the filing of a notice of hearing as provided for in Section 4 of this rule, the Commission may, in its discretion, consider referring the matter to the Judges and Lawyers Assistance Program. If the Commission is in favor of such a referral, the Commission shall notify the judge in writing of the opportunity for diversion. If the judge agrees to the diversion, the form of diversion will be worked out among the Judges and Lawyers Assistance Program, counsel to the Commission (Special Counsel and/or Commission Counsel), and the judge. The judge will be required to sign a written contract outlining the nature and extent of diversion. In the event of an unsuccessful diversion, the matter will be referred back to the Commission for further action. If in the course of fulfilling a diversionary contract, violations of the ethical rules contained in the Code of Judicial Conduct or Article V, § 25(C) of the Constitution are discovered, the Commission shall be notified, the contract may be nullified, and if so, the matter will be referred back to the Commission. A diversion contract may be 6 reinstated or new terms added for good cause shown and with the consent of the judge.
Amended effective 7/1/2016; amended effective 9/4/2019; amended effective 5/1/2020.