N.D. R. Jud. Cond. Comm. 25

As amended through March 18, 2024

Rule 25 - Cases Involving Allegations of Mental or Physical Incapacity

A. Initiation of Incapacity Proceeding. An incapacity proceeding can be initiated bycomplaint , 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 must be conducted in accordance with the procedures for disciplinary proceedings, except:

(1) the purpose of the incapacity proceedings is 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 are confidential;

(3) the hearing panel may appoint a lawyer to represent the judge if the judge is without representation; and

(4) if the Supreme Court concludes 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;

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

(c) if the Supreme Court concludes the judge is incapacitated to practice law, transferring the judge to lawyer disability inactive status; or

(d) if a judicial disciplinary proceeding against the judge is pending and the Supreme Court concludes the judge is incapacitated to defend, deferring the disciplinary proceeding, under Section 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 both lawyer disability inactive and judicial incapacity inactive status. A copy of the order must be served, in the manner the Supreme Court directs, upon the judge, the judge's 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, disciplinary counsel shall notify the Supreme Court. The Court shall immediately transfer the judge to lawyer disability inactive and judicial incapacity inactive status pending a determination by the Court of the incapacity under Section B. A determination by the hearing panel that the judge is able to assist in the judge's own defense is interlocutory and may not be appealed before entry of a final order in the proceeding.

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

(3) If, under Section 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 must resume. The judge must be retained on judicial incapacity inactive status.

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

E. Stipulated Disposition.

(1) The hearing panel shall designate one or more qualified medical, psychiatric, or psychological experts to examine the judge before the hearing on the matter. The hearing panelmay designate an expert agreed upon by disciplinary counseland the judge. The expert or experts shall report to the Supreme Court and the parties.

(2) After receipt of the examination report, disciplinary counsel and the judge may agree upon proposed findings of fact, conclusions, and an order. The stipulated disposition must be submitted to the hearing panel for a recommendation to the Supreme Court of approval or rejection. The final decision on the recommendation must be made by the 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 dispositions, the Court shall order the hearing to proceed.

F. Reinstatement from incapacity inactive status.

(1) A judge transferred to incapacity inactive status may not resume active status except by order of the Supreme Court.

(2) Any judge transferred to incapacity inactive status is entitled to petition for transfer to active status once a year or at whatever shorter intervals the Supreme Court may direct in the order transferring the judge to incapacity inactive status or any modifications thereof.

(3) 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.

(4) With the filing of a petition for reinstatement to active status, the judge is 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.

(5) If a judge transferred to lawyer incapacity inactive status on the basis of a judicial determination of incompetence has been declared to be competent, the Supreme Court may dispense with further evidence that the incapacity to practice law has been removed and may immediately direct reinstatement to active status as a lawyer.

N.d. R. Jud. Cond. Comm. 25