ORDER ADOPTING AMENDMENTS TO THE RULES GOVERNING THE COMMISSION ON JUDICIAL CONDUCT AND ETHICS
This matter came before the Court by direction of the Board of Judicial Policy and Administration to amend the Rules Governing the Commission on Judicial Conduct and Ethics. It is therefore,
ORDERED that the amendments to the Rules Governing the Commission on Judicial Conduct and Ethics, a copy of which is attached hereto, are adopted; that said rules shall be published in the advance sheets of the Pacific Reporter and in the Wyoming Reporter; that said rules shall become effective May 1, 2003, shall be spread at length upon the journal of this court and shall thereupon amend the current Rules Governing the Commission on Judicial Conduct and Ethics.
Dated this 3rd day of February, 2003.
Rule 3. Organization and authority of commission.
(a) Commission; presiding commissioner; investigatory and adjudicatory panels. — The full commission shall select one of its members to serve as presiding commissioner, and one of its members to serve as acting presiding commissioner in the event the presiding commissioner is unable to serve because of absence, illness, or other reason. From time to time, the presiding commissioner or acting presiding commissioner shall divide the full commission into investigatory panels of three or more members and adjudicatory panels of three or more members. The presiding chairman or acting presiding commissioner shall prescribe the duration and time of panel membership; provided that the investigatory and adjudicatory panels shall include members from each category of membership — lawyer, judge, and elector; membership on the panels shall rotate in a manner determined by the commission, provided that no member shall sit on both the investigatory and adjudicatory panel in the same proceeding. The full commission shall meet periodically as determined by the presiding commissioner to consider administrative matters and shall meet at the call of the presiding commissioner on an ad hoc basis for disposition hearings.
(b) Presiding commissioner. — The presiding commissioner shall preside over meetings and hearings of the full commission. In the event formal proceedings are commenced, the presiding commissioner shall appoint a member (who may be the presiding commissioner) to serve as the hearing officer. The presiding commissioner shall from time to time designate presiding officers of all panels. The presiding commissioner, acting presiding commissioner and hearing officer are authorized to administer oaths or affirmations to all witnesses appearing before the commission.
(c) Presiding officer. — The presiding officer of each panel shall schedule, convene and preside over panel hearings and shall appoint a member of the panel (who may be the presiding officer) to serve as the hearing officer of any hearing of the panel. The presiding officer and hearing officer of any panel are authorized to administer oaths or affirmations to all witnesses appearing before the commission or panel.
(d) Powers and duties of the commission. —
(1) The commission shall have the duty and broad authority (which may be delegated as provided in these rules or rules adopted by the commission) to:
(A) adopt its own rules of procedure for discipline and incapacity proceedings not inconsistent with these rules and subject to the approval of the Wyoming Supreme Court;
(B) retain disciplinary counsel and other staff;
(C) conduct investigations and review the recommendations of disciplinary counsel after preliminary investigation and either authorize a full investigation or dismiss the complaint;
(D) rule on prehearing motions, conduct hearings on formal charges, make findings, conclusions and recommendations to the Wyoming Supreme Court for sanctions, or dismiss the case, pursuant to Rule 9;
(E) consider and implement such other forms of discipline as are provided for by these rules;
(F) appoint masters in appropriate cases, review the findings of the masters, and make findings, conclusions, and recommendations to the Wyoming Supreme Court for sanctions or dismiss the case, pursuant to Rule 9;
(G) maintain the commission's records;
(H) prepare the commission's budget for its approval and administer the funds;
(I) notify the appropriate appointing authority of vacancies on the commission;
(J) prepare an annual report of the commission's activities and maintain statistics concerning the operation of the commission and make the report and statistics available to the commission, the Wyoming Supreme Court, the legislature, the governor, the Wyoming State Bar, and the public;
(K) inform the public of the existence and operation of the judicial discipline system, including the commission's address and telephone number and the disposition of each matter in which public discipline is imposed;
(L) perform such other supervisory functions as the Wyoming Supreme Court may from time to time direct; and
(M) make assignment to the investigatory and adjudicatory panels.
(e) Powers and duties of investigatory panel. —
(1) The investigatory panel shall have the duty and authority to:
(A) review statements or complaints received by the commission staff concerning allegations of judicial misconduct or incapacity, conduct reviews and make inquiries, conduct preliminary examinations, make dismissals, recommend letters of correction and deferred discipline agreements, and make findings to the adjudicatory panel concerning formal proceedings;
(B) evaluate all information or allegations reaching the attention of the commission or from other sources that reasonably give rise to the need for further inquiry or investigation;
(C) commence investigations on its own motion on matters concerning alleged judicial misconduct falling within the jurisdiction of the commission;
(D) appoint disciplinary counsel upon approval of the commission if needed to proceed with preliminary investigation or deferred discipline agreement; and
(E) maintain records and files confidentially in accordance with these rules and transmit files to the adjudicatory panel for formal proceedings as appropriate.
(f) Powers and duties of adjudicatory panel. —
(1) The adjudicatory panel shall have the duty and authority to:
(A) rule on prehearing motions, conduct hearings on formal charges and make findings, conclusions and recommendations to the Wyoming Supreme Court or dismiss the case;
(B) adopt its own internal rules of procedure for convening adjudicatory hearings; and
(C) conduct full adjudicatory hearings and make adjudicatory findings.
(g) Expenses. — Members shall be reimbursed for reasonable and necessary expenses incurred pursuant to their duties.
(h) Once a member of the commission is recused from a proceeding for any reason, such a member shall not subsequently be permitted to consider any aspect of such proceeding.
Rule 7. Proceedings confidential.
(a) Proceedings. — Unless otherwise permitted by these rules, or form public documents, or from public hearing, all proceedings before the commission, and all information, communications, materials, papers, files, and transcripts, written or oral, received or developed by the commission or its staff and no employee or agent of the commission, disciplinary counsel and disciplinary counsel's staff, and no testifying witness shall disclose such proceeding, information, communications, materials, papers, files, or transcripts, except in the course of official duty or as otherwise authorized by the rules for the commission. Only a record filed by the commission with the Wyoming Supreme Court loses its confidential character upon its filing. Any violation of the provision for confidentiality shall constitute an act of contempt and be punishable as such. Provided, however, the commission may, in its discretion, release statistical information that does not identify judges whose cases are confidential. The deliberations of the commission, whether oral or written, shall remain confidential.
(b) Notices to judge — All notices, pleadings and papers mailed to a judge pursuant to these rules shall be enclosed in a cover marked "Personal and Confidential".
(c) Oath of witnesses. — Every witness in every proceeding under these rules shall be sworn to tell the truth and not to disclose the existence of the proceeding or the identity of the judge until the proceeding is no longer confidential under these rules. Violation of the oath shall be an act of contempt and punishable as such.
(d) Review of file contents. Investigatory panel members shall have the authority to investigate facts through letters and other means of inquiry directed to the complainant, the judge, court officials, attorneys and all others. The investigatory may, in its discretion, share the information and responses with the complainant, the judge, and the complainant's attorney. The commission is not required to follow any request by the complainant, judge, or complainant's attorney to withhold dissemination of information provided in response to a confidential investigatory panel inquiry. Otherwise, the confidentiality of these matters as provided by the Rules Governing the Commission Judicial Conducts and Ethics shall apply.
Rule 10. Preliminary investigation.
(a) Complaints. — All complaints shall be in writing and may be initiated by a member of the commission based upon any source that may be deemed reasonably reliable. Complaints shall be verified and addressed to the commission, except when initiated by commission inquiry. By presenting to the commission (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(b) Investigation — Upon receiving a complaint alleging facts indicating that a judge has engaged in judicial misconduct or that the judge has a disability that seriously interferes with the performance of duties, and is or is likely to become permanent, the investigatory panel shall review the information and shall act as follows:
(1) Dismissal. — It may forthwith dismiss unfounded, frivolous or trivial complaints.
(2) Initial investigation. — For complaints not dismissed forthwith and after notifying the judge informally, the investigatory panel shall make an initial inquiry or direct disciplinary counsel to make an initial investigation to determine whether or not the complaint contained in the verified statement warrants further examination. In making that initial investigation, the investigatory panel or disciplinary counsel may obtain and consider any information deemed pertinent.
(3) Preliminary investigation. — If, after the initial ivestigation, the investigatory panel concludes that further investigation is warranted, the investigatory panel shall require disciplinary counsel to conduct a preliminary investigation, after first notifying the judge in writing of the nature of the charge and that a preliminary investigation has been authorized. In the course of the preliminary investigation, the accused judge shall be afforded reasonable opportunity to present matters. In conducting the investigation, disciplinary counsel may consider any information obtained during the course of the initial investigation.
(4) Physical or mental evaluation. — If the preliminary investigation indicates that the physical or mental health of the judge is in issue, the investigatory panel may order and give the judge notice of physical and/or mental examinations of the judge by independent examiners. The results of the examination shall be transmitted directly to the judge and to the presiding commissioner for determination by the entire commission under Rule 19(d) and the rules of procedure adopted under Rule 3(c)(1)(A) of these rules. Service of such written notice and results of examination shall be in accordance with Rules 7(b) and 10(d).
(5) If the preliminary investigation discloses sufficient cause to warrant further proceedings, the investigatory panel may:
(A) continue the case for further action, investigation or review; or
(B) request or allow a personal appearance of the judge before the investigatory panel.
(6) If the preliminary investigation does not disclose sufficient cause to warrant further proceedings, the case shall be dismissed and the judge and the complainant shall be so notified.
(7) If after preliminary investigation, the investigatory panel finds reasonable cause to believe that the judge engaged in judicial misconduct, then formal proceedings shall be instituted and the file shall be referred to the adjudicatory panel. The investigatory panel shall not receive any evidence, nor shall it make any recommendations relative to sanctions, censure or removal.
(c) Commission initiated investigations — Upon receiving a complaint by a member of the commission, the chair may appoint an investigatory panel which may make, or require disciplinary counsel to make, an initial investigation on the basis of information coming to the commission's attention from other sources that, if substantiated, would constitute judicial conduct.
(d) Notice of investigation. — The judge shall be notified of any investigation or examination by registered mail addressed to the judge at the judge's chambers and the judge's last known residence.
Rule 13. Settlement and corrective notice.
(a) Settlement. — A judge accused of misconduct who wishes to propose a settlement of the case, whether or not admitting misconduct, may present a settlement proposal to disciplinary counsel or if no disciplinary counsel has been appointed, to the presiding officer of the adjudicatory panel. Disciplinary counsel or the presiding officer of the adjudicatory panel have no authority to settle any case, but may comment upon a judge's proposal. Any proposal shall be referred to the full commission which may accept it, reject it, or propose an alternative, with or without a hearing. Disciplinary counsel may propose a settlement to the accused judge which, if acceptable to the judge, may be referred to the commission. A judge who proposes a settlement or agrees to a settlement proposal made by disciplinary counsel waives any complaint that consideration of settlement compromises the commission or any of its members in later proceedings.
(b) Corrective notice. — Matters requiring correction but, in the view of the investigatory panel not warranting disciplinary action, may be disposed of by calling the matter to the attention of the judge involved and, if necessary, by directive in writing, indicating the appropriate corrective measures. Such matters may also be addressed by the commission in the form of a private censure.
Rule 25. Contempt.
Any violation by any person of the requirements of the commission's rules and orders shall consititute contempt and shall be punishable as such. The commission may initiate a proceeding pursuant to Rule 42, W.R.Cr.P., before any district judge, requiring any person accused of violating the commission's rules or orders to appear and show cause why such person should not be held in contempt