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Rule 3-201.02.? CourtCommissioner Conduct Committee.

Intent:

Toestablish a procedure for the review of complaints filed against courtcommissioners.

Applicability:

This ruleshall apply to all trial courts of record.

Statementof the Rule:

(1)        Court Commissioner Conduct Committee.

(1)(A)        The Court Commissioner Conduct Committee isestablished to:

(1)(A)(i)         receive, review, and investigate any complaintfiled against a court commissioner;

(1)(A)(ii)       conduct any hearing related to a complaint, and

(1)(A)(iii)       make recommendations to the Council and the presidingjudge(s) of the district(s) the commissioner serves regarding correctiveactions or removal of the commissioner pursuant to CJA 3-201, where theCommittee finds misconduct by a preponderance of the evidence. For purposes ofthis rule, ?misconduct? means:

(1)(A)(iii)(a)         action that constitutes willful misconduct inoffice;

(1)(A)(iii)(b)         final conviction of a crime punishable as afelony under state or federal law;

(1)(A)(iii)(c)         willful and persistent failure to performcommissioner duties; or

(1)(A)(iii)(d)         violations of the Codeof Judicial Conduct.

(1)(B)        The Committee consists of the following members:

(1)(B)(i)       theCourt of Appeals member of the Ethics Advisory Committee, who shall serve aschair of the Committee;

(1)(B)(ii)      twopresiding judges from judicial districts with a court commissioner, whichpresiding judges shall be from districts other than the district thecommissioner primarily serves;

(1)(B)(iii)     theimmediate past Bar Commissioner member of the Council; and

(1)(B)(iv)    the chair of the Supreme Court Advisory Committee on the Rulesof Professional Conduct.

(1)(C)        Circumstances which require recusal of a judgeshall require recusal of a Committee member from participation in Committeeaction.

(1)(C)(i)        If the chair is recused, a majority of theremaining members shall select from among themselves a chair pro tempore.

(1)(C)(ii)       If a presiding judge is recused, the chair shalltemporarily appoint a presiding judge of another judicial district with acommissioner.

(1)(C)(iii)       Ifthe immediate past Bar Commissioner member of the Council is recused or otherwiseunable to serve, the chair shall temporarily appoint another past BarCommissioner member of the Council.

(1)(C)(iv)      Ifthe chair of the Supreme Court Advisory Committee on the Rules of ProfessionalConduct is recused or otherwise unable to serve, the chair shall temporarilyappoint another member of the Supreme Court Advisory Committee on the Rules ofProfessional Conduct.

(1)(D)        Three members of the Committee constitute aquorum. Any action of a majority of the quorum constitutes the action of theCommittee. The chair shall vote only as necessary to break a tie vote. TheCommittee shall be organized and meet only as often as necessary to resolve acomplaint not previously dismissed by the chair pursuant to paragraph (2)(C) below. Committee members may attend meetings in person,by telephone, by videoconference, or by other means approved in advance by thechair.

(1)(E)        The confidentiality of all actions and materialsrelated to a complaint, hearing, appeal, and Council review are governed by Rule4-202.02, other than any public censure by the Council.

(2)        Complaintsubmission and initial review.

(2)(A)        A person who has a complaint against a commissionershall submit a copy of the complaint to the Committee chair.

(2)(B)        Each complaint shall be in writing and shallcontain:

(2)(B)(i)         the complainant?s name;

(2)(B)(ii)       the complainant?s preferred contact information;

(2)(B)(iii)      the name of the involved commissioner;

(2)(B)(iv)      a description of the commissioner?s actions insufficient detail to inform the Committee of the nature and date of the allegedmisconduct; and

(2)(B)(v)       when possible, supportingdocumentation.

(2)(C)        Upon receiving a complaint, the chair shall conductan initial review to determine if the allegations raise an issue that would beappropriately addressed by the full Committee. The chair shall dismissfrivolous complaints and complaints found to raise only issues of law or factfor which the remedy is the review of the case by the trial court judge or byan appellate court. If the chair dismisses a complaint following initialreview, the chair shall provide notice of and basis for the dismissal to thecomplainant, the presiding judge(s) of the district(s) the commissioner serves,and the commissioner. The chair shall refer any complaint not dismissedfollowing initial review to the full Committee.

(3)        Committeeexamination

(3)(A)        The Committee shall examine any complaint referredto it by the chair under paragraph (2)(C) to determinewhether dismissal or a hearing is appropriate. In connection with thisexamination, the committee may conduct an investigation of the allegations madein the complaint, including review of any relevant court file, hearingtranscripts, and related materials.

(3)(B)        If the Committee dismisses the complaint afterexamination, the chair shall provide notice of and basis for the dismissal to thecomplainant, the commissioner, and the presiding judge(s) of the district(s)the commissioner serves.

(3)(C)        If the Committee determines that the matter shouldproceed to a hearing, the chair shall send notice to the complainant, thecommissioner, and the presiding judge(s) of the district(s) the commissionerserves. The notice shall:

(3)(C)(i)        inform the commissioner of the allegations and thecanons allegedly violated;

(3)(C)(ii)       invite the commissioner to respond to theallegations in writing within 30 days; and

(3)(C)(iii)      include a copy of the complaint.

(3)(D)        If the commissioner chooses to respond to theallegations, the commissioner shall send a copy of the response to thecomplainant, the Committee chair, and the presiding judge(s) of the district(s)the commissioner serves.

(3)(E)        At any time prior to a hearing, the complainant mayrequest to withdraw his or her complaint. If such a request is made, theCommittee may grant the request and dismiss the complaint, or it may deny therequest and proceed with the hearing.

(4)        Hearings of the Court Commissioner ConductCommittee.

(4)(A)        If the Committee determines that a matter shouldproceed to a hearing under paragraph (3), a hearing shall be scheduled afterreceipt of the commissioner?s response or expiration of the time to respond inparagraph (3)(C)(ii). Notice of the date, time, andplace of the hearing shall be sent to the complainant, the commissioner, andthe presiding judge(s) of the district(s) the commissioner serves.

(4)(B)        Hearings shall be closed to the public.

(4)(C)        Not later than 20 days before the hearing, thecommissioner and complainant shall exchange all proposed exhibits and a list ofall potential witnesses. The commissioner and the complainant are notconsidered witnesses.

(4)(D)        The commissioner and complainant may be presentat the hearing and have the assistance of counsel.

(4)(E)        The Committee shall interview the complainant,the commissioner, and any witnesses determined by the Committee to haverelevant information. The commissioner and complainant have the right totestify.

(4)(F)        The complainant may ask the Committee to posespecific questions to the commissioner, and the commissioner may ask theCommittee to pose specific questions to the complainant. But ordinarily, neitherthe complainant nor the commissioner, whether acting on their own or throughcounsel, will be allowed to cross-examine the other unless, upon request, theCommittee chair determines that cross-examination would materially assist theCommittee in its deliberation.

(4)(G)       The commissioner and complainant may present,examine, and cross-examine witnesses.

(4)(H)        Testimony shall be presented under oath and arecord of the proceedings maintained.

(4)(I)          At any time before final decision by theCommittee, the commissioner may admit some or all of the allegations in thecomplaint, and may stipulate to findings and recommendations by the Committee.

(4)(J)         Within 30 days after the completion of thehearing, the Committee shall make written findings and conclusions concerningthe allegations in the complaint and provide a copy to the complainant, thecommissioner, the presiding judge(s) of the district(s) the commissionerserves, and the Council.

(4)(K)        If the Committee finds misconduct by apreponderance of the evidence, the Committee shall recommend appropriatecorrective actions under CJA Rule 3-201.?

(4)(L)         In making recommendations for correctiveactions, the Committee shall consider the following non-exclusive factors:

(4)(L)(i)         the nature of the misconduct;

(4)(L)(ii)        the gravity of the misconduct;

(4)(L)(iii)       the extent to which the misconduct has beenreported to or is known by the presiding judge(s) of the district(s) the commissionerserves or the commissioner, and the source of the dissemination of information;

(4)(L)(iv)       theextent to which the commissioner has accepted responsibility for themisconduct;

(4)(L)(v)        the extent to which the commissioner has madeefforts to avoid repeating the same or similar misconduct;

(4)(L)(vi)       thelength of the commissioner?s service with the courts;

(4)(L)(vii)      theeffect the misconduct has had upon the confidence of court employees,participants in the judicial system, or the public in the integrity orimpartiality of the judiciary;

(4)(L)(viii)     theextent to which the commissioner profited or satisfied his or her personaldesires as a result of the misconduct; and

(4)(L)(ix)       the number and type of previous corrective actions againstthe commissioner.

(4)(M)       At the conclusion of the Committee?s work, acopy of the complete file shall be delivered to the State Court Administratoror designee.

(5)        Councilreview of committee action.

(5)(A)        Appealsfrom decisions without a hearing.

(5)(A)(i)         Complaints dismissed prior to hearing, either bythe chair under paragraph (2)(C) or by the Committeeunder paragraph (3)(B), may be appealed by the complainant to the JudicialCouncil. All such appeals must be submitted in writing to the Chair of theCouncil, and must be received within 30 days of the notice of dismissal. In theappeal, the complainant must set forth the specific grounds on which the appealis based. A copy of the appeal shall be provided to the Committee chair, thecommissioner, and the presiding judge(s) of the district(s) the commissionerserves.

(5)(A)(ii)       The Council, a designated Council member, or acommittee of the Council shall conduct a de novo review of the file, and shalleither affirm the dismissal, or shall require the Court Commissioner ConductCommittee to set the matter for hearing or re-hearing.

(5)(A)(iii)       TheCouncil?s decision shall be in writing and a copy provided to the Committeechair, the complainant, the commissioner, and the presiding judge(s) of thedistrict(s) the commissioner serves.

(5)(A)(iv)       Ifthe dismissal is affirmed, the complainant has no other right of appeal.

(5)(B)        Councilreview following a hearing.

(5)(B)(i)         The Committee?s findings, conclusions, andrecommendations following a hearing will be reviewed by the Council, andconsidered at a meeting of the Council to be held at least 45 days afterissuance of the Committee?s decision.

(5)(B)(ii)       The complainant, the commissioner, or presidingjudge(s) of the district(s) the commissioner serves may file objections to theCommittee's findings, conclusions or recommendations. Any such objections mustbe submitted in writing to the Council within 30 days of the date theCommittee?s findings, conclusions, and recommendations were issued.

(5)(B)(iii)       Noperson other than the members of the Council are entitled to attend the Councilmeeting at which the Committee?s decision is reviewed.

(5)(B)(iv)       Inconducting its review, the Council shall review the record of the Committee?shearing, and shall determine whether to adopt, modify, or reject theCommittee?s findings, conclusions, and recommendations, including anyrecommendations for corrective action.

(5)(B)(v)       The Council?s decision shall be in writing andprovided to the Committee chair, the commissioner, the complainant, and thepresiding judge(s) of the district(s) the commissioner serves.

(5)(B)(vi)       Thedecision reached by the Council after review is final and is not appealable.

(5)(C)        AnnualReport. The chair of the Committee shall report to the Council not lessthan annually on the Committee's work including a general description of anycomplaint dismissed without a hearing.

EffectiveMay 1, 2021