Utah Admin. Code R26 — Judicial Conduct Commission

R595 Administration

R595-1 General Provisions

Utah Admin. Code R595-1-1 Definitions

In addition to terms defined in Section 78A-11-102 et seq. of the Utah Code:

A. "Chair" means the chair of the Commission and includes the vice chair or acting chair.

B. "Confidential hearing" means a hearing at which allegations of misconduct or disability are presented to a hearing panel or masters for resolution.

C. "Contract investigator" means a person with whom a contract exists for the performance of investigative services.

D. "Examiner" means a lawyer designated by the Commission to present evidence at a confidential hearing.

E. "Formal charges" means the specific allegations of misconduct or disability identified by the Commission at the conclusion of a full investigation and upon which further proceedings will be conducted.

F. "Formal complaint" means the written document that formally charges a judge with misconduct or disability.

G. "Full investigation" means that portion of an investigation in which the judge is invited to respond in writing to specific allegations identified by the Commission. A full investigation may also include, but is not limited to: examination of documents, correspondence, court records, transcripts or tapes; interviews of the complainant, counsel, court staff, the judge and other witnesses; and inspection of physical facilities or objects.

H. "Hearing panel" means a panel of at least six members of the Commission designated to conduct a confidential hearing.

I. "Masters" means the special masters appointed by the Commission to conduct a confidential hearing.

J. "Misconduct" means a violation of the Utah Code of Judicial Conduct or Section 78A-11-105(1)(a), (b), (c), or (e) of the Utah Code.

K. "Preliminary investigation" means that portion of an investigation conducted upon receipt of a written complaint or upon authorization of the Commission. A preliminary investigation may include, but is not limited to: examination of documents, correspondence, court records, transcripts or tapes; interviews of the complainant, counsel, court staff and other witnesses; and inspection of physical facilities or objects.

L. "Presiding master" means the special master designated to preside over any hearing conducted by masters.

M. "Proceeding" means all steps in the Commission's discipline and disability process .

N. "Record" means all documents required by statute to be submitted to the Utah Supreme Court.

O. "Supreme Court" means the Utah Supreme Court.

History

• KEY: judicial conduct commission
• Date of Last Change: February 1, 2005
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-1-2 Jurisdiction

A. Judges. The Commission has jurisdiction over judges in evaluating allegations that misconduct occurred before or during service as a judge and in evaluating allegations of disability during service as a judge.

B. Former judges. The Commission has continuing jurisdiction over former judges regarding allegations that misconduct occurred during the judicial appointment process or during service as a judge if a complaint is received before the judge left office.

History

• KEY: judicial conduct commission
• Date of Last Change: February 1, 2005
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-1-3 Confidentiality

Confidentiality of Commission proceedings and records is governed by the Constitution of Utah and applicable state statut e.

History

• KEY: judicial conduct commission
• Date of Last Change: February 1, 2005
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-1-4 Ex Parte Communications

Commissioners shall not, individually or collectively, engage in ex parte communications about proceedings with complainants, witnesses, or judges.

History

• KEY: judicial conduct commission
• Date of Last Change: February 1, 2005
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-1-5 Attendance at Commission Meetings

Commission members may attend Commission meetings in person, by telephone, by videoconference, or by other means approved in advance by the chair.

History

• KEY: judicial conduct commission
• Date of Last Change: February 1, 2005
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-1-6 Records Classification and Retention

(Reserved.)

History

• KEY: judicial conduct commission
• Date of Last Change: February 1, 2005
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

R595-2 Administration

Utah Admin. Code R595-2-1 Executive Committee

A. There is hereby established an executive committee of the Commission, comprised of the following three members of the Commission, all elected by the Commission: one legislator, one judge or member of the Utah State Bar, and one public member. The Commission chair shall serve as one of the members of, and as chair of, the executive committee.

B. The terms of committee members shall be two years. Committee members may be elected to subsequent terms.

C. The executive committee may:

1. recommend to the Commission the hiring or termination of the executive director;

2. hire and terminate the employment of other Commission staff;

3. approve the contracts of contract investigators;

4. recommend to the Commission salary increases for the executive director and other Commission staff;

5. investigate and resolve complaints against the executive director or Commission staff; and

6. perform other administrative duties as assigned by the Commission.

History

• KEY: judicial conduct commission
• Date of Last Change: September 1, 2007
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-2-2 Terms of Commission Chair and Vice Chair

The terms of the Commission chair and vice chair shall be two years. The chair and vice chair may be elected to subsequent terms.

History

• KEY: judicial conduct commission
• Date of Last Change: September 1, 2007
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-2-3 Duties of Executive Director

A. The executive director shall:

1. receive, acknowledge receipt of, and review complaints, refer complaints as provided by statute, conduct preliminary investigations, notify complainants about the status and disposition of their complaints, make recommendations to the Commission regarding further proceedings or the disposition of complaints, conduct full investigations or file formal charges when directed to do so by the Commission, and act as examiner;

2. maintain records of the Commission's operations and actions;

3. compile statistics to aid in the administration of the Commission's operati ons and actions;

4. prepare and distribute an annual report of the Commission's operations and actions;

5. prepare the Commission's budget for submission to the Commission and the Legislature, and administer t he funds;

6. subject to the approval of the Commission or the executive committee, hire and terminate Commission staff and enter into contracts with contract investigators;

7. direct the operations of the Commission's office, and supervise other members of the Commission's staff and contract investigators;

8. with the Commission's approval, engage experts in connection with proceedings;

9. make available to the public, the laws, rules and procedures affecting the Commission and its operations;

10. consider requests for extensions of time periods established by Commission rule, and may, upon a showing of good cause, grant such requests for a period of time not to exceed 60 days in the aggregate; and

11. perform other duties at the direction of the Commission.

B. Subject to the duty to direct and supervise, the executive director may delegate any of the foregoing duties to other members of the Commission's staff or contract investigators.

History

• KEY: judicial conduct commission
• Date of Last Change: September 1, 2007
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

R595-3 Procedure

Utah Admin. Code R595-3-1 Proof

Formal charges shall be established by a preponderance of the evidence.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-2 Applicability of Other Rules

Except as otherwise provided in Commission rule, the Utah Rules of Evidence apply in all proceedings. Except as otherwise provided in Commission rule, the Utah Rules of Civil Procedure do not apply in Commission proceedings.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-3 Right to Counsel

A judge shall be entitled to retain and have the assistance of counsel at every stage of the proceedings.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-4 Service

Service of a formal complaint shall be made by personal service or certified mail upon the judge or judge's counsel. Service of all other papers or notices shall be made by regular mail with the envelope marked "confidential."

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-5 Subpoena Power

The issuance and service of subpoenas for Commission proceedings is governed by Section 78A-11-113 of the Utah Code.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-6 Effect of Judge's Resignation or Retirement during Proceedings

If a judge resigns or retires during the proceedings, the Commission shall determine whether to proceed or dismiss the proceedings.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-6a Effect of Request to Withdraw Complaint

At any time prior to the filing of formal charges, a complainant may request to withdraw his or her complaint. The Commission shall then determine, at its sole discretion, whether to proceed or grant the request and dismiss the proceedings.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-7 Investigation

A. Preliminary Investigation.

1. The executive director shall review all written complaints, and shall, regardless of whether the allegations contained therein would constitute misconduct or disability if true, conduct a preliminary investigati on.

2. When any other complaint is received, the executive director shall summarize and submit the complaint in writing to the Commission, but shall not conduct a preliminary investigation unless authorized to do so by the Commiss ion.

3. The scope of the preliminary investigation shall be determined by Commission rule and the assigned investigator, subject to the direction of the executive director.

4. Upon completion of the preliminary investigation, the investigator shall recommend a full investigation if there is reasonable cause to support a finding of misconduct or disability. In all other cases, the investigator shall recommend that the proceedings be dismissed.

B. Full Investigation. Withi n ten days after a full investigation is authorized by the Commission, the executive director shall notify the judge that a full investigation has been authorized. The notice shall:

1. inform the judge of the allegations being investigated and the canons or statutory provisions allegedly violated;

2. inform the judge that the investigation may be expanded if appropriate;

3. invite the judge to respond to the allegations in writing within 20 days; and

4. include a copy of the complaint, the preliminary investigation report(s), and any and all other documentation reviewed by the Commission in determining whether to authorize a full investigation.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-8 Formal Charges

The Commission may, upon reasonable cause to support a finding of misconduct or disability, direct the executive director to file a formal complaint. The formal complaint shall give fair and adequate notice of the nature of the alleged misconduct or disability. The executive director shall file the formal complaint with the Commission, cause a copy to be served upon the judge or judge's counsel, and file proof of service with the Commission.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-9 Pre-Hearing Procedures

A. Answer. Within 20 days after service, the judge may file an answer to the formal complaint.

B. Scheduling of Confidential Hearing. After receipt of the judge's answer or after expiration of the time to answer, the hearing panel or masters shall schedule a confidential hearing and notify the judge of the date, time, and place of the confidential hearing.

C. Witnesses and Exhibits. Not later than 20 days before the confidential hearing, the examiner and the judge shall: confer and attempt to agree upon uncontroverted and refuted facts and uncontested and contested issues of law; and exchange all proposed exhibits and a list of all potential witnesses.

D. Exculpatory Evidence. The examiner shall provide the judge with exculpatory evidence relevant to the formal charges.

E. Duty of Supplementation. Both parties have a continuing duty to supplement information required to be exchanged under this rule.

F. Failure to Disclose. The hearing panel chair or presiding master may preclude either party from calling a witness at the confidential hearing if the party has not provided the opposing party with the witness's name and address, any statements taken from the witness, or summaries of any interviews with the witness.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-10 Discipline by Consent

At any time after the filing of formal charges and before final disposition by the Commission, the judge may, with the consent of the examiner, admit to any or all of the formal charges in exchange for a stated sanction. The agreement shall be submitted to the Commission for action.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-11 Confidential Hearing

A. Authority of Hearing Panel Chair or Presiding Master. The hearing panel chair or presiding master shall rule on all motions and objections raised at the confidential hearing, may limit the time allowed for the presentation of evidence and arguments, may bifurcate any and all issues to be presented, and may make any and all other rulings regarding the procedure not contrary to statute or Commission rule.

B. Hearing Procedures.

1. All testimony shall be under oath.

2. The examiner and the judge shall be permitted to present evidence and produce and cross-examine witnesses, present rebuttal evidence and produce and cross-examine rebuttal witnesses, and summarize the evidence and legal issues.

3. Confidential hearings shall be recorded by a certified court reporter or other means used or allowed by courts of record in this state.

4. Panel hearing members or masters may ask questions of any witness or the judge.

5. Immediately following the conclusion of the evidence and arguments, the hearing panel or masters shall deliberate and make a decision. Any such decision shall require a majority of the hearing panel or masters participating in the confidential hearing.

C. Post-Hearing Procedures if the Decision is to Dismiss the Formal Charges. The hearing panel chair or presiding master shall prepare and sign an order of dismissal, and shall serve the same upon the judge.

D. Post-Hearing Procedures if the Decision is to Impose any Level of Sanction or Involuntary Retirement.

1. Within 60 days from the conclusion of deliberations:

a. the hearing panel chair or presiding master shall prepare a memorandum decision, which must be approved by a majority of the hearing panel or masters participating in the confidential hearing, then signed by the hearing panel chair or presiding master and served on the examiner and the judge;

b. The examiner shall prepare findings of fact, conclusions of law, and an order consistent with the memorandum decision; and

c. The findings of fact, conclusions of law, and order shall be approved and signed by the hearing panel chair or presiding master, and served on the judge.

2. The judge shall have ten days, after service of the findings of fact, conclusions of law, and order, to lodge any objections with the Commission. If no objections are lodged, the executive director shall submit the record to the Supreme Court upon the expiration of the objection period. If objections are lodged, the Commission may either resolve the objections or refer them to the Supreme Court without resolution, along with the record.

3. A copy of the record shall be provided to the judge at no cost.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-12 Amendments to Formal Complaint or Answer

At any time before the hearing panel chair or presiding master signs the findings of fact, conclusions of law, and order, the formal complaint or answer may be amended to conform to the proof or to allege additional facts. If the formal complaint is amended, the judge shall be given reasonable time to answer and present evidence in defense of the amended charges.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-13 Reinstatement of Proceedings after Dismissal

A. Reinstatement upon Request by Complainant.

1. If the Commission dismisses the proceedings at any time prior to the commencement of a confidential hearing, the complainant may, within 30 days of the date of the letter notifying the complainant of the dismissal, file a written request that the Commission reinstate the proceedings. The request shall include the specific grounds upon which reinstatement is sought.

2. The request shall be presented to the Commission at the next available meeting of the Commission, at which time the Commission shall determine whether to reinstate the proceedings.

3. A determination not to reinstate the proceedings is not appealable.

B. Reinstatement upon Request by Executive Director.

1. If the Commission dismisses the proceedings at any time prior to the filing of formal charges, the executive director may, at any time upon the receipt of newly discovered evidence, request that the Commission reinstate the proceedings. The request shall include the specific grounds upon which reinstatement is sought.

2. The request shall be presented to the Commission at the next available meeting of the Commission, at which time the Commission shall determine whether to reinstate the proceedings.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-3-14 Proceedings Involving Allegations of Mental or Physical Disability

A. Initiation of Disability Proceeding. A disability proceeding may be initiated: by written complaint; by a claim of inability to defend in a disciplinary proceeding; by an order of involuntary commitment or adjudication of incompetency; or upon authorization by the Commission upon the receipt of an unwritten complaint as provided in statute or Commission rule.

B. Proceedings to Determine Disability Generally. All disability proceedings shall be conducted in accordance with Commission rule, except:

1. the purpose of disability proceedings shall be to determine whether the judge suffers from a physical or mental condition that adversely affects the judge's ability to perform judicial functions; and

2. all of the proceedings shall be confidential.

History

• KEY: judicial conduct commission
• Date of Last Change: September 18, 2013
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

R595-4 Sanctions

Utah Admin. Code R595-4-1 Dismissals with Warning or on Conditions

A. The Commission may dismiss a complaint or formal complaint with a warning or on conditions of no further misbehavior if:

1. the judge stipulates that the conduct complained of has occurred;

2. the Commission finds that the stipulated conduct constitutes mis conduct; and

3. the Commission finds that the misconduct is troubling but relatively minor misbehavior and that no public sanction is warranted.

B. The Commission will not dismiss a complaint or formal complaint with a warning or on conditions of no further misbehavior if:

1. the Commission finds that a public sanction is warranted;

2. the Commission has previously dismissed a complaint or formal complaint against the judge on conditions of no further misbehavior and the current misconduct violates such conditions; or

3. the Commission finds that the current misconduct is the same or similar to misconduct established from a previous complaint or formal complaint that was dismissed with a warning or on conditions of no further misbehavior.

History

• KEY: judicial conduct commission
• Date of Last Change: February 10, 2006
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113

Utah Admin. Code R595-4-2 Sanctions Guidelines

In determining an appropriate sanction for misconduct, the Commission shall consider the following non-exclusive factors:

A. the nature of the misconduct;

B. the gravity of the misconduct;

C. the extent to which the misconduct has been reported or is known among court employees, participants in the judicial system or the public, and the source of the dissemination of information;

D. the extent to which the judge has accepted responsibility for the misconduct;

E. the extent to which the judge has made efforts to avoid repeating the same or similar misconduct;

F. the length of the judge's service on the bench;

G. the effect the misconduct has had upon the confidence of court employees, participants in the judicial system or the public in the integrity or impartiality of the judiciary;

H. the extent to which the judge profited or satisfied his or her personal desires as a result of the misconduct; and

I. the number and type of previous sanctions imposed against the judge.

History

• KEY: judicial conduct commission
• Date of Last Change: February 10, 2006
• Notice of Continuation: January 3, 2025
• Authorizing, and Implemented or Interpreted Law: Art. VIII, Sec. 13; 78A-11-102 through 78A-11-113