12.05  INVESTIGATIONS AND HEARINGS RELATING TO RETIREMENT FOR DISABILITY

(a) Investigations. The Commission shall receive and make an investigation of all requests and suggestions for the retirement for disability of judges, members of the judicial commission, and of this Commission. The Commission may require that any such request or suggestion be in writing and verified and that it allege facts indicating that such person is unable to discharge the duties of his or her office with efficiency because of permanent sickness or physical or mental infirmity. The Commission shall not be required to pursue further such request or suggestion if it is obviously unfounded or frivolous.

The judge or commission member shall be notified of the investigation, the nature of the request or suggestion for his or her retirement, and shall be afforded reasonable opportunity in the course of the investigation to present such matters as he or she may choose. Such notice shall be given by prepaid registered or certified mail addressed to the judge or commission member at his or her last known residence.

If the investigation does not disclose sufficient cause to warrant further proceedings, the judge or commission member shall be so notified, and the file shall be closed.

(b) Hearings. After completion of an investigation, if at least four members of the Commission who shall have read the record of the investigation find that there is probable cause to believe that the person under investigation is unable to discharge the duties of office with efficiency because of permanent sickness or physical or mental infirmity, it shall cause a formal proceeding to be instituted against such individual. The procedure set forth in Rules 12.09 through 12.21 shall be applicable. Up to two Commission members may attend a formal proceeding by telephone conference, video conference, or similar available technologies if the respondent judge does not object or the Commission chair expressly determines that it is in the public's best interest that the proceeding go forward with remote participation. In determining whether it is in the public's best interest the proceeding go forward by telephone conference, video conference, or similar available technologies, the chair should consider any objection, the nature and severity of the allegations against the respondent judge, the health and safety of the participants, and the effect of delay. After completion of the formal proceeding, if at least four members of the Commission who have heard all of the evidence find that the person proceeded against is unable to discharge the duties of office with efficiency because of permanent sickness or physical or mental infirmity, the Commission shall recommend to this Court that the person in question be retired.

The Commission shall prepare a transcript of the record of all evidence and of all proceedings therein, shall make written findings of fact and conclusions of law with respect to the issues of fact and questions of law in the transcript, and shall file two copies thereof with the clerk of this Court.

This Court shall retire such person from the judicial office or commission membership currently held if the Court finds such person is unable to discharge the duties of office with efficiency because of permanent sickness or physical or mental infirmity.

If the charge made in the formal proceeding is that the individual proceeded against is unable to discharge the duties of office or position with efficiency because of mental infirmity, and if the person is without adequate representation, the Commission shall request this Court to appoint a lawyer to represent such individual.

12.07  REMOVAL, SUSPENSION, OR OTHER DISCIPLINE – INVESTIGATION – FURTHER PROCEEDINGS

(a) Investigation. Upon receipt of a complaint that a judge or a member of any judicial commission or a member of the Commission has committed a crime or is guilty of misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude, or oppression in office, the Commission shall make an investigation thereof. The Commission may require any such complaint be in writing and verified and that it allege facts. The Commission shall not be required to investigate such complaint if it is obviously unfounded or frivolous.

The judge or commission member shall be notified of the investigation, the nature of the complaint against him or her, and shall be afforded reasonable opportunity in the course of the investigation to present such matters as he or she may choose. The notice shall be given by prepaid registered or certified mail, addressed to the judge or commission member at his or her last known residence.

(b) Proceedings After Completion of Investigation. After completion of an investigation:

(1) Unless at least four members of the Commission find that there is probable cause to believe the person under investigation is guilty, the Commission shall terminate the investigation, notify the person under investigation and the complainant and close the file.

(2) If at least four members of the Commission find there is probable cause to believe the person who is under investigation is guilty in any of the respects in this Rule 12.07 and further find that a formal proceeding should be instituted, the Commission shall institute such formal proceedings unless the person shall forthwith resign, and the procedure set forth in Rules 12.09 through 12.21 shall be applicable. Up to two Commission members may attend a formal proceeding by telephone conference, video conference, or similar available technologies if the respondent judge does not object or the Commission chair expressly determines that it is in the public's best interest that the proceeding go forward with remote participation. In determining whether it is in the public's best interest the proceeding go forward by telephone conference, video conference, or similar available technologies, the chair should consider any objection, the nature and severity of the allegations against the respondent judge, the health and safety of the participants, and the effect of delay.

(c) Proceedings After Completion of Formal Proceedings. Upon completion of the formal proceedings, if at least four members of the Commission who have heard all the evidence find that the person proceeded against is guilty and further find that such person should be removed from office, suspended from the performance of his or her duties for a period of time, or otherwise disciplined, the Commission shall make written findings of fact and conclusions of law with respect to the issues and shall make its recommendations to this Court.

The Commission shall prepare a transcript of the record of all evidence and of all proceedings therein, which shall also include its findings of fact and conclusions of law and recommendations, and shall file two copies thereof with the clerk of this Court.

After respondent has had an opportunity to proceed as provided in Rule 12.08, this Court shall review the record, consider the recommendation of the Commission and make such order as to respondent as it deems just.

Day – to – Day

__________________________

MARY R. RUSSELL

Chief Justice