Assembly Bill No. 344

Assembly Bill No. 344-Assemblymen Anderson, Buckley, Ohrenschall, Evans, Chowning, Freeman, Bache, Krenzer, Arberry, Segerblom, Close, Goldwater, Herrera and Lee

CHAPTER

299

AN ACT relating to the commission on judicial discipline; establishing the grounds upon which the commission may discipline a justice or judge; establishing standards for the investigation of matters relating to the misconduct or incapacity of a justice or judge; establishing the forms of discipline other than censure, retirement and removal that the commission may impose on a justice or judge; establishing standards for the confidentiality or nonconfidentiality of proceedings of the commission; and providing other matters properly relating thereto.

[Approved July 5, 1997]

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Chapter 1 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 23, inclusive, of this act.
Sec. 2. "Commission" means the commission on judicial discipline.
Sec. 3. "Incapacitated" means unable to perform the duties of his office because of advanced age or mental or physical disability.
Sec. 4. "Judge" means:
1. A judge of the district court;
2. A judge of the municipal court;
3. A justice of the peace; and
4. Any other officer of the judicial branch of this state, whether or not he is an attorney, who presides over judicial proceedings, including, but not limited to, a magistrate, court commissioner, special master or referee.
Sec. 5. "Justice" means a justice of the supreme court of the State of Nevada.
Sec. 6. 1. The commission may remove, censure or impose other forms of discipline on a justice or judge if the commission determines that the justice or judge:
(a) Has committed willful misconduct;
(b) Has willfully or persistently failed to perform the duties of his office; or
(c) Is habitually intemperate.
A justice or judge removed pursuant to this subsection may not, unless the supreme court overturns the removal upon appeal, thereafter seek or hold judicial office within this state.
2. The commission may censure or impose other forms of discipline on a justice or judge if the commission determines that the justice or judge has violated one or more of the provisions of the Nevada Code of Judicial Conduct in a manner that is not knowing or deliberate.
3. The commission may retire a justice or judge if the commission determines that:
(a) The advanced age of the justice or judge interferes with the proper performance of his judicial duties; or
(b) The justice or judge suffers from a mental or physical disability that prevents the proper performance of his judicial duties and is likely to be permanent in nature.
4. As used in this section:
(a) "Habitual intemperance" means the chronic, excessive use of alcohol or another substance that affects mental processes, awareness or judgment.
(b) "Willful misconduct" includes:
(1) Conviction of a felony or of a misdemeanor involving moral turpitude;
(2) A knowing or deliberate violation of one or more of the provisions of the Nevada Code of Judicial Conduct;
(3) A knowing or deliberate act or omission in the performance of judicial or administrative duties that:
(I) Involves fraud or bad faith or amounts to a public offense; and
(II) Tends to corrupt or impair the administration of justice in a judicial proceeding; and
(4) Knowingly or deliberately swearing falsely in testimony before the commission or in documents submitted under oath to the commission.
Sec. 7. 1. The commission may begin an inquiry regarding the alleged misconduct or incapacity of a justice or judge upon the receipt of:
(a) A written, sworn complaint from any person which alleges that the justice or judge has committed misconduct or is incapacitated; or
(b) Information from any source and in any format, from which the commission may reasonably infer that the justice or judge may have committed misconduct or be incapacitated.
2. For the purposes of further inquiry and action by the commission, information described in paragraph (b) of subsection 1 shall be deemed to be a complaint upon motion of the commission.
Sec. 8. 1. The commission shall, in accordance with its procedural rules, examine each complaint that it receives pursuant to section 7 of this act to determine whether the complaint contains allegations which, if true, would establish grounds for discipline pursuant to section 6 of this act.
2. If the commission determines that a complaint does not contain such allegations, the commission shall dismiss the complaint.
3. If the commission determines that a complaint does contain such allegations, the commission shall authorize further investigation to be conducted in accordance with section 9 of this act.
Sec. 9. 1. If the commission determines pursuant to section 8 of this act that a complaint contains allegations which, if true, would establish grounds for discipline pursuant to section 6 of this act, the commission shall assign or appoint an investigator to conduct an investigation to determine whether the allegations have merit.
2. Such an investigation must be conducted in accordance with procedural rules adopted by the commission and may extend to any matter that is, in the determination of the commission, reasonably related to an allegation of misconduct or incapacity contained in the complaint.
3. An investigator assigned or appointed by the commission to conduct an investigation pursuant to this section may, for the purpose of investigation, compel by subpoena on behalf of the commission the attendance of witnesses and the production of necessary materials as set forth in section 14 of this act.
4. At the conclusion of the investigation, the investigator shall prepare a written report of the investigation for review by the commission.
Sec. 10. 1. If a complaint received by the commission alleges that a justice or judge is incapacitated, the commission shall, after examining the complaint and conducting an investigation pursuant to sections 8 and 9 of this act, attempt to resolve the matter informally. In attempting to resolve the matter informally, the commission may request that the justice or judge named in the complaint submit to medical, psychiatric or psychological testing by a physician licensed to practice medicine in this state who is selected by the commission.
2. If the commission is unable to resolve the matter informally pursuant to subsection 1, the commission shall:
(a) Proceed as set forth in sections 11, 12 and 13 of this act. If the matter proceeds to the point at which the prosecuting attorney files a statement of formal charges pursuant to section 12 of this act and the justice or judge named in the complaint denies all or part of those charges, the commission shall deem such a denial to be consent on the part of the justice or judge to submit to medical, psychiatric or psychological testing by a physician licensed to practice medicine in this state who is selected by the commission.
(b) Unless the justice or judge has retained counsel at his own expense, appoint an attorney to represent the justice or judge at public expense.
3. The findings of a physician appointed by the commission pursuant to this section are not privileged communications.
4. The provisions of this section do not prohibit a justice or judge from having legal counsel and a physician of his choice present at a medical, psychiatric or psychological examination conducted pursuant to this section.
5. The commission shall adopt procedural rules to carry out the provisions of this section.
Sec. 11. The commission shall review the report of an investigation conducted pursuant to section 9 of this act to determine whether there is sufficient reason to proceed. If the commission determines that there is not sufficient reason to proceed, the commission shall dismiss the complaint. If the commission determines that it could, in all likelihood, make a determination in the affirmative pursuant to section 12 of this act, the commission shall require the justice or judge named in the complaint to respond to the complaint in accordance with procedural rules adopted by the commission. If the justice or judge fails to respond to the complaint, the commission shall deem such failure to be an admission that the facts alleged in the complaint:
1. Are true; and
2. Establish grounds for discipline pursuant to section 6 of this act.
Sec. 12. 1. After the justice or judge named in the complaint responds to the complaint pursuant to section 11 of this act and after considering that response and other relevant information, the commission shall make a finding of whether there is a reasonable probability that the evidence available for introduction at a formal hearing could clearly and convincingly establish grounds for disciplinary action against the justice or judge named in the complaint pursuant to section 6 of this act.
2. If the commission makes a finding that such a reasonable probability does not exist, the commission shall dismiss the complaint.
3. If the commission makes a finding that such a reasonable probability does exist, the commission shall, in accordance with its procedural rules:
(a) Designate a prosecuting attorney, who must sign under oath a formal statement of charges against the justice or judge and file the statement with the commission;
(b) Require that the justice or judge submit to the commission an answer to the formal statement of charges; and
(c) Hold a formal, public hearing on the merits of the charges.
4. If the justice or judge fails to answer the formal statement of charges pursuant to subsection 3, the commission shall deem such failure to be an admission that the charges set forth in the formal statement:
(a) Are true; and
(b) Establish grounds for discipline pursuant to section 6 of this act.
Sec. 13. After holding a formal hearing on the merits of the charges filed pursuant to section 12 of this act, the commission shall, in accordance with its procedural rules, dismiss the charges or discipline the justice or judge as deemed appropriate by the commission.
Sec. 14. 1. During any stage of a disciplinary proceeding, including, but not limited to, an investigation to determine probable cause and a formal hearing, the commission may issue a subpoena to compel the attendance or testimony of a witness or the production of any relevant materials, including, but not limited to, books, papers, documents, records, photographs, recordings, reports and tangible objects.
2. If a witness refuses to attend, testify or produce materials as required by the subpoena, the commission may, in accordance with its procedural rules, hold the witness in contempt and impose a reasonable penalty to enforce the subpoena.
3. If a witness continues to refuse to attend, testify or produce materials as required by the subpoena, the commission may report to the district court by petition, setting forth that:
(a) Due notice has been given of the time and place of attendance or testimony of the witness or the production of materials;
(b) The witness has been subpoenaed by the commission pursuant to this section; and
(c) The witness has failed or refused to attend, testify or produce materials as required by the subpoena before the commission, or has refused to answer questions propounded to him,
and asking for an order of the court compelling the witness to attend, testify or produce materials before the commission.
4. Upon receipt of such a petition, the court shall enter an order directing the witness to appear before the court at a time and place to be fixed by the court in its order, the time to be not more than 10 days after the date of the order, and then and there show cause why he has not attended, testified or produced materials before the commission. A certified copy of the order must be served upon the witness.
5. If it appears to the court that the subpoena was regularly issued by the commission, the court shall enter an order that the witness appear before the commission at a time and place fixed in the order and testify or produce materials, and that upon failure to obey the order the witness must be dealt with as for contempt of court.
Sec. 15. 1. The commission shall suspend a justice or judge from the exercise of office with salary:
(a) While there is pending an indictment or information charging the justice or judge with a crime punishable as a felony pursuant to the laws of the State of Nevada or the United States; or
(b) When the justice or judge has been adjudged mentally incompetent or insane.
2. The commission may suspend a justice or judge from the exercise of office without salary if the justice or judge:
(a) Pleads guilty or no contest to a charge of; or
(b) Is found guilty of,
a crime punishable as a felony pursuant to the laws of the State of Nevada or the United States. If the conviction is later reversed, the justice or judge must be paid his salary for the period of suspension.
3. The commission may suspend a justice or judge from the exercise of office with salary if the commission determines, pending a final determination in a judicial disciplinary proceeding, that the justice or judge poses a substantial threat of serious harm to the public or to the administration of justice.
4. A justice or judge suspended pursuant to this section may appeal the suspension to the supreme court for reconsideration of the order.
5. The commission may suspend a justice or judge pursuant to this section only in accordance with its procedural rules.
Sec. 16. In addition to or in lieu of removal or censure, the commission may impose other forms of discipline on a justice or judge whom the commission determines to have committed an act or engaged in a behavior in violation of subsection 1 or 2 of section 6 of this act, including, but not limited to, requiring the justice or judge to:
1. Pay a fine.
2. Serve a term of suspension from office.
3. Complete a probationary period pursuant to conditions deemed appropriate by the commission.
4. Attend training or educational courses.
5. Follow a remedial course of action.
6. Issue a public apology.
7. Comply with conditions or limitations on his future conduct.
8. Seek medical, psychiatric or psychological care or counseling and direct the provider of health care or counselor to report to the commission regarding the condition or progress of the justice or judge.
9. Agree not to seek judicial office in the future.
10. Perform any combination of the actions set forth in this section.
Sec. 17. 1. Except as otherwise provided in subsections 2 and 3, if the commission reasonably believes that a justice or judge has committed an act or engaged in a behavior that would be addressed most appropriately through rehabilitation, treatment, education or minor corrective action, the commission may enter into an agreement with the justice or judge to defer formal disciplinary proceedings and require the justice or judge to undergo the rehabilitation, treatment, education or minor corrective action.
2. The commission may not enter into an agreement with a justice or judge to defer formal disciplinary proceedings if the commission has determined, pursuant to section 12 of this act, that there is a reasonable probability that the evidence available for introduction at a formal hearing could clearly and convincingly establish grounds for disciplinary action against the justice or judge pursuant to section 6 of this act.
3. The commission may enter into an agreement with a justice or judge to defer formal disciplinary proceedings only in response to misconduct that is minor in nature.
Sec. 18. 1. Except as otherwise provided in this section and section 22 of this act, all proceedings of the commission must remain confidential until the commission makes a determination pursuant to section 12 of this act and the prosecuting attorney files a formal statement of charges.
2. The confidentiality required pursuant to subsection 1 also applies to all information and materials, written or oral, received or developed by the commission or its staff in the course of its work and relating to the alleged misconduct or incapacity of a judge.
3. The commission shall disclose:
(a) The report of a proceeding before the commission; and
(b) All testimony given and all materials filed in connection with such a proceeding,
if a witness is prosecuted for perjury committed during the course of that proceeding.
4. If the commission determines at any stage in a disciplinary proceeding that there is an insufficient factual or legal basis to proceed, the commission shall dismiss the complaint and may, at the request of the justice or judge named in the complaint, publicly issue an explanatory statement.
5. The commission may issue press releases and other public statements to:
(a) Explain the nature of its jurisdiction;
(b) Explain the procedure for filing a complaint;
(c) Explain limitations upon its powers and authority; and
(d) Report on the conduct of its affairs.
Such releases and statements must not, without the consent of the justice or judge concerned, disclose by name, position, address or other information the identity of a justice or judge or other person involved in a proceeding then pending before the commission or that has been resolved without an order of censure, removal or retirement, unless formal charges have been filed after a determination pursuant to section 12 of this act.
6. The commission may, without disclosing the name of or any details that may identify the justice or judge involved, disclose the existence of a proceeding before it to the state board of examiners and the interim finance committee to obtain additional money for its operation from the contingency fund established pursuant to NRS 353.266.
7. No record of any medical examination, psychiatric evaluation or other comparable professional record made for use in an informal resolution pursuant to subsection 1 of section 10 of this act may be made public at any time without the consent of the justice or judge concerned.
Sec. 19. Except as otherwise provided in section 22 of this act, any person who breaches the confidentiality of disciplinary proceedings of the commission is punishable for contempt.
Sec. 20. Upon the filing of a formal statement of charges with the commission by the prosecuting attorney, the statement and other documents later formally filed with the commission must be made accessible to the public, and hearings must be open. The commission's deliberative sessions must remain private. The filing of the formal statement of charges does not justify the commission, its counsel or staff in making public any correspondence, notes, work papers, interview reports or other evidentiary matter, except at the formal hearing or with explicit consent of the justice or judge named in the complaint.
Sec. 21. In any disciplinary proceeding in which the subject matter becomes public, through independent sources, or upon a determination pursuant to section 12 of this act and filing of a formal statement of charges, the commission may issue such statements as it deems appropriate under the circumstances to:
1. Confirm the pendency of the investigation;
2. Clarify the procedural aspects of the disciplinary proceedings;
3. Explain the right of the justice or judge to a fair hearing without prejudgment;
4. State that the justice or judge denies the allegations;
5. Explain the reasons for dismissing a complaint; and
6. Explain why the commission chose to enter into an agreement with a justice or judge pursuant to subsection 1 of section 17 of this act.
Sec. 22. Notwithstanding the provisions of sections 18 to 21, inclusive, of this act:
1. A person who files a complaint with the commission may:
(a) At any time, reveal to a third party the alleged conduct of a justice or judge underlying the complaint that he filed with the commission or the substance of testimony that he gave before the commission.
(b) After the commission makes a determination pursuant to section 12 of this act, regardless of whether the determination results in the filing of formal charges, reveal to a third party the fact that he filed a complaint with the commission.
2. A person who gives testimony before the commission may:
(a) At any time, reveal to a third party the substance of testimony that he gave before the commission.
(b) After the commission makes a determination pursuant to section 12 of this act, regardless of whether the determination results in the filing of formal charges, reveal to a third party the fact that he gave testimony before the commission.
Sec. 23. The commission shall adopt rules to establish the status of particular communications related to a disciplinary proceeding as privileged or nonprivileged.
Sec. 24. NRS 1.425 is hereby amended to read as follows:
1.425 As used in NRS 1.425 to 1.465, inclusive, ["commission" means the commission on judicial discipline.] and sections 2 to 23, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 2 to 5, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 25. NRS 1.440 is hereby amended to read as follows:
1.440 1. The commission has exclusive jurisdiction over the censure, removal , [and] involuntary retirement [of justices of the peace and judges of municipal courts] and other discipline of judges which is coextensive with its jurisdiction over justices of the supreme court [and judges of the district courts] and must be exercised in the same manner and under the same rules.
2. The supreme court may appoint two justices of the peace or municipal judges to sit on the commission for proceedings against a justice of the peace or a municipal judge, respectively. Justices of the peace or municipal judges so appointed must be designated by an order of the supreme court to sit for such proceedings in place of and to serve for the same terms as the regular members of the commission appointed by the supreme court.
Sec. 26. NRS 1.465 is hereby amended to read as follows:
1.465 1. The following persons are absolutely immune from suit for all conduct at any time in the course of their official duties:
[1.] (a) Any member who serves on the commission;
[2.] (b) Any person employed by the commission;
[3.] (c) Any independent contractor of the commission; and
[4.] (d) Any person who performs services pursuant to NRS 1.450 or 1.460 for the commission.
2. The following persons are absolutely immune from suit unless convicted of committing perjury before the commission pursuant to NRS 199.120 to 199.200, inclusive:
(a) A person who files a complaint with the commission pursuant to section 7 of this act; and
(b) A person who gives testimony at a public hearing held by the commission pursuant to section 12 of this act.
Sec. 27. 1. This act becomes effective only if the supreme court of Nevada determines, upon canvass of the returns pertaining to the general election held in November of 1998, that the qualified electors of the State of Nevada have approved the legislative measure designated as Assembly Joint Resolution No. 33 of the 68th legislative session.
2. If the supreme court determines pursuant to subsection 1 that Assembly Joint Resolution No. 33 has been approved, this act becomes effective on January 1, 1999.
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