2019 -- S 0236

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LC000846

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE - COURTS - COMMISSION ON

JUDICIAL TENURE AND DISCIPLINE

     Introduced By: Senators Metts, Quezada, Crowley, Goodwin, and Cano

     Date Introduced: January 31, 2019

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 8-16-4, 8-16-4.2, 8-16-7, 8-16-8, 8-16-10 and 8-16-13 of the

General Laws in Chapter 8-16 entitled "Commission on Judicial Tenure and Discipline" are

hereby amended to read as follows:

     8-16-4. Employment of personnel -- Investigation of unfitness.

     (a) The commission is empowered hereby to engage the services of legal, secretarial,

clerical, and investigative employees and to make such other expenditures as are necessary for the

effective performance of its functions.

     (b) The commission, upon receiving from any person a verified statement, not unfounded

or frivolous, alleging facts indicating that a justice of the supreme court, the superior court, the

family court, the district court, the workers' compensation court, or the traffic tribunal, or a

probate judge in any city or town in the state is guilty of a violation of the canons of judicial

ethics, or of willful or persistent failure to perform his or her duties, disabling addiction to

alcoholic beverages, drugs, or narcotics, or conduct that brings the judicial office into serious

disrepute, or that such a judge has a physical or mental disability that seriously interferes and will

continue to interfere with the performance of his or her duties, shall make a preliminary

investigation to determine whether formal proceedings shall be instituted and a hearing held. The

commission may, on its initiative, make a preliminary investigation, without receiving a verified

statement, to determine whether formal proceedings shall be instituted and a public hearing held.

     (c) If the preliminary investigation discloses that a charge of judicial unfitness of the kind

mentioned in this section is supported by substantial evidence, it shall direct that a public hearing

thereon be held, and the judge shall be notified of the investigation, the nature of the charge, and

the time and place set for a hearing thereon. The judge shall have the right to counsel and to

confront witnesses against him or her and shall be afforded a reasonable opportunity to present

such matters in defense as he or she may choose. The notice shall be given by prepaid registered

or certified mail addressed to the judge at his or her chambers or his or her last known place of

residence. The judge shall file a written answer to the charges within twenty (20) days after the

notice has been served upon him or her. Allegations contained in the notice that are not denied in

the answer shall be deemed admitted. The notice and the answer shall be public documents. The

judge shall attend the public hearing without the necessity of a subpoena being served upon him

or her; and, if he or she is called as a witness by the commission at the public hearing, he or she

shall take the witness stand and shall testify in the same manner as if under subpoena. In any

preliminary investigation that results in a public hearing, the commission shall obtain written

statements from witnesses whose testimony it intends to use. Only evidence that would be

admissible in a superior court jury trial shall be admitted in the public hearing.

     (d) If the preliminary investigation discloses that there exists a violation of the canons of

judicial ethics and that violation is not one of a serious nature, the commission may in its

discretion issue a private reprimand to the judge. The private reprimand shall caution the judge

that the conduct complained of, if continued, may be the cause for discipline. The private

reprimand shall include a statement of the facts found by the commission, as a result of the

preliminary investigation, and may issue confidential suggestions and recommendations with

respect to the judge. Any judge issued a private reprimand shall have the right to appeal the

private reprimand within ten (10) days and request a hearing before the commission with the

same rights accorded by this section; provided, however, that the hearing shall not be open to the

public, and all evidence and proceedings relating to the private reprimand shall be kept

confidential.

     (e) Upon completion of the hearings, the commission may dismiss the case on the ground

of insufficiency of proof or may recommend to the supreme court the censure, suspension,

immediate temporary suspension, reprimand, retirement, or removal from office of the judge

under investigation; provided, however, that the recommendation for the removal of a justice of

the supreme court shall be subject to the provisions of § 8-16-7(b) judge shall be made pursuant

to article XI of the constitution of the state of Rhode Island providing for the impeachment of

judicial officers. For the purposes of this chapter, wherever the word "judge" appears, it shall be

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construed to include probate judges in the cities and towns of this state.

     (f) The commission shall have the same authority to temporarily exclude all spectators

from the public hearing as is possessed by justices of the superior court in criminal cases.

     (g) After the issuance of a notice pursuant to § 8-16-4(c), any new charges against the

judge shall be brought in accordance with the procedures contained in §§ 8-16-4(a) through 8-16-

4(d) and not by amendments to the notice.

     8-16-4.2. Discovery.

     After the commission institutes formal proceedings and schedules a public hearing, the

commission and the judge shall be entitled to conduct discovery in the same manner as litigants in

civil cases in the superior court, and the superior court rules of civil procedure shall govern all

such discovery. The commission shall respond to interrogatories, requests for production and

requests for admissions, unless a valid and timely objection is made and upheld by the presiding

justice of the superior court. Except as provided in § 8-16-13, all discovery proceedings and all

materials obtained by either side through discovery shall be kept confidential. Any disputes

concerning discovery shall be heard on motion before the presiding justice of the superior court;

provided, however, that if the presiding justice is the subject of the commission proceeding in

question, then such motions shall be heard before the senior associate justice of the superior

court. All papers filed with and proceedings before the superior court pursuant to this section

shall be confidential.

     8-16-7. Power of the supreme court to discipline, suspend, or remove judges.

     (a) Whenever the commission shall have recommended reprimand, censure, suspension,

immediate temporary suspension, removal, or retirement of a judge from office and filed its

findings and recommendations with the chief justice of the supreme court, and those

recommendations have been affirmed or modified, after compliance has been had with the

provisions of § 8-16-6 providing for a review of the recommendations by the supreme court, that

court shall and hereby is empowered to take such action and to issue such process as may be

required to give effect to the recommendations of the commission as affirmed or modified.

Orders entered by the supreme court pursuant to this subsection shall be public and shall be

published in the same manner as other orders of the supreme court.

     (b) Whenever the commission shall recommend the removal of a justice of the supreme

court judge from office and the recommendation has been approved after compliance has been

had with the provisions of § 8-16-6 providing for a review of the recommendations by the

supreme court, that court shall thereupon transmit its findings and recommendation to the speaker

of the house of representatives recommending therein the initiation of proceedings for the

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removal of the justice of the supreme court judge pursuant to the provisions of article X, § 4, and

article XI of the constitution of this state, providing for the impeachment or removal of justices of

the supreme court of judicial officers.

     (c) Whenever the supreme court shall, upon review, reject a recommendation of the

commission, it shall set forth its reasons therefor in a written decision which shall be public and

shall be published in the same manner as other decisions of the supreme court.

     8-16-8. Discipline of judges upon indictment or conviction for a crime.

     (a) The supreme court on its own motion shall suspend, pending the prosecution of an

appeal, any judge of any court when it is shown by the certified record of a court of competent

jurisdiction that he or she either pleaded guilty or no contest or was found guilty of a crime

punishable as a felony under the laws of this state, any other state, or the United States, or of any

other crime that involves moral turpitude. The suspension shall be without compensation, except

where the judge involved is a justice of the supreme court. Whenever, upon appeal, the conviction

is reversed, the suspension shall terminate and the judge involved shall be paid the salary that

would have been paid him or her during the period of suspension.

     (b) Where, after an appeal, a conviction has become final, the judge involved shall be

removed from office either by the supreme court in appropriate cases or, in the case of a justice of

the supreme court, by action pursuant to the provisions of § 8-16-7(b).

     (c) A judge is hereby disqualified and prohibited from performing his or her judicial

duties while there is pending against him or her an indictment charging him or her with the

commission of a crime punishable as a felony under the laws of this state, any other state, or the

United States. The suspension shall be without loss of compensation.

     8-16-10. Disqualification from acting as a commissioner.

     (a) No judge who is a member of the commission or of the supreme court shall participate

as a member of the commission or the supreme court in any proceeding regarding his or her

removal, suspension, immediate temporary suspension, reprimand, retirement, or censure.

     (b) No member of the commission or of the supreme court shall participate in any

decisions of the commission or the supreme court involving the removal, suspension, immediate

temporary suspension, reprimand, retirement, or censure of a judge who is related to him or her

within the second degree of consanguinity or affinity or where the one complaining of the actions

of a judge against whom proceedings are being taken is related to the member of the commission.

     (c) A member of the commission shall recuse themselves in any matter in which recusal

would be required of a judicial officer under the code of judicial conduct.

     (d) Members of the commission shall not engage in ex parte communications or

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interviews with witnesses regarding a case.

     8-16-13. Closed meetings of the commission -- Public hearings -- Evidence to remain

confidential until made public at hearing.

     The commission is hereby expressly authorized and permitted to conduct closed meetings

for the conduct of all of its business other than public hearings held pursuant to § 8-16-4(c). All

evidence obtained by the commission, and all evidence that the judge obtains from the

commission through discovery or otherwise, shall remain confidential until it becomes the subject

of testimony at the public hearing or is introduced into evidence at the public hearing.

Notwithstanding the provisions of this section, a respondent judge may waive confidentiality in

writing at any time. Upon waiving confidentiality, any hearings and related evidence shall be

public.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE - COURTS - COMMISSION ON

JUDICIAL TENURE AND DISCIPLINE

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     This act would amend several provisions relative to how the commission on judicial

tenure and discipline provide discipline, hearings and discovery.

     This act would take effect upon passage.

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LC000846

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