CHAPTER 13. THE COMMISSION ON JUDICIAL QUALIFICATIONS AND THE RETIREMENT, DISCIPLINE, AND REMOVAL OF JUSTICES AND JUDGES
IC 33-38-13
Chapter 13. The Commission on Judicial Qualifications and the
Retirement, Discipline, and Removal of Justices and Judges
IC 33-38-13-1
Scope of law
Sec. 1. This chapter applies to all proceedings before the
commission on judicial qualifications and masters involving the
censure, retirement, or removal of justices of the supreme court and
judges of the court of appeals, as provided by Article 7, Section 11
of the Constitution of the State of Indiana.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-2
"Commission" defined
Sec. 2. As used in this chapter, "commission" means the
commission on judicial qualifications described in Article 7, Section
9 of the Constitution of the State of Indiana.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-3
"Counsel" defined
Sec. 3. As used in this chapter, "counsel" means the lawyer
designated by the commission to:
(1) gather and present evidence before the masters or
commission with respect to the charges against a judge; and
(2) represent the commission before the supreme court in
connection with any proceedings before the court.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-4
"Judge" defined
Sec. 4. As used in this chapter, "judge" means a judge of the court
of appeals.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-5
"Mail" defined
Sec. 5. As used in this chapter, "mail" includes ordinary mail or
personal delivery.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-6
"Masters" defined
Sec. 6. As used in this chapter, "masters" means the special
masters appointed by the chief justice upon request of the
commission.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-7
"Presiding master" defined
Sec. 7. As used in this chapter, "presiding master" means the
master so designated by the chief justice or, in the absence of a
designation, the justice or judge named in the order appointing
masters.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-8
Age; temporary judicial duties
Sec. 8. (a) Every justice of the supreme court and judge of the
court of appeals shall retire at seventy-five (75) years of age.
(b) Notwithstanding subsection (a), the supreme court may
authorize retired justices and judges to perform temporary judicial
duties in any state court.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-9
Meeting of commissioners
Sec. 9. (a) The commission shall meet as necessary to discharge
its statutory and constitutional responsibilities. Meetings of the
commission shall be called in the same manner as prescribed for the
judicial nominating commission. Four (4) members of the
commission constitute a quorum for the transaction of business.
(b) Meetings of the commission shall be held in Indiana as the
chairman of the commission arranges.
(c) The commission may act only at a meeting. The commission
may adopt rules and regulations to conduct meetings and discharge
its duties.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-10
Papers filed before and after institution of formal proceedings;
confidentiality; public inspection
Sec. 10. (a) All papers filed with the commission before the
institution of formal proceedings under section 14 of this chapter are
confidential unless:
(1) the justice or judge against whom a recommendation has
been filed elects to have the information divulged; or
(2) the commission elects to answer publicly disseminated
statements issued by any complainant.
(b) All papers filed with the commission during and after the
institution of formal proceedings are open for public inspection at all
reasonable times. Records of commission proceedings are open for
public inspection at all reasonable times. After the institution of
formal proceedings, all hearings and proceedings before the
commission or before the masters appointed under this chapter are
open to the public.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-11
Privileged information
Sec. 11. Filing papers with and giving testimony before the
commission or the masters appointed by the supreme court under this
chapter are privileged.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-12
Complaint
Sec. 12. (a) A complaint filed with the commission must be in
writing and directed to the commission or to any member of the
commission.
(b) A specified form of complaint may not be required.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-13
Complaint; investigation
Sec. 13. (a) Any Indiana citizen may complain to the commission
about the activities, fitness, or qualifications of a judge or justice.
Upon receiving a complaint, the commission shall determine if the
complaint is founded and not frivolous. If the commission determines
that the complaint is frivolous or malicious, the commission shall file
with the proper court charges against the complainant. The
commission, without receiving a complaint, may conduct an initial
inquiry on its own motion.
(b) If the commission determines it is necessary to investigate a
justice or judge, the commission shall notify the justice or judge by
prepaid registered or certified mail addressed to the justice or judge
at the justice's or judge's chambers and last known residence. The
notice must contain information concerning the following:
(1) The investigation.
(2) The nature of the complaint.
(3) The origin of the complaint, including the name of the
complainant or that the investigation is on the commission's
motion.
(4) The opportunity to present matters as the justice or judge
may choose.
If the investigation does not disclose sufficient cause to warrant
further proceedings the justice or judge shall be so notified.
(c) The commission may do the following:
(1) Make investigations or employ special investigators.
(2) Hold confidential hearings with the complainant or the
complainant's agents or attorneys.
(3) Hold confidential hearings with the judge or justice
involved in the complaint.
(d) If:
(1) the commission's initial inquiry or investigation does not
disclose sufficient cause to warrant further proceedings; and
(2) the complainant issues a public statement relating to the
activities or actions of the commission;
the commission may answer the statement by referring to the record
of its proceedings or the results of its investigation.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-14
Notice of formal proceedings
Sec. 14. (a) If the commission concludes, after investigation, to
institute formal proceedings against a justice or judge, the
commission shall give written notice of the proceedings to the justice
or judge by registered or certified mail addressed to the judge at the
judge's chambers and last known residence. The proceedings must be
entitled:
"BEFORE THE INDIANA JUDICIAL
QUALIFICATIONS COMMISSION
Inquiry Concerning a (Justice) Judge, No. _______".
(b) The notice must:
(1) be issued in the name of the commission;
(2) specify in ordinary and concise language the charges against
the justice or judge and the alleged facts upon which the
charges are based; and
(3) advise the justice or judge of the justice's or judge's right to
file a written answer to the charges not more than twenty (20)
days after service of the notice.
A charge is not sufficient if it merely recites the general language of
the original complaint, but must specify the facts relied upon to
support a particular charge.
(c) A copy of the notice shall be filed in the office of the
commission.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-15
Answer
Sec. 15. Not more than twenty (20) days after service of the notice
of formal proceedings, the justice or judge:
(1) may file with the commission a signed original and one (1)
copy of an answer; and
(2) shall mail a copy of the answer to the counsel.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-16
Setting for hearing before commission or masters
Sec. 16. (a) Upon the filing of or the expiration of time for filing
an answer, the commission shall:
(1) hold a hearing concerning the discipline, retirement, or
removal of the justice or judge; or
(2) request the supreme court to appoint three (3) active or
retired justices or judges of courts of record as special masters
to hear and take evidence and report to the commission.
(b) The commission shall:
(1) set a date, time, and place for a hearing under subsection (a);
and
(2) give notice of the hearing by registered or certified mail to
the justice or judge, the masters, and the counsel not less than
twenty (20) days before the date of the hearing.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-17
Hearing
Sec. 17. (a) The commission or a master may proceed with a
scheduled hearing whether or not the judge files an answer or
appears at the hearing.
(b) The failure of a justice or judge to answer or appear at the
hearing may not be taken as evidence of the truth of the facts alleged
to constitute grounds for censure, retirement, or removal. In a
proceeding for involuntary retirement for disability, the failure of a
justice or judge to testify in the justice's or judge's behalf or to
submit to a medical examination requested by the commission or the
masters may be considered, unless the failure was due to
circumstances beyond the justice's or judge's control.
(c) The hearing shall be reported verbatim.
(d) At least four (4) commission members must be present when
evidence is produced at a hearing before the commission.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-18
Evidence
Sec. 18. The Indiana Rules of Evidence apply at a hearing before
the commission or the masters.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-19
Rights of judge; proceedings; notice; incapacity
Sec. 19. (a) In formal proceedings involving a justice's or judge's
discipline, retirement, or removal, the justice or judge may do the
following:
(1) Defend against the charges by introducing evidence.
(2) Be represented by counsel.
(3) Examine and cross-examine witnesses.
(4) Issue subpoenas for attendance of witnesses to testify or
produce evidentiary matter under section 31 of this chapter.
(b) The commission shall transcribe the testimony and provide a
copy at no cost to the justice or judge. The justice or judge is entitled
to have any part of the testimony transcribed at the justice's or judge's
expense.
(c) Except as otherwise provided in this chapter, notice or any
other matter shall be sent to a justice or judge by registered or
certified mail to the justice or judge at the justice's or judge's office
and residence unless the justice or judge requests otherwise in
writing. A copy of the notice or other matter must be mailed to the
justice's or judge's attorney of record.
(d) If a justice or judge has been adjudged incapacitated under
IC 29-3, the justice's or judge's guardian may claim and exercise any
right and privilege and make any defense for the justice or judge with
the same force and effect as if claimed, exercised, or made by the
justice or judge if competent. If the rules provide for serving or
giving notice or sending any matter to the justice or judge, a copy of
any notice or other matter sent to the justice or judge also shall be
served, given, or sent to the justice's or judge's guardian.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-20
Amendments to notice or answer
Sec. 20. The masters, at any time before the conclusion of the
hearing, or the commission, at any time before its determination:
(1) may allow or require amendments to the notice of formal
proceedings; and
(2) may allow amendments to the answer.
The notice may be amended to conform to proof or to set forth
additional facts whether occurring before or after the commencement
of the hearing. If an amendment is made, the justice or judge shall be
given reasonable time both to answer the amendment and to prepare
and present a defense.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-21
Report of masters
Sec. 21. (a) After a hearing, the masters shall promptly prepare
and transmit to the commission an original and four (4) copies of a
transcript of the hearing and an original and four (4) copies of a
report that contains a brief statement of the proceedings and the
masters' recommended findings of fact. The recommended findings
of facts are not binding upon the commission.
(b) Upon receiving the report of the masters, the commission shall
mail a copy of the report and transcript to the justice or judge and the
counsel.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-22
Objections to report of masters
Sec. 22. Not more than fifteen (15) days after the commission
mails a copy of the report of the masters to the justice or judge, the
counsel or the justice or judge may file with the commission an
original and one (1) copy of objections to the report of masters. If the
counsel files objections, the counsel shall mail a copy of the
objections to the justice or judge. If the justice or judge files
objections, the justice or judge shall send a copy of the objections by
registered or certified mail to the counsel.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-23
Appearance before commission
Sec. 23. If objections to a report of the masters under section 21
of this chapter are not timely filed, the commission may adopt the
recommended findings of the masters without a hearing. If objections
are timely filed, or if objections are not timely filed and the
commission proposes to modify or reject the recommended findings
of the masters, the commission shall give the justice or judge and the
counsel an opportunity to be heard before the commission in the
county in which the justice or judge resides. The commission shall
mail written notice of the time and place of the hearing to the justice
or judge and the counsel not less than ten (10) days before the
hearing.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-24
Extension of time
Sec. 24. (a) The chairman of the commission may extend the time
for:
(1) filing an answer;
(2) conducting a hearing before the commission; and
(3) filing objections to the report of the masters.
(b) The presiding master may, with the approval of the chairman
of the commission, extend the time for conducting a hearing before
the masters.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-25
Hearings; additional evidence
Sec. 25. The commission may order a hearing to take additional
evidence at any time while a matter is pending before it. The hearing
must be in the county in which the justice or judge resides. The order
must set the time and place of the hearing and shall indicate the
matters on which evidence will be taken. The commission shall send
a copy of the order to the judge and the counsel not less than ten (10)
days before the hearing. If masters have been appointed, the hearing
shall be before the masters, and the hearing must conform with
sections 18 through 24 of this chapter and this section.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-26
Vote or recommendation for censure, retirement, or removal
Sec. 26. If the commission finds good cause, it shall recommend
to the supreme court the censure, retirement, or removal of a justice
or judge. If a hearing is before the masters, the affirmative vote of
four (4) members of the commission is required to recommend
censure, retirement, or removal of a justice or judge. If a hearing is
before the commission, the affirmative vote of four (4) members of
the commission, including a majority of the members who were
present at the hearing, is required to recommend censure, retirement,
or removal of a justice or judge.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-27
Record of commission proceedings
Sec. 27. The commission shall keep a record of all formal
proceedings concerning a judge. The commission shall record its
determination and mail notice of the determination to the justice or
judge and the counsel. If the commission recommends censure,
retirement, or removal, the commission shall prepare a transcript of
the evidence and proceedings and shall make written findings of fact
and conclusions of law.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-28
Certification of commission recommendation to supreme court
Sec. 28. Upon recommending the censure, retirement, or removal
of a justice or judge, the commission shall promptly file the
following with the clerk of the supreme court:
(1) A copy of the recommendation certified by the chairman or
secretary of the commission.
(2) A transcript of the evidence.
(3) Findings of fact and conclusions of law.
The commission shall promptly mail to the justice or judge and the
counsel notice of the filing and copies of the filed documents.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-29
Petition for modification or rejection of commission's
recommendation
Sec. 29. (a) Not more than thirty (30) days after a certified copy
of the commission's recommendation is filed with the clerk of the
supreme court, a justice or judge may petition the supreme court to
modify or reject the commission's recommendation.
(b) The justice or judge shall verify the petition. The petition must
be based on the record. The petition must specify the grounds relied
on and must be accompanied by the petitioner's brief and proof of
service of two (2) copies of the petition and brief on the commission
and one (1) copy of the petition and brief on the counsel.
(c) Not more than twenty (20) days after service of the petitioner's
brief, the commission shall file a respondent's brief and serve a copy
on the justice or judge. Not more than twenty (20) days after service
of respondent's brief, the petitioner may file a reply brief and shall
serve two (2) copies on the commission and one (1) copy on the
counsel.
(d) Failure to timely file a petition is considered consent to the
determination on the merits based upon the record filed by the
commission.
(e) To the extent necessary and not inconsistent with this section,
the Indiana Rules of Appellate Procedure apply to reviews by the
supreme court of commission proceedings.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-30
Jurisdiction and powers
Sec. 30. The commission has jurisdiction and powers necessary
to conduct the proper and speedy disposition of any investigation or
hearing, including the powers to depose witnesses and to order the
production of documentary evidence. A member of the commission
or a master may administer oaths to witnesses in a matter under the
commission's jurisdiction.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-31
Subpoenas
Sec. 31. (a) A master may issue a subpoena for:
(1) the attendance of witnesses;
(2) the production of documentary evidence; or
(3) discovery;
in a proceeding before the masters. The master shall serve the
subpoena in the manner provided by law.
(b) The chairman of the commission may issue a subpoena for:
(1) the attendance of witnesses;
(2) the production of documentary evidence; or
(3) discovery;
in a proceeding before the commission in which masters have not
been appointed. The chairman shall serve the subpoena in the manner
provided by law.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-32
Enforcement of subpoena
Sec. 32. If a witness in a commission proceeding:
(1) fails or refuses to attend upon subpoena; or
(2) refuses to testify or produce documentary evidence
demanded by subpoena;
a circuit court may enforce the subpoena.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-33
Filing papers and pleadings
Sec. 33. All papers and pleadings filed with the office of the
chairman of the commission are considered to have been filed with
the commission.
As added by P.L.98-2004, SEC.17. Amended by P.L.2-2005,
SEC.111.
IC 33-38-13-34
Discovery; admissibility of evidence; demand for formal
proceeding or finding
Sec. 34. (a) In all formal proceedings, discovery is available to the
commission and the judge or justice under the Indiana Rules of Civil
Procedure. A motion requesting a discovery order must be made to
the circuit court judge in the county in which the commission hearing
is held.
(b) In all formal proceedings, the counsel shall provide the
following to the judge or justice at least twenty (20) days before the
hearing:
(1) The names and addresses of all witnesses whose testimony
the counsel expects to offer at the hearing.
(2) Copies of all written statements and transcripts of testimony
of witnesses described in subdivision (1) that:
(A) are in the possession of the counsel or the commission;
(B) are relevant to the hearing; and
(C) have not previously been provided to the justice or
judge.
(3) Copies of all documentary evidence that the counsel expects
to offer in evidence at the hearing.
(c) Upon objection of the justice or judge, the following are not
admissible in a hearing:
(1) The testimony of a witness whose name and address have
not been furnished to the judge or justice under subsection (b).
(2) Documentary evidence that has not been furnished to the
judge or justice under subsection (b).
(d) After formal proceedings have been instituted, the justice or
judge may request in writing that the counsel furnish to the justice or
judge the names and addresses of all witnesses known at any time to
the counsel who have information that may be relevant to a charge
against or a defense of the justice or judge. The counsel shall provide
to the justice or judge copies of documentary evidence that:
(1) are known at any time to the counsel or in the possession at
any time of the counsel or the commission;
(2) are relevant to a charge against or defense of the justice or
judge; and
(3) have not previously been provided to the justice or judge.
The counsel shall comply with a request under this subsection not
more than ten (10) days after receiving the request and not more than
ten (10) days after the counsel becomes aware of the information or
evidence.
(e) During the course of an investigation by the commission, the
justice or judge whose conduct is being investigated may demand in
writing that the commission:
(1) institute formal proceedings against the justice or judge; or
(2) enter a formal finding that there is not probable cause to
believe that the justice or judge is guilty of any misconduct.
The commission shall comply with a request under this subsection
not more than sixty (60) days after receiving the request. A copy of
the request shall be filed with the supreme court. If the commission
finds that there is not probable cause, the commission shall file the
finding with the supreme court. A document filed with the supreme
court under this subsection is a matter of public record.
As added by P.L.98-2004, SEC.17.
IC 33-38-13-35
Exclusion
Sec. 35. This chapter does not encroach upon or impair the vested
rights of a justice or judge or the surviving spouse of a justice or
judge under any constitutional or statutory retirement program.
As added by P.L.98-2004, SEC.17.