17-5-301 - General powers Disciplinary counsel.
17-5-301. General powers Disciplinary counsel.
(a) The court of the judiciary is given broad powers to investigate, hear and determine charges sufficient to warrant discipline or removal, and to carry out its duties in all other matters as set forth in this chapter.
(b) The court of judiciary is specifically authorized to administer oaths and affirmations, to issue process to compel the attendance of witnesses and the production of evidence, to conduct hearings, and to use, exercise and enjoy any of the powers normally exercised by courts of record in this state. The Tennessee Rules of Civil Procedure are applicable, and the Tennessee Rules of Evidence will govern the presentation of proof.
(c) No action of the court shall be valid unless concurred in by a majority of the members voting upon the action.
(d) The court shall appoint an attorney as disciplinary counsel, who shall serve at the pleasure of the court, and who may be removed by a majority vote of the court. The disciplinary counsel shall have the authority to employ additional attorneys or staff for administrative support, subject to the approval of the court. Compensation for the disciplinary counsel and additional personnel shall be fixed by the court. Nothing in this section shall be construed to preclude the board of professional responsibility from acting as disciplinary counsel or providing all necessary administrative support.
(e) Disciplinary counsel has the authority and duty to:
(1) Receive and screen complaints, refer complaints to other agencies when appropriate, conduct preliminary investigations, recommend to the investigative panel of the court and, upon authorization, conduct full investigations, notify complainants about the status and disposition of their complaints, make recommendations to the investigative panel on the disposition of complaints after full investigation, file formal charges subject to approval of the investigative panel when directed to do so by the investigative panel, and prosecute formal charges;
(2) Maintain permanent records of the operations of disciplinary counsel's office, including receipt of complaints, screening, investigation, and filing of formal charges in judicial discipline and incapacity matters;
(3) Draft decisions, orders, reports and other documents on behalf of the hearing and investigative panels if directed by the court;
(4) Compile statistics to aid in the administration of the system, including, but not limited to, a log of all complaints received, investigative files, and statistical summaries of docket processing and case dispositions, consistent with § 17-5-305;
(5) Only with concurrence of the applicable investigative panel, seek investigative assistance from the Tennessee bureau of investigation, or from any district attorney general and, in appropriate cases, employ private investigators or experts, as necessary, to investigate and process matters before the court; and
(6) Perform other duties at the direction of the presiding judge or a majority of the court.
(f) The court has the power to impose any or any combination of the following sanctions:
(1) Suspension without impairment of compensation for such period as the court determines;
(2) Imposition of limitations and conditions on the performance of judicial duties, including the issuance of a cease and desist order;
(3) Private reprimand or private censure by the investigative panel; provided, that a private reprimand or private censure, whether imposed by the court or by an investigative panel, may be used in subsequent proceedings as evidence of prior misconduct solely upon the issue of the sanction to be imposed;
(4) Entry into a deferred discipline agreement;
(5) Public reprimand or public censure; and
(6) Entry of judgment recommending removal of the judge from office.
(g) For purposes of this part, the following definitions apply:
(1) Deferred discipline agreement means a response to misconduct that is minor and can be addressed through treatment, training or a rehabilitation program under which the judge agrees with the recommendation of the investigative panel of the court to undergo evaluation or treatment, or both, participate in educational programs or take any other corrective action. Other disciplinary sanction arising from the same conduct is suspended during the term of a deferred discipline agreement, and no further sanction will be imposed upon the successful completion of the deferred disciplinary agreement by the judge. Failure to comply with the disciplinary agreement authorizes the disciplinary counsel to proceed with other appropriate action;
(2) Private censure means a written finding that the conduct of the judge or justice violates a rule of judicial conduct, detrimentally affects the integrity of the judiciary or undermines public confidence in the administration of justice and requiring a judge or justice to appear personally before the court. A private censure is stronger than a private reprimand and may include a requirement that the judge or justice follow a specified course of corrective action;
(3) Private reprimand means a letter that details the finding of judicial misconduct and enumerates the reasons that such conduct is improper or brings discredit upon the judiciary or the administration of justice;
(4) Public censure is identical to a private censure except that the written finding is released to the press; and
(5) Public reprimand is identical to a private reprimand except that the letter is released to the press.
(h) No sanction imposed by the court shall violate the prohibition of Tenn. Const. art. VI, § 7.
(i) The criteria to be considered by the court or the investigatory panel in determining the sanction or combination of sanctions appropriate for the level of culpability involved in the judge's misconduct include the following:
(1) Whether the misconduct is an isolated instance or evidences a pattern of conduct;
(2) The nature, extent and frequency of occurrence of the acts of misconduct;
(3) Whether the misconduct occurred in or out of the courtroom;
(4) Whether the misconduct occurred while the judge was acting in an official capacity;
(5) Whether the judge has acknowledged or recognized the occurrence, nature and impropriety of the acts;
(6) Whether the judge has evidenced an effort to change or modify conduct;
(7) The judge's length of service on the bench;
(8) Whether there have been prior complaints about the judge, except where prior complaints have been found frivolous, unfounded or without jurisdiction pursuant to § 17-5-305;
(9) The effect of the misconduct upon the integrity of, and respect for, the judiciary; and
(10) The extent to which the judge exploited the judicial position for personal gain or satisfaction.
[Acts 1979, ch. 356, § 11; T.C.A., § 17-811; Acts 1995, ch. 208, § 8; 2002, ch. 564, §§ 4-9.]