17-5-304 - Preliminary investigation.
17-5-304. Preliminary investigation.
(a) Disciplinary counsel shall evaluate all information coming to disciplinary counsel's attention by complaint or from other sources that allege judicial misconduct or incapacity. Unless the complaint alleges specific facts, not conclusions, that would cause a reasonable person to believe that there is a substantial probability that the conduct involved violates § 17-5-302, disciplinary counsel shall, subject to review by the investigative panel pursuant to subdivision (b)(3), dismiss the complaint, or if appropriate, refer the matter to another agency. If the information contains specific facts that would cause a reasonable person to believe that there is a substantial probability that the conduct violates § 17-5-302, disciplinary counsel shall conduct a preliminary investigation.
(b) (1) Disciplinary counsel may conduct interviews and examine evidence to determine whether the specific facts alleged are true and, if so, whether the facts would cause a reasonable person to believe that there is a substantial probability that a violation of § 17-5-302 has occurred; provided, that no subpoena shall issue to obtain testimony or evidence until the investigative panel authorizes a full investigation pursuant to subdivision (b)(3).
(2) When disciplinary counsel believes there is evidence supporting the allegations against a judge, the counsel shall recommend to the investigative panel assigned to the case that the panel authorize a full investigation. Disciplinary counsel may recommend a full investigation when there are grounds to believe that evidence that would cause a reasonable person to believe that there is a substantial probability that a violation of § 17-5-302 has occurred could be obtained by subpoena or further investigation. In all other cases, disciplinary counsel shall recommend that the matter be dismissed.
(3) The investigative panel shall review disciplinary counsel's recommendations and either dismiss the complaint or authorize a full investigation.
(c) (1) Within thirty (30) days after the investigative panel authorizes a full investigation, disciplinary counsel shall give the following notice to the judge by certified mail:
(A) A specific statement of the allegations being investigated and the canons or rules allegedly violated, with the provision that the investigation can be expanded if appropriate;
(B) The judge's duty to respond;
(C) The judge's opportunity to meet with disciplinary counsel; and
(D) The name of the complainant, unless the investigative panel determines that there is good cause to withhold that information.
(2) The investigative panel may defer the giving of notice; however, notice must be given pursuant to this section before making a determination other than dismissal of the complaint.
(3) Disciplinary counsel may request that the judge file a written response within thirty (30) days after service of the notice.
(d) (1) Upon the conclusion of the disciplinary counsel's investigation, disciplinary counsel may recommend to the investigative panel any or any combination of the following:
(A) Dismissal;
(B) Private reprimand, private censure, deferred discipline agreement, public reprimand, or public censure;
(C) The filing of formal charges;
(D) Referral to an appropriate agency; or
(E) A stay.
(2) The investigative panel may adopt, reject or modify the recommendations of disciplinary counsel. If the investigative panel finds a violation for which the imposition of discipline is not warranted, it may dismiss the complaint. If the investigative panel finds that there is reasonable cause to believe the judge committed a judicial offense:
(A) It may direct disciplinary counsel to file formal charges;
(B) It may propose any or a combination of the following: private reprimand, private censure, deferred discipline agreement, public reprimand or public censure to the judge. If the judge consents, the investigative panel shall impose the discipline or implement the deferred discipline agreement; or
(C) If the judge does not consent to the proposed discipline or the deferred discipline agreement, the investigative panel may direct disciplinary counsel either to file formal charges or dismiss the complaint.
(e) In the event the investigative panel finds that there is reasonable cause to believe that the judge committed a judicial offense, and the investigative panel directs disciplinary counsel to file a formal charge, then from the filing of the formal charge forward, all records, actions and proceedings of the court shall be subject to the provisions of § 10-7-503 and title 8, chapter 44, except that the court may deliberate in private.
(f) Upon the filing of an indictment, presentment or information charging a judge with a felony under the law of any state or under federal law, the court may immediately place the judge on interim suspension.
[Acts 1979, ch. 356, § 14; T.C.A., § 17-814; Acts 1983, ch. 17, § 2; 1995, ch. 208, § 11; 2002, ch. 564, §§ 10, 16.]