West Virginia Judiciary

Rules of Judicial Disciplinary Procedure | Rules 3-4.13

RULES OF JUDICIAL DISCIPLINARY PROCEDURE

Section II: Rules 3-4.13

3. Judicial Hearing Board.
3.1. Membership.
3.2. Terms.
3.3. Appointment.
3.4. Eligibility.
3.5. Vacancies.
3.6. Reappointment.
3.7. Election of officers.
3.8. Quorum.
3.9. Compensation and expenses.
3.10. Disqualification.
3.11. Authority.
3.12. Exclusive jurisdiction.
4. Hearings on formal charges.
4.1. Time and place of hearing.
4.2. Notice of hearing.
4.3. Conduct of hearing.
4.4. Privilege and immunity.
4.5. Standard of proof.
4.6. Subpoena and contempt power.
4.7. Record of hearings.
4.8. Recommended disposition by Board.
4.9. Response to recommended disposition.
4.10. Consent to recommended disposition.
4.11. Objection to recommended disposition.
4.12. Permissible sanctions.
4.13. Attorney fees upon dismissal.

Rule 3. Judicial Hearing Board.

The ethical conduct of judges is of the highest importance to the people of the State of West Virginia and to the legal profession. Every judge shall observe the highest standards of judicial conduct. In furtherance of this goal, the Supreme Court of Appeals does hereby establish a Judicial Hearing Board [Board] to conduct hearings on formal complaints filed by the Judicial Investigation Commission and to make recommendations to the Supreme Court of Appeals regarding disposition of those complaints.

Rule 3.1. Membership.

The Board shall consists of nine members: three circuit judges, one magistrate, one family court judge, one mental hygiene commissioner, juvenile referee, special commissioner, special master, or former judge or justice, state or federal, and three members of the public. Initially, the membership of the Board shall consist of the current members of the Judicial Hearing Board, except for the addition of one circuit judge and one mental hygiene commissioner, juvenile referee, special commissioner, or special master, and the deletion of two lawyers.
History: [As amended by order entered December 6, 1994, effective January 1, 1995.]

Rule 3.2. Terms.

The members of the Board shall serve staggered terms of three years. The appointment day of the terms shall be filed with the Clerk of the Supreme Court. All members of the Board currently serving as members of the Judicial Hearing Board, other than the lawyer members, shall serve the remainder of their terms. The term and authority of any member of the Board shall be extended to allow such member to participate in any matter in which the member has participated prior to expiration of the member's term.

Rule 3.3. Appointment.

The members of the Board shall be appointed by the Supreme Court of Appeals. Members of the Board shall attend an orientation program conducted by the Office of Disciplinary Counsel within six months of appointment.
History: [As amended by order entered December 6, 1994, effective January 1, 1995.]

Rule 3.4. Eligibility.

When a circuit judge, magistrate, family court judge, mental hygiene commissioner, juvenile referee, special commissioner, or special master ceases to be a circuit judge, magistrate, family court judge, mental hygiene commissioner, juvenile referee, special commissioner, or special master, or whenever any member becomes otherwise ineligible to hold office, their membership on the Board shall terminate. A member of the Board may be removed by the concurrence of a majority of the Board for an unreasonable failure to perform the member's duties.
History: [As amended by order entered December 6, 1994, effective January 1, 1995.]

Rule 3.5. Vacancies.

Whenever a vacancy is to occur due to the expiration of the term of a member of the Board, the Chairperson shall notify the Supreme Court of Appeals sixty days prior to the expiration of the term. Whenever a vacancy occurs on the Board for any other reason, the Chairperson shall notify the Supreme Court of Appeals within thirty days of the vacancy. A vacancy on the Board shall be filled for the unexpired portion of the term for which the original appointment was made. All persons appointed shall continue to serve until their successors are appointed and qualified.

Rule 3.6. Reappointment.

A member of the Board who has completed one full term of service shall twice be eligible for a single reappointment after completion of the member's term. Any member appointed to fill a vacancy who has served less than one year shall be eligible for two reappointments.

Rule 3.7. Election of officers.

The members of the Board shall annually elect a Chairperson and a Vice-Chairperson. The Chairperson, and in the Chairperson's absence the Vice-Chairperson, shall perform the duties normally associated with that office and shall preside over all meetings of the full Board, ruling on all motions, objections, and evidence.

Rule 3.8. Quorum.

Five members of the Board shall constitute a quorum. The Board shall act only with the concurrence of a majority of those present and voting.

Rule 3.9. Compensation and expenses.

Members of the Board shall be eligible for reimbursement for travel and other expenses incidental to the performance of their duties. Members of the Board who are not judicial officers shall receive per diem compensation of one hundred dollars to be paid by the State from funds appropriated to the judiciary.

Rule 3.10. Disqualification.

A member of the Board may not participate as such in any proceeding involving a charge against such member, such member's spouse, or a person within the third degree of relationship to either the member or the member's spouse. The Chief Justice of the Supreme Court of Appeals may make temporary appointments to fill a disqualified member's position in a given proceeding. A member of the Board may not participate as such in any proceeding involving a charge against a judge over whom the member exercises supervisory authority. Board members shall disqualify themselves in any proceeding in which a judge, similarly situated, would be required to disqualify himself or herself.

Rule 3.11. Authority.

The Board shall have the authority to (1) conduct hearings on formal complaints filed by the Judicial Investigation Commission and make recommendations to the Supreme Court of Appeals regarding disposition of those complaints; (2) propose rules of procedure for judicial disciplinary proceedings for promulgation by the Supreme Court of Appeals; (3) file an annual report with the Supreme Court of Appeals on the operation of the Board; (4) inform the public about the existence and operation of the judicial disciplinary system, the filing of formal charges, and the discipline imposed or recommended on formal charges; (5) delegate, in its discretion, to the Chairperson or Vice-Chairperson, the authority to act for the Commission on administrative and procedural matters; and (6) engage in such other activities related to judicial discipline as it deems appropriate.

Rule 3.12. Exclusive jurisdiction.

The Judicial Hearing Board may recommend or the Supreme Court of Appeals may consider the discipline of a judge for conduct that constitutes a violation of the Rules of Professional Conduct. If discipline of a judge for a violation of the Rules of Professional Conduct is deemed appropriate, the Judicial Hearing Board or the Supreme Court of Appeals shall notify the judge and the Lawyer Disciplinary Board and give them an opportunity to be heard on the issue of lawyer discipline, if any, to be imposed. The Judicial Hearing Board shall have exclusive jurisdiction to recommend discipline of a judge for conduct that constitutes a violation of the Rules of Professional Conduct for lawyers.
History: [Added by order adopted and effective July 20, 1998.]

Rule 4. Hearings on formal charges.

Hearings on formal charges shall be conducted by the Judicial Hearing Board. The Judicial Hearing Board, the Office of Disciplinary Counsel, and the respondent may agree to designate a hearing examiner for purposes of conducting a hearing.

Rule 4.1. Time and place of hearing.

All discovery matters shall be governed by the Rules of Civil Procedure and shall be completed within ninety days from the date of the filing of formal charges. The Clerk of the Supreme Court of Appeals shall set a hearing before the Judicial Hearing Board on formal charges to be conducted within one hundred twenty days of the filing of formal charges. The Chairperson of the Judicial Hearing Board may also set a prehearing conference prior to the hearing. The Chairperson of the Judicial Hearing Board may extend or shorten periods contained in this rule for good cause shown. Any motion for continuance, discovery material, amendment to pleadings, stipulations of fact, or other document shall be filed with the Clerk of the Supreme Court of Appeals and the Chairperson of the Judicial Hearing Board no later than fourteen days, other than in the case of emergency, prior to the date of the hearing. The Judicial Hearing Board, with the approval of the Administrative Director of the Courts, may conduct hearings at such place or places in the State as it shall be determined will best serve the public interest, not inconsistent with the interests of the complainant and the respondent.
History:[As amended by order dated January 24, 1996, effective February 1, 1996.]

Rule 4.2. Notice of hearing.

Within thirty days of the filing of formal charges, notice of the date, time, and place of the hearing shall be served by the Clerk of the Supreme Court of Appeals on the judge and any counsel designated by the judge unless otherwise agreed to by the parties and the Judicial Hearing Board.
History: [As amended by order entered December 6, 1994, effective January 1, 1995.]

Rule 4.3. Conduct of hearing.

Except where otherwise provided for by these rules, the provisions of the West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence shall govern proceedings before the Judicial Hearing Board. Hearings conducted by the Judicial Hearing Board shall be open to the public.

Rule 4.4. Privilege and immunity.

All information provided, documents filed or testimony given with respect to any investigation or proceeding under these rules shall be privileged in any action for defamation. All members of the Board, the Judicial Committee on Assistance and Intervention, The Office of Disciplinary Counsel, and their employees, shall be absolutely immune from civil suit in the same manner as members of the judiciary in this State for any conduct in the course of their official duties.

Rule 4.5. Standard of proof.

In order to recommend the imposition of discipline on any judge, the allegations of the formal charge must be proved by clear and convincing evidence.

Rule 4.6. Subpoena and contempt power.

The Judicial Hearing Board shall have power to issue subpoenas or any other lawful process through its Chairperson or the Clerk of the Supreme Court of Appeals. The Chairperson of the Judicial Hearing Board and the Clerk of the Supreme Court of Appeals shall prepare and have available for issuance at the request of any party, subpoenas returnable before the Board for attendance of witnesses or for the production of documentary evidence. Subpoenas and other processes of the Judicial Hearing Board may be served in accordance with the West Virginia Rules of Civil Procedure. The failure of any person without adequate excuse to obey a subpoena or other process of the Judicial Hearing Board shall constitute contempt of the Board. All witnesses shall be entitled to such witness fees and expenses as in any civil proceeding in this State. The Judicial Hearing Board may punish breaches of order and unprofessional conduct in its presence by censure or exclusion from the hearing or may invoke the aid of any circuit court in keeping order. Such court, in case of refusal of any person to maintain order before the Judicial Hearing Board, shall issue an order requiring such person to maintain order. Any failure to obey such order of the court may be punished by such court as contempt thereof. The Judicial Hearing Board may, in its discretion, designate a person to serve as bailiff.
History: [As amended by order entered December 6, 1994, effective January 1, 1995.]

Rule 4.7. Record of hearings.

Hearings before the Judicial Hearing Board shall be recorded by stenographic, mechanical, or electronic means. Upon request, the judge shall be entitled to a copy of a videotape, audiotape, or transcript of the hearing.

Rule 4.8. Recommended disposition by Board.

Within sixty days after the final hearing or the filing of post-hearing briefs, which shall in no case be permitted more than thirty days after the final hearing, whichever comes later, the Judicial Hearing Board shall file a written recommended decision with the Clerk of the Supreme Court of Appeals. If the hearing was conducted by agreement before a hearing examiner, the examiner shall file a written recommended decision with the Judicial Hearing Board within thirty days after the final hearing or the filing of post-hearing briefs, which shall in no case be permitted more than thirty days after the final hearing, whichever comes later, and the Judicial Hearing Board shall then, within thirty days after the date of the examiner's recommended decision, file its written recommended decision with the Clerk of the Supreme Court of Appeals. The decision shall contain findings of fact, conclusions of law, and a recommended disposition. Prior to the release of information regarding the recommended disposition, the Clerk of the Supreme Court of Appeals or the Judicial Hearing Board shall provide reasonable notice to the Office of Disciplinary Counsel and the judge of the nature of the decision.

Rule 4.9. Response to recommended disposition.

The Office of Disciplinary Counsel and the judge shall have thirty days after the date of the report within which to file written consent or objection with the Clerk of the Supreme Court of Appeals to the disposition of the formal charge recommended by the Judicial Hearing Board.

Rule 4.10. Consent to recommended disposition.

If the parties consent to the recommended disposition, the matter shall be filed with the Supreme Court of Appeals for entry of an order consistent with the recommended disposition. If the Court does not concur with the recommended disposition, the Clerk of the Supreme Court of Appeals shall promptly notify the parties, establish a briefing schedule, and notify the parties of the date and time of oral argument or submission of the case without oral argument before the Supreme Court of Appeals. Following oral argument or submission of the case without oral argument, the Court will file an opinion or order disposing of the case. Unless otherwise provided in the Court's opinion or order, any sanction will not take effect until after expiration of the rehearing period or the denial of any petition for rehearing.

Rule 4.11. Objection to recommended disposition.

The filing of any objection to the report of the Judicial Hearing Board shall constitute commencement of proceedings to disposition before the Supreme Court of Appeals. The Clerk of the Supreme Court of Appeals shall promptly establish a briefing schedule and shall notify the parties of the date and time of oral argument or submission of the case without oral argument before the Supreme Court of Appeals. Following oral argument or submission of the case without oral argument, the Court will file an opinion or order disposing of the case. Unless otherwise provided in the Court's opinion or order, any sanction will not take effect until after expiration of the rehearing period or the denial of any petition for rehearing.

Rule 4.12. Permissible sanctions.

The Judicial Hearing Board may recommend or the Supreme Court of Appeals may impose any one or more of the following sanctions for a violation of the Code of Judicial Conduct: (1) admonishment; (2) reprimand; (3) censure; (4) suspension without pay for up to one year; (5) a fine of up to $5,000; or (6) involuntary retirement for a judge because of advancing years and attendant physical or mental incapacity and who is eligible to receive retirement benefits under the judges' retirement system or public employees retirement system. Any period of suspension without pay shall not interfere with the accumulation of a judge's retirement credit and the State shall continue to pay into the appropriate retirement fund the regular payments as if the judge were not under suspension without pay. An admonishment constitutes advice or caution to a judge to refrain from engaging in similar conduct which is deemed to constitute a violation of the Code of Judicial Conduct. A reprimand constitutes a severe reproof to a judge who has engaged in conduct which violated the Code of Judicial Conduct. A censure constitutes formal condemnation of a judge who has engaged in conduct which violated the Code of Judicial Conduct. The extent to which the judge knew or should have reasonably known that the conduct involved violated the Code of Judicial Conduct may be considered in determining the appropriate sanction.

In addition, the Judicial Hearing Board may recommend or the Supreme Court of Appeals may impose any one or more of the following sanctions for a judge's violation of the Rules of Professional Conduct: (1) probation; (2) restitution; (3) limitation on the nature or extent of future practice; (4) supervised practice; (5) community service; (6) admonishment; (7) reprimand; (8) suspension; or (9) annulment.
History: [As amended by order entered and effective July 20, 1998.]

Rule 4.13. Attorney fees upon dismissal.

Where a judge is exonerated for any reason and formal charges dismissed at any stage of the proceeding, the judge shall be entitled to reasonable attorney fees which shall be paid by the State. In order to be reimbursed for such fees, however, the attorney for the judge must have contacted the Administrative Director of the Courts prior to any services being rendered in order to obtain advance approval of the fee schedule.
History: [As amended by order entered December 6, 1994, effective January 1, 1995.]

Section III - Rules 3 - 4.13

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