– Hearing on Formal Complaint

(a) At the time and place set for hearing, the prosecutor shall present the case in support of the charges in the formal complaint. (b) A verbatim record shall be made of the hearing by stenographic or other means. The Commission may, in its discretion, order that a transcript of the proceedings be made. When a transcript of the hearing has been prepared at the expense of the Commission, a copy thereof shall, upon request, be available for use by the judge and counsel. The judge shall have the right, without any order or approval, to have all or any testimony in the proceedings transcribed at the judge’s expense. (c) The Chairperson or designee shall preside at the hearing. The hearing shall be conducted according to the Montana Rules of Evidence. (d) The responding judge shall appear at the hearing and, may, in the judge’s discretion, testify at the hearing. (e) The prosecutor shall have the burden of proof and shall open and close the evidence. Any misconduct or incapacity alleged against the responding judge must be proven by clear and 16 convincing evidence as defined by § 27-1-221(6), MCA. The responding judge shall have the right, but is not required, to present evidence in defense of the complaint. (f) At the conclusion of the hearing, the Commission may order further written arguments or submissions as it deems appropriate, including proposed findings of fact and conclusions of law. Thereafter, the matter shall be deemed submitted for decision, unless the Commission orders otherwise. (g) Deliberations of the Commission shall be confidential. The Commission shall render its decision, and any recommendation(s) to the Supreme Court in writing. The Commission’s decision is a public document and shall be filed in the office of the Clerk of the Supreme Court and the charges dismissed or recommendation(s) transmitted to the Court, whichever is necessary. (h) Should less than a majority of the Commission vote affirmatively for the censure, suspension, retirement, or removal of a responding judge, the formal complaint shall be dismissed in favor of the judge, who shall be entitled to the costs paid or incurred for subpoenas, witness fees and mileage, and any depositions ordered by the Commission.