JUDICIAL DISCIPLINE

8.1. Organization of commission. (a) Membership; chairperson. The supreme court shall appoint a commission to be known as the Commission on Judicial Conduct which shall consist of seven members; three members shall be attorneys licensed to practice in the State of Hawaiʻi, one of whom shall be designated by this court as chairperson, and four members shall be citizens who are not judges, retired judges or lawyers, one of whom shall be designated by this court as vice-chairperson. (b) Terms. All members shall be appointed to staggered three-year terms; however, to maintain a commission with staggered terms, initial appointments may be for less than three years. (c) Compensation. Members shall receive no compensation for their services but may be reimbursed for their traveling and other expenses incidental to the performance of their duties. (d) Quorum; number of votes for action. A majority of the total membership of the Commission shall constitute a quorum for the transaction of business, and the concurrence of a majority of the total membership shall be necessary to validate any action. (e) Meetings. Meetings of the Commission shall be held at the call of the chairperson or upon the written request of a majority of the members of the Commission. (f) Annual report. At least once a year the Commission shall prepare a report summarizing its activities during the preceding year. One copy of this report shall be filed with the supreme court. (g) Non-participation by members. Commission members shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. If, in any given case, it shall become necessary for the continuation of a case or orderly operation of the Commission, the supreme court may appoint, for that case only, one or more ad hoc members as it deems necessary. (Renumbered September 1984; amended April 26, 1993, effective April 26, 1993.) 8.2. Jurisdiction and powers of commission. (a) Powers in general. The Commission shall have the power to: (1) receive information, allegations, and complaints; (2) make preliminary evaluations; (3) screen complaints; (4) conduct investigations; (5) conduct hearings; (6) recommend dispositions to the supreme court concerning allegations of judicial misconduct or physical or mental disability of judges; (7) issue advisory opinions; and (8) utilize an administrator. (b) Persons Subject to Discipline. The conduct of any justice or judge, full-time or part-time, shall be subject to the jurisdiction of the Commission, regardless of the justice’s or judge’s status at the time the conduct is reported to the Commission, including, but not limited to, having resigned or retired from office and provided the conduct is reported to the Commission no later than ninety (90) days after the judge leaves office. (c) Jurisdiction of Commission. (1) Notwithstanding any provisions of Rule 2.1 of the Rules of the Supreme Court, only this Commission shall have the authority to exercise powers specified in Rule 8.2 with respect to conduct, whether or not related to mental or physical competence, of any sitting full-time or part-time justice or judge occurring during the time of, and prior to, their tenure on the bench except as otherwise provided in this subsection (c). (2) Notwithstanding any provisions to the contrary contained herein regarding the jurisdiction of the Commission: (i) The Disciplinary Board of the Hawaiʻi Supreme Court may conclude any formal disciplinary proceedings as to said conduct which occurred prior to the judicial tenure of any full-time or part-time justice or judge, and any petition to the supreme court to determine whether any justice or judge is incapacitated from continuing the practice of law by reason of physical infirmity or illness or because of the use of drugs or intoxicants, if such formal disciplinary proceedings were initiated or such petition was filed prior to the judicial tenure of the justice or judge. (ii) If a sitting part-time district judge is practicing law as an attorney, the Disciplinary Board of the Hawaiʻi Supreme Court shall have jurisdiction of such judge with respect to said conduct as an attorney and to petition the supreme court to determine whether such judge is incapacitated from continuing the practice of law by reason of physical infirmity or illness or because of the use of drugs or intoxicants and shall exercise the authority and powers prescribed under Rule 2 of the Rules of the Supreme Court. (iii) The Disciplinary Board shall transmit its findings of fact, conclusions of law, disciplinary action or recommendations, and the entire record, in formal disciplinary proceedings under (i) and (ii) above to the Commission and if it is satisfied, and if it wishes to take action, the Commission may apply the same findings to support its recommendation for disciplinary action against a justice or judge involved in the said proceedings subject, however, to subsection (4) of this subsection (c). (3) The resignation or retirement of any full-time or part-time justice or judge before or after the Commission or the Disciplinary Board, or both, have commenced an investigation or a proceeding, and before final action by the supreme court upon any recommendation, shall not deprive the Commission, the Disciplinary Board or the supreme court of jurisdiction. (4) The Commission shall treat the findings of the Disciplinary Board made as a result of proceedings within (2)(i) or (2)(ii) above, as a new complaint which shall be reviewed in accordance with Rule 8.6, subsections (b) through (i), and if the Commission determines that further proceedings should be had, the Commission shall proceed with the complaint in accordance with Rule 8.7, and with any other applicable provisions of Rule 8. (d) Administrator. There shall be an administrator to the Commission, whose duties and responsibilities shall be subject to the Commission’s direction and supervision. (1) The administrator shall be an attorney who is licensed to practice law in the State of Hawaiʻi, and who shall serve as attorney to the Commission. The administrator shall not be a person who is a sitting justice or judge, including part-time judge. (2) The supreme court shall appoint the administrator. The appointment and removal of the administrator shall require the concurrence of the majority of the supreme court. (3) The administrator shall not engage in the private practice of law; provided, the administrator may provide pro bono services consistent with Rule 6.1 of the Hawaiʻi Rules of Professional Conduct, subject to restrictions imposed by the Commission. (e) Subpoena and discovery. (1) In matters before the Commission the chairperson or, if appointed pursuant to Rule 8.7 of this Rule, special counsel in matters under investigation by special counsel, may administer oaths and affirmations, compel by subpoena the attendance and testimony of witnesses, including the judge as witness, and to provide for the inspection of documents, books, accounts, and other records. A respondent judge may compel by subpoena the attendance of witnesses and the production of documents, books, accounts, and other records after formal disciplinary proceedings are initiated. Writs of subpoena shall be issued in blank by the clerk of the supreme court upon application by any member of the Commission, special counsel or the respondent, subject to the demonstration of good cause required by Rule 8.2(e)(3) of this Rule. (2) The power to enforce process may be delegated by the supreme court to any other court. (3) There shall be no discovery proceedings except upon the order of the Commission chairperson for good cause shown. (f) Rules of procedure and forms. The Commission shall have the authority to submit rules of procedure for the approval of the supreme court, and to develop appropriate forms for its proceedings. (Renumbered September 1984; amended April 26, 1993, effective April 26, 1993; further amended December 21, 2004, effective January 1, 2005; further amended September 13, 2022, effective January 1, 2023; further amended March 12, 2025, effective March 12, 2025.) 8.3. Immunity. Members of the Commission, the administrator or other staff providing assistance to the Commission, and special counsel appointed by the supreme court shall be absolutely immune from suit for all conduct in the course of their official duties. (Renumbered September 1984; amended April 26, 1993, effective April 26, 1993; further amended March 12, 2025, effective March 12, 2025.) 8.4. Confidentiality. (a) In general. All proceedings, records, files, and reports involving allegations of misconduct by, or disability of, a judge shall be kept confidential until and unless the judge requests such materials be made public. However, absent evident of incapacity or disability related to the alleged misconduct, or unless otherwise directed by the supreme court, if formal disciplinary proceedings are initiated, the Formal Complaint or the Statement of the Allegations, and the respondent judge’s answer, if any, shall be public 90 days after the service of the Formal Complaint or the Statement of the Allegations upon the respondent judge, as shall any subsequent disciplinary hearings and evidence introduced therein. In such an event, however, the deliberations of the Commission and the contents of the initial investigatory file shall remain confidential. In addition, the respondent judge may apply to the Commission for a protective order based upon the assertion of private medical or other sensitive information, with denial of that order reviewable by the supreme court. The Commission, special counsel, the supreme court, and their staffs shall conduct themselves so as to maintain the required confidentiality. The Commission and the supreme court may, however, confirm the resignation of the respondent judge in such an event. (b) Disclosure. This provision shall not be construed to automatically deny access to relevant information to authorized agencies investigating the qualifications of judicial candidates, or to other jurisdictions investigating qualifications for admission to practice or to law enforcement agencies investigating qualifications for government employment; such information may be released upon concurrence of the Commission or by order of the supreme court. (c) Public statements by commission. In any case in which the subject matter becomes public through independent sources or through a waiver of confidentiality by the judge, the Commission may issue statements as it deems appropriate in order to confirm the pendency of the investigation, to clarify the procedural aspects of the disciplinary proceedings, to explain the right of the judge to a fair hearing without pre-judgment, and to state that the judge denies the allegations. The statement shall be first submitted to the judge involved for his or her comments and criticisms prior to its release, but the Commission in its discretion may release the statement as originally prepared. (Renumbered September 1984; amended October 8, 2020, effective January 1, 2021; further amended September 13, 2022, effective January 1, 2023.) 8.5. Grounds for discipline. (a) In general. Grounds for discipline shall include: (1) Conviction of a felony; (2) Willful misconduct in office; (3) Willful misconduct which, although not related to judicial duties, brings the judicial office into disrepute; (4) Conduct prejudicial to the administration of justice or conduct that brings the judicial office into disrepute; (5) Any conduct that constitutes a violation of the Code of Judicial Conduct; or (6) Any conduct before assuming full-time duties that constitutes a violation of the Hawaiʻi Rules of Professional Conduct. (b) Proceedings not substitute for appeal. In the absence of fraud, corrupt motive, or bad faith, the Commission shall not take action against a judge for making findings of fact, reaching a legal conclusion, or applying the law as he or she understands it. Claims of error shall be left to the appellate process. (Renumbered September 1984; amended effective September 16, 1997.) 8.6. Complaint procedure. (a) Initiation of procedure. (1) An inquiry relating to conduct of a judge may be initiated upon any reasonable basis, including written complaints made by judges, lawyers, court personnel, or members of the general public. (2) The Commission may on its own motion make inquiry with respect to whether a judge is guilty of misconduct in office or is physically or mentally disabled. (3) Upon request of the chief justice of the supreme court, the Commission shall make an investigation under this rule of the conduct or physical or mental condition of a judge. (b) Privilege. A qualified privilege shall attach to a complaint submitted to the Commission or testimony related to the complaint, and any civil action predicated on such complaint initiated against any complainant or witness, or their counsel, shall be subject to said qualified privilege. (c) Discretionary notice. Notice that a complaint has been made may be given to the judge named in the complaint. (d) Screening of complaints. Upon receipt of a complaint, the Commission shall determine whether such complaint warrants investigation and evaluation. Complaints determined to be frivolous, unfounded or outside the jurisdiction of the Commission shall not be investigated. (e) Mandatory notice. After the determination that a complaint warrants investigation and evaluation, notice that a complaint has been made shall be given to the judge. (f) Preliminary investigation and evaluation. Upon receipt of a complaint, report, or other information as to conduct that might constitute grounds for discipline, the Commission shall conduct a prompt, discreet, and confidential investigation and evaluation. The Commission may delegate one of its members, or the administrator, to conduct such investigation and evaluation. (g) Determination. After conclusion of the investigation and evaluation, the Commission shall determine: (1) That there is insufficient cause to proceed against the judge; or (2) That there is sufficient information to make a disciplinary recommendation to the supreme court; or (3) That further proceedings regarding the complaint are necessary. (h) Insufficient cause to proceed. (1) Upon determination that there is insufficient cause to proceed, the file shall be closed. If previously notified of a complaint, a judge shall be notified that the file has been closed. (2) A closed file may be referred to by the Commission in subsequent proceedings. (3) If the inquiry was initiated as a result of notoriety or because of conduct that is a matter of public record, information concerning the lack of cause to proceed may be released by the Commission. (i) Dispositions in lieu of further proceedings. Even though the Commission does not find that further proceedings are necessary, it may recommend to the supreme court that the court: (1) Issue a private reprimand; or (2) Inform or admonish the judge that their conduct is or may be cause for discipline; or (3) Direct professional counseling or assistance for the judge; or (4) Impose conditions on the judge’s conduct. (Renumbered September 1984; amended September 13, 2022, effective January 1, 2023; further amended March 12, 2025, effective March 12, 2025.) 8.7. Appointment of special counsel. Upon determining that further proceedings should be had, the Commission shall request the supreme court to appoint special counsel to further investigate the matter. The supreme court, however, may also, upon receipt of the report from the Commission pursuant to Rule 8.6 of these Rules, review the record de novo and, in its discretion, appoint special counsel sua sponte . In either case, Counsel, upon further investigation, shall either report to the Commission that a formal hearing is not necessary or shall initiate formal disciplinary proceedings as provided in Rule 8.9 of these Rules. The administrator may be appointed as special counsel. The Office of Disciplinary Counsel may be appointed as special counsel, subject to the approval of the chairperson of the Disciplinary Board. (Renumbered September 1984; amended effective September 16, 1997; further amended June 3, 2021, effective July 1, 2021; further amended September 13, 2022, effective January 1, 2023; further amended March 12, 2025, effective March 12, 2025.) 8.8. Determination on report of special counsel. Upon receipt of special counsel’s report that a formal hearing is not necessary, the Commission shall determine whether to close the file as provided by Rule 8.6(h) or make a recommendation to the supreme court as provided by Rule 8.6(i). (Renumbered September 1984.) 8.9. Formal hearing. (a) Formal Complaint or Statement of the Allegations. Formal disciplinary proceedings shall be initiated by special counsel by filing with the Commission a detailed sworn Formal Complaint signed by the complainant. If a sworn Formal Complaint is not obtained, a clear Statement of the Allegations against the judge and the alleged facts forming their basis shall be prepared by special counsel and submitted to the Commission. Where more than one act of misconduct is alleged, each shall be clearly set forth. A copy of the Formal Complaint or Statement of the Allegations shall be served upon the judge by personal service unless the judge cannot be located within the State, in which case service may be accomplished by certified or registered mail to the judge’s address registered with the Hawaiʻi State Bar. (b) Answer. The judge shall serve the judge’s answer upon special counsel and file the original with the Commission within 20 days after the service of the Formal Complaint or the Statement of the Allegations unless such time is extended by the chairperson. In the event the judge fails to answer, the charges shall be deemed admitted; provided, however, that a judge who fails to answer within the time provided may obtain permission of the chairperson to file an answer if such failure to file an answer was attributable to mistake, inadvertence, surprise or excusable neglect. (c) Termination after answer. The Commission may terminate the proceeding and dismiss the Formal Complaint or the Statement of the Allegations with the approval of the supreme court, and shall in that event give notice to each complainant and to the judge. (d) Hearing officer and notice of hearing. Following service of the answer the matter may be set for hearing before a hearing officer, chosen by the Commission from the list maintained by the Disciplinary Board of the Hawaiʻi Supreme Court for attorney disciplinary proceedings. A hearing officer shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. The Commission shall serve a notice of hearing upon special counsel and the judge, or the judge’s counsel, stating the date and place of the hearing and the proposed identity of the hearing officer. Any motion for disqualification of any proposed hearing officer shall be made within 10 days of service of the notice upon special counsel and the judge, or the judge’s counsel, after which time any objection shall be deemed waived. (e) Presentation; cross-examination; evidence. At the hearing, the judge shall be entitled to counsel of the judge’s own choice, shall be entitled to compel by subpoena the attendance and testimony of witnesses and to provide for the inspection of documents, books, accounts, and other records, and shall have a full opportunity to confront and cross-examine the complainant and other witnesses presented by special counsel and to present evidence on the judge’s own behalf. Absent good cause warranting the use of a court reporter, the hearing officer shall electronically record the disciplinary hearings, to preserve the record of the hearings for transcription at a later time, if necessary. The hearing officer shall not be bound by the formal rules of evidence, but shall admit only trustworthy evidence, nor shall any evidence outside the formal record be relied upon in reaching a decision. The findings of the hearing officer shall be supported by clear and convincing evidence. The hearing officer shall, in every case, submit a report containing findings supported by citations to the record, conclusions of law, and recommendations, together with a record of the proceedings, including a transcription of the audio recordings of the hearing if requested, to the Commission within 30 days after the conclusion of the hearing, unless such time is extended by the Commission chairperson for no more than one 30-day extension, for good cause shown. A hearing is concluded when all of the evidence has been submitted or, if post-hearing pleadings have been ordered or authorized, when the last authorized pleading is filed. (f) Findings and recommendations. Upon receipt of such a report from a hearing officer, the Commission will not entertain briefs or oral argument except; (1) within the Commission chairperson’s discretion, upon application of special counsel, the judge, or the judge’s counsel, submitted within 10 days after service of the report of the hearing officer; or (2) upon a vote of a majority of the Commission. If such application is granted or vote occurs, the Commission chairperson shall set the dates for the timely submission of briefs and for the expeditious hearing of any oral argument before the Commission. After a review of the report of the hearing officer, the Commission shall itself compose a report, making Findings of Fact, based upon clear and convincing evidence, entering Conclusions of Law regarding any violations found, and making a recommendation for the disposition of the matter and shall thereafter promptly file that report, together with a transcribed record of its proceedings and the proceedings before the hearing officer, to the supreme court after the conclusion of proceedings before the Commission or after the submission to the Commission of the hearing officer’s report if no proceedings are held at the Commission. The Commission may, at its discretion, rely upon the report of the hearing officer in the drafting of its report to the supreme court. In its report, the Commission may recommend to the supreme court any of the following sanctions: (A) Removal; (B) Retirement; (C) Imposition of limitations or conditions on the performance of judicial duties, including suspension with or without pay; (D) Direct professional counseling or assistance for the judge; (E) Private informal admonition; (F) Private reprimand; (G) Public censure; (H) that the matter be referred to the Office of Disciplinary Counsel and the Disciplinary Board for investigation pursuant to Rule 2 of these Rules; or (I) Any combination of the above sanctions. (Renumbered September 1984; amended effective September 16, 1997; further amended September 13, 2022, effective January 1, 2023.) 8.10. Review by supreme court. After the filing of the Commission’s report with the supreme court a copy thereof shall be personally served on the judge, unless good cause exists for service by certified or registered mail. The judge may file exceptions to the report within 20 days from the date of service of a copy thereof or within an additional period not to exceed 20 days granted by the court for good cause shown. Within 60 days after the filing of the report and the filing of exceptions, if any, the judge shall file an opening brief pursuant to the rule governing civil appeals; and other briefs may be filed and oral argument may be had as therein provided. Upon conclusion of the proceedings, the court shall promptly enter an appropriate order. If the supreme court imposes a private discipline the court may, at its discretion, thereafter render the record confidential. (Renumbered September 1984; amended September 13, 2022, effective January 1, 2023.) 8.11. Charge against supreme court justice. Any charge filed against a member of the supreme court shall be heard and submitted to the court in the same manner as charges concerning other judges, except that the member being charged shall be automatically disqualified. A panel of at least three justices shall hear the matter. In the event that there are less than three justices remaining on the court, the chief justice or the most senior associate justice remaining on the court shall appoint a judge of the intermediate court of appeals, a circuit court judge, a retired justice of the supreme court, or any combination thereof to sit in the matter. (Renumbered September 1984.) 8.12. Interim sanctions. (a) Suspension for felony. A judge shall be suspended with or without pay immediately by the supreme court without necessity of Commission action, upon the filing of an indictment or complaint charging him or her with a felony under state or federal law. Such suspension shall not preclude action by the Commission with respect to the conduct which was the basis for the felony charge, before or after a conviction, acquittal, or other disposition of the felony charge. (b) Suspension for misdemeanor. Conduct resulting in the filing of misdemeanor charges against a judge, if it adversely affects his or her ability to perform the duties of his or her office, may be grounds for immediate suspension with or without pay by the supreme court, without necessity of Commission action. A conviction, acquittal, or other disposition on a misdemeanor charge, shall not preclude action by the Commission with reference to the conduct upon which the charge was based. (c) Misdemeanor suspension review. Any judge suspended under Rule 8.12(b) shall be given a prompt hearing and determination by the supreme court upon his or her application for review of the interim suspension order. (d) Other interim suspension. (1) Interim suspension, with or without pay, pending final decision as to ultimate discipline, may be ordered by the supreme court in any proceeding under these rules. (2) Upon a determination by the Commission of a judge’s incompetence, there shall be an immediate interim suspension, with or without pay, pending final disposition by the supreme court. (e) Disability suspension. A judge who claims that a physical or mental disability prevents his or her assisting in the preparation of a defense in a proceeding under these rules shall be placed on interim suspension, with or without pay. Once an interim suspension has been imposed, there shall be a determination of whether in fact there is such a disability. If there is such a disability, the judge shall be retired. If there is a finding of no disability, the disciplinary proceeding shall continue. (Renumbered September 1984; amended May 4, 1993, effective May 4, 1993.) 8.13. Special provisions for cases involving mental or physical disability. (a) Procedure. In carrying out its responsibilities regarding physical or mental disabilities, the Commission shall follow the same procedures that it employs with respect to discipline for misconduct. (b) Representation by counsel. If the judge in a matter relating to physical or mental disability is not represented by counsel, the supreme court shall appoint an attorney to represent him or her. (c) Medical privilege. (1) If the complaint involves the physical or mental condition of the judge, a denial of the alleged condition shall constitute a waiver of medical privilege, and the judge shall be required to produce his or her medical records. (2) If medical privilege is waived, the judge is deemed to have consented to a physical or mental examination by a qualified medical practitioner designated by the Commission. The report of the medical practitioner shall be furnished to the Commission and the judge. (Renumbered September 1984.) 8.14. Involuntary retirement. (a) Procedure. A judge who refuses to retire voluntarily may be involuntarily retired by the supreme court. If attempts to convince a judge to retire voluntarily fail, then special counsel shall be appointed to file a formal complaint, and the Commission shall hold a hearing and submit a report with recommendations to the supreme court. (b) Effect of involuntary retirement. A judge who is involuntarily retired shall be ineligible to perform judicial duties pending further order of the court. (Added June 1, 1979, effective June 1, 1979, amended December 5, 1979, effective December 5, 1979, renumbered September 1984; further amended March 7, 1985, effective March 7, 1985.) 8.15. Advisory Opinions. (a) Rendering Opinions. The Commission may render advisory opinions concerning proper interpretations of the Code of Judicial Conduct and, if appropriate, publish and disseminate the same. (b) Who May Request; Types of Opinions. Requests for advisory opinions may be made by a judge, the Administrative Director of Courts, and the Commission itself. (i) Informal Written Opinions . If the Commission finds the opinion of limited significance, it may provide an informal written opinion to the questioner. Such opinion shall be kept confidential, except as may be permitted to be disclosed by this court, the judge to whom the opinion is directed, or the Commission. (ii) Formal Written Opinions . If, however, the Commission finds the opinion of sufficient general interest and importance, it shall render a formal written opinion, which shall be published and disseminated to all judges and to whomever the Commission deems advisable. In issuing formal written opinions, the Commission shall undertake, in good faith, reasonable efforts to retain the confidentiality of the identity of the judge to or about whom the opinion is directed. (iii) Discussions . In addition to the foregoing, the Commission, either through the Commission itself or person designated by the Commission, may discuss with any judge any issue relating to the Code of Judicial Conduct in order to assist the judge in determining whether any conduct of the judge would or would not be appropriate. However, any such discussion by the Commission or its designee will not be deemed to be the giving of an advisory opinion by the Commission and will not be binding on the Commission in any proceeding being brought against that judge or any judge who may rely on such discussion. (c) Use and Effect. An advisory opinion rendered by the Commission shall be admissible in any disciplinary proceeding involving a judge to whom the opinion is directed. It shall be a complete defense to any complaint under these rules that the judge complained against acted in accordance with and reliance on an advisory opinion issued to the judge that certain specified conduct by the judge would not constitute a violation of the Code of Judicial Conduct. In addition, it shall be a mitigating factor in the consideration of any complaint under these rules that the judge complained against acted reasonably in reliance on any formal or informal advisory opinion not directed at the judge. (d) Modification. The Commission may, at any time, including as a result of disciplinary proceedings, modify or amend any advisory opinion; provided, that no such modification or amendment shall be applied retroactively in any such disciplinary proceedings. (Added April 26, 1993; effective April 26, 1993.) 8.16. Effect of Hawaiʻi Electronic Filing and Service Rules. Documents filed and notices given in accordance with the Hawaiʻi Electronic Filing and Service Rules shall be deemed to comply with the filing, mailing, certified mailing, notice, and service requirements of any part of this Rule 8. (Added August 30, 2010, effective September 27, 2010.)