PROCEEDINGS INVOLVING ALLEGED DISABILITY

(a) Inability to Properly Defend. (1) If a judicial officer claims, in the course of a disciplinary proceeding, that the judicial officer is unable to assist in the judicial officer’s defense due to mental or physical disability, the Court shall immediately suspend the judicial officer pending determination of the claim. The validity of the claim shall be initially determined by the Board, and if a Board has not already been appointed, the Court shall appoint a Board under Rule 9(a) to hear and report on the claim. The Court shall finally determine the validity of the claim after briefing, argument and any factual hearing, if necessary, pursuant to Rule 15. (2) If the Court determines that the claim of inability to defend is valid, the disciplinary proceedings shall be deferred and the judicial officer shall remain suspended until further order of the Court. (3) If the Court determines that the claim of disability to defend is invalid, the disciplinary proceedings shall resume and the judicial officer shall remain suspended until otherwise ordered by the Court. (b) Commitment or Adjudication. If a judicial officer has been judicially declared mentally disabled or is committed on the grounds of mental disability, the Court, upon proper proof of the fact, may enter an order immediately suspending the judicial officer until further order of the Court. A copy of the order shall be served upon the judicial officer, the judicial officer’s guardian, and the director of the institution to which the officer has been committed. (c) Proceedings to Determine Disability. Written complaints of disability as stated in the Constitution shall be investigated by the Panel as provided for in misconduct cases and shall be the subject of formal proceedings as provided in these rules. The Panel may take or direct whatever action it deems necessary or proper to determine whether the judicial officer is disabled, including the examination of the judicial officer by a qualified psychiatric or psychological expert designated by the Panel. Any pending 11 Last amended effective March 6, 2018 disciplinary proceedings against the judicial officer shall be held in abeyance. The judicial officer must be represented by counsel. If the judicial officer is not represented by counsel of the judicial officer’s own choosing, the Court will appoint counsel for the judicial officer. (d) Stipulated Disposition. (1) At any stage of the proceedings after the receipt of one or more reports by qualified psychiatric or psychological experts, the Panel and the judicial officer may agree upon proposed findings of fact and conclusions of law. A stipulated disposition may then be submitted to the Court for approval. If the Court accepts the stipulated disposition, it shall enter an order in (2) accordance with its terms. If the stipulated disposition is not approved by the Court, it shall be withdrawn and cannot be used against the judicial officer in any proceedings. If the Court does not approve the stipulated disposition, the Panel shall proceed to complete its investigation. (e) Relief from Disability Suspension. (1) Any judicial officer suspended under the above subdivisions by reason of disability shall be entitled to petition for relief from suspension. The petition shall be granted by the Court upon a showing by clear and convincing evidence that the judicial officer is able to perform properly the duties of the office. (2) Upon the filing of a petition for relief from suspension, the Court may take or direct whatever action it deems necessary or proper, including a reference to a Panel for investigation and recommendation, and may order an examination of the judicial officer by qualified experts designated by the Court or by the Panel. In its discretion, the Court may direct that the expenses of the examination be paid by the judicial officer. (3) If a judicial officer who has been suspended under subdivision (b) is judicially declared not to be disabled, the Court may terminate the suspension without further evidence under terms that the Court deems appropriate. (f) Waiver of Physician and Psychotherapist-Patient Privilege. The filing of a petition for relief from suspension shall be deemed to constitute a waiver of any physician and psychotherapist-patient privilege with respect to 12 Last amended effective March 6, 2018 any treatment of the judicial officer during the treatment of the judicial officer’s disability. The judicial officer shall be required to disclose the name of each psychiatrist, psychologist, physician, hospital or other institution by whom or in which the judicial officer has been examined or treated for such disability. The judicial officer shall furnish to the Panel and to the Court written consent to each doctor to release information and records relating to the disability if requested by the Panel or the Court or court-appointed medical experts. (g) Mental Illness as a Defense. Mental illness is a complete defense to charges of misconduct of a judicial officer that otherwise would warrant disciplinary action if such conduct was the result or consequence of mental illness. The burden of persuasion of this defense, in all its aspects, is upon the judicial officer. If the judicial officer is able to sustain the burden of persuasion before the Board as to the judicial officer’s mental illness as of the time of the conduct of which the complaint is made, but is unable to prove recovery, and the Board has reason to believe such recovery is probable within a reasonable time, the Board will recommend to the Court that the judicial officer be suspended until such time as the judicial officer can prove such recovery; otherwise the Board shall recommend the judicial officer’s retirement.