Special Rules as to Disability Cases

(a) Applicability of Rules Relating to Judicial Misconduct. A proceeding shall be considered a disability proceeding if it is initiated by either a complaint or motion of the Commission alleging a disability of a judge that seriously interferes with the judge’s judicial duties. If a disability proceeding is authorized by the investigative panel upon the completion of a formal investigation pursuant to Rule 10, then the disability proceeding shall be conducted in accordance with the procedures for disciplinary proceedings except as provided in this rule. (b) Waiver of Medical Privilege. A judge waives the medical privilege and shall produce to the Commission Counsel the judge’s medical records relating to an alleged disability, if the judge: (1) (2) (3) provides a written waiver to the Commission; denies the existence of a disability in a proceeding in which the mental or physical condition or health of the judge is in issue; or asserts the existence of a disability as a defense to a Statement of Charges. (c) Physical or Mental Examination. Upon the affirmative vote of 5 members, the investigative panel may order a judge who is subject to a formal investigation based on alleged disability to submit to a physical or mental examination by one or more qualified licensed physicians, psychologists, or mental health professionals appointed by the presiding Chairperson or Vice-Chairperson to conduct the examination. The examination shall be at the Commission’s expense and copies of the report of the examination shall be provided to the judge and the Commission Counsel. The examining physician or health professional shall be compensated by the Commission in the same manner as experts in civil cases in the General Court of Justice are compensated. If called to testify at a disciplinary proceeding, the Commission shall bear the witness costs of the examining physician or health professional as provided in Rule 20. (d) Failure or Refusal to Submit to Examination. The failure or refusal of a judge to submit to a physical or mental examination ordered by the investigative panel shall preclude the judge from presenting evidence of the results 22 TOC Rule 17 judge’s own expense. of a physical or mental examination done at the An investigative or hearing panel may consider a refusal or failure to submit to a physical or mental examination ordered pursuant to subsection (c) of this rule as evidence that the judge has a disability that seriously interferes with the ability of the judge to perform the duties of the judicial office. History Note. 374 N.C. 960; 386 N.C. 974.