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South Carolina
JUDICIAL DEPARTMENT
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2009-10-16-04

The Supreme Court of South Carolina

RE:   Amendments to the South Carolina Rules for Judicial
Disciplinary Enforcement


ORDER


Pursuant to Article V, §4 of the South Carolina Constitution, the Rules for Judicial Disciplinary Enforcement (RJDE) contained in Rule 502 of the South Carolina Appellate Court Rules are amended as shown in the attachment to this order.  These amendments shall be effective January 1, 2010, and shall apply to all disciplinary complaints filed on or after that date.  The amendments shall also apply to all matters in which formal charges are pending on the effective date.

For a complaint pending on the effective date of these amendments for which no formal charges have been filed, the matter shall continue under the current rules until concluded or until formal charges are filed.  Once formal charges are filed, the matter shall proceed under the amended rules.

  Further, the increase in public members on the Commission on Judicial Conduct will be phased in, beginning with the addition of two public members (one to each panel) in the first year and then adding the second public member to each panel as the terms of current judicial members expire.

IT IS SO ORDERED.

s/Jean H. Toal                                    C.J.

s/John H. Waller, Jr.                           J.

s/Costa M. Pleicones                        J.

s/Donald W. Beatty                            J.

s/John W. Kittredge                           J.

Columbia, South Carolina
October 16, 2009


Amendments to the Rules for Judicial Disciplinary Enforcement

(1) Rule 2(b), (h), (o), (p) and (q), RJDE, are amended to read:

(b) Closed, But Not Dismissed: a manner of disposing of a matter where a panel of the Commission makes a finding that the matter should not be dismissed, but it is either impossible or impractical to proceed with the matter because it appears that the judge is deceased, disappeared, incarcerated, physically or mentally incapacitated, or removed from judicial duties, or for other good cause.

(h) Disciplinary Counsel: the lawyer in charge of screening and investigating complaints, prosecuting formal charges and performing other duties assigned by the Supreme Court.  See Rule 5.

(o) Investigation: an inquiry into allegations of misconduct, including a search for and examination of evidence concerning the allegations.  See Rule 19.

(p) Investigative Panel: the panel of the Commission that considers the recommendations of disciplinary counsel with regard to the disposition of cases and acceptance of agreements for resolution of disciplinary matters.  The investigative panel also determines whether formal charges will be filed.  See Rule 4.

(q) Letter of Caution: a written caution or warning about past or future conduct issued when it is determined that no misconduct has been committed or that only minor misconduct not warranting the imposition of a sanction has been committed. A letter of caution may be issued by disciplinary counsel, an investigative panel or the Supreme Court. The issuance of a letter of caution is not a form of discipline under these rules and does not constitute a finding of misconduct unless the letter of caution specifically states that misconduct has been committed. The fact that a letter of caution has been issued shall not be considered in a subsequent disciplinary proceeding against the judge unless the caution or warning contained in the letter of caution is relevant to the misconduct alleged in the proceedings.

(2) Rule 3(c) and (d), RJDE, are amended to read:

(c) Appointment. The Commission shall be composed of 26 members appointed by the Supreme Court. 10 members shall be judges from the circuit court or family court or masters-in-equity.  4 members shall be judges from the magistrate, municipal or probate courts.  4 members shall be active members of the South Carolina Bar who have never held a judicial office.  8 members shall be public members.

(d) Terms. Commission members shall serve for a term of 4 years and shall be eligible for reappointment.  A member assigned to a hearing panel may continue to participate in the hearing and decision of a matter despite the expiration of the member's term if the hearing began before the expiration of the term.

(3)Rule 4(b), RJDE, is amended to read:

(b) Panels and Meetings. The members of the Commission, other than the chair, vice-chair and public members, shall be divided by the chair into 4 panels of 6 members.  Each panel shall be composed of 2 members who are judges from the circuit court, judges from the family court or masters-in-equity; 1 member who is a judge from the magistrate, municipal or probate courts; 1 attorney member and 2 public members. The panels shall be assigned to serve as an investigative panel or a hearing panel as designated by the chair. If the panel is assigned to serve as an investigative panel, the chair shall add either the chair or the vice-chair to the panel to increase its membership to 7.  The chair may rotate the assignments of the panels as investigative or hearing panels, and may rotate membership on the panels; provided, however, that no member shall sit on both the investigative and hearing panel for the same proceeding.  Panels shall meet when scheduled by the Commission.  The full Commission shall meet periodically as determined by the Commission to consider administrative matters.  Meetings of the Commission other than periodic meetings may be called by the chair upon the chair's own motion and shall be called by the chair upon the written request of 3 members of the Commission.

(4) Rule 4(e)(2) , RJDE, is amended to read:

(2) In addition to the duties assigned to Commission counsel in Rule 6, the Commission may delegate to the Commission counsel the duty and authority to:

(A) maintain the Commission's records;

(B) maintain statistics concerning the operation of the Commission and make them available to the Commission and the Supreme Court;

(C) prepare an annual report of the Commission's activities for presentation to the Supreme Court and the public;

(D) inform the public of the existence and operation of the judicial discipline system, including the Commission's address and telephone number and the disposition of each matter in which public discipline is imposed;

(E) monitor judges for compliance with conditions of discipline and deferred discipline and refer judges who fail to comply to disciplinary counsel for contempt proceedings; and,

(F) supervise attorneys, court reporters, and other staff as the Supreme Court may provide to the Commission.

(5) Rule 4(f), RJDE, is amended to read:

(f) Powers and Duties of Investigative Panel. An investigative panel shall have the duty and authority to:

(1) review the recommendations of the disciplinary counsel after investigation and either issue a letter of caution with or without a finding of misconduct, issue notice of intent to impose a confidential admonition, enter into a deferred discipline agreement, consider an agreement for discipline by consent, authorize formal charges, refer the matter to another agency, or dismiss the complaint;

(2) designate a member of the panel to preside over the investigative panel in the absence of the chair or vice-chair of the Commission;

(3) declare a matter closed but not dismissed prior to the filing of formal charges; and,

(4) after proper notice, re-open a matter that has been previously dismissed or closed but not dismissed.

(6) Rule 5(b)(1) and (8), RJDE, are amended to read:

(1) receive and screen complaints, dismiss complaints, issue letters of caution with no finding of misconduct, refer complaints to other agencies when appropriate, conduct investigations, notify complainants about the status and disposition of their complaints, make recommendations to an investigative panel on the disposition of complaints after investigation, file formal charges when directed to do so by an investigative panel, prosecute formal charges, and file briefs and other appropriate petitions with the Supreme Court;

(8) perform other duties at the direction of the Commission or the Supreme Court.

(7) The heading of Rule 5(c), RJDE, is amended to read: "(c) Appointment of Attorneys to Assist Disciplinary Counsel."

(8) Rule 11, RJDE, is amended to read:

RULE 11.  EX PARTE CONTACTS

Members of the Commission and Commission counsel shall not engage in ex parte communications regarding a case, except that before making a determination to file formal charges in a case pursuant to Rule 19(d)(4) members of the investigative panel assigned to that case may communicate with disciplinary counsel as required to perform their duties in accordance with these rules and the chair and vice-chair may entertain requests for permissive disclosure pursuant to Rule 12(c) made by disciplinary counsel without notice to the judge. Where disciplinary counsel makes a request to the chair or vice-chair pursuant to either Rule 12(c) or 19(b) without notice to the judge, the request shall so state and set forth the reason that notice is not being given. Ex parte communications shall include any communication which would be prohibited by Section 3B(7) of the Code of Judicial Conduct, Rule 501, SCACR, if engaged in by a judge.

(9)Rule 12(a), RJDE, is amended to read:

(a)General Rule.  Except as otherwise provided in these rules or ordered by the Supreme Court, the members of the Commission, the staff of the Commission, the disciplinary counsel, the staff of the disciplinary counsel, the members of the Supreme Court and the staff of the Supreme Court shall not in any way reveal the existence of the complaint, while the matter remains confidential, except to persons directly involved in the matter and then only to the extent necessary for a proper disposition of the matter. A violation of this provision may be punished as a contempt of the Supreme Court.

(10) Rule 14(b)(2), (3) and (4), RJDE,  are amended to read:

(2) By Disciplinary Counsel.  Disciplinary counsel may extend the time for responses due from a judge under Rule 19 for one or more periods not to exceed 30 days in the aggregate for each.

(3) By the Parties.  Disciplinary counsel and the judge may, by written agreement, extend the time to respond under Rule 19 or 23(a) after the execution and delivery by both parties of an agreement for discipline by consent or deferred disciplinary agreement for the duration of the period the agreement is awaiting a final disposition and for a period of 30 days thereafter if the Agreement is not accepted.

(4) By the Supreme Court.  Except for those periods of time that may be extended by the Commission under (1) above, the Supreme Court or any justice thereof may grant an extension of time to perform any act required by these rules. The Supreme Court or any justice thereof may shorten any time period prescribed by these rules.

(11)   Rule 14(c), RJDE, is amended to read:

(c) Service. Service upon the judge of formal charges in any disciplinary or incapacity proceedings shall be made by personal service upon the judge or the judge's counsel by any person authorized by the chair of the Commission or by registered or certified mail to the judge's last known address.  Service of all other documents shall be made in the manner provided by Rule 262(b), SCACR.

(12) Rule 15(a) and (b), RJDE, are amended to read:

(a) Oaths.  Oaths and affirmations may be administered by any member of the Commission, disciplinary counsel, or any other person authorized by law to administer oaths and affirmations.

(b) Subpoenas for Investigation.

(1) Disciplinary counsel may compel by subpoena the attendance of the judge or witnesses and the production of pertinent books, papers, documents (whether in typed, written, digital, electronic or other format), and other tangible evidence, for the purposes of investigation.

(2) The Commission chair, vice-chair, or Commission Counsel may issue subpoenas for specific witnesses or documents at the request of the judge under investigation or direct disciplinary counsel to subpoena witnesses or documents and provide the subpoenaed information to the Commission chair, vice-chair or Commission Counsel.

(13) Rule 17(c), RJDE, is amended to read:

(c) Failure to Respond to Notice of Investigation, Subpoena, or Notice of Appearance.  Upon receipt of sufficient evidence demonstrating that a judge has failed to fully respond to a notice of investigation, has failed to fully comply with a proper subpoena issued in connection with an investigation or formal charges, has failed to appear at and fully respond to inquiries at an appearance required pursuant to Rule 19(c)(3), or has failed to respond to inquiries or directives of the Commission or the Supreme Court, the Supreme Court may place that judge on interim suspension.

(14)   Rule 18, RJDE, is amended to read:

RULE 18.  NOTIFICATION TO COMPLAINANT; LIMITED RIGHT TO REVIEW

(a) Notification to Complainant.  Disciplinary counsel shall provide written acknowledgment of every complaint, if the complainant is known, and notify the complainant in writing of the final disposition of a proceeding under these rules. Notification in writing shall be mailed within 20 days of the decision disposing of the proceeding.

(b) Limited Right to Review.  Although entitled to notice, a complainant is not a party to the proceeding.  However, upon notice of a dismissal by disciplinary counsel pursuant to Rule 19(d)(1), a complainant may seek review by the investigative panel.  Disciplinary counsel shall inform the complainant of the following review process in the notice of dismissal.  The complainant may seek review by submitting a request to the disciplinary counsel in writing within 30 days of the date of the notice of dismissal.  Upon receipt of the request for review, disciplinary counsel shall provide the judge with a copy of the request.  The judge may submit a written response within 15 days.  Disciplinary counsel shall submit the complainant’s request and the judge’s response, if any, for consideration at the next meeting of the investigative panel.  Notification in writing shall be mailed to the complainant and the judge within 20 days of the investigative panel’s decision. The complainant is not entitled to appeal or otherwise seek review of a dismissal or referral by disciplinary counsel pursuant to Rule 19(a) or of any decision, action, or disposition by the investigative panel, the hearing panel, the Commission chair or vice-chair, or the Supreme Court.

(15)   Rule 19, RJDE, is amended to read:

RULE 19.  SCREENING AND INVESTIGATION

(a) Screening. Disciplinary counsel shall evaluate all information coming to disciplinary counsel's attention by complaint or from other sources that alleges judicial misconduct or incapacity.  If the information would not constitute misconduct or incapacity if it were true, disciplinary counsel shall dismiss the complaint or, if appropriate, refer the matter to another agency. If the information raises allegations that would constitute judicial misconduct or incapacity if true, disciplinary counsel shall conduct an investigation.

(b) Investigation.  Disciplinary counsel shall conduct all investigations.  Disciplinary counsel may issue subpoenas pursuant to Rule 15(b), conduct interviews and examine evidence to determine whether grounds exist to believe the allegations of complaints.  Disciplinary counsel shall issue a notice of investigation to the judge with a copy of the complaint or information received, requesting that the judge file a response to the allegations in the notice; provided, however, that disciplinary counsel may seek permission of the chair or vice-chair to dispense with the requirement to make this request or to dispense with the requirement to provide the judge with a copy of the complaint or information received. The judge shall file a written response within 15 days of notice to do so from disciplinary counsel. The written response must include the judge’s verification that it is complete and accurate to the best of the judge’s knowledge and belief.

(c) Requirements of Notice of Investigation.

(1) When issuing notice of investigation pursuant to Rule 19(b), disciplinary counsel shall give the following notice to the judge:

(A) a specific statement of the allegations being investigated and the canons or other ethical standards allegedly violated, with the provision that the investigation can be expanded if deemed appropriate by disciplinary counsel;

(B) the judge's duty to respond pursuant to Rule 19 (b);

(C) the judge's opportunity to meet with disciplinary counsel pursuant to Rule 19(c) (3); and,

(D) the name of the complainant unless the investigative panel determines that there is good cause to withhold that information.

(2) The investigative panel may defer the giving of notice but, when notice is deferred, disciplinary counsel must give notice to the judge before making a recommendation as to a disposition.

(3) Before the disciplinary counsel or the investigative panel determines its disposition of the complaint under Rule 19(d), either disciplinary counsel or the judge may request that the judge appear before disciplinary counsel to respond to questions. The appearance shall be on the record and the testimony shall be under oath or affirmation. If disciplinary counsel requests the judge's appearance, disciplinary counsel must give the judge 20 days' notice.

(4) Any person giving testimony pursuant to Rule 19 shall be entitled to obtain a transcript of his or her testimony from the transcribing court reporter upon paying the subscribed charges unless otherwise directed by an investigative panel for good cause shown.

(d) Disposition After Investigation.

(1) Upon completion of investigation, if disciplinary counsel believes that no misconduct has been committed, and a written caution or warning is not appropriate to conclude the matter, disciplinary counsel may dismiss the complaint.

(2) If disciplinary counsel believes that no misconduct has been committed, but a written caution or warning is appropriate to conclude the matter, disciplinary counsel may issue a letter of caution with no finding of misconduct.

(3) If disciplinary counsel believes there is evidence supporting the allegations against a judge, disciplinary counsel may:

(A) propose an agreement for discipline by consent to the judge pursuant to Rule 21;

(B) recommend to an investigative panel that the matter be concluded with a letter of caution or a confidential admonition; or,

(C) recommend to an investigative panel that formal charges be filed. 

(4) The investigative panel may adopt, reject or modify the recommendations of disciplinary counsel.

(A) If the investigative panel finds no violation or a violation pursuant to Rule 7 for which the imposition of a sanction is not warranted, it may dismiss or issue a letter of caution.

(B) If the investigative panel finds that there is reasonable cause to believe the judge committed misconduct for which the imposition of a sanction is warranted, it may accept an agreement for discipline by consent pursuant to Rule 21; it may execute a deferred discipline agreement; it may admonish the judge pursuant to the provisions of Rule 19(d)(5); or, it may direct disciplinary counsel to file formal charges.

(C) If the investigative panel finds that the matter should not be dismissed, but it is either impossible or impractical to proceed with the matter because it appears that the judge is deceased, disappeared, incarcerated, or physically or mentally incapacitated, or for other good cause, the panel may designate the matter closed but not dismissed. If the judge files a written objection with the Commission and serves a copy of that objection on disciplinary counsel within 10 days of service of notice that the matter was closed, but not dismissed, the matter shall be deemed re-opened and in the investigation phase. Any objection need not contain any grounds for objecting. Before a matter can be re-opened after being closed, but not dismissed, an investigative panel of the Commission must make a finding that there has been a change in the circumstances that were the basis for the matter to be closed, but not dismissed, or that there is other good cause for it to be re-opened. Before a motion can be considered by an investigative panel of the Commission to re-open a matter that has been previously closed, but not dismissed, disciplinary counsel shall serve a copy of the motion to do so containing the grounds to re-open on the judge and then the judge shall have 10 days to respond thereto. Disciplinary counsel shall notify both the judge and the complainant when a matter is closed, but not dismissed and when the matter is re-opened. If the panel declines to re-open the matter, disciplinary counsel shall so advise the judge. 

(5) When the investigative panel finds reasonable cause to conclude that the judge has committed misconduct, but finds that public discipline is not warranted, it may issue notice to the judge that it intends to impose a confidential admonition as a final disposition of the matter(s). Notice to the judge shall include a copy of the confidential admonition and shall be served on the judge in accordance with Rule 14(c). The notice of intent shall state the judge’s right to object and that any such objection need not include any grounds therefor. The confidential admonition shall thereafter be imposed unless the judge both files with the Commission and serves on disciplinary counsel a written objection within 30 days of mailing of the notice. If the judge objects to the imposition of the confidential admonition in conformity with the requirements of this rule, disciplinary counsel shall file formal charges.

(16)   Rule 20, RJDE, is amended to read:

RULE 20.   MOTION BY DISCIPLINARY COUNSEL TO RE-OPEN DISMISSED COMPLAINTS

If a complaint has been dismissed, the allegations made in that complaint shall not be used for any purpose unless the complaint is re-opened by the Commission. A complaint dismissed prior to the filing of formal charges may be re-opened by an investigative panel upon motion of disciplinary counsel upon a finding by the investigative panel that there is new information concerning the matter dismissed, an additional complaint has been filed against the same judge involving related or similar allegations, or other good cause. Prior to a motion to re-open being decided, a copy of the motion to re-open containing the grounds therefor shall be served on the judge by disciplinary counsel, and the judge shall then have 10 days thereafter to file a written response with the Commission. The judge and the complainant shall be notified by disciplinary counsel as to the panel's decision on the motion to re-open.

(17)   Rule 25, RJDE, is amended to read:

RULE 25.  DISCOVERY

(a) Initial Disclosure. Within 20 days of the filing of an answer, disciplinary counsel and respondent shall exchange:

(1) the names and addresses of all persons known to have knowledge of the relevant facts;

(2) non-privileged evidence relevant to the formal charges;

(3) the names of expert witnesses expected to testify at trial and affidavits setting forth their opinions and the bases therefor; and,

(4) other material only upon good cause shown to the chair of the hearing panel.

Disciplinary counsel or the respondent may withhold such information only with permission of the chair of the hearing panel or the chair’s designee, who shall authorize withholding of the information only for good cause shown, taking into consideration the materiality of the information possessed by the witness and the position the witness occupies in relation to the judge. The chair’s review of the withholding request is to be in camera, but the party making the request must advise the opposing party of the request without disclosing the subject of the request. 

(b) Pre-Hearing Disclosure. Within 20 days of the date of the filing of an answer, the administrative chair of the hearing panel shall set a date for the exchange of witness lists and exhibits no later than 30 days prior to the scheduled hearing.  Disciplinary counsel and respondent shall exchange exhibits to be presented at the hearing, names and addresses of witnesses to be called at the hearing, witness statements, and summaries of interviews with witnesses who will be called at the hearing (for purposes of this paragraph, a witness statement is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded).   Copies of transcripts of testimony taken by a court reporter pursuant to Rule 15(b) or Rule 19(c) may be obtained by the parties from the court reporter at the expense of the requesting party and need not be made available to the requesting party by the opposing party unless not otherwise available or otherwise directed by the Commission under Rule 25(h).

(c) Depositions. Depositions shall only be allowed if agreed upon by disciplinary counsel and the respondent, or if the chair of the hearing panel or the chair's designee grants permission to do so based on a showing of good cause. The chair or the chair's designee may place restrictions or conditions on the manner, time and place of any authorized deposition.

(d) Exculpatory Evidence. Notwithstanding any other provision of this rule, disciplinary counsel shall provide respondent with exculpatory evidence relevant to the formal charges.

(e) Duty of Supplementation. Both parties have a continuing duty to supplement information required to be exchanged under this rule.

(f) Completion of Discovery. All discovery shall be completed within 60 days of the filing of the answer.

(g) Failure to Disclose. If a party fails to timely disclose a witness’s name and address, any statements by the witness, summaries of witness interviews, or other evidence required to be disclosed or exchanged under this rule, the hearing panel may grant a continuance of the hearing, preclude the party from calling the witness or introducing the document, or take such other action as may be appropriate. In the event disciplinary counsel has not timely disclosed exculpatory material, the hearing panel may require the matter to be disclosed and grant a continuance, or take such other action as may be appropriate.

(h) Resolution of Disputes. Disputes concerning discovery shall be determined by the hearing panel. Review of these decisions shall not be subject to an interlocutory appeal; instead these decisions must be challenged by filing objections or a brief pursuant to Rule 27(a).

(i) Pre-Hearing Conferences. The hearing panel may require the respondent and disciplinary counsel to participate in a pre-hearing conference in person or by telephone.  Either party may request a pre-hearing conference.  Scheduling of a pre-hearing conference is at the sole discretion of the chair of the hearing panel.

(18)   Rule 27(g), RJDE, is amended to read:

(g) Recusal.  A justice of the Supreme Court shall not participate in any proceeding involving allegations of misconduct or incapacity against the justice, or in any proceeding where recusal is required under the Code of Judicial Conduct.  Upon notice of recusal, the Chair of the Commission on Judicial Conduct may appoint a lawyer who is not an employee of the Judicial Department to act as disciplinary counsel in the matter.  Following recusal of the affected justice, the Chief Justice (or Acting Chief Justice) shall appoint an acting justice to replace the recused justice for the duration of the case.