Comm. R. VII Comm. R. VII

SUBPOENAS, PRODUCTION OF EVIDENCE; OATHS; FILINGS MADE WITH THE COMMISSION; BENCH BOOKS AND PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW; JUDGE’S DUTY TO COOPERATE; CASE MANAGERS; PREHEARING MOTIONS; AND EXHIBITS.

A. The Commission authorizes its Chief Executive Officer, Commission Chair, and Commission Counsel to exercise its statutory authority under La. R.S. 13:36 to issue subpoenas for witnesses or the production of books, records, documents or other evidence deemed relevant or material to an investigation, at the request of Special Counsel, or deemed relevant and material to a hearing, at the request of Special Counsel or the respondent judge. In addition to service by other legal means, subpoenas or other process issued by the Commission may also be served (1) by an employee of the Office of Special Counsel other than either Special Counsel or an Assistant Special Counsel, or (2) at the notice of hearing stage of proceedings, by a person designated by the respondent judge, after written notice of such designation has been filed with the Commission. If a subpoena is served by a member of the staff of the Office of Special Counsel or by a person designated by a respondent judge in accordance with this rule, the person requesting the subpoena shall file with the Commission a fully executed affidavit of service with respect to such subpoena.

With respect to oaths:

(1) Before testifying every witness shall be required to declare that he or she will testify truthfully by oath or affirmation.

(2) Any member of the Commission may administer oaths or affirmations.

B. All pleadings filed with the Commission must be filed in the Commission’s office (and not with the Office of Special Counsel). On the date hereof, the Commission’s office is located at 400 Royal Street, Suite 1213, New Orleans, LA 70130-8145. Filings may not be made by facsimile transmission, but may be made by email by sending a pdf of the complete filing to [email protected]. Physical filings must conform to the requirements of La. Sup. Ct. Rule XXIII, Sec. 4(b), directing that an original and three legible copies of pleadings be presented for filing when the pleading relates to a matter to be decided by the Commission pursuant to La. Sup. Ct. Rule XXIII, Sec. 29(c), and that an original and one legible copy of a pleading be presented for filing when the pleading relates to a matter to be decided by the hearing officer pursuant to La. Sup. Ct. Rule XXIII, Sec. 29(c). No filing presented after 4:00 p.m. (whether in person or via email) will be filed on the day of submission, but will be clocked in and considered filed on the next succeeding business day. Other than pursuant to an order to file a pleading by a specific date, for a pleading to be considered at a Commission meeting, it must be filed with the Commission more than seven days prior to such meeting.

C. Both Special Counsel and the respondent judge may prepare and submit to the Commission in advance of a scheduled hearing: (a) a bench book of exhibits and other materials that may be used at the hearing concerning the allegations of misconduct or disability contained in the notice of hearing in the case; and/or (b) proposed findings of fact and conclusions of law for consideration by the Commission. Any bench books and/or proposed findings of fact and conclusions of law must be filed in four counterparts (original and three legible copies) if the hearing is held before a hearing officer, or in ten counterparts (original and nine legible copies) if the hearing is held before the Commission.

D. The failure or refusal of a judge to cooperate in an investigation, or the use of dilatory practices, frivolous or unfounded responses or arguments, or other uncooperative behavior may be considered by the Commission in determining whether or not to recommend discipline to the Louisiana Supreme Court and may bear on the severity of the discipline actually recommended.

E. The Chair, in his or her discretion, may name one Commission member to serve as case manager once a notice of hearing has been filed concerning a judge. The case manager’s purpose is to facilitate movement of the case through the system and to address procedural problems and issues. The case manager shall not discuss the merits of the case with Special Counsel or legal counsel for the judge or with the judge himself or herself. When a judge whose conduct has been alleged to be violative of the Code of Judicial Conduct or the Louisiana Constitution expresses interest in entering into a deferred recommendation of discipline agreement (DRDA) with the Commission, the judge may request, or the judge and Special Counsel may jointly request, a DRDA. As set forth in Supreme Court Rule XXIII, Section 31, such request shall be submitted in the form of a pleading or by letter to the Commission, in care of Commission Counsel. Commission Counsel shall communicate the judge’s request or the joint request to the Commission members at the next scheduled meeting of the Commission, with a recommendation to the members concerning the request. If the request is not a joint request, Special Counsel will be given the opportunity to file a response to the request before the Commission considers the request.

F. Motions made prior to hearing must be made in writing and filed with the Commission’s office (not with the Office of Special Counsel), due regard being given to filing requirements of these and other applicable rules. Except in extraordinary circumstances as determined by the Chair, the Commission decides motions based upon the written pleadings filed, and oral argument is not permitted. Upon receipt of service of a written motion, the attorney for the respondent judge, or the attorney representing the Office of Special Counsel, shall respond immediately. In order to determine a deadline for responding, the attorney in question may contact Commission Counsel so a deadline may be set for a response. Because all pleadings to be considered at a meeting of the Commission must be filed at least seven days prior to the meeting, if a motion is filed on the seventh day before a meeting and a responsive pleading is appropriate, the Commission may allow the responder to file a pleading within a short time period (if necessary within the three days of the upcoming meeting), or delay making a decision on the motion and the response thereto until a date after the upcoming Commission meeting. There will be a presumption that the Commission or hearing officer should deny a motion to indefinitely continue or stay a hearing that is based on the Commission’s impending loss of jurisdiction if a time period of more than 45 days exists between the act triggering the Commission’s loss of jurisdiction and the effective date of such loss. [Amended effective September 4, 2019]

G. Prior to a hearing, the Office of Special Counsel and the legal counsel for the respondent judge shall meet to review exhibits that each side proposes to introduce into evidence at the hearing. Following such meeting, and at least ten (10) days prior to the scheduled hearing, the Office of Special Counsel and the legal counsel for the respondent judge shall file a memorandum of understanding with regard to the proposed exhibits, indicating no objection to the proposed exhibits, or stating with specificity any objections either counsel may have. In the case of a failure by legal counsel to agree to the memorandum of understanding concerning the proposed exhibits, such objecting counsel may make a separate filing as to his or her position as to the exhibits of opposing counsel. Failure to make a timely filing (whether the preferred memorandum of understanding or a separate submission) may result in the hearing officer or the Commission refusing to accept any exhibits of the non-filing party into evidence, although such excluded exhibits may be proffered for review by the Commission and the Louisiana Supreme Court.