Comm. R. VIII Conduct of Hearings, Admissibility of Evidence; No Recording of Proceedings.

A. Unless a hearing is occurring before a hearing officer selected pursuant to La. S. Ct. Rule XXIII, Section 29 and JCL Rule XVI, the Chair, or other Commission member designated by the Commission, shall preside over hearings to inquire into allegations of misconduct or disability contained in a notice of hearing concerning a judge. The Chair or presiding member shall conduct the proceedings, rule on objections to evidence, subject to being overruled by a majority of members present at the hearing or at a subsequent deliberation. If a Commission member wishes to discuss an evidentiary ruling by the Chair, or the presiding member, such discussion and vote of the Commission members with respect to the challenged ruling shall be conducted outside of the presence of the parties, their legal counsel, and the public. The Chair or presiding member may defer ruling on an objection and admit evidence subject thereto.

B. Hearings to inquire into allegations of misconduct or disability contained in a notice of hearing concerning a judge shall proceed in the following order, subject to change, which may include eliminating statements of both Special Counsel and the judge, in the discretion of the Chair:

(1) Brief opening statements by Special Counsel and the judge whose conduct is the subject of the proceeding, in that order;

(2) All proposed exhibits of both Special Counsel and the judge whose conduct is the subject of the proceedings shall be numbered and marked, with a list of the exhibits attached. All exhibits shall be introduced into evidence en globo at the commencement of the hearing, except in the case of objections to admissibility. The Chair may either rule on any objection to the admissibility of one or more exhibits or defer the ruling until a later specific time in the proceedings. In accordance with La. S. Ct. Rule XXIII, Section 8(e), for good cause shown and in appropriate limited circumstances, a protective order may be issued requiring that certain exhibits sought to be introduced into the record be redacted or sealed. Absent exceptional circumstances, social security numbers, taxpayer ID numbers, financial account numbers, birthdays of non-parties, the names of individuals known to be minors, and other information that is clearly privileged and confidential by law, such as case records from juvenile courts, should be appropriately redacted by the party submitting the exhibit without the necessity of obtaining a protective order. When an audio or video tape constitutes an exhibit, except in exigent circumstances (decided in the discretion of the Chair), such tape must be introduced along with a transcription thereof made by a certified court reporter.

(3) Presentation of evidence by Special Counsel and the judge whose conduct is the subject of the proceeding, in that order;

(4) Presentation of evidence by Special Counsel in rebuttal; and

(5) Argument by Special Counsel and by the judge whose conduct is the subject of the proceeding and then rebuttal by Special Counsel, in that order, unless a party’s request to adjust the order is granted by the Commission.

To support a recommendation of discipline to the Supreme Court, Special Counsel shall establish the grounds therefor by the standard of clear and convincing evidence.

C. (1) Witnesses shall be subject to direct examination, cross examination, and re-direct examination. Re-direct examination shall be limited to matters inquired into on cross examination. The Commission may permit inquiry into new matters on re-direct subject to the right of the other party to conduct cross examination of the witness on the new matters.

(2) A witness who appears but refuses to testify without proper cause shall be in contempt of the Commission and shall be immediately referred to the Louisiana Supreme Court.

(3) Testimony regarding the character of a respondent judge shall be taken solely by affidavit except on a showing of good cause in the discretion of the Commission, in which case the Commission may permit live testimony. Testimony by judges other than the respondent judge that the respondent did or did not violate the Code of Judicial Conduct or the Louisiana Constitution or that the Code should be interpreted in any particular manner will not be admitted into evidence, the Commission itself being vested with the sole authority to make such a determination as part of its recommendation to the Louisiana Supreme Court. If subpoenaed to testify, a judge other than the respondent may be called as a witness to testify to relevant facts about the underlying basis for the complaint that gave rise to the allegations of misconduct or disability contained in the notice of hearing or to otherwise give relevant factual testimony to try to provide to the Commission a contextual perspective about the respondent’s conduct. The Commission does not deem such testimony by a judge to be “expert testimony.”

Comment: The Commission views expert testimony as rarely relevant or necessary in Commission proceedings. One example of when expert testimony might be relevant and admitted in Commission proceedings would be with regard to an alleged physical or mental disability of a respondent judge, when such judge’s health is at issue before the Commission.

D. (1) The Commission and hearing officers shall not be bound by the technical rules of evidence and may admit material and relevant evidence, including hearsay.

(2) The principles underlying the Louisiana Code of Evidence shall serve as a guide to the admissibility of evidence in hearings before the Commission. The specific exclusionary rules and other provisions shall be applied only to the extent that they tend to promote the purposes of proceedings before the Commission, in the discretion of the Chair or the presiding member. Nothing shall prevent the introduction of sworn testimony from administrative proceedings, civil or criminal trials, or hearings of a contradictory nature (1) where the respondent judge has cross-examined or had the opportunity to cross-examine the witnesses whose testimony is sought to be introduced; (2) where the parties have stipulated to the admissibility of the sworn testimony; or (3) where the sworn testimony is being introduced at the hearing for impeachment or as evidence of a failure to cooperate with the investigation. The certified transcripts of all proceedings over which the respondent judge has presided are admissible.

(3) (a) Procedures applicable in Commission hearings shall be limited to those (i) set forth or incorporated by reference into these rules and Rule XXIII of the Rules of the Supreme Court of Louisiana and (ii) employed by the Chair in his or her discretion. If the hearing is held before the Commission, the Commission may entertain a motion for dismissal of the case by the respondent judge at the time the Office of Special Counsel rests or at the close of all the evidence, on the ground that the evidence is insufficient to prove the allegations of misconduct or disability contained in the notice of hearing by a clear and convincing standard. If the hearing is held before a hearing officer, the respondent judge may make such a motion for dismissal at the close of all the evidence. After the conclusion of the hearing, the motion for dismissal shall be referred by the hearing officer to the Commission for decision, in accordance with La. Sup. Ct. Rule XXIII, Sec. 29(c)(1)(i). The hearing officer shall include with the referral the hearing officer’s recommendation as to whether the motion for dismissal should be granted or denied, but the ruling on the motion for dismissal shall be made by the Commission. The hearing officer’s recommendation and the Commission’s ruling on the motion for dismissal shall be based solely on the evidence presented by the Office of Special Counsel. Such a motion for dismissal shall not relieve the hearing officer of the duty to submit proposed findings of fact and conclusions of law to the Commission, in accordance with La. Sup. Ct. Rule XXIII, Sec. 29(e), based on the evidence presented by the Office of Special Counsel and the respondent judge.

(b) (i) Special Counsel may enter into proposed stipulations of fact with the respondent judge and the judge’s legal counsel. Unless the provisions of La. Sup. Ct. Rule XXIII, Sec. 29(g) apply, the stipulations need not be approved by the hearing officer or the Commission. The fact that Special Counsel and the respondent judge have entered into stipulations of fact shall not affect the right of the Commission to remand all or part of a case back to the hearing officer for further testimony after the case heard before the hearing officer has been lodged with the Commission.

(ii) Special Counsel and the respondent judge may enter into joint recommendations as to conclusions of law for submission to the hearing officer assigned to the relevant case or to the Commission if the Commission is conducting the hearing in lieu of a hearing officer. Neither the Commission nor the hearing officer shall be bound to accept such joint recommendations as to legal conclusions, and may reject them without comment. After a case heard by a hearing officer has been lodged with the Commission (or after the Commission conducts a hearing), legal arguments regarding the appropriate recommendation of discipline may be included in the respective briefs of Special Counsel and the respondent judge.

E. (1) When the Commission rules against the admissibility of any testimonial evidence, it shall permit the party offering the evidence to submit the evidence by deposition taken pursuant to the provisions of the Louisiana Code of Civil Procedure. The Commission may, in its discretion, allow a party to make a sworn proffer of testimony during a break in the formal proceedings (such as lunch or the end of the day), when the Commission and its counsel are not present. The party requesting the proffer of testimony during such break shall pay all costs (including court reporter and hearing room costs) associated with the proffer. When the Commission rules against the admissibility of any documentary evidence, it shall permit the party offering the evidence to proffer it into the record. Proffers of testimonial evidence shall be submitted within thirty (30) calendar days subsequent to the completion of the hearing, and proffers of documentary evidence shall be submitted by the completion of the hearing.

(2) Proffered evidence shall be filed into the record within a separate volume of proffered exhibits and shall not be included within the main volume(s) of the record unless the Commission grants the motion of a party or on its own motion determines that the proffered evidence shall be admitted.

(3) No counsel to a proceeding before the Commission shall refer to the substance of proffered testimony or documentary evidence unless the Commission has affirmatively voted to admit the proffered evidence. This prohibition does not preclude a party from referencing proffered evidence within a motion to the Commission to admit the excluded evidence.

F. Following a hearing the Commission will not accept any further filings or pleadings, except in the case where the Commission has granted specific authority to either Special Counsel or to the judge whose conduct is at issue to file a pleading (which permission shall include a certain number of days in which to submit the filings or pleadings). Any unauthorized filing or pleading submitted after a hearing will not become part of the record of the proceeding and will not be considered by the Commission in its deliberations in a particular case.

G. In accordance with La. S. Ct. Rule XXIII, Section 23(a)(1), all hearings before the Commission and its hearing officers shall be subject to Canon 3A(9) of the Code of Judicial Conduct.