5696-S2 AMS KLIN S2435

5696-S2 AMS KLIN S2435.1

2SSB 5696 - S AMD - 180

By Senator Kline

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. It is the intent of the legislature to adopt, to the extent that it is consistent with Article IV, section 31 of the state Constitution, the model rules for judicial disciplinary enforcement adopted by the standing committee of professional discipline, judicial administration division, of the American bar association.

NEW SECTION. Sec. 2. (1) The commission shall divide itself into a hearing panel of seven members and an investigative panel of four members. Investigative and hearing panels include members from each category of membership, including a lawyer, a judge, and public members. Membership on the panels may rotate in a manner determined by the commission provided that no member shall sit on both the hearing and investigative 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 three members of the commission.

(2) The commission shall elect one of its members to serve as chair and another to serve as vice-chair for such terms as the commission shall determine. The vice-chair shall perform the duties of the chair whenever the chair is absent or unable to act.

(3) Seven members of the full commission, five members of a hearing panel, and three members of an investigative panel shall constitute a quorum for the transaction of business. A quorum of the commission or any panel must include one member from each category of membership. Alternate members should be appointed where necessary to fulfill the quorum requirements.

(4)(a) The commission shall have the duty and authority to:

(i) Adopt its own rules of procedure for discipline and incapacity proceedings subject to the approval of the supreme court;

(ii) Propose amendments to the code of judicial conduct;

(iii) Appoint disciplinary counsel; and

(iv) Appoint commission counsel.

(b) In addition to the duties assigned to disciplinary counsel and commission counsel, the commission may delegate to either the disciplinary counsel or commission counsel the duty and authority to:

(i) Maintain the commission's records;

(ii) Maintain statistics concerning the operation of the commission and make them available to the commission and the highest court;

(iii) Prepare the commission's budget for its approval and administer the funds;

(iv) Notify the appropriate appointing authority of vacancies on the commission;

(v) Prepare an annual report of the commission's activities for presentation to the highest court and the public; and

(vi) 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.

(i) Review the recommendations of disciplinary counsel after preliminary investigation and either authorize a full investigation or dismiss the complaint; and

(ii) Review the recommendations of disciplinary counsel after full investigation and approve, disapprove, or modify the recommendations.

(d) A hearing panel shall have the duty and authority to:

(i) Rule on prehearing motions, conduct hearings on formal charges and make findings, conclusions, and recommendations to the supreme court for sanctions or dismiss the case;

(ii) Appoint a hearing officer or a subpanel of the hearing panel to conduct the hearing in appropriate cases; and

(iii) Review findings of the hearing officer or subpanel if one has been appointed, and make findings, conclusions, and recommendations to the supreme court for sanctions, or dismiss the case.

(5) A member of the commission shall recuse himself or herself in any matter in which recusal would be required of a judicial officer under the code of judicial conduct.

(6) If a complaint is filed against a member of the commission who is a judge subject to the jurisdiction of the commission, the commission member against whom the complaint has been filed shall not participate in the investigation or adjudication of the matter.

NEW SECTION. Sec. 3. (1) The commission shall appoint disciplinary counsel. Full-time disciplinary counsel shall not otherwise engage in the practice of law or serve in a judicial capacity. Disciplinary counsel shall not be removed from office except upon the concurrence of both the supreme court and the commission.

(2) Disciplinary counsel shall have the authority and duty to:

(a) Receive and screen complaints, refer complaints to other agencies when appropriate, conduct preliminary investigations, recommend to an investigative panel of the commission and upon authorization conduct full investigations, notify complainants about the status and disposition of their complaints, make recommendations to an investigative panel on the disposition of complaints after full investigation, file formal charges when directed to do so by an investigative panel, prosecute formal charges, and file notices of exceptions to the findings, conclusions, recommendations for sanctions, or orders of dismissal of hearing panels;

(b) Maintain permanent records of the operations of disciplinary counsel's office, including receipt of complaints, screening, investigation, and filing of formal charges in judicial discipline and incapacity matters;

(c) Compile statistics to aid in the administration of the system, including but not limited to a log of all complaints received, investigative files, and statistical summaries of docket processing and case dispositions;

(d) Prepare disciplinary counsel's budget for submission to the commission and administer the funds;

(e) Employ and supervise other members of disciplinary counsel's staff;

(f) Employ private investigators or experts as necessary to investigate and process matters before the commission and the supreme court; and

(g) Perform other duties at the direction of the commission.

NEW SECTION. Sec. 4. (1) The commission may appoint a commission counsel to assist the commission.

(2) The commission may delegate functions to the commission counsel, including but limited to the duty and authority to:

(a) Advise the hearing panel during its deliberations and draft decisions, orders, reports, and other documents on behalf of the hearing panel;

(b) Employ and supervise other staff necessary to the performance of the commission's duties; and

NEW SECTION. Sec. 5. (1) The grounds for discipline are:

(a) Any conduct constituting a violation of the code of judicial conduct or other applicable ethics codes; or

(b) A willful violation of a valid order of the supreme court, commission, or panels of the commission in a proceeding under this chapter, a willful failure to appear personally as directed, or a knowing failure to respond to a lawful demand from a disciplinary authority.

(2) The following sanctions may be imposed upon a respondent who has committed misconduct:

(a) Removal by the supreme court;

(b) Suspension by the supreme court;

(d) Imposition of lawyer discipline by the supreme court;

(e) Public reprimand by the supreme court;

(f) Private admonition by an investigative panel of the commission with the consent of the judge, provided that a private admonition may be used in subsequent proceedings as evidence of prior misconduct solely upon the issue of the sanction to be imposed; and

(g) Deferred discipline agreement.

NEW SECTION. Sec. 6. Charges of misconduct and grounds for transfer to and from incapacity inactive status shall be established by clear and convincing evidence. The burden of proof in proceedings seeking transfer from incapacity inactive status is on the judge.

NEW SECTION. Sec. 7. Except as otherwise provided in this chapter, the rules of evidence and the rules of civil procedure apply in judicial discipline and incapacity cases.

NEW SECTION. Sec. 8. The judge shall be entitled to retain counsel and to have the assistance of counsel at every stage of these proceedings.

NEW SECTION. Sec. 9. Members of the commission, hearing officers, 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, 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.

NEW SECTION. Sec. 10. (1) Proceedings.

(a) Before the filing and service of formal charges, all proceedings shall be confidential.

(b) After the filing and service of formal charges, all proceedings shall be public except incapacity proceedings.

(2)(a) Before the filing and service of formal charges, all information relating to a complaint that has not been dismissed shall be held confidential by the commission and disciplinary counsel and their staffs, except that the commission may disclose information:

(i) When the commission has determined that there is a need to notify another person to protect that person or to notify a government agency in order to protect the public or the administration of justice; or

(ii) Upon waiver in writing by the judge.

(b) All information relating to a complaint that has been dismissed without formal charges being filed shall be held confidential by the commission and disciplinary counsel and their staffs.

(c) Disciplinary counsel's work product, commission deliberations, and records of the commission's deliberations shall not be disclosed.

NEW SECTION. Sec. 11. Communications to the commission, commission counsel, disciplinary counsel, or their staffs relating to misconduct or incapacity and testimony given in the proceedings shall be absolutely privileged, and no civil lawsuit predicated thereon may be instituted against any complainant or witness. Members of the commission, commission counsel and staff, and disciplinary counsel and staff shall be absolutely immune from civil suit for all conduct in the course of their official duties.

NEW SECTION. Sec. 12. Service upon the judge of formal charges in any disciplinary or incapacity proceeding or of notice that a complaint has been received shall be made by personal service upon the judge or judge's counsel by any person authorized by the chair of the commission or by registered or certified mail to the judge's address of record. Delivery of all other papers or notices shall be made in accordance with the rules of civil procedure.

NEW SECTION. Sec. 13. (1) Oaths and affirmations may be administered by any member of the commission, disciplinary counsel in matters under full investigation, or any other person authorized by law.

(2) After a full investigation is authorized, disciplinary counsel may compel by subpoena the attendance of the judge or witnesses and the production of pertinent books, papers, and documents for purposes of investigation. The investigative panel may issue subpoenas for specific witnesses or documents at the request of a judge under investigation.

(3) After formal charges are filed, disciplinary counsel and respondent may compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents at a deposition or hearing held under this chapter.

(4) Upon proper application, the superior court of the county in which the attendance or production is required may enforce the attendance and testimony of any witnesses and the production of any documents subpoenaed.

(5) Any attack on the validity of a subpoena shall be heard and determined by the investigative or hearing panel before which the matter is pending or by the court wherein enforcement of the subpoena is being sought. Any resulting order is not appealable prior to entry of a final order in the proceeding.

(6) Subpoena fees and costs shall be the same as those provided for in proceedings in the superior court.

NEW SECTION. Sec. 14. (1) Without the necessity of commission action, the supreme court may immediately place a judge on interim suspension upon notice of the filing of an indictment, information, or complaint charging the judge with a serious crime under state or federal law.

(2) A "serious crime" is any felony or lesser crime that reflects adversely on the judge's honesty, trustworthiness, or fitness as a judge in other respects, or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt, conspiracy, or solicitation of another to commit a serious crime.

(3) Upon receipt of sufficient evidence demonstrating that a judge poses a substantial threat of serious harm to the public or to the administration of justice, the supreme court may transfer the judge to incapacity inactive status or suspend the judge pending a final determination in any proceeding under this chapter.

(4) A judge suspended or transferred to incapacity inactive status may apply to the supreme court for reconsideration of the order.

(5) Interim suspension of a judge shall not preclude action by the commission on the same conduct that was the basis for the felony or misdemeanor charge. Acquittal, dismissal, or conviction of the criminal charge shall not preclude proceedings by the commission on the conduct that was the basis for the charge.

NEW SECTION. Sec. 15. 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 this chapter. Notification in writing shall be mailed within ten days of the order disposing of the proceeding.

NEW SECTION. Sec. 16. (1) 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 was true, disciplinary counsel shall dismiss the complaint, subject to review by an investigative panel 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 a preliminary investigation.

(2)(a) Disciplinary counsel may conduct interviews and examine evidence to determine whether grounds exist to believe the allegations of complaints, provided that no subpoena shall issue to obtain testimony or evidence until an investigative panel of the commission authorizes a full investigation.

(b) When disciplinary counsel believes there is evidence supporting the allegations against a judge, he or she shall recommend to the investigative panel of the commission assigned to the case that the panel authorize a full investigation. Disciplinary counsel may recommend a full investigation when there are grounds to believe that evidence supporting the allegations could be obtained by subpoena or further investigation. In all other cases, disciplinary counsel shall recommend that the matter be dismissed.

(c) The investigative panel shall review disciplinary counsel's recommendations and either dismiss the complaint or authorize a full investigation.

(3)(a) Within ten days after the investigative panel authorizes a full investigation, disciplinary counsel shall give the following notice to the judge:

(i) A specific statement of the allegations being investigated and the canons or laws allegedly violated, with the provision that the investigation can be expanded if appropriate;

(ii) The judge's duty to respond;

(iii) The judge's opportunity to meet with disciplinary counsel; and

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

(b) 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.

(c) Disciplinary counsel may request that the judge file a written response within thirty days after service of the notice.

(d) Before the investigative panel determines its disposition of the complaint, either disciplinary counsel or the judge may request an appearance before disciplinary counsel to respond to questions. The appearance shall be on the record. If disciplinary counsel requests the judge's appearance, disciplinary counsel must give the judge twenty days' notice and the testimony shall be sworn.

(c) Disciplinary counsel is authorized to issue subpoenas once a full investigation has been approved. Disciplinary counsel shall conduct all investigations.

(4)(a) Upon the conclusion of a full investigation, disciplinary counsel may recommend to the investigative panel:

(i) Dismissal;

(ii) Private admonition or deferred discipline agreement;

(iii) The filing of formal charges;

(iv) The filing of a petition for transfer to incapacity inactive status;

(v) Referral to an appropriate agency; or

(vi) A stay.

(b) The investigative panel may adopt, reject, or modify the recommendations of disciplinary counsel. If the investigative panel finds a violation for which the imposition of discipline is not warranted it may dismiss. If the investigative panel finds that there is reasonable cause to believe the judge committed misconduct:

(i) It may propose a private admonition or deferred discipline agreement to the respondent and if the respondent consents, it shall admonish the respondent or implement the deferred disciplinary agreement. In addition, it may assess costs against the respondent as a condition of the private admonition or deferred disciplinary agreement. If the respondent does not consent to the admonishment or the deferred discipline, the investigative panel may direct disciplinary counsel either to file formal charges or dismiss the complaint; or

(ii) It may direct disciplinary counsel to file formal charges.

(5) Whenever a witness invokes his or her privilege against self-incrimination as a basis for refusing to answer a question or to produce other evidence that may be relevant to a discipline or incapacity proceeding, disciplinary counsel may apply to the superior court for a grant of immunity from criminal prosecution and shall give notice of the application to the prosecuting attorney of the jurisdiction. If the court grants the order, the witness may not refuse to comply with the order on the basis of the witness's privilege against self-incrimination, but no testimony or other evidence compelled under such an order shall be used against the witness in any criminal case. The witness may be prosecuted for perjury or contempt committed in answering or failing to answer in accordance with the order.

NEW SECTION. Sec. 17. If a complaint has been dismissed, the allegations made in that complaint shall not be used for any purpose in any judicial or lawyer disciplinary proceeding against the judge. If additional information becomes known to disciplinary counsel regarding a complaint that has been dismissed before the filing of formal charges, the allegations may be reinvestigated with permission of an investigative panel.

NEW SECTION. Sec. 18. The formal charges shall give fair and adequate notice of the nature of the alleged misconduct or incapacity. Disciplinary counsel shall file the formal charges with the commission. Disciplinary counsel shall cause a copy of the formal charges to be served upon the respondent or respondent's counsel and shall file proof of service with the commission.

NEW SECTION. Sec. 19. (1) The respondent shall file a written answer with the commission and serve a copy on disciplinary counsel within twenty days after service of the formal charges, unless the time is extended by the hearing panel.

(2) The raising of a mental or physical condition as a defense constitutes a waiver of medical privilege.

NEW SECTION. Sec. 20. (1) Failure to answer the formal charges shall constitute an admission of the factual allegations.

(2) If the respondent should fail to appear when specifically so ordered by the hearing panel or the supreme court, the respondent shall be deemed to have admitted the factual allegations which were to be the subject of the appearance and to have conceded the merits of any motion or recommendations to be considered at the appearance. Absent good cause, the hearing panel or supreme court shall not continue or delay proceedings because of the respondent's failure to appear.

NEW SECTION. Sec. 21. (1) Within twenty days of the filing of an answer, disciplinary counsel and respondent shall exchange the names and addresses of all persons known to have knowledge of the relevant facts. 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 can 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 disciplinary counsel must advise respondent of the request without disclosing the subject of the request. The hearing panel shall set a date for the exchange of the names and addresses of all witnesses the parties intend to call at the hearing. Disciplinary counsel and respondent may take depositions only of witnesses to be called at the hearing and other witnesses who are unavailable to testify. Depositions of other persons may be taken only with permission of the chair of the hearing panel or the chair's designee and only for good cause shown.

(2) Disciplinary counsel and respondent shall exchange:

(a) Nonprivileged evidence relevant to the formal charges, documents to be presented at the hearing, witness statements, and summaries of interviews with witnesses who will be called at the hearing; and

(b) Other material only upon good cause shown to the chair of the hearing panel.

(3) Disciplinary counsel shall provide respondent with exculpatory evidence relevant to the formal charges.

(4) Both parties have a continuing duty to supplement information required to be exchanged under this section.

(5) All discovery shall be completed within sixty days of the filing of the answer.

(6) The hearing panel may preclude either party from calling a witness at the hearing if the party has not provided the opposing party with the witness's name and address, any statements taken from the witness, or summaries of any interviews with the witness.

(7) Disputes concerning discovery shall be determined by the hearing panel before whom the matter is pending. The decisions of the hearing panel may not be appealed before the entry of the final order.

(8) Proceedings under this chapter are not subject to the rules of civil procedure regarding discovery except those rules relating to depositions and subpoenas.

NEW SECTION. Sec. 22. (1) At any time after the filing of formal charges and before final disposition, the respondent may agree with disciplinary counsel that the respondent shall admit to any or all of the formal charges in exchange for a stated sanction. The agreement shall be submitted to the hearing panel of the commission assigned to the case, which shall either:

(a) Reject the agreement; or

(b) Submit the agreement to the supreme court for approval.

(2) If the stated sanction is rejected by the hearing panel or the supreme court, the admission shall be withdrawn and cannot be used against the respondent in any proceedings.

(3) A respondent who consents to a stated sanction shall sign an affidavit stating that:

(a) The respondent consents to the sanction;

(b) The consent is freely and voluntarily rendered;

(d) The facts set forth in the affidavit are true.

(4) The commission shall file the affidavit with the supreme court. The affidavit shall remain confidential until it is accepted by the supreme court. The supreme court shall either reject the agreement or enter the order disciplining the respondent. The final order of discipline shall be based upon the formal charges and the conditional admission.

NEW SECTION. Sec. 23. (1) Upon receipt of the respondent's answer or upon expiration of the time to answer, the hearing panel of the commission shall schedule a public hearing and notify disciplinary counsel and respondent of the date, time, and place of the hearing.

(2) The hearing shall be conducted by the hearing panel of the commission, a subpanel of the hearing panel, or a hearing officer.

(3)(a) All testimony shall be under oath.

(b) Disciplinary counsel shall present evidence on formal charges.

(d) Both parties shall be permitted to present evidence and produce and cross-examine witnesses.

(e) The hearing shall be recorded verbatim. Whenever a transcript is requested by respondent, disciplinary counsel, a member of the hearing panel, or the supreme court, a transcript of the hearing shall be produced promptly and shall be provided to the respondent without cost.

(f) Disciplinary counsel and the respondent may submit proposed findings, conclusions, and recommendations for sanction or order of dismissal to the hearing panel.

(g) If a subpanel or hearing officer is used, the findings are to be submitted to the hearing panel.

(4) The hearing panel shall either dismiss the case or recommend a sanction to the supreme court. The hearing panel shall decide a matter only upon the concurrence of a majority of all members of the panel.

(5) Within thirty days after the hearing or after the filing of the transcript if one was requested, the hearing panel shall file with the supreme court the record of the proceeding and a report setting forth a written summary, proposed findings of fact, conclusions of law, any minority opinions, and the order of dismissal or recommendation for sanction. The hearing panel shall at the same time serve the report upon the respondent and disciplinary counsel.

(6) Within ten days of receipt of the hearing panel's report, the respondent and disciplinary counsel may file with the supreme court notice of exceptions to the findings, conclusions, or recommendations for sanction or order of dismissal of the hearing panel. The failure to file notice of exceptions constitutes acceptance of the findings of fact, conclusions of law, and order of dismissal or recommendation for sanction.

NEW SECTION. Sec. 24. (1)(a) The clerk of the supreme court shall docket for expedited consideration any case in which the commission recommended a sanction or a notice of exceptions was filed.

(b) In cases the commission has dismissed to which no exceptions were filed, the dismissal shall be final if the supreme court has not ordered a review within fifteen days.

(2)(a) Disciplinary counsel and the respondent shall file briefs in a timely manner as determined by the supreme court.

(b) If the supreme court desires an expansion of the record or additional findings, it shall remand the case to the hearing panel with appropriate directions, retain jurisdiction, and withhold action pending receipt of the additional filing.

(3) If during review by the supreme court the commission receives another complaint against the respondent, the disciplinary counsel shall advise the supreme court. The supreme court may stay its review pending the commission's determination of the second complaint. The supreme court may impose a single sanction covering all recommendations for discipline from the commission against a respondent.

(4)(a) The supreme court shall file a written decision dismissing the case or imposing a sanction. All decisions issued by the supreme court shall be published in the official reports for the guidance of other judges and for public information.

(b) The supreme court may accept, reject, or modify in whole or in part the findings and conclusions of the commission.

NEW SECTION. Sec. 25. (1) An incapacity proceeding can be initiated by complaint, by a claim of inability to defend in a disciplinary proceeding, or by an order of involuntary commitment or adjudication of incompetency.

(2) All incapacity proceedings shall be conducted in accordance with the procedures for disciplinary proceedings, except:

(a) The purpose of the incapacity proceedings shall be to determine whether the judge suffers from a physical or mental condition that adversely affects the judge's ability to perform judicial functions;

(b) All of the proceedings shall be confidential;

(d) If the supreme court concludes that the judge is incapacitated to hold judicial office, it may enter any order appropriate to the circumstances, the nature of the incapacity, and the probable length of the period of incapacity, including:

(i) Retiring the judge;

(ii) Transferring the judge to judicial incapacity inactive status;

(iii) If the highest court concludes that the judge is incapacitated to practice law, transferring the judge to lawyer incapacity inactive status; and

(iv) If a judicial disciplinary proceeding against the judge is pending and the highest court concludes that the judge is incapacitated to defend, deferring the disciplinary proceeding.

(3) If a judge has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or incapacity by a final judicial order after a judicial hearing, the supreme court, upon receipt of a certified copy of the order, shall enter an order immediately transferring the judge to both lawyer and judicial incapacity inactive status. A copy of the order shall be served, in a manner the supreme court shall direct that complies with the rules of civil procedure, upon the judge, his or her guardian, or the director of the institution to which the judge has been committed.

(4)(a) If in the course of a disciplinary proceeding a judge alleges an inability to assist in the defense due to mental or physical incapacity, disciplinary counsel shall notify the supreme court. The supreme court shall immediately transfer the judge to lawyer and judicial incapacity inactive status pending a determination by the supreme court of the incapacity. A determination by the commission that the judge is able to assist in his or her own defense is interlocutory and may not be appealed before entry of a final order in the proceeding.

(b) If the supreme court determines the claim of inability to defend is valid, the disciplinary proceeding shall be deferred. Any investigation of the disciplinary complaint may continue. The judge shall be retained on lawyer and judicial incapacity inactive status until the supreme court grants a petition for reinstatement to active status as a lawyer or judge. If the supreme court considering the petition for reinstatement to active status determines that the petition shall be granted, the supreme court shall also determine the disposition of the interrupted disciplinary proceedings.

(c) If the supreme court determines that the claim of inability to defend is invalid but that the judge is incapacitated to hold judicial office, the disciplinary proceeding shall resume. The judge shall be retained on judicial incapacity inactive status.

(d) The raising of mental or physical condition as a defense to or in mitigation of formal charges constitutes a waiver of medical privilege.

(5)(a) The hearing panel shall designate one or more qualified medical, psychiatric, or psychological experts to examine the judge prior to the hearing on the matter. The hearing panel may designate an expert agreed upon by disciplinary counsel and the judge. The expert or experts shall report to the supreme court and the parties.

(b) After receipt of the examination report, disciplinary counsel and the judge may agree upon proposed findings of fact, conclusions, and order. The stipulated disposition shall be submitted to the hearing panel for a recommendation to the supreme court of approval or rejection. The final decision on the recommendation shall be made by the supreme court.

(c) If the supreme court accepts the stipulated disposition, the supreme court shall enter an order in accordance with its terms. If the stipulated disposition is rejected by the supreme court, it shall be withdrawn and cannot be used against the judge in any proceedings. If the supreme court rejects the stipulated disposition, the supreme court shall order that the hearing proceed.

(6) Upon ordering a judge transferred to judicial incapacity inactive status, a replacement judge may be appointed by the appropriate appointing authority to serve during the period of incapacity, whether the incapacity is temporary or permanent.

(7)(a) No judge transferred to incapacity inactive status may resume active status except by order of the supreme court.

(b) Any judge transferred to incapacity inactive status shall be entitled to petition for transfer to active status once a year or at whatever shorter intervals the supreme court may direct in the order transferring the judge to incapacity inactive status or any modifications thereof.

(c) Upon the filing of a petition for transfer to active status, the supreme court may take or direct whatever action it deems necessary or proper to determine whether the incapacity has been removed, including a direction for an examination of the judge by qualified medical or psychological experts designated by the supreme court.

(d) With the filing of a petition for reinstatement to active status, the judge shall be required to disclose the name of each psychiatrist, psychologist, physician, and hospital or other institution by whom or in which the judge has been examined or treated since the transfer to incapacity inactive status. The judge shall furnish to the supreme court written consent to the release of information and records relating to the incapacity if requested by the supreme court or court-appointed medical or psychological experts.

(e) If a judge transferred to lawyer incapacity inactive status on the basis of a judicial determination of incompetence has been declared to be competent, the supreme court may dispense with further evidence that the incapacity to practice law has been removed and may immediately direct reinstatement to active status as a lawyer.

NEW SECTION. Sec. 26. Sections 1 through 25 of this act are each added to chapter 2.64 RCW."

2SSB 5696 - S AMD - 180

By Senator Kline

On page 1, line 1 of the title, after "conduct;" strike the remainder of the title and insert "and adding new sections to chapter 2.64 RCW."