Rule jsc-32. Conduct of hearing on the merits.

A. Closed hearing. Hearings on the merits shall be conducted in secure venues closed to the public. B. Phases of hearing. A hearing on the merits shall be conducted in phases: (1) Adjudicatory phase. The Commission shall receive evidence, hear argument, deliberate, and decide whether there is clear and convincing evidence of the factual basis establishing grounds for discipline, removal, or retirement of a judge. (2) Recommendations phase. If the Commission finds there are grounds for discipline, removal, or retirement of a judge, the Commission may receive evidence and hear argument, and shall deliberate and decide on recommendations to be made to the Supreme Court. C. Admissible evidence. (1) Evidence during the adjudicatory phase. The presentation of evidence during the adjudicatory phase shall be governed by Rule 11-101, et seq. NMRA. Only the charges against the judge that have not been dismissed shall be admitted into evidence. (2) Evidence during the recommendations phase. (a) Rules of evidence inapplicable. The presentation of witnesses and evidence during the recommendations phase shall not be governed by Rule 11-101, et seq. NMRA. The presiding officer shall exercise reasonable control over the mode and order of the presentation of evidence. (b) Judge as character witness. A judge may only testify as a character witness if the judge whose testimony is sought has been served with a subpoena for appearance. (3) Privileges preserved. Except as set forth in Rule 23, above, the privileges set forth in Rules 11-501 through 11-514 NMRA shall be preserved during the presentation of evidence during a hearing on the merits. (4) Use of closed files. With notice and disclosure to the judge as required by the scheduling order, closed files of complaints against the judge, notices of investigation, responses to notices of investigation, notices of formal proceedings, responses to notices of formal proceedings, evidence presented before the Commission at hearings on the merits or at other hearings, and evidence provided to the judge by investigative trial counsel may be offered by investigative trial counsel as evidence in the recommendations phase, and only as follows: (a) Disciplinary disposition. A closed file may be used as evidence in the recommendations phase if the complaint resulted in discipline of the judge. (b) Non-disciplinary disposition. A closed file may be used as evidence in the recommendations phase if the complaint resulted in non-disciplinary disposition and the alleged conduct resulting in non-disciplinary disposition is relevant in the present proceeding to show: (i) That the judge had notice that the conduct alleged in the present matter could result in discipline, removal, or retirement; and/or (ii) A pattern or practice of conduct by the judge. D. Order of hearing on the merits – adjudicatory phase. Subject to the presiding officer’s authority to control the conduct of the hearing, the order of a hearing on the merits in the adjudicatory phase shall be as follows: (1) Rulings on motions outside the presence of the Commission. If there are pending motions to be heard and ruled upon by the presiding officer outside of the presence of the Commission, those shall be the first order of business at a hearing on the merits. (2) Motions to be decided by the Commission. If there are motions pending to be decided by the Commission, those motions shall be heard next. (3) Statement of the case to the Commission. Before the parties are given an opportunity to make opening statements, the presiding officer shall read to the Commission a brief statement of the case prepared by the presiding officer that shall contain the remaining charges of notices of formal proceedings, a statement that the judge admits or denies each charge and a brief statement of the judge’s remaining legal defenses. If charges in a notice of formal proceedings have been dismissed, the presiding officer shall remind the Commission that the dismissed charges shall not be further considered by the Commission. (4) Opening statements. Investigative trial counsel may make an opening statement, after which the judge may make an opening statement. The judge may defer an opening statement until the beginning of the judge’s case. (5) Presentation of evidence. (a) Investigative trial counsel’s case. Investigative trial counsel shall have the burden of proceeding on the charges against the judge and shall first present evidence. (i) Right to cross examine. The judge shall have the right to cross examine investigative trial counsel’s witnesses. (ii) Right to redirect examination. Investigative trial counsel shall have the right to conduct redirect examination of witnesses. (b) Judge’s case. The judge shall have the opportunity to present evidence in defense of the charges. (i) Right to cross examine. Investigative trial counsel shall have the right to cross examine the judge’s witnesses. (ii) Right to redirect examination. The judge shall have the right to conduct redirect examination of witnesses. (c) Commission questions. Following the direct, cross, and redirect examinations, the presiding officer and the Commissioners may ask questions of witnesses. Investigative trial counsel and the judge may object to questions asked by the presiding officer and by the Commissioners. Following questions by the presiding officer or the Commissioners, investigative trial counsel and the judge may each ask follow-up questions. (d) Rebuttal. Investigative trial counsel shall have the right to present rebuttal evidence. (e) Other evidence. The presiding officer has the discretion to admit other evidence offered by either party at any time. (f) Out of order. The presiding officer may permit witnesses to testify and evidence to be introduced out of order. (g) Motion to dismiss. At the close of investigative trial counsel’s case-in- chief and at the close of all of the evidence, the judge may move to dismiss the charges. Investigative trial counsel may respond to the motion to dismiss and the judge may reply to the response. (h) Argument. At the close of all of the evidence and following rulings on any motions made by either party, investigative trial counsel may make a closing argument followed by the judge’s closing argument. Investigative trial counsel may make rebuttal argument. E. Commission deliberations - adjudicatory phase. At the completion of the adjudicatory phase of the hearing on the merits, the Commission shall deliberate in closed session. (1) Vote. Upon completion of its deliberations in the adjudicatory phase, the Commission shall vote on its decision in the presence of the parties. (2) Charges not proved. If the Commission finds that any charges contained in the notice of formal proceedings have not been proved by clear and convincing evidence, those charges shall be dismissed. (3) Charges proved. If the Commission finds that any charges in the notice of formal proceedings have been proved by clear and convincing evidence, the hearing on the merits shall continue to the recommendations phase for all such charges. F. Order of hearing on the merits – recommendations phase. Subject to the presiding officer’s authority to control the conduct of the hearing, the order in the recommendations phase shall be the same as during the adjudicatory phase except that there shall be no motions to dismiss. G. Commission deliberations – recommendations phase. At the completion of the recommendations phase, the Commission shall deliberate in closed session and shall decide what recommendation, if any, shall be made to the Supreme Court. The Commission may adopt or recommend any of the dispositions set forth in Article 6. The Commission shall vote on its decision in the presence of the parties. H. Burden of proof. In the adjudicatory phase of a hearing on the merits, investigative trial counsel shall have the burden of proving, by clear and convincing evidence, the charges against the judge contained in the notice of formal proceedings. In the recommendations phase of a hearing on the merits, the Commission must find that there is good cause shown for making recommendations to the Supreme Court for the discipline, removal, or retirement of a judge. I. Record. As soon as practical following the completion of a hearing on the merits in which the Commission decides to make recommendations to the Supreme Court for the discipline, removal, or retirement of a judge, the Commission shall ensure the prompt preparation of the record of the hearing and ensure prompt service of the record on the parties. J. Findings of fact, conclusions of law, and recommendations. (1) Requested findings of fact, conclusions of law, and recommendations. Within fifteen (15) days of service of the record of a hearing on the merits, the parties shall file their requested findings of fact, conclusions of law, and recommendations with the Commission, which shall promptly provide them to the presiding officer. (2) Presiding officer’s draft of the commission’s findings of fact, conclusions of law, and recommendations. Within forty-five (45) days of receipt of the last of investigative trial counsel’s and the judge’s requested findings of fact, conclusions of law, and recommendations, the presiding officer shall present to the Commission a draft of the Commission’s findings of fact, conclusions of law, and recommendations. The presiding officer may request of the Commission additional time to submit a draft of the Commission’s findings of fact, conclusions of law, and recommendations. Failure of the presiding officer to complete a draft of the Commission’s findings of fact, conclusions of law, and recommendations within the time set forth herein shall not deprive the Commission of jurisdiction. (3) Commission’s findings of fact, conclusions of law, and recommendations. The Commission shall issue its final findings of fact, conclusions of law, and recommendations no later than the earlier of the next regularly scheduled Commission meeting or thirty (30) days from receipt of the presiding officer’s draft. The Commission’s final findings of fact, conclusions of law, and recommendations shall be promptly served upon the parties. (4) Within fifteen (15) days of service of the Commission’s final findings of fact, conclusions of law, and recommendations, the parties may object to such final findings of fact, conclusions of law, and recommendations or may invite the Commission’s attention to clerical errors therein. The presiding officer shall promptly correct clerical errors. The Commission shall promptly rule on objections.