Involuntary retirement of judges for disability
- • rules
(1) As used in this section:
(a) “Chief Justice” means the Chief Justice of the Supreme Court of Oregon, except that, if the Chief Justice is the subject judge, then the term “Chief Justice” means the one of the remaining judges of the Supreme Court who has served the longest period of time as a judge of that court.
(b) “Disability” means physical or mental incapacitation of such a degree as to cause a judge to be unable to discharge the duties of judicial office.
(c) “Judge” includes any judge of the Supreme Court, the Court of Appeals, the Oregon Tax Court, or any circuit court, of the State of Oregon.
(d) “Subject judge” means any judge whose alleged disability is involved in proceedings under this section.
(2) Any judge who becomes disabled may be retired in the manner provided in this section. The Governor, the Chief Justice, the Judicial Conference or the Board of Governors of the Oregon State Bar may file at any time with the Secretary of State a written request for an investigation to determine whether a judge named in the request has a disability. Upon receipt of a request, the Secretary of State shall transmit to the subject judge a certified copy of the request, with a notice to the effect that, unless the judge files a resignation within 45 days after the date of the notice, an investigation will be made to determine whether the judge has a disability. The certified copy and notice shall be served on the subject judge, either by delivering them to the judge in person or by transmitting them by registered mail or by certified mail with return receipt to the judge at the last residence address of the judge as shown in the records of the Secretary of State.
(3) If the subject judge fails to file a resignation within 45 days after the date of the notice, the Secretary of State, within 10 days after the expiration of that period, shall transmit to the Commission on Judicial Fitness and Disability certified copies of the request and notice, with a certificate to the effect:
(a) That the Secretary of State served the notice and copy of the request on the subject judge as provided in subsection (2) of this section; and
(b) That the judge did not file a resignation.
(4) Upon receipt of the certified copies and certificate referred to in subsection (3) of this section, the commission shall make the requested investigation and, after hearing, determine whether the subject judge has a disability. The commission shall prepare an official record that shall include the testimony taken and the exhibits considered. If the subject judge refuses or is unable to attend, the commission may proceed with the hearing in the absence of the judge.
(5) If a majority of the members of the commission determines that the subject judge in fact has a disability, the members shall make and sign written findings of fact upon which the determination is made and transmit the findings to the Secretary of State. If no appeal is filed, the office of the judge shall become vacant 10 days after the filing of the findings, and thereupon the Secretary of State shall certify to the Governor the existence of the vacancy. If a majority of the members of the commission does not find that the subject judge has a disability, the members shall sign and file with the Secretary of State a written report to that effect, and thereupon the proceeding shall terminate.
(6) The commission may prescribe rules of procedure for the conduct of the investigation and fix the time and place of the hearing, giving the subject judge due notice thereof. The fees and mileage allowance of witnesses, including experts, shall be fixed by the commission.
(7) A judge retired under the provisions of this section may not be appointed as judge pro tempore to serve upon any court of the State of Oregon.
(8) The subject judge may appeal to the Supreme Court from a determination by the commission that the judge has a disability, by filing a notice with the Secretary of State within 10 days after the date of filing of the written findings of fact by the commission. The Secretary of State shall thereupon notify the commission and the Chief Justice. The commission shall forthwith transmit the official record to the Supreme Court, which upon receipt of the record shall have full jurisdiction of the proceeding.
(9) The Supreme Court shall review the proceeding de novo on the record with authority to affirm, reverse or annul the determination. Prior to a final determination, remand may also be made to the commission for additional findings of fact. In the event that the Supreme Court reverses or annuls the determination of the commission, the proceeding shall thereupon terminate and notice to that effect shall be filed with the Secretary of State. If the determination of the commission is affirmed, a decision to that effect shall be filed with the Secretary of State and the office of the subject judge shall forthwith become vacant. Thereupon, the Secretary of State shall certify to the Governor the existence of the vacancy. [Amended by 1963 c.488 §1; 1965 c.394 §1; 1969 c.332 §2; 1983 c.740 §2; 1987 c.520 §11; 1991 c.249 §1; 1991 c.815 §3; 2007 c.70 §1; 2009 c.11 §2]
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