concurring.
I agree with the majority opinion but write separately to add some additional thoughts. As an initial matter, I too am concerned about the Commission’s recurrent noncompliance with its own rules as expressed in the majority’s footnote. Although this court has yet to find that the Commission’s failure to comply with one of its procedural rules violates a judge’s rights so as to require dismissal or other action, the noncompliance plainly undermines the confidence in the judicial-discipline process.
In this case, for example, Judge Proctor alleged that the Commission failed to follow three of its procedural rules: Rules 11(A), 8(D), and 11(F). The majority finds, and I agree, that Judge Proctor failed to preserve his argument on Rule 8(D). On the other hand, for Rules 11(A) and 11(F), this court rejected Judge Proctor’s argument that the Commission’s procedural rules were jurisdictional in nature and thus required strict compliance. Judge Proctor, however, did not claim that the Commission’s failure to comply with its procedural rules violated his due-process rights.
I note that a number of other courts have addressed the issue of noncompliance with procedural rules in judicial-discipline proceedings and concluded that dismissal is not warranted in the absence of a showing from the judge that the noncompliance prejudiced 158that judge and denied him or her due process of law. See, e.g., McCartney v. Comm’n on Judicial Qualifications, 12 Cal.3d 512, 116 Cal.Rptr. 260, 526 P.2d 268 (1974) (“relief from the deleterious effect, if any, of the Commission’s failure to follow [its procedural rules] may be secured by petitioner only upon a showing of actual prejudice”; no such prejudice shown where judge received adequate notice of charges and reasonable time to prepare his defense) overruled on other grounds by Spruance v. Comm’n on Judicial Qualifications, 13 Cal.3d 778, 119 Cal.Rptr. 841, 532 P.2d 1209 (1975); In re Kirby, 354 N.W.2d 410 (Minn.1984) (The failure of the Board of Judicial Standards to give Judge an opportunity to respond to each allegation constituted a breach of its own procedural regulations but was not “so violative of due process as to raise the concern that fundamental fairness may not have attached.”); In re Storie, 574 S.W.2d 369 (Mo.1978) (Judge could not be heard to complain of the Commission on Retirement, Removal and Discipline’s irregular compliance with its informal notice rule, absent a showing of prejudice.); In re Hill, 152 Vt. 548, 568 A.2d 361 (1989) (Judge could not show prejudice stemming from the Judicial Conduct Board’s failure to comply with procedural rule requiring that the judge have an opportunity to respond during a preliminary investigation where the judge received full notice of the charges and an opportunity to respond.).
I agree with this line of authority. The Commission’s noncompliance with its own procedural rules should only entitle a judge to relief upon a showing of actual prejudice to the judge’s due-process rights to meaningful notice and an opportunity to defend oneself. Notice and a hearing are rights specifically given to judges by amendment 66(c) to the |fiflArkansas Constitution. Upon a showing of actual prejudice, when those rights have been impaired, relief to the accused judge in some form should be afforded.
As a second point, Judge Proctor points to several actions of the Commission that he alleges evidence an impermissible commingling of investigative and adjudicatory functions by its members. I would simply note that this argument, without a further showing of the deleterious effect of combining the roles, has consistently been rejected in the context of judicial-discipline proceedings. See, e.g., Kloepfer v. Comm’n on Judicial Performance, 49 Cal.3d 826, 264 Cal.Rptr. 100, 782 P.2d 239 (1989); In re Zoarski, 227 Conn. 784, 632 A.2d 1114 (1993); Nicholson v. Judicial Retirement & Removal Comm’n, 562 S.W.2d 306 (Ky.1978); Matter of Mikesell, 396 Mich. 517, 243 N.W.2d 86 (1976); In re Elliston, 789 S.W.2d 469 (Mo.1990). In addition, the Supreme Court held in Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), that “the combination of investigative and adjudicative functions does not, without more, constitute a due process violation” and gave the following illustrations:
Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe that a crime has been committed and that the person named in the warrant has committed it. Judges also preside at preliminary hearings where they must decide whether the evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements has been thought to raise any constitutional barrier against the judge’s presiding over the criminal trial and, if the trial is without a jury, against making the necessary determination of guilt or innocence. Nor has it been thought that a judge is disqualified from presiding over injunction proceedings because he has initially assessed the facts in issuing or denying a temporary restraining order or a preliminary injunction. It is also very typical for the members of administrative agencies to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings, and then to participate in the ensuing hearings. This mode of procedure does not violate the Administrative Procedure Act, and it does not violate due process of law. We should also remember |mthat it is not contrary to due process to allow judges and administrators who have had their initial decisions reversed on appeal to confront and decide the same questions a second time around.
Id. at 57, 95 S.Ct. 1456.
For this reason, I agree with the majority on this issue as well.
Special Justice PAUL KEITH joins.