concurring in the result:
I concur with the results expressed in the Majority Opinion, and the issuance of the Writ of Prohibition preventing further proceedings based upon the Campbell complaint. The Commission may proceed in this matter under the rules presently in existence and under the guidelines of the Majority Opinion. The Majority Opinion does not divest the Commission’s jurisdiction over a properly sworn to complaint with affidavits, statements or documents.
The initial issues in this matter were relatively uncomplicated. These issues became convoluted by the almost weekly filing of voluminous and acrimonious motions, responses and requests, over the last nine months, by counsel from both sides. Had it been possible to have given some of these motions or requests immediate consideration, none of the elected members to this court would have been sitting on this case. Other problems are more detailed in the Majority Opinion.
I do not believe there is any great disparity from what I have stated in this concurring opinion from that stated by the Majority in their reference to my previous dissent regarding a public hearing after there has been an admittance of the charges by the accused judge. There would really be nothing more to be accomplished by a public hearing. The filing and publishing of a public notice which would contain the charges that the judge admitted, to the justification for the punishment which would be either public censure, removal or forced retirement. It should not be necessary to duplicate Campbell’s work product to arrive at a sworn to complaint, if that would be the end result. Especially is this so, if there is a victim who will swear to the complaint.
*222Under present rules, I believe that an initial sworn to complaint based upon information, rumor and belief may be sufficient for the Commission to commence a rudimentary investigation to establish whether there is a factual issue present, and an aggrieved complainant who is willing to attest to the facts necessary for the Commission to proceed to a possible disciplinary adjudication or acquittal.
Confidentiality injudicial disciplinary proceedings is instituted for various reasons, some of which are:
(1) the maintenance of a free judiciary;
(2) the protection of the complainant; and,
(3) the protection of the judge, and the Commission.
It is conceivable that a judge may retaliate against an attorney and/or his client, should the judge become aware that a complaint has been filed. Confidentiality of the complainant should be maintained for the protection of the complainant until such time as the Commission decides to proceed in a formal complaint against the judge. The complainant who exercises his right to challenge a judge should not be placed in the position of being punished for having filed a complaint. Confidentiality, however, ceases once the Commission has decided to have a formal hearing to determine probable cause. The judge must be able to rebut, admit or offer an explanation to the charges made by the complainant. There is no longer a need for confidentiality. One has the right to face his or her accuser.
In this matter, if the restraint on information was for the purpose of preserving the integrity of the proceedings so that the accused judge could have a fair and equitable hearing, those efforts were sadly undermined by blatant breaches of confidentiality. Breaches of confidentiality are, in my opinion, made for the following reasons:
a. To place one side in an advantageous position;
b. To force the Commission, and in this case the Supreme Court, to rule in a way that is advantageous to the so-called “discloser;”
c. To let someone know that the “discloser” has access to confidential facts; or
d. To bring to light what one might perceive to be an unfair happening.
Rarely are such disclosures more beneficial than detrimental.
In the instant case, the breach of confidentiality has caused two of the state’s leading newspapers, and at least one television station, to release opposing comments as to what this Court should or should not do and how this Court should proceed. The *223issue of confidentiality, being so controversial, has caused serious damage to this Court, the Commission, and the parties involved.
The premature and often biased disclosures have prolonged the orderly procession of this case; created unnecessary distrust between this Court and the Commission; polarized members of the judiciary and the bar; and, caused members of the media to “take up the gauntlet” on behalf of either the Petitioner, the Commission, or the Court. The most unfortunate aspect of the premature disclosures is that they have caused the accused judge to be tried in the media without a hearing. As aforestated, breaches of confidentiality are rarely more beneficial than detrimental. I therefore strongly urge that confidentiality never be abolished.
The question has arisen whether there should be an investigation to determine who caused the breaches of the confidentiality mentioned in Whitehead II. Upon further reflection, my present view is that if an investigation is conducted, nothing would be accomplished other than to prolong this agonizing experience. It would further increase the width of the chasm rather than closing it.
Regardless of this breach or any other mishap in this matter, the Commission and this Court must continue their functions with intelligence, integrity and trust for one another. Each must take whatever procedures it perceives necessary to uphold the rules and prevent breaches with the goal being fundamental fairness and justice to all parties. I do not believe that any further investigation will identify the discloser or enhance integrity, intelligence or trust. However, all parties should be put on notice that future violations of confidentiality will be dealt with harshly.
I would strongly hope and suggest that the Commission would consider the breaches of confidentiality, if it is within their organization, as extremely serious. I would further suggest that anyone who may have information concerning any breaches by a Commission member, submit that information to the Commission in order that the Commission may take whatever action deemed necessary.
One of the issues raised in this matter was the jurisdiction of the Commission to hear the factual matters of the complaint. I believe that such petitions or motions that attack jurisdiction of the Commission should first be heard by the Commission for its determination. If the accused believed that the Commission’s ruling was incorrect, the accused is then in a position to present his writ to the Supreme Court. In the matter at hand, the issue of the Commission’s jurisdiction was never brought before the Commission. This case was a case of first impression. Hopefully this procedure or a similar procedure will evolve.
*224One of the primary reasons for this protracted hearing was because Petitioner requested production of all evidence and documents considered by the Commission. It was at this juncture in the proceedings that the Commission refused to furnish the Petitioner with any statements, affidavits or documents containing facts regarding the charges alleged in the Campbell complaint. ARID 14(5) directs the production of all such documents, affidavits and statements. There are in fact no affidavits, statements, or documents for the Commission to turn over to Petitioner. There are only summations and conclusions of witnesses’ statements which are labeled work products.
Once again, if the Commission decides to proceed against the accused judge, all of the affidavits, documents and statements must be given.
The present disciplinary procedures are unnecessarily conflicting, burdensome, and have caused excessive delays in these proceedings. The Majority has set out in great detail some of the problems that exist in the execution of the existing procedural rules.
I strongly believe that the Commission and a judge may not agree to a judge’s censure, removal or forced retirement without a public probable cause hearing.1 When the judge agrees to the facts contained in the complaint, there is nothing further to be gained other than embarrassment or ridicule by conducting a public hearing of the judge, while overlooking that he or she may have given many credible years of service to the public in his or her capacity as a judge. The Nevada Code of Judicial Conduct (NCJC) has far too many minor offenses which if followed to the strict interpretation by the Majority, would result in nothing more than a public scourging.
The initial function of the Commission is to protect the innocent judge and to censure or remove a judge should this be necessary upon such a decision. There would be a public notice filed censuring, removing or forcing the judge to retire as required by the code. The judge should not be forced to participate in a public hearing as he has already admitted culpability. We do not normally force defendants in criminal matters to go to trial after pleading guilty. We should not do so in these proceedings. The public notice of a censure, removal or forced retirement would be both economically and morally sufficient. This public *225notice would of course contain those charges that the judge admitted and the reasons for the actions taken by the Commission.
Petitioner is the first accused judge to challenge the Commission. This challenge has shown that there are problems in the ARJD, and in the application of the NCJC. Such applications may have resulted in ad hoc hearings and decisions as stated by the Majority.
With respect to the ad hoc proceedings of the Commission mentioned by the Majority, I suggest that due to the harshness and ambiguities of the ARJD and NCJC the Commission may have resorted to ad hoc proceedings. The Preamble of the NCJC in part states:
. . . The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.
(Emphasis added.)
It would appear that the preamble suggests some type of procedure for minor transgressions. ARJD 10 permits suspension only when there is a criminal indictment or information pending or when the judge is adjudged insane or mentally incompetent. ARJD ll2 gives grounds for discipline by censure or removal. ARJD 30(2),3 Decision to discipline, however, seems to provide *226that the Commission can only discipline by public censure, removal from office or forced retirement. This strict reading as suggested by the Majority would force every complaint which is found to be a violation, whether it be a minor or a major violation of the NCJC, would go to a public hearing. This is not what is suggested in the preamble.
The NCJC and the ARJD must be reconsidered and offenses separated between major and minor offenses. Something less than public censure, removal or retirement should be available for minor offenses. There should be a statute of limitation governing the time allowed within which a complaint may be filed. The Campbell complaint referred to matters that occurred in 1988 and 1989.
Rather than go through the rules one by one, I believe a committee to review the rules and procedures should be appointed immediately to remove ambiguity and to prevent another prolonged controversy such as this.
I would recommend that a complaint against a judge be filed by the victim of the accused misconduct, or at least by someone who can swear to the accuracy of the facts and not by information and belief.
I would further suggest an initial preliminary investigation be commenced immediately after the filing of the complaint. Such a preliminary investigation could very well be conducted by members of the State Bar of Nevada who usually do not practice before the accused judge, and who have no biases, for or against the judge. The investigation should be to discover facts concerning the allegations. It should not be a shotgun investigation in hopes of finding iotas of evidence to bolster a weak complaint, but rather to ascertain the truth and facts as alleged in the complaint. The complainant should remain confidential unless the accused is ordered to the informal hearing stated “infra.”
*227The State Bar could keep a roster of these “non biased” attorneys, to be made available to the Commission upon request.4 Hopefully such an investigation would also include an interview with the accused judge, keeping confidential the name of the accuser. These preliminary investigations should be without compensation to investigating counsel other than for reimbursement for actual expenses and a stipend of not more than one hundred dollars ($100.00). This investigation should end with affidavits of facts, documents where necessary, and the investigator’s recommendation to the Commission. The Commission should schedule a time for the hearing for the consideration of the affidavits, facts and recommendations of the investigator. This meeting should be attended by at least six of the seven Commission members. After consideration, the Commission would then decide whether to go forward or dismiss the complaint.
Should the Commission decide to proceed further, a confidential informal hearing would take place. The accused judge would receive a copy of the original complaint, and a copy of all the affidavits and/or statements that were accumulated by the preliminary investigator. Fundamental justice demands nothing less. The accused judge may respond by filing with the Commission any affidavits, statements or documents believed by the judge to assist the Commission in determining whether there should be a formal probable cause hearing. The accused may attend this informal hearing but is not obligated to do so. Should the Commission, with six (6) or more of its members present, decide that a formal probable cause hearing must be held, it should be scheduled and accomplished within ninety (90) days after this hearing and notice to the accused judge. Notice and a sworn to complaint should be delivered to the accused not more than two (2) weeks after the informal hearing. A reply would not be necessary.
A special prosecutor, not the same person who conducted the informal investigation, should be appointed to prepare the formal complaint and to prosecute the complainant’s case before the Commission.
This formal hearing for probable cause will be open to the public and shall follow the civil practice rule, if not covered by the ARJD. Compensation for the special prosecutor should be at the prevailing rate of attorneys practicing in Carson City, Nevada.
The Commission should have its own attorney to assist them in conducting their regular business. Compensation for this attorney *228should be reasonable and on par with attorneys for other governmental part time committees. If the Commission should decide that it needs a full time attorney, it should justify its request as other government committees, by submission to the Legislature.
The operating budget of the Commission should be provided for in the budget of the Supreme Court. It would be an independent budget for which the Supreme Court’s only responsibility is to assist the Commission in preparing it. It should be submitted to the Legislature as any other budget, and subject to an annual audit. The Commission should be able to apply independently of the Supreme Court for additional funds, justifying that necessity to the state interim finance committee.
In so far as practical, the operation of the Commission should be independent to the Supreme Court. The Court of course may from time to time amend the rules and disciplinary factors as they become necessary.
I strongly urge that challenges to the Commission, whether jurisdictional or procedural, should first be made to the Commission. The Commission, which is composed of judges, lawyers and laymen, would initially consider any challenges to its authority. Only writs of prohibition to challenges of jurisdiction should be made to the Supreme Court after a determination by the Commission. Other challenges which are denied should be a part of the record on appeal, if necessary.
The Commission must be allowed to do its constitutional duties promptly and not be delayed, as this matter has been, for several months of in-fighting between the parties in this Court.
Upon written consent of the respondent, the commission may order the respondent’s censure, removal or retirement at any stage of the proceedings and this order takes effect immediately. A certified copy of the order must be filed with the clerk of the supreme court and a copy of the order must be served on the respondent. ARJD 31 (emphasis added).
Grounds for discipline by censure or removal are:
1. Conviction of any felony or of any misdemeanor involving moral turpitude.
2. Any acts or omissions amounting to any public offense which tend to corrupt or to impair the administration of justice in any court.
3. Any acts or omissions in the performance of judicial or administrative duties which contravene express provisions of the Nevada Code of Judicial Conduct. When applied for purposes of determining whether misconduct has occurred, the provisions of the Nevada Code of Judicial Conduct must, considered as penalty provisions, be strictly construed in favor of the respondent judge.
4. Willful or persistent failure to perform the duties of office.
5. Habitual intemperance.
(Emphasis added.)
1. Within 20 days after reaching a decision that discipline should be imposed, the commission must prepare and adopt a written statement of the *226nature of the proceedings, findings of fact, and conclusions of law on the issue presented by the formal statement of charges and the answer thereto, if any. The commission may include its decision a summary of evidence admitted. When the foregoing have been formulated, any sitting commission member who wishes to dissent or protest must be allowed 10 days for the purpose. Upon filing, the commission must promptly service a copy of the foregoing on the respondent.
2. Upon adoption and filing of a decision which orders the censure, removal or retirement of a respondent, the commission must file a certified copy of it with the clerk of the supreme court, who must notify appropriate authorities.
3. Upon expiration of the time for appeal, the commission’s adoption of the report which orders retirement or removal operates to vacate the office of the respondent. Pending appeal, the salary and authority of the respondent to exercise any of the duties of office immediately cease, and the respondent must exercise no judicial powers.
Every judge and every attorney licensed to practice law in this state is obligated to cooperate with the commission when called upon to assist in any investigation or hearing or to testify concerning any matter as to which privilege as an attorney is not claimed. ARJD 4.