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Editorial Advisory Board: Time to rethink judicial discipline

On March 22, the Court of Appeals dismissed judicial disciplinary proceedings against Howard County District Judge Mary C. Reese. (The court’s reasons are to be stated in an opinion to be filed.) Five days later, the Court of Appeals held that proceedings before the Maryland Commission on Judicial Disabilities involving Baltimore City Circuit Judge Pamela J. White did not violate due process. (The top court held last year it did not have appellate jurisdiction to review the commission’s public reprimand of White.) After an investigation and proceedings that lasted over a year, the Judicial Disabilities Commission recommended in October 2017 that Baltimore City Circuit Judge Alfred Nance be removed from the bench. Nance retired a month later, before the commission’s recommendation could take effect.

All three cases show there are serious issues with respect to how Maryland investigates and disciplines judges.

The process by which Maryland judges are disciplined is the product of state constitutional provisions, legislation and court-made rules. Further, the manner in which the commission operates has been subject to various decisions within the discretion of the commission.

Reese was the subject of a disciplinary complaint because she denied a peace order in a relationship-violence hearing. The gravamen of the complaint was she decided the case too quickly. The commission found she had engaged in sanctionable conduct. The commission recommended she should attend specialized training and be assigned a mentor judge.

We are not privy to all of the facts of the complaint against Reese or the reasons for the Court of Appeals’ rejection of the commission’s recommendation. But there is at least one indication of an issue with respect to the commission’s treatment of the case.

The Maryland Circuit Court Judges Association, which took no position on whether Reese should have been disciplined, filed an amicus brief in her case. The association objected to the fact the commission refused to allow Reese’s counsel to introduce expert testimony on judicial ethics and courtroom procedure in her case notwithstanding similar testimony regarding professional standards is readily admissible in administrative and judicial proceedings against licensed professionals. The brief cautioned against “unpredictable and arbitrary applications of the Code of Judicial Conduct, at great cost to the independence and objectivity of the Maryland Judiciary.”

Timeliness issues

White was publicly reprimanded by the commission, which concluded she had violated the Maryland Code of Judicial Conduct through her “undignified, discourteous, and unprofessional” treatment of a lawyer and failure to recuse herself from a show cause hearing. The commission’s investigative counsel took six months to notify White a complaint had been filed against her notwithstanding the fact that the Maryland Rules require investigative counsel to give notice within 90 days. The inquiry board examining a complaint against a judge can give a 30-day extension for “good cause shown.” In White’s case, the board gave a 30-day and a subsequent 60-day extension without articulating any explanation of the “good cause shown.” The commission’s investigative counsel had several ex parte communications with the commission, something allowed by Court of Appeals precedent.

The Maryland Rules also provide the commission may authorize a judge, upon a written request, to appear before the commission. White made such a request, but the commission refused to allow her to appear in person before it. Once charges were filed against White, she requested discovery from the commission, something for which the Maryland Rules provide. However, the commission struck White’s discovery requests to investigative counsel on the ground that she was not a “party” to the case. The Court of Appeals held the commission was wrong when it denied discovery, but ultimately held that this did not result in “a fundamentally unfair hearing.”

The minimal due process the Court of Appeals found was afforded to White appears to us to have been far from fair or optimal; it was far less fair or full than that which other licensed professionals receive when they are charged with professional conduct before various state licensing boards and commission.

Nance was a repeat offender before the commission. Our complaint with respect to his most recent and final proceeding was  the process was unduly slow, and once the commission recommended he be removed from the bench he was allowed to continue to sit pending review by the Court of Appeals –  a process that would have taken several months had he not retired. There should be a provision that would allow the Court of Appeals, upon a showing of good cause, to suspend a judge the commission has recommended be removed from office while the commission’s recommendation is pending before the court.

Financial toll

Judges are not perfect. There necessarily needs to be a process that protects the public from judges who act improperly but, at the same time, does not subject judges who are doing their jobs properly to the financial and other costs of defending themselves from claims by disgruntled litigants.  Although we do not know the amount of the attorneys’ fees incurred by Reese, White or Nance, given the length of the proceedings in their respective cases – including full briefing and argument in the Court of Appeals in the cases of Reese and White – those fees had to be substantial, likely near or exceeding a judge’s annual salary. When judges and other public officials are sued in court, the attorney general provides a defense to them. However, when judges have to defend themselves before the commission, they are responsible for the full costs of defense.

The judicial disciplinary process should be fair, transparent and subject to meaningful review. In December, The Daily Record reported retired Judge Alan M. Wilner, chair of the Standing Committee on Rules of Practice and Procedure, said the committee had approved recommended rule changes around the time White had challenged her reprimand. However, Wilner said that the Rules Committee had put its recommended changes on hold pending the Court of Appeals decisions in the Reese and White caes. The time has come for the Rules Committee to review thoroughly the judicial discipline process, including holding public hearings on the subject.

Given the constitutional and statutory components of judicial discipline, it is possible not all salutary changes will be within the province of the Rules Committee to recommend to the Court of Appeals to enact by rule. One thing that comes to mind is some provision for the payment of counsel fees that judges who ultimately are found not to have engaged in sanctionable conduct incur to defend themselves before the commission and in any judicial review.

We would urge the Rules Committee and the Judiciary to take a holistic view of the issue of judicial discipline and urge the General Assembly to propose any constitutional changes or enact legislation that would be necessary to further the improvement of the judicial discipline process beyond that which the Court of Appeals can promulgate by a court rule.

Editorial Advisory Board member Marcella A. Holland did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

John Bainbridge Jr.

Wesley D. Blakeslee

Martha Ertman

Arthur F. Fergenson

Susan Francis

Marcella A. Holland

David Jaros

Ericka King

Stephen Meehan

C. William Michaels

Angela W. Russell

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

Find out more about the members of the Editorial Advisory Board.