In an attempt to address problems cited by judges and the Court of Appeals, a proposed update to Maryland’s rules governing judicial ethics would create an avenue for Court of Appeals review, allow immediate notice of complaints and require discovery disclosures.
The draft was posted to the website for the Standing Committee on Rules of Practice and Procedure Tuesday and will be the subject of a public meeting on Nov. 16 in Annapolis. Written comment is being accepted until Nov. 9.
“The draft that is on the judicial website is probably the 15th or 20th draft of this because we were listening,” said retired Court of Appeals Judge Alan M. Wilner, chair of the committee.
The amendments were based on research into model rules and other states’ procedures as well as comments from the present chair of the Commission on Judicial Disabilities and predecessors, current and past investigators for the commission, and judges themselves.
“We’re trying to get everybody what they wanted,” Wilner said. “It was mostly devoted to listening to all sides and taking account of what their complaints were, their suggestions were, even though we didn’t necessarily agree with everything they wanted to do, we listened to the problems they were presenting and tried to figure out how to solve them.”
Kevin B. Collins, an attorney representing the Maryland Circuit Judges Association, praised the subcommittee’s efforts to take everyone’s comments into account.
“There’s lots of nuances to them that are well thought-out and we’re generally pleased,” he said. “Ultimately, I think this will benefit not just the association but the commission, make this process more fair, and help the integrity of the judiciary and I think that’s something we all want.”
Collins, of Covington & Burling LLP in Washington, said the association has not yet thoroughly reviewed the rule changes published Tuesday but may submit written comment by the deadline.
The Court of Appeals directed the committee to revisit the amendments in May.
The committee drafted changes in 2016 but set them aside after Baltimore City Circuit Judge Pamela J. White appealed her reprimand to the high court, which concluded it could hear a writ of mandamus concerning the fairness of proceedings against White but had no appellate jurisdiction to review the reprimand on its merits.
While White’s case was pending, Howard County District Judge Mary C. Reese also appealed her case, and the Court of Appeals reversed the commission’s finding that she committed sanctionable conduct, not reaching her procedural complaints.
Both White and Reese as well as their attorney, Andrew Jay Graham of Kramon & Graham PA in Baltimore, were involved in the amendment process.
“The spirit of these is now more constructive and less punitive,” Graham said of the proposed amendments.
Louis P. Malick, also of Kramon & Graham, said they have been calling for a less punitive and more collaborative process.
“I think this is a very good step forward,” he said.
The new rules would include new definitions for “reprimand” — an informal private sanction by the commission — and “censure” — a formal public sanction by the Court of Appeals.
The changes would make it possible for a judge to challenge a reprimand and seek review in the Court of Appeals, according to Wilner, but if they do not challenge the underlying facts the reprimand will be private.
If investigative counsel recommends a reprimand, the judge can either not oppose it, not contest the facts but request a non-public hearing on whether a reprimand is the proper sanction, or contest the facts in a public proceeding. After a hearing, the commission can recommend the Court of Appeals censure the judge, and the court must make a finding that the judge committed sanctionable conduct.
Former Court of Appeals Judge Joseph F. Murphy Jr. said he believes the new rule is a “step in the right direction,” but to truly solve the problem presented by White’s appeal there needs to be a state constitutional amendment giving the Court of Appeals jurisdiction to review all discipline against judges.
“The commission should not have the power to impose a disciplinary sanction on a judge that cannot be reviewed by the Court of Appeals,” he said. “That is simply unjust in my opinion and should be corrected by a constitutional amendment.”
Wilner said he believes the proposed rules address the concerns raised by providing a way to challenge the sanction and have the Court of Appeals review it.
“We have preserved privacy where there’s not going to be a full-blown trial,” Wilner said. “If the judge wants that, he’ll get it, but it won’t be private anymore.”
Graham called the rule “progress” and said it’s useful to have the distinction between a reprimand and censure. He agreed that a constitutional amendment would be a good way to resolve the issues raised by White’s case.
“I would prefer if any kind of punishment, however mild, purported to be imposed by the commission should be subject to review by the top court,” he said.
White, Reese and others have complained about the delay between a complaint and their first notice of it, problems obtaining discovery from investigative counsel, and the extensions that can drag a case on for months.
The proposed rules address many of these complaints, first by allowing judges to opt into receiving notice when investigators open a file pertaining to them, including information about the complaining party and alleged conduct.
“I think that is a good change and it seems to me only fair to a judge to know there’s some complaint floating around being reviewed by someone in the system,” Graham said. “If there’s some complaint pending against me that has some kind of impact on my career and reputation, I want to know about it as soon as possible.”
The amendments also would require any extension requested by investigative counsel be given in writing with good cause articulated. The current rule does not require documentation of the cause for the extension in the record.
Malick said the rule was “pretty meaningless and toothless” but this amendment would improve things.
To address judges’ concerns they were not always getting access to all of the information investigative counsel had, the new rules would also create an enforcement provision allowing the commission to preclude the testimony of witnesses or introduction of evidence not provided in a timely manner by either party. There is also a requirement that exculpatory evidence be disclosed no later than 30 days before the judge’s hearing.
Wilner said the committee made no judgment about the validity of the judges’ complaints because it did not investigate them, but wanted to provide guidance through a more clear discovery rule.