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Committee set to finalize changes to judicial disabilities rules

Alan M. Wilner, chairman of the Rules committee, said a revised proposal concerning lawyers’ scheduling conflicts balances the trial judges’ desire to control their dockets and the lawyers’ business concerns in ‘what appears to be the reality of law practice in the 21st century.’ (Maximilian Franz/The Daily Record)

Retired Court of Appeals Judge Alan M. Wilner, chairman of the rules committee. (Maximilian Franz/The Daily Record)

ANNAPOLIS — The committee in charge of recommending amendments to the Maryland Rules will attempt to balance concerns from stakeholders before submitting an overhaul of the Judicial Disabilities rules to the Court of Appeals for approval.

Retired Court of Appeals Judge Alan M. Wilner, chairman of the Standing Committee on Rules of Practice and Procedure, said some groups have “extraordinarily staked-out positions” and bring passion to the process. Representatives from the Commission on Judicial Disabilities, the courts and judges attending a public hearing on the rule changes Friday.

The draft rules would make significant changes to the current judicial ethics process, including creating an avenue for Court of Appeals review, requiring discovery disclosures and allowing immediate notice of complaints.

“The whole point of this is to put everyone on a level playing field,” said Alvin I. Frederick, a member 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.

The committee drafted changes in 2016 but set them aside after Baltimore City Circuit Judge Pamela J. White appealed her reprimand to the Court of Appeals, 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.

There was no significant debate over the rule changes that would create more options for intervention before a sanction and allow a judge to have a sanction reviewed in the Court of Appeals.

Judges continue to ask the committee to expressly permit expert testimony on the standard of care for judges in their cases, which the committee remains reluctant to do on its own.

In recent cases, the commission has declined to permit a judge to call another judge as an expert. After researching the issue, Wilner said other states have dealt with it through court opinions rather than by rule and have found that it is admissible testimony but disallowing it is not an abuse of discretion.

The Maryland Circuit Judges Association, which was consulted on the amendments, filed written comment claiming judicial standards “cannot be meaningfully applied without an understanding of the procedures, norms, and practical constraints inherent in judging.”

The commission also submitted written comments critical of some of the proposed changes, including a presumptive entitlement to costs for the prevailing party in the case. The defined reasonable costs would exclude attorneys’ fees but include expert witness expenses, travel for other witnesses, transcripts and court reporting services.

Frederick said the subcommittee hoped for a “reasonable, tempered approach that should discourage people from scorched-earth” litigation, but the commission argued it would decimate an already small budget for them to pay costs if a judge prevails. The judges’ association asked that the rule be changed to assess costs for a prevailing judge but not require a judge to pay the commission’s costs.

An amendment to allow costs to be awarded only to the judge failed, but the committee amended the rule to allow the Court of Appeals to assess costs permissively.

The commission also objected to the prohibition of substantive ex parte communications between the commission, members of the Judicial Inquiry Board, investigative counsel for the commission and the judge.

The commission alleged the change is “unnecessary, vague, and virtually impossible to enforce.” Judge Robert A. Greenberg, chair of the Judicial Inquiry Board, testified it would appear to limit that body’s ability to question investigative counsel about the report they submit.

Court of Special Appeals Judge Michael W. Reed, chair of the commission, similarly said commission members ask “probing” and “challenging” questions when they receive a report and recommendation, and it would delay proceedings to have to put them in writing to make a record.

Despite the discussion, there was no move to amend the proposed rule.

The rules committee’s recommended changes will be submitted to the Court of Appeals for approval.

Editor’s note: The Daily Record submitted written comment to the committee seeking to more clearly establish the right of public access to records of proceedings before the Commission on Judicial Disabilities.

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