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Committee’s proposed changes to judicial discipline rules go to Md. high court

10.15.13 BALTIMORE, MD- Chief Judge Mary Ellen Barbera, Maryland Court of Appeals. (Maximilian Franz/The Daily Record)

Chief Judge Mary Ellen Barbera and her colleagues on the Maryland Court of Appeals now will decide the fate of a proposed overhaul of rules governing judicial discipline. (File Photo/Maximilian Franz)

Long-awaited updates to Maryland’s judicial discipline process will now go to the Court of Appeals for final approval after the committee in charge of amendments agreed on recommendations.

The Standing Committee on Rules of Practice and Procedure submitted its report Thursday and recommended the adoption of the “significant rewriting of the current Rules regarding the Judicial Disabilities Commission and the processing of complaints charging a judge.”

Key changes proposed by the committee in the draft rules have not changed in the final version. Written comments may be submitted to the Rules Committee by Feb. 19.

Overall, the committee recommends creating more options for intervention before a sanction and redefined the kinds of discipline that can be handed down. 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.

A private reprimand no longer requires the judge’s consent, but the changes would make it possible for a judge to challenge a reprimand.

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 on Judicial Disabilities can recommend the Court of Appeals censure the judge, and the court must make a finding that the judge committed sanctionable conduct.

The committee also expanded and clarified discovery rules in disciplinary matters, expressly stating that investigative counsel has an obligation to respond to a discovery request from a judge and vice versa. The new rule also adds “an overarching Brady-type requirement” for investigative counsel to disclose all exculpatory evidence.

There was no significant debate over these changes at a public hearing in November. Judges also supported a proposal to allow them to ask to be informed when a complaint is docketed against them rather than learning of complaints only as charges are being prepared.

Despite repeated requests from judges, the committee stood by its decision not to expressly permit expert testimony on the standard of care for judges. The committee rejected suggestions for how to incorporate this request into the rules and reiterated its preference that any decision come from the court rather than by rule.

A determination about the standard of care is an issue of law in many cases, and expert testimony is not permitted, according to the committee.

The Commission on Judicial Disabilities opposed some of the changes and claimed they would be restricted or burdened by them, but the committee maintained the new rules and explained their reasoning in the final draft.

The commission opposed a new rule prohibiting ex parte communications it might have with members of the Judicial Inquiry Board and investigative counsel, claiming some of these communications are necessary during investigations. But the committee maintained the rule in its final recommendations and suggested the commission ask for a supplemental report for the record or include the judge in the discussion.

The commission also opposed a rule allowing costs to be awarded to the prevailing party, citing budget concerns, but the committee said it hopes the rule will discourage “scorched-earth” litigation.

The rules committee began working on updating and reorganizing the rules relating to judicial administration, judges and attorneys in 2012 with plans to submit changes in three parts. Two reports were sent to the Court of Appeals in 2013 but the final portion was not completed until 2016. That same year, the first of two judicial discipline cases came before the court for review and raised new concerns, causing the court to remand the proposed changes back to the committee.

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