Court of Appeals poised to update judicial discipline rules

An overhaul of Maryland’s judicial ethics rules that has been years in the making could take effect as early as July 1, though sticking points were in evidence at a Court of Appeals meeting Tuesday.

The Standing Committee on Rules of Practice and Procedure submitted a report to the high court in January that recommended a “significant” rewrite of the current rules regarding the Judicial Disabilities Commission and the processing of complaints about judges.

Retired Court of Appeals Judge Alan M. Wilner, chairman of the rules committee, said the committee would take the agreed-upon amendments discussed at Tuesday’s open meeting and send the Court of Appeals a “consensus document” for its consideration by the end of the week.

The six sitting Court of Appeals judges heard from Wilner, as well as from representatives of the Commission on Judicial Disabilities, the Judicial Inquiry Board and the Maryland Circuit Judges Association, as well as from individual judges.

Wilner said stakeholders took an active part in a “searching and transparent process,” though disagreements remained on certain details.

Overall, the committee recommends creating more options for intervention before a judge is sanctioned and redefining the kinds of discipline that can be handed down. The new rules would include updated definitions for “reprimand” — an informal private sanction by the commission — and “censure” — a formal public sanction by the Court of Appeals. A private reprimand would no longer require the judge’s consent, but the changes would make it possible for a judge to challenge the reprimand.

Regarding judicial demeanor, a more balanced approach is required to determine if a caustic remark from the bench or rudeness toward a witness rises to the level of misconduct or is just evidence of a “bad day,” Wilner said.

The proposed rules also address how to deal with vacancies and recusals on the disciplinary panel. Recusals have been an issue in recent years, affecting the commission’s ability to assemble a quorum.

At least one option may require a constitutional amendment, according to Wilner, because the Commission on Judicial Disabilities is a constitutional creation.

Notice

One matter yet to be resolved concerns when judges should be notified that they have been accused of misconduct.

Investigators for the commission have begun informing judges when a complaint is reviewed and a decision is made to “docket” the complaint by opening a file. However, many judges do not want to know about every file opened, since the vast majority of complaints do not go any further and are dismissed. Other judges want to be informed early so they can retain counsel and preserve evidence and recollections.

District Court Chief Judge John P. Morrissey said that, when there is a complaint about a district court judge, his office pulls the recording and file if the complaint involves a case and usually determines the complaint is unfounded. He said the move by investigators to inform judges of complaints almost immediately has caused “great concern” for judges.

Montgomery County Circuit Judge Robert A. Greenberg, chair of the Judicial Inquiry Board, said he has heard anecdotally that attorneys now file “totally baseless” complaints about judges because they know judges will be alerted and will recuse themselves from any proceeding involving attorneys who filed complaints.

“I think the attorneys are onto this,” Greenberg said. “There will be people who will game the system.”

Previously, judges learned about pending charges shortly before public charges were filed, according to assistant investigative counsel Derek Bayne. Judges would then be contacted, along with their attorneys, to meet with investigators to discuss the charges.

The rules committee proposes a system in which judges could “opt in” to learn about complaints immediately or choose to wait until investigators contacted them.

Fairness, due process

Wilner said antipathy has developed between judges and the disciplinary panel, often because of concerns about the fairness of the investigative process.

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. The Court of Appeals reversed the commission’s finding that Reese had committed sanctionable conduct but did not address her procedural complaints.

Some of the proposed amendments are aimed at perceived fairness issues, including a prohibition of ex parte communications between investigators and the commission and a Brady-type requirement for investigative counsel to disclose all exculpatory evidence.

Some judges objected to the letter of cautionary advice, which can be issued without their consent. Though it is not public, it remains in a judge’s file and can be brought up in future disciplinary proceedings.

Greenberg said there have been situations in which judges have refused to consent to a warning or a private reprimand and have forced the commission to decide whether to pursue charges or dismiss the cases entirely. He said the commission must be able to issue a letter of cautionary advice to warn a judge away from future misconduct even over the judge’s objection — otherwise judges disproportionately benefit.

“Of all of the rules, this is perhaps the most crucial in making the system work,” Greenberg said.

Expert testimony

Judges continue to request a rule affirmatively permitting experts to testify to the standard of care in their cases, but the committee continues to refuse, Wilner said.

“Our position, to make it real clear, is that expert testimony is admissible … but it’s still discretionary,” he said. “You get it if you can convince the commission to give it to you.”

The Circuit Judges Association recommended the revised rules state that such testimony is “presumptively admissible” in proceedings where it is relevant and noted that the commission frequently refused to allow expert testimony.

“Reputations, careers are at risk,” said Kevin B. Collins, an attorney for the association.

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 the issue through court opinions rather than by rule and have found that it is admissible testimony — but that disallowing such testimony is not an abuse of discretion.