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Md. high court adopts new rules for judicial misconduct, discipline

New rules for judicial discipline will take effect July 1 after the Court of Appeals approved a substantial overhaul last week.

The Standing Committee on Rules of Practice and Procedure submitted recommendations in January for a “significant” rewrite of the rules governing judicial misconduct and discipline. The Court of Appeals held open meetings in April and May and issued a rules order on Thursday.

The amended rules address concerns raised in recent years — both by judges going through the process and the Commission on Judicial Disabilities overseeing it — about the options available when providing guidance to a judge for less-than-egregious conduct and procedural fairness.

Retired Court of Appeals Judge Alan M. Wilner, chairman of the rules committee, told the court last month at a meeting on the rule changes that “antipathy” has developed between judges and the disciplinary panel. The new preamble to the rules states that their function is to enforce standards of judicial conduct but also to assist judges “who have committed minor and perhaps unintended violations.”

Kevin B. Collins, an attorney for the Circuit Judges Association, said his clients overall are pleased with the new rules and praised Wilner and the rules committee for their work.

“There was a tremendous amount of work that went into this,” Collins, of Covington & Burling LLP in Washington said Monday.

Collins said the transparency included in the new rules will benefit the judges and the public.

“It has become over the last few years a very adversarial process, and so procedures have been put in place to reflect that and to make it more fair and transparent,” he said.

Wilner said he hoped with the new rules “some of the animosity, some of the hard feelings that had been expressed will settle down and all sides will look at the process in a more constructive way.”

Overall, the new rules create more alternatives for intervention before a judge is sanctioned, including a private “letter of cautionary advice,” and redefine the kinds of discipline that can be handed down, including a “reprimand” — an informal, private sanction by the commission — and “censure” — a formal public sanction by the Court of Appeals.

Previously, if a judge disagreed with a finding of sanctionable conduct and refused to accept a private reprimand, the commission was forced either to file public charges or to drop the matter entirely. A reprimand no longer requires the judge’s consent, but the changes make it possible for a judge to challenge the reprimand in a confidential proceeding or to contest the underlying facts in a public hearing.

To address some of the perceived fairness issues, the rules now include a prohibition on certain communications between investigators and the commission without the respondent judge’s knowledge, as well as an affirmative duty requiring the disclosure of all exculpatory evidence.

In response to complaints about lengthy investigations with multiple extensions, an order extending the 90-day investigative period must now be in writing and articulate the “good cause” for the extension.

Though the vast majority of complaints against judges never result in disciplinary action — of 211 complaints in fiscal year 2018, charges were filed in seven cases — the rules committee and, later, the Court of Appeals discussed options for allowing judges to be notified when one is filed to allow them to retain counsel and engage with the commission as early as possible. Judges can, under the new rules, request the commission inform them when a file is opened.

The Court of Appeals also approved a change to allow itself to appoint replacements to the commission to maintain a quorum if there are multiple recusals that could prevent the panel from proceeding. Wilner suggested a constitutional amendment might have been necessary to make the change since the commission was created by the Maryland Constitution.

Wilner said the rules committee will monitor how the rules are implemented and be open to any changes if there are issues.

“Our work, other than just sort of monitoring how these rules play out and seeing whether there is any tweaking necessary, other than that our work is done,” he said.

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