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Editorial Advisory Board: New rules give judges their due process

The rules regarding how judges are judged got more than a facelift on May 15 when the Court of Appeals adopted the rules changes proposed by the Rules Committee in its 199th report effective July 1. It was a full-body makeover, starting with a change in name from “Judicial Discipline” to “Judicial Disabilities and Discipline,” a nod to a kinder, more gentle process.

In response to legitimate concerns by judges in recent years that the rules failed to provide adequate due process protections, such as immediate notice of complaints and discovery disclosures coupled with practical concerns by the Commission on Judicial Disabilities that there were no procedures in place for dealing with impairment (physical, mental or addictive conditions that may not be permanent), a concerted effort to significantly rewrite the rules was undertaken. The result was worth the pain.

The process will be more constructive and instructive and less scorched-earth. Standards of judicial conduct remain the same and avenues of complaint remain intact for complainants. Judges can now expect more transparency, procedural fairness, less delay and lower costs. To name but a few new rules and additions to existing rules, much like a prosecutor’s requirement in a criminal matter to turn over exculpatory evidence, commonly referred to as “Brady material,” now exculpatory evidence known to investigative counsel must be disclosed to the judge who is the subject of an investigation. Also borrowing from criminal procedure, a new rule authorizes a hearing in the nature of a violation of probation hearing when the court imposes discipline on a judge but suspends execution of that discipline subject to compliance by the judge and the judge is subsequently accused of noncompliance.  Seems like fundamental fairness, right? Aren’t judges entitled to a fair shake in the application of the law when accused of misconduct or when addressing complaints made against them?

The vast majority of jurists in Maryland and in this country go to work every day, abide by and even exceed their standards of conduct in dealing with a public that is increasingly hostile toward them and the process they safeguard. And yet some would argue that in the past the disciplining of judges in a self-regulating profession has not been tough enough, allowing those who have engaged in bad behavior to linger or retire instead of being publicly called out and ousted. Promoting public confidence in and preserving the integrity and independence of the judiciary has never been more important than it is today.  And maybe, with new protections in place there may be more thorough investigations and gathering of information for those complaints? The Commission on Judicial Disabilities plays an important role in that and the new rules take nothing substantial away from its powers to do so.

Established by constitutional amendment in 1966 as an independent body in response to a need for monitoring the conduct of our judges, the Commission on Judicial Disabilities and its rules and practices have had very little change since. This full-body makeover of the process was overdue but not overdone. It gives the judges and the process itself more structure and accountability. Stakeholders came together and worked together in many long meetings, and for the most part came to consensus on a number of important issues and the Court of Appeals has agreed.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Martha Ertman (on sabbatical)

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

Ericka King

Stephen Meehan

William Michaels

Angela W. Russell

Debra G. Schubert

Mark Stichel

Vanessa Vescio

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.