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Editorial Advisory Board: Benching the bench

Last year this Editorial Advisory Board commented on the new rules proposed by the Standing Committee on Rules of Practice and Procedure for Judicial Discipline (Rules Committee) in Maryland  and the subsequent adoption of those rules by the Court of Appeals. A substantial overhaul was undertaken by the Rules Committee and resulted in significant procedural due process enhancements for judges finding themselves the subject of a charge of misconduct and more transparency for parties involved.

Just last month on the agenda at a meeting of the Rules Committee were additional proposals to amend the rules allowing for a judge to be placed on administrative leave or suspended without pay when there has been a finding and/or recommendations for discipline by the Commission on Judicial Disabilities (commission) but before a final judgment by the Court of Appeals — basically, a benching, to borrow a phrase from the sports world. This makes sense to us for many reasons, at the very least as a prophylactic measure.

Whether or not there is an ultimate finding by the Court of Appeals of misconduct, is a judge charged with alleged misconduct really the judge you want presiding over your case in the interim? We think not and agree with the proposed amendments. Consider the most recent case of judicial misconduct, in which a judge, who some would say was the catalyst for the current amendments, continued to preside over cases in other jurisdictions for many months while awaiting the outcome of her own misconduct charges causing public controversy.

One amendment allows for the Court of Appeals to order an interim suspension of a judge who has been charged with a “serious crime” or if the judge fails to take remedial action that was ordered as a result of a disciplinary proceeding or ordered as a finding of impairment. In addition, an interim suspension could be ordered if the judge failed to refrain from certain conduct. The interim suspension would occur upon notice from the commission directly to the Court of Appeals that there was a willful violation by the judge. Although we support the amendments, we question whether suspension should occur solely at the notification by the commission. We think there may be situations when the need to remove a judge is obvious and necessary, but in most cases this is probably not the case.

So our concern is that upon determination by the commission (akin to the discretion exercised by a prosecutor) that a judge is guilty of the alleged misconduct, a judge can be placed on leave by the court without a hearing. This gives the commission additional punishment power, albeit with oversight by the Court of Appeals. The commission has been accused by judges in the past of unfair behavior.

Therefore, we propose a procedure be put in place for an expedited hearing before the Court of Appeals, or a current or retired judge of the Court of Appeals serving as a special master, in the nature of a preliminary injunction, with the commission required to establish that it is likely to succeed on the merits of its charges and that the potential for harm to the public or injury to public confidence in the judiciary is likely to result if the judge is not placed on leave.

During fiscal year 2019 (July 1, 2018, through June 30, 2019), the commission opened files for 204 verified complaints of judicial misconduct. Seven of those complaints were filed by attorneys, 28 by prison inmates, five by Investigative Counsel and 164 by members of the general public. Charges were filed in only two cases. The vast majority of complaints in fiscal year 2019, as in prior years, were dismissed because the allegations set forth in the complaints were either found to be unsubstantiated, or the conduct complained about did not constitute sanctionable conduct. These statistics should not impose a burden on the Court of Appeals’ ability to deal with suspension or leave as we suggested above.

The power that is vested in our judges is immense, affecting the lives of most Marylanders in one way or another through their interpretation and enforcement of our laws. In a profession that self-regulates we would do well to put measures in place protecting the public from judges that become “disabled,” as that has been broadly construed, before there has been an actual finding of disability or sanctionable conduct. The proposed amendments and our proposed procedure give the Court of Appeals options to bench or not to bench a judge without insult to the due process deserved by the vast majority of our judges who serve us with integrity and civility.

Editorial Advisory Board members James B. Astrachan, Arthur F. Fergenson and Ericka N. King did not take part in this editorial. James Astrachan is married to Baltimore Circuit Judge Julie R. Rubin.


James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

James Haynes

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Michael P. Van Alstine

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.