Retired judges who still hear cases by special assignment may not serve on police disciplinary trial boards despite a state law encouraging participation by former jurists, the Maryland Judicial Ethics Committee stated this week.
In its published decision, the panel said that even a part-time judge’s involvement in reviewing officer conduct would “undermine” their ethical obligation to appear and be neutral when sitting on the bench in criminal cases or lawsuits involving police activity or testimony.
“The focus of the trial board, police impropriety and discipline, is a matter of great public concern and interest,” the committee stated.
“Moreover, cases involving police witnesses are frequently on the dockets of our trial and appellate courts,” the panel added. “In our view, a senior (or retired) judge’s participation as a member, and chair of the trial board could appear to a reasonable person to undermine the judge’s impartiality in cases involving police officers and could lead to possible disqualification in such cases.”
The committee’s opinion was prompted by the 2021 Maryland Police Accountability Act. The law, which went into effect July 1, gives non-officers greater say in reviewing the conduct and discipline of officers whose actions had been largely judged by their own departments in what critics called a conflict of interest that led to police brutality going unpunished.
Under the law, each police department must establish three-member boards of review. The members must include a retired district or circuit court judge, who serves as board chair, rules on all motions and prepares the written decision; a civilian; and a police officer of equal rank to the officer accused of misconduct.
The judicial ethics panel issued its opinion in response to an unnamed county administrative judge’s request for its guidance after being asked by Anne Arundel County Executive Steuart Pittman’s office to submit a list of potential judges for the police discipline board.
The ethics committee responded that the list must be limited to non-active, fully retired judges who do not intend to make themselves available for recall by special assignment.
“The code (of judicial ethics) does not apply to a retired judge who is not recalled by the Court of Appeals and available to serve on temporary assignment,” the committee stated.
“Accordingly, the code does not prohibit a judge who is not approved for recall from serving on the police discipline trial board,” the panel added. “But, if a fully retired judge anticipates seeking recall status during a term of service on the police discipline board, such service would be problematic.”
Maryland Court of Special Appeals Judge Kathryn Grill Graeff chairs the 13-member ethics committee, which consists of six sitting judges, three former judges, a circuit court clerk, a judicial appointee and two people who are neither lawyers nor employed by the Maryland Judiciary.