In the Matter of Judge Nickerson , 473 Md. 509 ( 2021 )

In the Matter of the Honorable Amy Leigh Nickerson, Judge of the Orphans’ Court of
Maryland for Kent County, Second Judicial District, JD No. 1, September Term, 2020,
Opinion by Booth, J.
JUDICIAL DISCIPLINE — SANCTIONS — REMOVAL
Judge Amy Leigh Nickerson violated Maryland Rules 18-101.1 (Compliance with the
Law); 18-101.2 (Promoting Confidence in the Judiciary); 18-101.3 (Avoiding Lending the
Prestige of Judicial Office); 18-102.16 (Cooperation with Disciplinary Authorities); and
18-103.1 (Extra-Official Activities in General). These violations arose after Judge
Nickerson was charged with and convicted of impaired driving and other related offenses;
sought to use her judicial office and personal connections to influence an officer’s decision
to charge her with impaired driving and other related offenses; failed to cooperate with an
officer during a traffic stop; failed to cooperate with disciplinary authorities; and failed to
comply with the terms of a Conditional Diversion Agreement and private reprimand.
Removal is the appropriate sanction in this case.
Maryland Commission on Judicial Disabilities
Case Nos.: CJD 2018-033 & CJD 2019-013
No argument/considered on the papers
IN THE COURT OF APPEALS
OF MARYLAND
JD No. 1
September Term, 2020
IN THE MATTER OF THE HONORABLE
AMY LEIGH NICKERSON,
JUDGE OF THE ORPHANS’ COURT
OF MARYLAND FOR KENT COUNTY,
SECOND JUDICIAL CIRCUIT
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
Opinion by Booth, J.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-05-27 14:55-04:00 Filed: May 27, 2021
Suzanne C. Johnson, Clerk
In Maryland, judges are expected to abide by certain ethical standards, set forth in
the Maryland Code of Judicial Conduct (“MCJC”),1 to ensure they conduct themselves in
a manner consistent with preserving the integrity of the judiciary. When a judge’s conduct
appears to fall short of these ethical standards, the Maryland Constitution vests the
Maryland Commission on Judicial Disabilities (the “Commission”) with the authority to
investigate alleged instances of judicial misconduct and, where appropriate, recommend
that this Court take appropriate disciplinary action, up to and including removal from
office. Md. Const. art. IV, § 4B.
This case concerns Amy Leigh Nickerson, a judge of the Orphans’ Court for Kent
County, who was elected to that position by the qualified voters of Kent County in
November 2014 and reelected in November 2018.2 On October 18, 2018, at the directive
1
The Maryland Code of Judicial Conduct (“MCJC”) is codified in Maryland Rules
18-100, et seq. The substantive provisions and much of the structure of the rules is based
in large part on the 2007 Model Code of Judicial Conduct proposed by the American Bar
Association (“ABA Model Code”). See Md. Rule 18-100.1(a). The Maryland Rules are
numbered to correspond to the parallel ABA Model Code Rules. Thus, for example, ABA
Rule 1.1 (Compliance with the Law) is Maryland Rule 18-101.1, which is also captioned
“Compliance with the Law.” See id., Committee note. The provisions of the MCJC
generally apply to incumbent judges of the orphans’ court, unless a specific rule provides
to the contrary. See Md. Rule 18-100.2(b).
2
The Maryland Constitution provides for the election of three judges of the orphans’
court by the qualified voters of the respective county. Md. Const. art. IV, § 40. In order
to be qualified for the position of Judge of the Orphans’ Court for Kent County, the
individual must be a citizen of the State and resident of the county for the twelve months
preceding the election. Id. The term of office is four years. By statute, orphans’ court
judges are charged with various duties involving the administration of estates, including
conducting judicial probate, directing the conduct of personal representatives, passing
orders necessary for administering estates, and securing the rights of minors whose estate
is being administered by a guardian. See Md. Code, Estates and Trusts Article (“ET”) §§
2-102, 13-106.
of the Commission, Investigative Counsel3 filed charges against Judge Nickerson, pursuant
to Maryland Rule 18-431(a). The charges originated from allegations of sanctionable
conduct arising from a March 2018 traffic stop of Judge Nickerson that resulted in her
arrest. Additionally, in February 2019, the Commission directed Investigative Counsel to
investigate an outstanding tax lien and judgment that had been entered in 2013 against
Judge Nickerson in favor of the Maryland Comptroller. The charges arising from the traffic
stop were initially addressed through the entry of a Conditional Diversion Agreement
(“CDA”) pursuant to Maryland Rule 18-426. The investigation into the outstanding tax
lien was addressed by a reprimand pursuant to Maryland Rule 18-427. Judge Nickerson
consented to the disposition of the investigations through the entry of the CDA and
reprimand, both of which were contingent upon Judge Nickerson complying with certain
terms and conditions. After Judge Nickerson failed to satisfy the conditions, the
Commission revoked the CDA, proceeded with formal charges, and scheduled a hearing.
After the hearing, the Commission found that Judge Nickerson’s conduct violated several
provisions of the MCJC, and it unanimously recommended that this Court issue an order
removing Judge Nickerson from office. We agreed with the Commission’s
recommendation and entered an order on March 26, 2021, which removed Judge Nickerson
3
The Maryland Constitution vests this Court with rule-making authority to establish
the “means to implement and enforce the powers of the Commission,” as well as “the
practice and procedure before the Commission.” See Md. Const. art. IV § 4B(a)(5).
Pursuant to that authority, this Court has established the position of Investigative Counsel.
See Md. Rule 18-411(e). This Rule provides for the appointment by the Commission of an
individual with substantial trial experience and familiarity with the MCJC, subject to
approval by this Court. Id.
2
from the office of Judge of the Orphans’ Court for Kent County. We explain in this opinion
the reasons for that action.
I
Procedural History
As noted above, this proceeding is the culmination of two separate disciplinary
investigations into Judge Nickerson for sanctionable conduct4 under the MCJC.
A. The 2018 Charges
In March 2018, the Commission initiated an investigation, through Investigative
Counsel, concerning Judge Nickerson’s extrajudicial conduct after she was charged with,
among other things, impaired driving, speeding, and reckless driving. Following an
investigation, the Commission determined there was probable cause to believe Judge
Nickerson engaged in sanctionable conduct and directed Investigative Counsel to file
charges against Judge Nickerson. Consistent with this directive, Investigative Counsel
filed charges with the Commission on October 25, 2018, alleging that Judge Nickerson
violated the MCJC. Specifically, Investigative Counsel alleged that Judge Nickerson
violated Maryland Rules 18-101.1 (Compliance with the Law); 18-101.2 (Promoting
4
“Sanctionable conduct” means:
misconduct while in office, the persistent failure by a judge to perform the
duties of the judge’s office, or conduct prejudicial to the proper
administration of justice. A judge’s violation of any of the provisions of the
Maryland Code of Judicial Conduct promulgated by Title 18, Chapter 100
may constitute sanctionable conduct.
Md. Rule 18-402(m)(1).
3
Confidence in the Judiciary); 18-101.3 (Avoiding Lending the Prestige of Judicial Office);
and 18-103.1 (Extra-Official Activities in General).
After Judge Nickerson filed a response in which she admitted that she violated each
rule for which she was charged and requested a reprimand, Judge Nickerson and the
Commission entered into a CDA in November 2019.5 Thereafter, Judge Nickerson failed
to comply with the material terms of the CDA, which resulted in the Commission revoking
5
The Commission’s authority to enter a conditional diversion agreement (“CDA”)
is set forth in Maryland Rule 18-426, which provides:
(a) When Appropriate. The Commission and the judge may enter into a
conditional diversion agreement if, after an investigation by Investigative
Counsel:
(1) the Commission concludes (A) that any alleged sanctionable conduct
was not so serious, offensive, or repeated as to justify the filing of
charges or, if charges already had been filed, the imposition of any
immediate discipline, and (B) that the appropriate disposition is for
the judge to undergo specific treatment, participate in one or more
specified educational or therapeutic programs, issue an apology to the
complainant, or take other specific corrective or remedial action; and
(2) the judge, in the agreement, (A) agrees to the specified conditions, (B)
waives the right to a hearing before the Commission and subsequent
proceedings before the Court of Appeals, (C) agrees that the
conditional diversion agreement may be revoked for noncompliance
. . ., and (D) agrees that the agreement may be admitted in any
subsequent disciplinary proceeding against the judge to the extent that
it is relevant to the allegations at issue or the sanction that may be
imposed.
Although a CDA constitutes neither a form of discipline nor a finding that sanctionable
conduct was committed, the Commission is authorized to revoke a CDA and proceed with
disciplinary proceedings where a judge fails to satisfy a material condition of a CDA, as a
disciplinary complaint remains open until all conditions of a CDA are satisfied. Md. Rule
18-426(b), (c), and (e).
4
it in April 2020, and instructing Investigative Counsel to proceed with the original charges,
as well as an additional charge for violating Maryland Rule 18-102.16(a) (Cooperation
with Disciplinary Authorities) (the “2018 Charges”).
B. The 2019 Charge
In February 2019, Investigative Counsel initiated an investigation into an outstanding
Maryland tax lien and judgment entered against Judge Nickerson for unpaid taxes for the
calendar year 2013. Following the investigation, the Commission determined that the unpaid
tax lien violated Maryland Rules 18.101.1 (Compliance with the Law) and 18.101.2
(Promoting Confidence in the Judiciary) and decided to issue a reprimand, which Judge
Nickerson did not oppose, subject to the condition that she submit proof that she had filed
“federal and state tax returns for tax years 2013 through 2018, including proof of payment
of any tax obligations owed, including applicable penalties and interest.” Judge Nickerson
agreed to the terms of the reprimand, which was issued in November 2019. The reprimand
stated that Judge Nickerson would provide proof of the tax filings and payment of any tax
obligations within six months of the date of the reprimand. The reprimand also stated that
Judge Nickerson’s “[f]ailure to satisfy this condition could result in an investigation by
Investigative Counsel and the filing of Charges.”
Judge Nickerson did not submit the required documentation confirming her tax
filings and payments as required by the reprimand. In July 2020, Investigative Counsel
sent two letters to Judge Nickerson reminding her of the conditions. Despite the follow up
correspondence, Judge Nickerson failed to submit the required information. Upon
direction of the Commission, Investigative Counsel filed charges on August 5, 2020,
5
alleging that Judge Nickerson’s failure to comply with the terms of the reprimand
constituted a violation of Maryland Rule 18-102.16 (Cooperation with Disciplinary
Authorities) (the “2019 Charge”).
C. The Commission Proceedings on the 2018 Charges and the 2019 Charge
The Commission held a hearing on December 8, 2020 concerning the 2018 Charges
and the 2019 Charge.6 Prior to the hearing, pursuant to Maryland Rules 2-424 and 18-433(a),
Investigative Counsel propounded multiple requests for admission of facts and genuineness
of documents. Judge Nickerson failed to respond to these requests. Accordingly, the
substance of the requests was deemed admitted pursuant to Maryland Rule 2-424(b) and
entered as substantive evidence at the hearing. At the hearing, Investigative Counsel
admitted 76 exhibits into evidence, including the audiovisual recording of the March 2018
traffic stop. Judge Nickerson was advised of her right to counsel but elected to proceed pro
se. She declined to make any opening or closing remarks, and only participated in the
proceeding to answer a handful of Commission questions.7
The Commission issued a written decision on January 29, 2021 setting forth findings
of fact, conclusions of law, and a recommended sanction. With respect to the 2018
Charges, the Commission found by clear and convincing evidence that Judge Nickerson
violated Maryland Rules 18-101.1, 18-101.2, 18-101.3, 18-103.1, and 18-102.16(a). With
6
The proceedings were held virtually via Zoom due to health restrictions related to
the COVID-19 global pandemic.
7
Consistent with an order of the Commission entered prior to the hearing, Judge
Nickerson was not permitted to present evidence as a result of her failure to respond to
discovery requests propounded by Investigative Counsel.
6
respect to the 2019 Charge, the Commission found by clear and convincing evidence that
Judge Nickerson violated Maryland Rule 18-102.16(a).8 The Commission further found
that Judge Nickerson’s conduct met the definition of “sanctionable conduct” under
Maryland Rule 18-402(m)(1). By unanimous vote, the Commission recommended her
immediate removal as an Orphans’ Court Judge for Kent County.
In accordance with Maryland Rule 18-435, the Commission referred the matter,
including its recommendation, to this Court for final disposition. Because Judge Nickerson
did not file exceptions to the Commission’s findings, conclusions, or recommendation and
failed to show cause, in writing, why oral argument should be held, we considered the matter
on the papers. See Md. Rule 18-437(e) (“If no exceptions are timely filed or if the judge files
with the Court a written waiver of the judge’s right to a hearing, the Court may decide the
matter without a hearing.”). On March 26, 2021, we issued an order removing Judge
Nickerson from the office of Judge of the Orphans’ Court for Kent County, Maryland.
II
The Commission’s Findings of Fact
As previously noted, Judge Nickerson did not file any exceptions to the
Commission’s findings of fact or conclusions of law. In reviewing the Commission’s
8
The Commission also found that Judge Nickerson’s failure to cooperate with the
Commission in connection with the tax lien investigation constituted a violation of
Maryland Rule 18-101.1 (Compliance with the Law). However, in reviewing the formal
charges filed in connection with the tax lien investigation, we determined that the
Commission did not charge Judge Nickerson with a violation of this Rule. Accordingly,
we have not considered the Commission’s conclusion concerning this rule violation in
connection with the tax lien.
7
findings of facts, we accept the Commission’s findings as prima facie correct, and will
only disturb the Commission’s factual findings to the extent that they are clearly erroneous.
In re Russell, 464 Md. 390, 413 (2019). Having independently reviewed the record, we
conclude that the Commission’s factual findings are well supported by the record and,
therefore, not clearly erroneous.
A. Findings of Fact Related to the Traffic Stop
On March 9, 2018, Sergeant Harry A. Kettner of the Kent County Sheriff’s Office
stopped Judge Nickerson on Route 320 in Rock Hall, Maryland after determining, based
upon his in-camera radar unit, that she was speeding. As Sergeant Kettner approached
Judge Nickerson’s vehicle, she stated that she had just left work.9 Sergeant Kettner
observed that her eyes were glassy and bloodshot, and her actions were slow and delayed.
Sergeant Kettner also smelled alcohol emanating from Judge Nickerson’s vehicle and
observed a clear cup with clear liquid in the center console.
Sergeant Kettner then asked Judge Nickerson to exit her vehicle. After completing
a phone call, and upon a second request from the officer, she complied. Judge Nickerson
said to Sergeant Kettner, “[c]an I tell you something else? I’m a judge of the Orphans’
Court. So please. I’m serious.” Judge Nickerson also advised Sergeant Kettner that she
had telephoned an individual who she referred to as “Kirby,” and had told Kirby10 that she
had been pulled over by Sergeant Kettner.
9
In addition to her position as an orphans’ court judge, Judge Nickerson also worked
as a hostess at a local restaurant. Judge Nickerson was returning home from a shift at the
restaurant when she was pulled over by Sergeant Kettner.
8
Sergeant Kettner asked Judge Nickerson to rate her level of intoxication on a scale
of one to ten, with ten being the highest. Judge Nickerson stated that she was a “five” and
told Sergeant Kettner that she had a couple drinks before leaving work. At different points
during the traffic stop, Judge Nickerson stated that she consumed three drinks and, in a
conversation on the telephone with an unknown individual, she stated that she had
consumed four drinks since 7:30 or 8:00 p.m. When Sergeant Kettner asked Judge
Nickerson what was in the cup in the center console, she stated that it was club soda. Later
in the stop, she admitted that the cup contained vodka. A subsequent test performed on the
contents of the cup confirmed that it contained alcohol.
Sergeant Kettner administered multiple field sobriety tests to Judge Nickerson.
After performing poorly on each, for the first time, Judge Nickerson raised a medical
condition that she claimed to be the reason for her poor performance. Sergeant Kettner
permitted Judge Nickerson to take measures to alleviate the effects of the medical
condition, including drinking a beverage that was in her vehicle and contacting a family
member to bring her another beverage. During this period, Judge Nickerson cited several
different benchmarks for the alleviation of the effect of her condition, at which she felt that
she would be able to complete the tests.
Before completing the field sobriety tests, Judge Nickerson told Sergeant Kettner
that she lived a short distance away and asked if he would permit her to continue driving
home while the officer followed her. After Sergeant Kettner advised Judge Nickerson that
10
The individual whom Judge Nickerson referred to as “Kirby” was Lieutenant
Kirby, one of Sergeant Kettner’s supervisors.
9
this was not a possible outcome, she mentioned for a second time that she was a judge, to
which Sergeant Kettner replied, “[o]kay . . . shouldn’t you know better then?”
Once her symptoms were abated to what Judge Nickerson described as an
appropriate level, Sergeant Kettner asked her to step out of her vehicle and perform the
field sobriety tests again. After Judge Nickerson exhibited poor results on the tests,
Sergeant Kettner placed her under arrest. During the transport, Judge Nickerson stated:
“I’m serious, I’ll show you where I live” and asked to retake the field sobriety test.
Sergeant Kettner explained to Judge Nickerson that she was already placed under arrest.
Judge Nickerson replied “[t]his is going to ruin my whole life” and that she was “losing
my whole f---ing life.” Judge Nickerson then mentioned her upcoming election and asked
Sergeant Kettner for advice, stating that she had “a lot hinging on . . . .”
Thereafter, a lengthy exchange ensued between Sergeant Kettner and Judge
Nickerson, during which Sergeant Kettner attempted to ascertain whether Judge Nickerson
would agree to submit to a blood alcohol concentration test in Centreville. Sergeant
Kettner asked Judge Nickerson thirteen times whether she would agree to take the test. In
each instance, she refused to answer the question. Instead of answering the officer’s
question, she deflected by asking Sergeant Kettner several times for advice on what “he
would do” if he were in her situation, “given her upcoming election.” In each instance,
Sergeant Kettner demurred. During one such exchange, Judge Nickerson responded to
Sergeant Kettner’s question by asking to call “Lieutenant Kirby.” Sergeant Kettner told
Judge Nickerson that she could not call Lieutenant Kirby and reminded her that their
conversation was being recorded. Judge Nickerson asked if she could call her lawyer and
10
brought up Lieutenant Kirby again. After Judge Nickerson called someone who did not
answer the phone, Sergeant Kettner told her she could call someone else, at which time
Judge Nickerson once again asked Sergeant Kettner what she should do and repeated that
her life was gone. Sergeant Kettner once again invited her to call someone else and read
to Judge Nickerson the law regarding the breathalyzer test. Judge Nickerson called another
unidentified individual and spoke to that person. The Commission found that Judge
Nickerson sought to attenuate the traffic stop by asking Sergeant Kettner to repeat the
various consequences for specific blood alcohol concentrations.
The Commission found that Judge Nickerson created further delay in responding to
the officer’s multiple requests for her answer to the question of whether she would agree
to a blood alcohol concentration test by calling another individual. Sergeant Kettner spoke
with this individual, discussed Judge Nickerson’s blood sugar and whether the officer
would need to drive her home. During this call, on two occasions, Sergeant Kettner advised
the individual that Judge Nickerson needed to decide whether she was going to take the
blood alcohol concentration test, explaining that, with the passage of time, her failure to
make a decision would be considered a refusal.
After the call ended, Judge Nickerson asked for Sergeant Kettner’s opinion “off the
record.” Sergeant Kettner responded that he could not have an “off the record”
conversation with her about this matter, to which Judge Nickerson responded, “[i]sn’t that
some s--t.” Judge Nickerson continued, stating that “if I lose my job with the courts, I’ll
lose my health insurance.” She again referenced her upcoming election and possibly
having to withdraw.
11
Sergeant Kettner asked Judge Nickerson two more times whether she planned to
submit to the blood alcohol concentration test and did not receive a response from Judge
Nickerson other than “I don’t know.” Sergeant Kettner ultimately advised Judge Nickerson
that, as the result of the passage of time, he would have to mark her as a “refusal[,]” to
which Judge Nickerson responded, “[o]kay.”
Sergeant Kettner charged Judge Nickerson with: two counts of exceeding the
maximum speed; driving a vehicle while under the influence of alcohol; driving a vehicle
while impaired by alcohol; negligent driving; reckless driving; and throwing, dumping,
discharge, deposit of refuse on a highway. At a trial on the merits in the District Court
sitting in Kent County, the court found Judge Nickerson guilty and entered a probation
before judgment on all charges, with the exception of driving under the influence of
alcohol, for which Judge Nickerson was acquitted.
Based upon the foregoing facts, the Commission found that Judge Nickerson was
dishonest throughout the traffic stop. Specifically, the Commission noted Judge Nickerson
exhibited a lack of candor when she initially claimed she had only consumed a “couple”
drinks and later admitted that she had consumed three or four drinks. The Commission
also determined that Judge Nickerson was not truthful when she initially told the police
officer that the cup in her console only contained club soda, but later admitted that it
contained vodka. We agree with the Commission’s findings concerning Judge Nickerson’s
dishonest statements during the traffic stop.
In addition to her dishonesty, the Commission noted that Judge Nickerson sought to
influence Sergeant Kettner’s decision to conduct an investigation or dissuade him from
12
filing charges by interjecting her position as a judge as soon as she was stopped by the
officer, and then two additional times during the stop, and by invoking the name of
Sergeant Kettner’s superior officer. We agree with these findings. The Commission also
found Judge Nickerson refused to take responsibility for her conduct. At the Commission
hearing, rather than admitting that she invoked her status as an orphans’ court judge in an
attempt to improperly influence Sergeant Kettner, Judge Nickerson told the Commission
that she was merely identifying herself as being an orphans’ court judge during the course
of the traffic stop “in case he had seen me around or in the courthouse, because, you know,
he could have run into me in the hallway or seen me, or recognized me and thought that I
was there for District Court.” We are wholly unpersuaded by Judge Nickerson’s
explanation and agree with the Commission’s findings.
The Commission further found Judge Nickerson was uncooperative throughout the
traffic stop. According to the Commission, Judge Nickerson was not only difficult
throughout the field sobriety tests but also refused to respond to Sergeant Kettner’s
questions concerning her amenability to taking a blood alcohol concentration test. With
respect to the latter conduct, the Commission concluded her lack of cooperation was “an
effort to intentionally delay the blood alcohol testing and obfuscate the level of her
intoxication.” Based upon our independent review of the record, we agree.
B. Findings of Fact Related to the Failure to Comply with the CDA
Conditions
As previously discussed, in October 2018, Investigative Counsel filed charges
against Judge Nickerson for her conduct leading up to, and during, the March 2018 traffic
13
stop. After Judge Nickerson admitted that she violated the MCJC for all the reasons set
forth in Investigative Counsel’s charges, the Commission and Judge Nickerson entered into
a CDA in November 2019. Pursuant to the terms of the CDA, the Commission agreed to
forgo further disciplinary action, provided Judge Nickerson completed the agreed upon
corrective and remedial actions. Specifically, Judge Nickerson agreed to: (1) provide
Investigative Counsel with documentation showing she successfully completed the terms
of her court-ordered probation on or before January 20, 2020; (2) submit four quarterly
reports to Investigative Counsel, the first of which was due February 20, 2020, verifying
compliance with, and active participation in, all recommendations for the treatment and
management of her health condition; (3) report to Investigative Counsel all non-orphans’
court-related contact, interaction, or communication with on-duty law enforcement; and
(4) attend and complete a Commission-approved ethics course. To assist Judge Nickerson
in complying with the terms of the CDA, Investigative Counsel sent Judge Nickerson a
letter on December 9, 2019 advising her of the agreed-upon submission deadlines.
Compliance with Investigative Counsel’s letter proved to be a Sisyphean task.
Indeed, Judge Nickerson failed to provide documentation verifying that she successfully
completed probation to Investigative Counsel by the January 20, 2020 deadline.
Notwithstanding Judge Nickerson’s non-compliance with the initial deadline, Investigative
Counsel extended the submission deadline to January 31, 2020. But again, Judge
Nickerson failed to timely submit the required documents. In light of Judge Nickerson’s
failure to meet the original and modified deadlines, Investigative Counsel sent Judge
Nickerson a letter, dated February 4, 2020, asking her to explain why she failed to submit
14
the required paperwork. On February 27, 2020, Judge Nickerson submitted documentation
verifying her successful completion of probation.
Just as Judge Nickerson failed to timely submit documentation verifying that she
successfully completed probation, she also failed to timely submit the required medical
verifications by the February 20, 2020 deadline. After Investigative Counsel provided
notice of this failure by letter dated February 21, 2020, Judge Nickerson provided some
incomplete documentation concerning her ongoing medical treatment on February 25 and
27, 2020. The submission was found by the Commission to be untimely and substantively
deficient.
Given Judge Nickerson’s failure to comply with conditions of the CDA, the
Commission revoked it on April 30, 2020. Four days later, Judge Nickerson provided
additional medical documentation purportedly remedying deficiencies in the initial
February submission. At no time did Judge Nickerson provide the required documentation
evidencing her attendance at the required ethics course, nor did she provide any explanation
for her failure to comply.
Based upon our review of the record, we agree with the Commission’s findings that
Judge Nickerson failed to comply with the CDA by failing to: (1) verify that she completed
the terms of her probation within the original and extended deadlines; (2) submit timely
and complete documentation establishing compliance with the recommendations for
treatment and management of her medical condition; and (3) submit any documentation
showing that she completed an ethics course.
15
C. Findings of Fact Related to the Tax Lien and Judgment
In February 2019, Investigative Counsel initiated an investigation into an
outstanding tax judgment and lien for 2013 taxes that had been entered against Judge
Nickerson in favor of the Maryland Comptroller. After Investigative Counsel’s efforts to
obtain Judge Nickerson’s assistance in acquiring certain tax documents from the Maryland
Comptroller were unfruitful, Investigative Counsel successfully obtained these documents
pursuant to a subpoena.11
Following the investigation, the Commission and Judge Nickerson agreed that a
reprimand was appropriate. Accordingly, on November 13, 2019, the Commission issued
a reprimand for conduct related to the tax lien and judgment entered against Judge
Nickerson. Pursuant to the terms of the reprimand, Judge Nickerson agreed to provide the
Commission with documentation confirming that she had filed income tax returns for the
years 2013 through 2018 and that she satisfied and paid in full all tax obligations owed to
either the Internal Revenue Service or Maryland Comptroller’s Office. The reprimand
specified that this paperwork was due to Investigative Counsel on or before May 13, 2020.
Judge Nickerson did not provide the requested documents by the agreed-upon
deadline. Notwithstanding Judge Nickerson’s failure to meet the May 13 deadline, by letter
dated July 1, 2020, the Commission opted to extend the deadline to July 8. Once again,
Judge Nickerson failed to meet the extended deadline. With no documentation
forthcoming, in August 2020, the Commission directed Investigative Counsel to file
11
The Commission’s authority to issue subpoenas is set forth in Maryland Code,
Courts and Judicial Proceedings Article § 13-402.
16
charges against Judge Nickerson. At the December 8 hearing, Judge Nickerson told the
Commission she did not submit the requested tax documentation because the Commission
had previously determined that her documents submitted in connection with the 2018
Charges were incomplete, and that after the Commission determined to proceed on the
2018 Charges, it was her belief that she “couldn’t submit anything else.”
The Commission found that Judge Nickerson failed to cooperate with Investigative
Counsel’s initial investigation when she did not assist Investigative Counsel in procuring
certain tax documents from the Maryland Comptroller. The Commission noted that,
although Investigative Counsel ultimately procured those documents, they were only
obtained after the Commission issued a subpoena for their production. Our independent
review of the record confirms these facts.
The Commission also found that Judge Nickerson failed to comply with the terms
of the reprimand when she failed to provide the required documentation concerning her tax
filings and payments. Importantly, the Commission determined that Judge Nickerson’s
explanation for her failure to timely submit documentation evidencing compliance with the
tax laws was not credible. The Commission determined that, even if there was any doubt
that the 2018 Charges (which were reinstituted on April 30, 2020 after the CDA was
revoked and amended on June 8, 2020) somehow altered the terms of the reprimand, such
uncertainty was remedied when the Commission, by letter dated July 1, 2020, asked Judge
Nickerson to provide documentation concerning tax filings and payments on or before July
8, 2020. In other words, the Commission concluded Judge Nickerson had no reason to
believe that she “couldn’t submit anything else[]” after Investigative Counsel filed the 2018
17
Charges, as the Commission sent a letter several months after the charges were filed
expressly requesting documentation concerning her tax filings and payments. Based upon
our review of the record, the Commission’s findings of fact on this issue are not clearly
erroneous.
III
The Commission’s Conclusions of Law
The Commission found, with respect to the 2018 Charges, that Judge Nickerson’s
conduct resulted in violations of Maryland Rules 18-101.1, 18-101.2, 18-101.3, 18-103.1,
and 18-102.16(a). As for the 2019 Charge, the Commission found Judge Nickerson
violated Maryland Rule 18-102.16(a). In light of these violations, the Commission
concluded Judge Nickerson engaged in sanctionable conduct as defined by Maryland Rule
18-402(m)(1).
When reviewing the Commission’s legal conclusions, we independently review the
record to determine whether the Commission’s decision is supported by clear and
convincing evidence. Russell, 464 Md. at 412–13 (“Upon our independent review, this
Court must determine whether the charges against the respondent are supported by clear
and convincing evidence and which, if any, Rules have been violated.”) (cleaned up); In re
Lamdin, 404 Md. 631, 637 (2008); In re Diener and Broccolino, 268 Md. 659, 670 (1973).
Having independently evaluated the record, we conclude that the Commission’s legal
conclusions are supported by clear and convincing evidence.
18
A. MCJC Rules Governing Judicial Integrity and the Avoidance of
Impropriety in Settings Outside the Performance of Judicial Duties
There are many ethical canons embodied in the MCJC that govern a judge’s conduct
during the performance of his or her judicial duties. Standing on equal footing with these
performance-related rules are the rules that generally speak to judicial integrity and the
avoidance of impropriety or the appearance thereof, irrespective of whether the conduct
arises during the performance of judicial duties.12 These rules are intended to promote
public confidence in the judicial system at all levels and in all courts.
We start with the general rule that a judge’s conduct must promote confidence in
the judiciary at all times, and not simply during the performance of his or her official duties.
See Md. Rule 18-101.2 (directing judges to “act at all times in a manner that promotes
public confidence in the independence, integrity, and impartiality of the judiciary[]” and to
“avoid conduct that would create in reasonable minds a perception of impropriety[]”). This
general rule overlaps with more specific ones.
Maryland Rule 18-101.3 prohibits judges from “lend[ing] the prestige of judicial
office to advance the personal or economic interests of the judge or others[.]” The
comments to the rule provide specific examples of prohibited conduct. Comment 1 to
Maryland Rule 18-101.3 provides that “[i]t is improper for a judge to use or attempt to use
his or her position to gain . . . deferential treatment of any kind. For example, it would be
The Preamble to the MCJC also embodies this notion, stating that: “Judges should
12
maintain the dignity of judicial office at all times, and avoid both impropriety and the
appearance of impropriety in their professional and personal lives.” Md. Rule 18-100.4(b).
19
improper for a judge to allude to his or her judicial status to gain favorable treatment in
encounters with traffic officials.”
In a similar vein, Maryland Rule 18-103.1 provides that when a judge is engaged in
extrajudicial activities, “a judge shall not: . . . participate in activities that would appear to
a reasonable person to undermine the judge’s independence, integrity, or impartiality; [or]
engage in conduct that would appear to a reasonable person to be coercive[.]” Md. Rule
18-103.1(c), (d).
And of course, it should come as no surprise that those who apply and enforce the
law are expected to abide by it. Maryland Rule 18-101.1 codifies this commonsense
principle of judicial conduct by providing “judge[s] shall comply with the law, including
[the MCJC].” Indeed, one of the basic tenets undergirding our justice system is that no
man or woman is above the law, irrespective of title or position.
We agree with the Commission’s conclusion that Judge Nickerson’s conduct during
the March 2018 traffic stop violated these rules. Of course, the underlying conduct that
gave rise to the stop in the first instance (consisting of the impaired driving and four related
charges for which she was found guilty) constituted a violation of Maryland Rules 18-
101.1 and 18-101.2. We also agree with the Commission’s conclusion that Judge
Nickerson’s interactions with Sergeant Kettner and conduct during the traffic stop violated
Maryland Rules 18-101.2, 18-101.3, and 18-103.1. As noted above, Judge Nickerson
mentioned her status as an orphans’ court judge, not once, but a total of three times during
the traffic stop in a not-so-subtle attempt to gain favorable treatment. Not only did Judge
Nickerson invoke her status as an orphans’ court judge, she repeatedly mentioned her
20
upcoming election and the dire professional consequences that would befall her if Sergeant
Kettner did not give her preferential treatment. It is clear from our review of the record
that Judge Nickerson was attempting to use the prestige of judicial office for personal gain
and to advance her personal interests. In doing so, Judge Nickerson did precisely what the
Rules proscribe. See Md. Rule 18-101.3, cmt. 1 (“For example, it would be improper for
a judge to allude to his or her judicial status to gain favorable treatment in encounters with
traffic officials.”). Moreover, we agree with the Commission’s conclusion that Judge
Nickerson’s conduct in mentioning her judicial position, combined with her references to
Sergeant Kettner’s superior officer, Lieutenant Kirby, constituted conduct that would
appear to a reasonable person to be coercive. See Md. Rule 18-103.1(d). It is clear from
the moment the stop commenced, continuing up through and after Judge Nickerson’s
arrest, that she continued to use her judicial position and relationship with Sergeant
Kettner’s superior to place pressure on Sergeant Kettner to gain preferential treatment.
This conduct is in clear violation of Maryland Rules 18-101.2, 18-101.3, and 18-103.1.
We also agree with the Commission’s conclusion that Judge Nickerson’s lack of
cooperation with Sergeant Kettner throughout the stop violated Maryland Rule 18-101.2.
The totality of Judge Nickerson’s actions during the entirety of the stop—her comments
about her judicial position and invoking Sergeant Kettner’s superior officer, her dishonest
and evolving answers concerning the amount of alcohol she had consumed and the contents
of the clear liquid in the cup in the car, as well as her refusal to answer the officer’s direct
question (which he asked thirteen times) concerning her willingness to take a blood alcohol
concentration test—are all actions that erode public confidence in the judiciary, and would
21
cause a reasonable person to question the judge’s ability to carry out her judicial
responsibilities with impartiality and integrity.
B. MCJC Rules Requiring Cooperation with Judicial Disciplinary Agencies
Judges are required to “cooperate and be candid and honest with judicial . . .
disciplinary agencies[,]” as “[c]ooperation with investigations and proceedings of judicial
. . . discipline agencies . . . instills confidence in judges’ commitment to the integrity of the
judicial system and the protection of the public.” Md. Rule 18-102.16(a), cmt. 1.
The Commission found that Judge Nickerson violated Maryland Rule 18-102.16(a)
in connection with both the 2018 Charges and the 2019 Charge. With respect to the 2018
Charges, the Commission concluded Judge Nickerson violated Maryland Rule 18-
102.16(a) by failing to timely meet the conditions of the CDA, providing partial and
untimely information to the Commission, failing to seek deadline extensions, and failing
to properly communicate and cooperate with the Commission and Investigative Counsel.
As for the 2019 Charge, the Commission concluded Judge Nickerson violated Maryland
Rule 18-102.16(a) when she failed to timely provide the Commission with the required
documentation to confirm her 2013 through 2018 tax filings and payments, consistent with
the terms of the private reprimand.
Based upon our independent review of the record, we agree with these findings.
Judge Nickerson failed to provide any of the information required by agreed-upon terms
of the CDA and the reprimand in a timely fashion. The untimely documentation that she
ultimately submitted to Investigative Counsel concerning her medical condition was not
22
complete. Additionally, the record reflects that Judge Nickerson never submitted
documentation evidencing her completion of the required ethics course.
With respect to the 2019 Charge, Judge Nickerson failed to cooperate with
Investigative Counsel in its investigation into the outstanding tax lien. After requesting
Judge Nickerson’s assistance, which was not forthcoming, the Commission was required
to issue a subpoena in order to obtain the necessary documentation. After the investigation
had concluded and the reprimand was issued by agreement, she failed to submit the
required documentation confirming her tax filings and payment.
These inactions constituted a violation of Maryland Rule 18-102.16(a). This
particular rule violation is troubling from a 10,000-foot vantage point, as well as from the
perspective of the individual judge that is the subject of disciplinary proceedings. On a
larger scale, these failures evidence a disregard for the Commission, the judiciary, and the
public. The judicial disciplinary system established by the Maryland Constitution and
Maryland Rules does not work if judges fail to cooperate with disciplinary investigations
or comply with the terms and conditions established by the Commission in connection with
the disposition of the investigation. Condoning such failures would undoubtedly cause an
erosion of the public’s confidence in the judiciary as a whole.
Orphans’ court judges are required to ensure that parties who appear before them
adhere to deadlines, often following the loss of a loved one, and sometimes in the midst of
complicated family disputes. Failure to meet deadlines established by the Estates and
Trusts Article of the Maryland Code, which is administered by the judges of the orphans’
courts, can have significant negative consequences. We agree with the Commission’s
23
conclusion that Judge Nickerson’s failure to comply with the deadlines and conditions
established by the Commission, including the extensions provided, set a poor example for
the parties appearing before her.
On an individual level, this rule violation is troubling because it highlights the fact
that this formal disciplinary proceeding could have been avoided entirely if Judge
Nickerson had simply complied with the initial agreed-upon conditions of the CDA and
reprimand. At the conclusion of both investigations, the Commission agreed to a
disposition that did not involve proceeding with formal charges. In other words, through
the initial disposition of these investigations, Judge Nickerson was given a second chance.
Had Judge Nickerson simply complied with the conditions of the CDA and the reprimand,
this matter would not have proceeded with an evidentiary hearing before the Commission,
nor a formal proceeding before this Court, including the issuance of this opinion and the
attendant sanction. It goes without saying that a judge’s cooperation with an investigation,
and compliance with the terms of the ultimate disposition, are paramount to the success of
any individual judge, as well as to the integrity of the judiciary as a whole.
In light of the foregoing, we agree with the Commission’s conclusion that Judge
Nickerson engaged in multiple violations of the MCJC, which we determine is conduct
prejudicial to the proper administration of justice, thereby constituting sanctionable
conduct as defined by Maryland Rule 18-402(m)(1).
24
IV
Sanction
The Maryland Constitution provides that following “any recommendation of the
Commission,” this Court may, “upon a finding of misconduct while in office, or of
persistent failure to perform the duties of the office, or of conduct prejudicial to the proper
administration of justice, . . . remove [a] judge from office or may censure or otherwise
discipline [a] judge[.]” Md. Const. art. IV, § 4B. In the present proceeding, the
Commission issued an opinion recommending that Judge Nickerson be removed from
office. While it is accurate that this recommendation “is entitled to great weight,” the
Maryland Constitution vests this Court with the ultimate authority to impose sanctions on
judicial officers. Lamdin, 404 Md. at 652. As a result, “it is incumbent upon this Court to
make an independent assessment of the appropriate sanction.” Id.In fashioning an appropriate sanction, this Court is guided by its duty to dispense
discipline “in a manner that preserves the integrity and independence of the [j]udiciary and
reaffirms, maintains[,] and restores public confidence in the administration of justice.” Id.
at 653. In imposing judicial discipline, it is not this Court’s aim to punish. Id.; see also In
re Turney, 311 Md. 246, 257 (1987) (observing that “[t]he objective[] of [judicial
disciplinary] proceedings, and of any sanction we may impose, are the maintenance of the
honor and dignity of the judiciary and the proper administration of justice rather than the
punishment of the individual[]”). To the contrary, the goal of any disciplinary sanction is
“to discourage others from engaging in similar conduct and to assure the public that the
[j]udiciary will not condone judicial misconduct.” Lamdin, 404 Md. at 652–53. “The
25
sanction must inform the public that we recognize that there has been judicial misconduct,
must be sufficient to deter the offending judge from repeating the conduct in the future,
and must be sufficient to deter others from engaging in similar conduct.” Id. at 653.
After a careful, independent review of the entire record, we concluded that the
sanction recommended by the Commission was appropriate. We are mindful that removing
a judge from office is an extraordinary sanction. Indeed, we have noted that removal is
generally reserved for circumstances where there is no alternative to entering an order of
removal. Diener and Broccolino, 268 Md. at 671. It is for this reason that we have only
removed three judges from office in the history of this Court. See id.; see also In re Bennett,
301 Md. 517 (1984). We have previously stated that:
Precisely what ‘conduct prejudicial to the proper administration of justice’ is
or may be, in any or all circumstances, we shall not undertake to say. Indeed,
a comprehensive, universally applicable definition may never evolve[,] but
it is unlikely we shall ever have much trouble recognizing and identifying
such conduct whenever the constituent facts are presented.
Diener and Broccolino, 268 Md. at 671.
In this case, our decision to accept the Commission’s unanimous recommendation
was based upon the totality of the circumstances comprising the multiple violations of the
MCJC spanning two separate investigations. Judge Nickerson’s dishonesty and lack of
candor with Sergeant Kettner, combined with her attempts to use her position to obtain
favorable treatment during a traffic stop, undermine public confidence in our judicial
system, and clearly constituted conduct prejudicial to the proper administration of justice.
However, our decision to remove Judge Nickerson from office was not simply a
consequence of her traffic violations or the tax lien and judgment entered against her. As
26
the Commission originally determined, such matters could have been, and were in fact,
informally addressed by the entry of a CDA and reprimand. Significantly, Judge Nickerson
failed to comply with the conditions of the informal dispositions. Through her inactions,
she demonstrated a lack of appreciation for the seriousness of her misconduct and the
gravity of the Commission proceedings. Judge Nickerson’s inability to comply with
conditions, such as confirming attendance at an ethics course and confirming the filing of
tax returns and payment of any tax obligations, demonstrate an inability or unwillingness
to undertake rather basic and reasonable requirements imposed by the Commission to
ensure that she complies with the laws and ethical requirements necessary for the position.
For these reasons, we determined that her removal from office was the only outcome that
would preserve the integrity of the judiciary, discourage others from engaging in similar
conduct, and assure the public that the judiciary will not condone judicial misconduct.
Accordingly, we issued an order on March 26, 2021 removing Judge Nickerson from
office.
27