In the Matter of Hon. Pamela J. White ( 2018 )

In the Matter of the Honorable Pamela J. White, Misc. No. 5, September Term, 2016,
Opinion by Adkins, J.
JUDGES — REMOVAL OR DISCIPLINE — REPRIMAND — PROCEEDINGS
AND REVIEW — MANDAMUS — MARYLAND RULE 18-404(j)(4): Maryland
Rule 18-404(j)(4) requires the Maryland Commission on Judicial Disabilities
(“Commission”) to “promptly” transmit a copy of the report and recommendation from the
Judicial Inquiry Board (“Inquiry Board”) to a judge. The judge then has an opportunity to
file objections prior to the Commission’s probable cause determination. The Commission
violated Md. Rule 18-404(j)(4) when it failed to provide a judge with a copy of the Inquiry
Board’s report prior to making a probable cause determination. The Commission,
however, cured this rule violation by allowing the judge to file a response to the Inquiry
Board’s report before a subsequent reevaluation of probable cause.
JUDGES — REMOVAL OR DISCIPLINE — REPRIMAND — PROCEEDINGS
AND REVIEW — MANDAMUS — DISCOVERY: Maryland Rule 18-407(g)(3)
provides for the application of the civil discovery rules to judicial discipline proceedings.
The Commission improperly struck the entirety of a judge’s discovery requests when it
ruled that Investigative Counsel was not a “party” to judicial discipline proceedings.
Despite this improper discovery limitation, sweeping open-file discovery in judicial
discipline proceedings allowed the judge to understand the nature of the charges against
her. Therefore, the judge had adequate information to prepare for her evidentiary hearing
before the Commission.
JUDGES — REMOVAL OR DISCIPLINE — REPRIMAND — PROCEEDINGS
AND REVIEW — MANDAMUS — FAIRNESS OF PROCEEDINGS: According to
the Maryland Constitution and our Rules “an accused judge is entitled to these elements of
procedural due process—notice, an opportunity to respond, [and] a fair hearing . . . .”
Matter of White, 451 Md. 630, 648 (2017) (per curiam). The Commission’s procedures,
even after accounting for the improper withholding of the Inquiry Board’s report and an
improper discovery ruling, did not deny a judge notice, an opportunity to respond, and a
fair hearing.
Maryland Commission on Judicial Disabilities
Case No.: CJD2014-114
Argued: November 4, 2016
Reargued: January 9, 2018
IN THE COURT OF APPEALS
OF MARYLAND
Misc. No. 5
September Term, 2016
IN THE MATTER OF THE
HONORABLE PAMELA J. WHITE
Barbera, C.J.
Greene
Adkins
McDonald
Hotten
Getty
Harrell, Glenn T., Jr.,
(Senior Judge, Specially Assigned)
JJ.
Opinion by Adkins, J.
Filed: March 27, 2018
We must decide whether proceedings before the Maryland Commission on Judicial
Disabilities (“Commission”) violated a judge’s due process rights. As we explained last
year, although we have no appellate jurisdiction to review a judge’s exceptions to the
Commission’s determination to issue a public reprimand after public charges and a
contested hearing, the common law writ of mandamus provides an avenue for a judge to
challenge the fundamental fairness of the proceedings before the Commission. Matter of
White, 451 Md. 630, 649–50 (2017) (per curiam) [hereinafter White I]. We previously
refrained from deciding the due process claims made by Petitioner, Judge Pamela J. White,
because we did not have the full record of the Commission proceedings before us. Id. at
652–53. After review of the complete record, we hold that, although the Commission
violated applicable Maryland Rules, these violations did not ultimately deprive Judge
White of a fundamentally fair proceeding.
BACKGROUND
Discipline Or Removal Of Judges
Article IV, §§ 4A–4B of the Maryland Constitution provides a special process for
the discipline or removal of a judge who has committed misconduct, or who is found to
suffer from a disability. Article IV, § 4A(a) creates the Commission, and Article IV,
§ 4B(a)(1) authorizes it to conduct investigations of complaints about judges. At the
conclusion of the investigation, the Commission may “issue a reprimand and [has] the
power to recommend to the Court of Appeals the removal, censure, or other appropriate
disciplining of a judge or, in an appropriate case, retirement.” Id., § 4B(a)(2). Commission
proceedings are confidential and privileged, except as provided by rule of this Court. Id.,
§ 4B(a)(3). The General Assembly granted the Commission additional powers relating to
investigations and hearings. See Md. Code (1973, 2013 Repl. Vol.), §§ 13-401–13-403 of
the Courts and Judicial Proceedings Article (power to issue and enforce subpoenas,
administer oaths or affirmations, and grant immunity to witnesses).
The Constitution also delegates to this Court the task of prescribing “the means to
implement and enforce the powers of the Commission and the practice and procedure
before the Commission.” Md. Const. art. IV, § 4B(a)(5). We have done so in the Maryland
Rules at 18-401 et seq.1
Maryland Rule 18-402(d) empowers the Commission to appoint an Investigative
Counsel. Upon submission of a complaint to the Commission, Investigative Counsel may
dismiss the complaint if “the complaint does not allege facts that, if true, would constitute
a disability or sanctionable conduct and that there are no reasonable grounds for a
preliminary investigation . . . .” Md. Rule 18-404(c). If Investigative Counsel does not
dismiss the complaint, she then conducts a preliminary investigation of the alleged
misconduct. Id. (d). Unless the Commission or the Judicial Inquiry Board (“Inquiry
Board”) (discussed infra) directs otherwise, Investigative Counsel shall notify the judge of
1
As we explained in Matter of White, 451 Md. 630, 636 n.3 (2017) (per curiam)
[hereinafter White I], when the investigation in this case commenced and during most of the
Maryland Commission on Judicial Disabilities’ proceedings, these Rules were codified at
Maryland Rule 16-801 et seq. During the pendency of this case, the Rules were recodified in
the current form effective July 1, 2016. Rules Order (June 6, 2016),
http://mdcourts.gov/rules/rodocs/178troparts1x2x3.pdf (https://perma.cc/3LYM-YPJN).
Unless stated otherwise, we shall refer to the Rules by their current codification.
2
the pendency of the investigation before its conclusion.2 Id. (e)(4). Investigative Counsel
must “afford the judge a reasonable opportunity to present, in person or in writing, such
information as the judge chooses.” Id. (e)(5). Investigative Counsel has 90 days to
complete her preliminary investigation. Id. (e)(6). Upon application by Investigative
Counsel, and for good cause, the Inquiry Board shall extend the time for completing the
preliminary investigation for an additional 30-day period. Id. The Commission may
dismiss the complaint and terminate an investigation if Investigative Counsel fails to
comply with these time requirements. Id.Maryland Rule 18-403(a) requires the Commission to “appoint an [Inquiry] Board
consisting of two judges, two attorneys, and three public members who are not attorneys
or judges.” After completing a preliminary investigation, Investigative Counsel shall
report the results of her investigation to the Inquiry Board with a recommendation of either:
(1) dismissal; (2) authorization of further investigation; (3) entering into a private
reprimand or deferred discipline agreement; or (4) filing public charges. Md. Rule 18-
2
Md. Rule 18-404(e)(4) requires Investigative Counsel to notify the judge:
(A) that Investigative Counsel has undertaken a preliminary
investigation into whether the judge has a disability or has
committed sanctionable conduct; (B) whether the preliminary
investigation was undertaken on Investigative Counsel’s
initiative or on a complaint; (C) if the investigation was
undertaken on a complaint, of the name of the person who filed
the complaint and the contents of the complaint; (D) of the
nature of the disability or sanctionable conduct under
investigation; and (E) of the judge’s rights under subsection
(e)(5) of this Rule.
3
404(f). The Inquiry Board must continually monitor the investigation and review the
reports and recommendations of Investigative Counsel. Id. (g).
Upon reviewing the results of the preliminary investigation, the Inquiry Board
prepares a report for submission to the Commission. Id. (j)(1). The report must include a
recommendation for further action by the Commission. The Inquiry Board may not
recommend a dismissal with warning, a private reprimand, or a deferred discipline
agreement unless the respondent judge consents to the remedy. Id. After the Commission
receives the Inquiry Board’s report, it must promptly transmit a copy to the judge and
Investigative Counsel. Id. (j)(4). Both Investigative Counsel and the judge have an
opportunity to file objections to the Inquiry Board’s report. Id. (k).
After reviewing the Inquiry Board’s report and upon a finding of probable cause,
the Commission may direct Investigative Counsel to begin proceedings against the judge
by filing charges with the Commission. Md. Rule 18-407(a). The judge may then file a
response to the charges. Id. (c). The Commission must also notify the judge of the date,
time, and place of a hearing on the charges. Id. (d).
Following the filing of charges, the respondent judge has several procedural rights
expressly recognized by the Rules:
The judge has the right to inspect and copy the Commission
Record, to a prompt hearing on the charges, to be represented
by an attorney, to the issuance of subpoenas for the attendance
of witnesses and for the production of designated documents
and other tangible things, to present evidence and argument,
and to examine and cross-examine witnesses.
4
Id. at (f). The Rules also provide that prehearing discovery is “governed by Title 2, Chapter
400 of these Rules,[3] except that the Chair of the Commission, rather than the court, may
limit the scope of discovery, enter protective orders permitted by Rule 2-403, and resolve
other discovery issues.” Id. (g)(3). At the hearing, the rules of evidence apply. Id. (i)(5).
If the Commission finds clear and convincing evidence that the judge has committed
sanctionable conduct, “it shall either issue a public reprimand for the sanctionable conduct
or refer the matter to the Court of Appeals . . . .” Id. (j). If it finds otherwise, the
Commission will dismiss the charges and terminate the proceedings. Id.Joyner v. Veolia Transp. Servs. Inc.
Since 2007, Judge Pamela J. White (whom we shall sometimes refer to as
“Respondent”)4 has served as an Associate Judge of the Circuit Court for Baltimore City.
She also served as the Supervising Judge for the Circuit Court’s Civil Alternative Dispute
Resolution Program (“ADR”) from 2009 until 2015. In 2014, Respondent presided over
hearings in a civil matter. Louise V. Joyner v. Veolia Transp. Servs. Inc., et al., Case No.
24-C-014000589 (Baltimore City Circuit Court). Attorney Rickey Nelson Jones
3
Title 2, Chapter 400 of the Maryland Rules provides discovery procedures for civil
cases.
4
Judge White is the Petitioner here, but was the Respondent in the proceedings
before the Maryland Commission on Judicial Disabilities. We refer to her as Respondent
here for ease of understanding.
5
represented the plaintiff, Joyner, in her action for negligence while attorney Andrew
Stephenson represented the defendant, Veolia.5
Early in the litigation, Veolia moved to dismiss Joyner’s punitive damages claim.
When counsel for both parties appeared before Judge White for a hearing on the motion to
dismiss, Jones tried to justify his claim for punitive damages, which stemmed from the
phone calls made by an insurance adjuster to the plaintiff following the accident.
Dissatisfied with Jones’s attempted explanation, Judge White said:
The Court: Oh Mr. Jones, are you telling me this with a
straight face? . . . . Are you telling me as an officer of the court,
admitted to the bar, with a straight face, that you think you have
an ill-will punitive damages claim against Veolia
Transportation because of something that an insurance
adjuster, employed by an insurance company, has said in the
course of calling your client to inquire of her status? . . . . Do
you think this allegation can stand, in the face of your
responsibility as an officer of the court?
Jones: Do I believe that a representative of the defendant can
act on their behalf, I do believe they can act on their behalf. If
you’re asking me do I believe another corporation—
The Court: I’m asking you, is there any conceivable case
authority, any statutory authority, that allows you the chutzpah
to claim punitive damages in a negligence case suggesting that
a claims adjuster working for an insurance company asking
questions of your client about the status her injury should be
attributed as an ill-will punitive damages claim by Veolia
Transportation?
Jones: I have no case law on that, Your Honor.
5
Veolia Transportation Services operates mobility vehicles for the Maryland
Transit Administration. Louise Joyner sued Veolia for negligence after she was injured
when attempting to enter a mobility van.
6
After this exchange, Respondent granted Veolia’s motion and dismissed the punitive
damages claim with prejudice.
The pretrial scheduling order for Joyner required that “all counsel, their clients and
insurance representatives must attend the pretrial conference in person,” on September 17,
2014, before another judge of the court (not Judge White). The order also directed that
“[a]ny request for accommodation under the Americans with Disabilities Act should be
directed to the Administrative Office of the Circuit Court for Baltimore City,” and provided
a phone number to contact that office. Finally, the order permitted modification “only upon
a written motion for modification setting forth a showing of good cause that the schedule
cannot reasonably be met despite the diligence of the parties seeking modification.” On
September 5, 2014, Jones filed a pretrial conference statement in which, under the heading
“Other Matters,” he wrote “Plaintiff requests that her attorney attend the Pretrial
Conference alone due to her poor health and doctor recommendation that she not travel
without ambulance assistance.” (Emphasis in original). Joyner did not attend the pretrial
conference.
After the pretrial conference, Jeff Trueman, then the Deputy Director of the Circuit
Court’s Civil ADR program, advised Judge White of Joyner’s unexcused absence at the
conference. Judge White issued a show cause order requiring Joyner and Jones to appear
at the Circuit Court on October 31, 2014, and explain why the Court should not hold them
in civil contempt. In his response to the order, Jones contended that his proffer in the
pretrial conference statement sufficed as the written “motion” required for modification of
the pretrial scheduling order. Jones also included, in a postscript to his letter response that
7
was not sent to opposing counsel, an offer to speak to Judge White about the postponement.
Judge White immediately responded in writing that trial would go forward.
The next day, October 15, 2014, Jones and opposing counsel appeared before Judge
White for trial. Jones requested a postponement and presented a motion for Judge White’s
recusal. He alleged three “partial” acts by Respondent. First, he argued that the Judge
insulted him by “questioning his bar membership” during the May 5, 2014 hearing.
Second, he alleged that Respondent incorrectly issued the show cause order. Finally, he
contended that Respondent was not impartial because she had directed him to
Postponement Court. Responding to the recusal motion in open court, Judge White recused
herself and said the following:
[B]ecause I am incredulous, because I am in disbelief, because
I find myself incapable of believing virtually anything that Mr.
Jones has just told me, I’m in the unfamiliar territory of finding
that I must recuse myself from any further proceedings in this
case because I cannot believe anything that the Reverend
Rickey Nelson Jones[,] Esquire[6]—and I’m reading off the
letterhead—tells me.
I think that 99% of what Mr. Jones has told me about his
conduct on behalf of his client is pure bullshit[.] So I’m forced
to recuse myself and I can’t get past the idea that I cannot
believe a darn thing that Mr. Jones tells me now.
So I am compelled under . . . Rule 2.11 [of the Maryland Code
of Judicial Conduct][7] to disqualify myself in any further
6
Jones used the honorific title “reverend” in his office letterhead.
7
Judge White presumably referred to then Rule 2.11 of the Maryland Code of
Judicial Conduct (“MCJC”), which provides in pertinent part:
8
proceedings in this case, because I now believe, based on Mr.
Jones’ conduct and representations in this case, in his
discussion and exploration of “who struck John” in recent days
about his request for accommodation, all without following the
precise instructions and procedures in the Scheduling Order
and the website and resources available to him.
I find that I cannot be impartial. I am personally biased or
prejudiced concerning Mr. Jones and his conduct. So, I’m
going to recuse myself.
Regarding the request for postponement, Judge White raised her voice and
admonished Jones for offering to engage in ex parte communication with the Court. She
then added:
I am dumbfounded at your irresponsible behavior, Mr. Jones.
All the more reason I am compelled by your dumbfounding
behavior to recuse myself because I cannot believe a single
word you say. And what I am compelled to do now because
the Rules of Professional Conduct and the Judicial Code
compel me to do so is to reexamine what I just said and heard
and reported on the record whether I must report you to the
Attorney Grievance Commission.
****
In addition to not believing a word that Mr. Jones tells me, I
am so very frustrated with his failure to attend to the basic rules
of procedure.
(a) A judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably
be questioned, including the following circumstances:
(1) The judge has a personal bias or prejudice concerning a
party or a party’s attorney, or personal knowledge of facts
that are in dispute in the proceeding.
Md. Rule 18-102.11.
9
At the conclusion of the hearing, Judge White issued a written order explaining her recusal
from Joyner.8
At the hearing on the show cause order, Jones attempted to explain why his client
could not come to court without an ambulance. Judge White acknowledged the plaintiff’s
status and inquired as to how Jones felt he had complied with the pretrial scheduling order.
Jones presumed that his warning that he would attend without his client, made in his pretrial
conference statement, sufficed as a “motion” to modify the scheduling order. After some
discussion, Judge White held Jones in contempt of Court.9
8
Judge White explained that she did not know whether her recusal from Louise V.
Joyner v. Veolia Transp. Servs. Inc., et al., Case No. 24-C-014000589 (Baltimore City
Circuit Court), would also require her recusal from future cases involving Jones:
While I am shocked, frustrated, appalled and consequently
don’t believe anything Mr. Jones has told me about the conduct
of his office and himself in this case and I don’t believe that
he’s honored the Court’s Orders in this case, I don’t understand
or believe that necessarily will carry over to any future other
cases. I will take each case as it comes.
We do have a date. I am not recusing myself from a Show
Cause hearing on October the 3lst. It is my responsibility to
address the Show Cause hearing on October 31st and I will
address that Motion. It’s not a Motion. You responded to the
Show Cause Order. I’ll address that in due course. I haven’t
seen your Answer, Mr. Jones, and I’ll address it in due course.
9
She explained:
The suggestion by Mr. Jones that the request made in the last
paragraph of the pretrial statement that he submitted on
September 5th as complying in any way, shape or form with
the Scheduling Order or with the mandate of Rule 2–311 is
shocking and is soundly and roundly rejected by this Court as
10
Proceedings Before The Inquiry Board
Five days after Judge White recused herself from Joyner, the Commission received
Jones’s first complaint regarding her.10 He complained of Respondent’s comments and
conduct during the hearings on Veolia’s motion to dismiss, and on his motion to recuse.
He also averred that, although Judge White had recognized she could not be impartial, she
refused to recuse herself from the hearing on her show cause order. After receiving Jones’s
first complaint, the Commission’s Investigative Counsel, then Carol A. Crawford, opened
a preliminary investigation into Respondent’s conduct.
On November 17, 2014, the Commission received Jones’s second complaint against
Judge White. Jones based this complaint on Respondent’s conduct during the October 31
hearing. He also alleged that Judge White improperly decided not to recuse herself from
considering the show cause order.
reflecting (A) any diligent effort on the part of Mr. Jones; (B)
any good cause effort by Mr. Jones on behalf of his client,
either to comply with the Scheduling Order, to conform to the
Rules or otherwise show respect for the process and procedures
of this Court.
The utter absence of respect by Mr. Jones to the procedures and
process of this Court are disappointing at least, contemptuous
at worst.
10
Shortly after our decision in White I, and pursuant to Md. Rule 18-409(b)(1),
Judge White submitted a waiver of confidentiality regarding the Commission record.
Accordingly, we shall discuss the normally confidential investigation process employed by
Investigative Counsel and the Inquiry Board.
11
The Inquiry Board extended the time to complete the preliminary investigation and
delayed giving notice to Judge White, for “good cause shown,” in January, February, and
April. In April, Investigative Counsel sent a letter notifying Judge White of the two
complaints.11
Judge White timely responded to Jones’s first two complaints, asserting that her
demeanor toward Jones was appropriate because he showed no concern for the rules of
procedure or proper professional behavior. She also averred that she properly presided
over the show cause proceedings because Maryland Code of Judicial Conduct (“MJCJ”)
Rule 2.11 did not require her recusal.
The following day, Investigative Counsel submitted a memorandum to the Inquiry
Board recommending that the Inquiry Board find that Judge White committed sanctionable
conduct “with regard to her demeanor throughout the [Joyner] proceedings,” and by failing
to recuse herself from the October 31 hearing. Investigative Counsel recommended that
the Inquiry Board, in turn, recommend to the Commission, that a private reprimand be
issued. The memorandum attached copies of Jones’s complaints, audio recordings of the
hearings, and Respondent’s response to the complaints. On December 11, 2015, the
Inquiry Board forwarded its report and recommendation to the Commission, but no copy
was sent to Respondent.
11
On May 4, 2015, Jones appeared before Judge White for a hearing on the
contempt charge, which Jones had not yet purged. At the hearing, Respondent explained
that she had received notice that Jones had filed complaints with the Commission. She
then instructed Jones that she would not make any further decision regarding the finding
of contempt in light of his complaints.
12
Proceedings Before The Commission
At its December 2015 meeting, the Commission reviewed the complaints,
recordings of the hearings, Judge White’s correspondence with Investigative Counsel, and
the recommendations of the Inquiry Board and Investigative Counsel. The Commission
concluded that probable cause existed to believe that Respondent had committed
sanctionable conduct and, by unanimous vote, directed Investigative Counsel to initiate
proceedings against Respondent by filing public charges.
It was only when Judge White was notified of this action that her counsel requested,
and finally received on January 12, 2016, a copy of the Inquiry Board’s report. In a 40-
page filing, Respondent objected to the report and argued that her conduct in Joyner did
not amount to misconduct, and requested a hearing before the Commission. At its February
2016 meeting, the Commission voted to set the matter for further discussion at a special
meeting.
That special meeting was held on March 2, 2016. But the Commission rejected
Respondent’s objections to the Inquiry Board’s report, denied her request for a hearing,12
and again directed Investigative Counsel to file charges.
The Commission filed public charges against Judge White on March 31, 2016,
alleging that she violated several provisions of the Code of Judicial Conduct, specifically
12
The Rules do not oblige the Commission to hold a pre-charging hearing.
13
MCJC 1.1 (Compliance with the Law),13 1.2 (Promoting Confidence in the Judiciary),14
2.2 (Impartiality and Fairness),15 2.3 (Bias, Prejudice, and Harassment),16 2.11
13
MCJC 1.1 provides: “A judge shall comply with the law, including this Code of
Judicial Conduct.” Md. Rule 18-101.1.
14
MCJC 1.2 provides:
(a) Promoting Public Confidence. A judge shall act at all times
in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary.
(b) Avoiding Perception of Impropriety. A judge shall avoid
conduct that would create in reasonable minds a perception of
impropriety.
Md. Rule 18-101.2.
15
MCJC 2.2 provides:
(a) A judge shall uphold and apply the law and shall perform
all duties of judicial office impartially and fairly.
(b) A judge may make reasonable efforts, consistent with the
Maryland Rules and other law, to facilitate the ability of all
litigants, including self-represented litigants, to be fairly heard.
Md. Rule 18-102.2.
16
MCJC 2.3 provides:
(a) A judge shall perform the duties of judicial office, including
administrative duties, without bias or prejudice.
(b) In the performance of judicial duties, a judge shall not, by
words or conduct, manifest bias, prejudice, or harassment
based upon race, sex, gender, religion, national origin,
ethnicity, disability, age, sexual orientation, marital status,
socioeconomic status, or political affiliation. A judge shall
require attorneys in proceedings before the court, court staff,
14
(Disqualification).17 In her answer, Respondent moved to dismiss the charges. She argued
that her decisions in Joyner were legal judgments not subject to scrutiny through the
disciplinary process and that, even if the Commission had the authority to review her
actions, she did not commit misconduct. Respondent also alleged a due process violation
after Investigative Counsel failed to comply with certain time standards, did not inform her
of Jones’s complaints in a timely fashion, and failed to convey information about the
proceedings to Judge White.
Respondent served interrogatories on Investigative Counsel pursuant to the civil
discovery rules, specifically Md. Rule 2-421. In response, Investigative Counsel filed a
request to strike the discovery demands. Investigative Counsel explained that, although
the Rules expressly provide that discovery in judicial disciplinary proceedings shall be
governed by civil discovery rules, this “does not mean that every rule in [the civil discovery
rules] is relevant, appropriate, or applicable to proceedings before the Commission.”
Investigative Counsel also contended that Judge White could not serve her with requests
for admissions because Investigative Counsel “is neither a party nor a witness . . . .”
court officials, and others subject to the judge’s direction and
control to refrain from similar conduct.
(c) The restrictions of section (b) of this Rule do not preclude
judges or attorneys from making legitimate references to the
listed factors, or similar factors, when they are relevant to an
issue in a proceeding.
Md. Rule 18-102.3.
17
See supra note 7.
15
Investigative Counsel closed her request by asking the Commission to enter a protective
order prohibiting Judge White from receiving certain documents prepared by Investigative
Counsel. Investigative Counsel claimed that these documents were subject to
confidentiality restrictions (see, e.g., Md. Rule 18-409(a)(4)) and amounted to attorney
work product.
After a hearing, where both Investigative Counsel and Respondent’s attorney
appeared, the Commission denied Judge White’s motion to dismiss. The Commission
opined that it had no power to dismiss the charges under Md. Rule 18-406 until after it held
a hearing on the merits under Md. Rule 18-407. The Commission also interpreted the
discovery rules to vest complete discovery authority in the Chair of the Commission.
Without further explanation, the Commission simply stated that the decision to strike
Respondent’s interrogatories and request for admissions did not eliminate her access “to a
fair discovery process.”
The Commission held an evidentiary hearing on July 7 and 8, 2016. Investigative
Counsel called no witnesses, but offered five exhibits: (1) the Baltimore City Circuit Court
file for Joyner; (2) video recordings of the May 5, 2014, October 15, 2014, and October
31, 2014 proceedings before Judge White; (3) a transcript of the October 15, 2014
proceeding; (4) a transcript of the October, 31, 2014 hearing; and (5) a copy of the charges.
Investigative Counsel then played recordings of the May 4, October 15, and October 31
proceedings for the Commission.
In addition to her own testimony, Judge White presented five witnesses: (1) Circuit
Administrative Judge W. Michel Pierson; (2) Judge in charge of the Civil Docket, Athea
16
M. Handy; (3) retired Judge Carol E. Smith; (4) Jeff Trueman; and (5) Andrew Stephenson.
Investigative Counsel thoroughly cross-examined Judge White. Members of the
Commission also questioned her.
On August 3, 2016, the Commission, by unanimous vote, publicly reprimanded
Judge White. The Commission concluded that Judge White violated the Maryland Code
of Judicial Conduct through her “undignified, discourteous, and unprofessional” treatment
of Jones and her failure to recuse herself from the show cause hearing after admitting that
she could not be impartial.
DISCUSSION
As we explained in our earlier opinion, while we do not have “appellate jurisdiction
for review of Judge White’s claims, this Court is able to review her allegation that the
Commission proceeding denied her procedural due process as a petition for a common law
writ of mandamus.” White I, 451 Md. at 649 (emphasis in original). Our jurisprudence on
common law mandamus is well established:
[C]ommon law mandamus is an extraordinary remedy that is
generally used to compel inferior tribunals, public officials or
administrative agencies to perform their function, or perform
some particular duty imposed upon them which in its nature is
imperative and to the performance of which the party applying
for the writ has a clear legal right. The writ ordinarily does not
lie where the action to be reviewed is discretionary or depends
on personal judgment.
Falls Road Cmty. Ass’n, Inc. v. Baltimore Cty., 437 Md. 115, 139 (2014) (cleaned up);
“‘Mandamus is an original action, as distinguished from an appeal.’” Goodwich v. Nolan,
343 Md. 130, 145 (1996) (cleaned up). The Commission’s public reprimand of a sitting
17
judge is a unique circumstance, which permits the availability of the ancient writ for our
review of a judge’s claims of constitutional defects, but not review of a claim that there
was no sanctionable conduct. We reiterate our previous holding wherein we explained that
the common law writ of mandamus may not be employed to review the merits of the
Commission’s decision to issue a public reprimand. White I, 451 Md. at 651–52. Such a
decision is “properly classified as a non-ministerial discretionary act that is dependent upon
the judgment of the Commission members[,]” and beyond the scope of mandamus review.
Id.18
18
The Maryland Constitution expressly provides the Commission with the power to
issue a reprimand. See Md. Const. art. 4, § 4B(a)(2). The Constitution only calls for this
Court to decide a judicial discipline matter if the Commission recommends the removal,
censure, or other appropriate discipline of a judge. Id. Keeping in mind the Commission’s
high degree of independence—at least when issuing a public reprimand—we refrain from
assessing whether the Commission properly found sanctionable conduct or ordered a public
reprimand in this case. Thus, we do not address the applicability of the general rule that
recusal is entirely within the discretion of the judge. See, e.g., Jefferson-El v. State, 330
Md. 99, 107 (1993) (“The recusal decision . . . is discretionary, and the exercise of that
discretion will not be overturned except for abuse.”) (citations omitted). But see Surratt v.
Prince George’s Cty., 320 Md. 439, 466 (1990) (“We hold that when the asserted basis for
recusal is personal conduct of the trial judge that generates serious issues about his or her
personal misconduct, then the trial judge must permit another judge to decide the motion
for recusal.”).
This is not “administrative mandamus,” which is an extension of common law
mandamus, “for judicial review of certain quasi-judicial administrative decisions when
judicial review is not otherwise expressly provided by law.” White I, 454 Md. at 650 n.15;
See also, Hughes v. Moyer, 452 Md. 77, 90–91 (2017) (differentiating administrative
mandamus from common law mandamus). But the Commission, as an entity specifically
created by the Maryland Constitution, has a unique status. With its complete discretion to
issue a public reprimand, the Commission differs from the administrative agencies in cases
where this Court has applied the “administrative mandamus” doctrine. See e.g., Maryland-
Nat’l Capital Park and Planning Comm’n v. Rosenberg, 269 Md. 520, (administrative
mandamus appropriate to overturn arbitrary decision of county planning board); State
18
As we explained in White I, 451 Md. at 651, “the Commission has a duty to provide
procedural due process, as set forth in the State Constitution and Maryland Rules, to an
accused judge . . . .” The Maryland Constitution “defers to this Court the task of designing
a fair process by rule.” Id. at 647. During the disciplinary process, the Commission is
bound by “the fundamental rules of fairness.” Id. at 647–48. According to the Maryland
Constitution and our Rules “an accused judge is entitled to these elements of procedural
due process—notice, an opportunity to respond, [and] a fair hearing—regardless of the
outcome—i.e., whether the Commission ultimately decides to dismiss the charges,
reprimand the judge, or recommend that we censure, discipline, or remove the judge.” Id.
at 648. Minor deviation from the Rules without prejudice to the judge does not undermine
this guarantee. Id.
Judge White contends that the Commission proceedings lacked fundamental
fairness, in several respects, and denied her right to procedural due process. In our
Discussion, below, we divide her contentions into two categories: (1) those relating to
preliminary matters before the Commission decided to issue charges (“Proceedings
Preliminary to Charges”), and (2) those relating to events occurring after public charges
were filed against her (“Proceedings After Charges Filed”).
Overall, Judge White insists that the Commission’s material deviations from the
requirements of the Maryland Constitution and the Rules were serious failures that
Dept. of Health v. Walker, 238 Md. 512 (1965) (administrative mandamus applied to
overturn Board of Health’s abuse of discretion in denial of a sewage system permit); Heaps
v. Cobb, 185 Md. 372, 379 (1945) (administrative mandamus invoked to correct arbitrary
decision of board of trustees of a city employees’ retirement system).
19
deprived her of procedural due process and thus rendered the proceedings fundamentally
unfair.
I. PROCEEDINGS PRELIMINARY TO CHARGES
Prompt Notification Of Investigation
Judge White contends that Investigative Counsel failed to promptly notify her of the
complaints. Specifically, she asserts that Investigative Counsel waited approximately six
months from when Jones filed his first complaint to notify her. Respondent asserts that
this delayed notification prejudiced her ability to dispute the allegations before the Inquiry
Board, and to raise objections to Investigative Counsel’s failure to comply with time
standards.
Maryland Rule 18-404(e)(4) requires that Investigative Counsel notify the judge of
a complaint before the completion of the preliminary investigation, which is due within 90
days of the complaint filing. It also permits the Inquiry Board to delay giving notice of the
investigation to the judge “for good cause shown” by Investigative Counsel. Id. Because
Jones filed his first complaint on October 20, 2014, the preliminary investigation was due
to be completed on January 19, 2015. Id. (e)(6). Judge White did not receive notice until
three months after that date—on April 17, 2015. In the meantime, though, on January 15,
2015, the Inquiry Board granted a 30-day extension “for good cause shown” as allowed by
the same Rule, and a second 60-day extension thereafter. The minutes for the Inquiry
20
Board meeting, and the Commission’s brief, fail to articulate any explanation of the “good
cause” the Inquiry Board relied upon to extend the deadline. See Md. Rule 18-405(a).19
This Court can readily understand Judge White’s frustration when she learned that
the complaint was filed six months before she was given notice thereof, especially when
the “good cause” extension was unclear. Judges, who hold positions of great responsibility
and respect, need to be trusted by the public, and are rightfully sensitive about ethics
complaints against them. Her frustration may have been compounded when she later
learned that Investigative Counsel’s disposition recommendation explained that the
investigation consisted merely of reviewing: (1) Mr. Jones’s complaints; (2) the recordings
of the hearings held before Judge White; and (3) Judge White’s response.
At oral argument, the Commission explained that there can be extensive delays in
obtaining either a recording or transcript from a trial court. This, we think, would be
sufficient reason to grant an extension under Md. Rule 18-404(e)(4). On the other hand,
Investigative Counsel’s volume of work would probably not be sufficient, absent some
unusual circumstance. There is nothing in the record to document the reason for the delay
in this case. Although there is no requirement in Md. Rules 18-404 or 18-405 that the
Commission document the reason for extension, it would be better practice in future cases
19
In permitting delayed notice, the judge must receive notice of the charges at least
30 days before Investigative Counsel makes a disposition recommendation to the Inquiry
Board, which occurred in this case on May 19, 2015. See Md. Rule 18-405(a). Judge
White did not receive notice of the complaint or the preliminary investigation until, at the
earliest, April 17, 2015 (32 days prior to the disposition recommendation). In her brief
before this Court, Judge White asserts that she received notice from Investigative Counsel
on April 30, 2015, clearly less than required. We do not resolve this dispute as to the timing
of notice.
21
to do so—thus, perhaps, avoiding a future challenge of this nature. To resolve this case,
we assume that the delay was without due cause, and move on to consider the consequences
of this Rule violation.
Judge White contends that the delay affected her due process rights because it
prejudiced her ability to defend herself even at the very early stages in the disciplinary
process. We are not persuaded this is so. As we recognized in White I, 451 Md. at 648,
“an accused judge is entitled to . . . notice, an opportunity to respond, [and] a fair
hearing . . . .” But deviation from the Rules without infringing on these rights would not
undermine this guarantee. Id.
Other jurisdictions have held that due process considerations do not require a judge
to receive notice of a preliminary investigation before a determination of probable cause.
See Ryan v. Comm’n on Judicial Performance, 754 P.2d 724, 729 (Cal. 1988), modified on
denial of reh’g (June 30, 1988) (judge’s due process claim rejected because, “[s]imply
stated, a judge does not have the right to defend against a proceeding that has not yet been
brought”); In re Flanagan, 690 A.2d 865, 874–76 (Conn. 1997) (“[T]he due process
protections afforded in disciplinary proceedings . . . are inapplicable unless and until the
review council brings formal charges . . . .”); In re Graziano, 696 So. 2d 744, 752–53 (Fla.
1997);20 In re Karasov, 805 N.W.2d 255, 273–74 (Minn. 2011) (“[D]ue process does not
require notice of a judicial discipline investigation.”).
20
In re Graziano, 696 So. 2d 744, 752–53 (Fla. 1997), involved a judge who claimed
that her due process rights were violated when the disciplinary authority failed to give her
notice of an investigation. Specifically, the judge argued that she was prohibited from
22
This rule applies to the judicial discipline process in Maryland as well. In terms of
due process, Judge White had sufficient opportunity, even before the filing of public
charges, to defend against the misconduct allegations made by Jones, and she took
advantage of that opportunity, filing extensive written objections with the Commission
before public charges, and afterwards, a motion to dismiss the charges, with a hearing
thereon, as well as a full-fledged defense on the merits. Further, Respondent does not offer
any explanation of what she would have done during those 90 days ending with April 17,
2015, to enhance her defense against the charges. We can see no due process violation.21
Investigative Counsel’s Communications With The Inquiry Board And The
Commission
Judge White objects to several instances of so-called “ex parte” communications
between Investigative Counsel and the Inquiry Board or Commission. The Inquiry Board
discussed Respondent’s case with Investigative Counsel, but without Respondent’s
counsel, at its meetings in 2015. Investigative Counsel advised the Inquiry Board of her
conversations with Respondent’s attorneys, yet Respondent’s attorneys were not present
during these meetings. After the Inquiry Board issued its report to the Commission,
presenting witnesses before the disciplinary authority found probable cause to issue
charges against her. The court rejected this claim, relying on the principle that “due process
is met when one is given notice of proceedings and an opportunity to be heard, and
proceedings are essentially fair.” Id.21
Notably, Md. Rule 18-404(6) accords to the Commission the discretion as to the
remedy for Investigative Counsel’s failure to comply with the time limits for completing
the preliminary investigation. See id. (“For failure to comply with the time requirements
of this section, the Commission may dismiss any complaint and terminate the
investigation.”). In this mandamus action, we do not review the Commission’s decision
for an abuse of discretion.
23
Investigative Counsel was present when Respondent’s case was discussed at the
Commission meetings. Again, Judge White’s attorney did not attend these meetings.
Respondent contends that Investigative Counsel’s communications with the Inquiry Board
and Commission resulted in prejudice to her because she had no way of knowing that her
submissions to the Inquiry Board and Commission were presented accurately and she could
not refute any assertions made by Investigative Counsel.
As the Commission argues, the Rules plainly contemplate ongoing communications
and coordinated activity between Investigative Counsel, the Inquiry Board, and the
Commission. Specifically, the Rules permit Investigative Counsel to take several actions
without notice to the judge. Investigative Counsel must “inform the Board or Commission
that the preliminary investigation is being undertaken.” Md. Rule 18-404(e)(1).
Investigative Counsel can also apply to the Inquiry Board for an extension of the time for
completing the preliminary investigation and must report the results of the preliminary
investigation to the Inquiry Board. Id. (e)(6), (f). Investigative Counsel must also “report
and make recommendations to the Commission as directed by the Commission.” Md. Rule
18-402(d). Indeed, the Maryland Constitution authorizes the Commission to investigate,
as well as hear charges. See Md. Const. art. 4, § 4B(a).
We have previously examined the unique role of the Commission. In In re Diener,
268 Md. 659, 677 (1973), we considered two judges’ contentions that they were denied a
fair process “because the Commission acted as investigator, prosecutor, judge and jury
in . . . [a judicial discipline] proceeding.” We ultimately recognized that judges are not
denied a fair and impartial process merely because the Commission operates as both
24
investigator (through Investigative Counsel) and decision-maker in judicial discipline
cases. Id. at 678–79.
Diener’s recognition that a quasi-judicial body may determine probable cause and
continue to adjudicate the matter, without creating impermissible bias or prejudice, is
consistent with Supreme Court precedent as well as other cases from this Court. See, e.g.,
Withrow v. Larkin, 421 U.S. 35, 52–58 (1975) (“It is also very typical for the members of
administrative agencies to receive the results of investigations, to approve the filing of
charges or formal complaints instituting enforcement proceedings and then to participate
in the ensuing hearings. This mode of procedure . . . does not violate due process of
law.”);22 Public Serv. Comm’n v. Wilson, 389 Md. 27, 92 (2005) (“We are unwilling to
assume the apparent premise of . . . [the] argument that some kind of blind pride of
authorship or hubris of power renders an administrative decision-maker ipso facto unable
to assess fairly and objectively arguments that his or her decision should be revisited,
changed, or abandoned.”); see also Mississippi Comm’n on Judicial Performance v.
Russell, 691 So. 2d 929, 946 (Miss. 1997) (bifurcated judicial disciplinary process
presented “no more evidence of bias or the risk of bias . . . than inheres in the very fact that
the Board had investigated and would now adjudicate.”). Indeed, Judge White cites no
authority holding to the contrary.
22
We have previously recognized that due process provisions in the Maryland and
Federal Constitutions have the same meaning and therefore, Supreme Court decisions
interpreting due process claims function as authority for determining Maryland’s due
process requirements. See, e.g., Pitsenberger v. Pitsenberger, 287 Md. 20, 27 (1980).
25
By modifying our Rules of Procedure, we have taken steps intended to reduce the
potential that the Commission would learn of unfairly prejudicial information in its role as
investigator. At the Commission’s request in 2007, we created the Inquiry Board—which
would monitor investigations by Investigative Counsel, and submit a report and
recommendation to the Commission that filtered out any inadmissible evidence regarding
a pending case. See Md. Rule 18-404(j)(2) (“The information transmitted by the Board to
the Commission shall be limited to a proffer of evidence that the Board has determined
would be likely to be admitted at a plenary hearing.”) (emphasis added); see also Standing
Comm. on Rules of Practice and Procedure, 157th Report, 239 (2006); 157th Report of the
Standing Comm. on Rules of Practice and Procedure: Hearing, Court of Appeals of
Maryland (2007) (testimony of Sally D. Adkins, former Chair of the Comm’n on Judicial
Disabilities). We did not, however, undertake to insulate the Commission entirely from its
constitutionally authorized power to investigate, conduct hearings, and issue reprimands.
See Md. Const. art. 4, § 4B. We always bear in mind, that, absent violation of a Federal
constitutional right, we are constrained by the Maryland Constitution and the General
Assembly’s legislative mandates. White I, 451 Md. at 634–37, 646–47; In re Diener, 268
Md. at 688–89. The Commission was accorded the authority and obligation to investigate,
initiate prosecutions, and make decisions. Md. Const. art. IV, § 4B(a)(1)–(2). To override
a decision on the merits of a complaint by the Commission because it also made
26
preliminary decisions in its oversight of Investigative Counsel would, we think, run afoul
of the Maryland Constitution and the General Assembly’s legislative intent.23
Our own precedent also constrains us. We rejected an argument similar to Judge
White’s in Diener. 268 Md. at 679 (“It is well settled that a combination of investigative
and judicial functions within an agency does not violate due process.” (cleaned up)).
Before any finding of sanctionable conduct or discipline, Judge White appeared and
presented her defenses—both at the hearing on her motion to dismiss and at the evidentiary
hearing. We conclude that her lack of any personal appearance before the Commission,
23
We also conclude that the Commission’s oversight of Investigative Counsel does
not offend the requirement, in administrative law, that agencies maintain “ethics walls”
dividing adjudication processes from an agency’s investigatory processes. See Jeff Bush
& Kristal Wiitala Knutson, The Building and Maintenance of “Ethics Walls” in
Administrative Adjudicatory Proceedings, 24 J. Nat’l Ass’n Admin. L. Judges 1, 15–18
(2004) (explaining best practices for administrative agencies when separating adjudicatory
and investigatory functions of an agency).
Regardless of the hearing official’s employment or fiscal
relationship with a party agency, the hearing official should
exercise independence of action, decision, and judgment to
protect the due process rights of parties and achieve a legally
correct result in a case. The hearing official’s maintenance of
decisional independence from agency management and
programs is crucial.
Id. at 15. The Commission’s preliminary communications with Investigative Counsel do
not prevent the Commission from rendering a fair and impartial judgment after a hearing
on the merits of the Commission’s charges. Furthermore, the Commission is not beholden
to Investigative Counsel’s recommendations because the Commission, and not a superior
agency head with authority over the Commission, appoints Investigative Counsel. Id. at
2–6.
27
prior to her charging, did not violate the Rules and did not prevent her from being accorded
a fair proceeding.
Respondent made a request to appear before the Commission, but her request was
denied.24 Md. Rule 18-404(l) (Commission may authorize a judge, upon a written request
to “appear before the Commission on terms and conditions established by the
Commission.”). Nevertheless, she was given an opportunity to present written objections
to the Inquiry Board’s report. She did so and the Commission reviewed her objections.
Her correspondence with Investigative Counsel was always forwarded to the Inquiry Board
or the Commission for review. Most vitally, Judge White was afforded an opportunity, as
required by the Rules, to appear before the Commission after the issuance of charges. Md.
Rule 18-407(f).
Disclosure Of Inquiry Board Report
The Inquiry Board did not fully comply with the directions in the 2007 Rules
concerning the Inquiry Board, and Judge White claims foul play. She points to the failure
to promptly send her a copy of the Inquiry Board’s report regarding her case. See Md. Rule
18-404(j)(4). Respondent views the delay as prejudicial—claiming that it prevented her
from filing objections with the Commission to contest the Inquiry Board’s
recommendation of a finding that she committed sanctionable conduct and that she receive
a reprimand.
24
There is no record that Respondent or her attorneys requested an informal meeting
with the Inquiry Board, and Judge White does not argue that she did. See Md. Rule 18-
404(i) (“The [Inquiry] Board may meet informally with the judge for the purpose of
discussing an appropriate disposition.”).
28
The Rules require the Commission to promptly transmit a copy of the Inquiry
Board’s report to both Investigative Counsel and the respondent judge. Id. The judge and
Investigative Counsel then have the opportunity to file objections with the Commission.
Id. (k). After reviewing the Inquiry Board’s report and any timely objections, the
Commission can then proceed by dismissal, private reprimand or deferred discipline, 25 or
by filing public charges. See Md. Rules 18-406; 18-407(a).
The Inquiry Board submitted its report to the Commission on December 11, 2015,
but no copy was sent to Judge White. The report was not sent to Respondent until January
12, 21 days later, after she requested the report upon being notified that charges would be
filed. This was a clear violation of the Rule—Judge White should have been given a chance
to file objections to the Inquiry Board’s report prior to the Commission’s finding of
probable cause. Md. Rule 18-404(k)–(l). Upon learning of the mistake, the Commission
agreed to reconsider the matter after Respondent filed a written response to the report,
although it denied her a personal appearance. Respondent then filed extensive objections,
which the Commission reviewed before it proceeded to file public charges. A special
meeting was called on March 2, 2016 for the Commission to reconsider the case in light of
Respondent’s objections. It did so, with Investigative Counsel, but not Judge White or her
attorney present (other than through the papers they filed), and the Commission voted again
to find probable cause and proceed with public charges.
25
Both a warning, a private reprimand, and a “deferred disciplinary agreement” can
be rejected by the judge, in which case, the Commission must choose to proceed with
public charges under Md. Rule 18-407 or dismiss the matter.
29
Yet another aspect of this dispute is that when the Commission sent Judge White
the Inquiry Board’s report, it declined to send Investigative Counsel’s May 19, 2015
memorandum, which was an attachment thereto. Judge White challenged that, when filing
this mandamus action, she still had not seen that memorandum. The Commission
maintained that the memorandum was attorney work product and therefore confidential.
The attorney work product doctrine protects from disclosure “the work of an attorney done
in anticipation of litigation or in readiness for trial.” E.I. du Pont de Nemours & Co. v.
Forma-Pack, Inc., 351 Md. 396, 407 (1998). “When confronted with the work product
doctrine, courts must balance the need for efficient litigation through liberal disclosure
against the attorney’s responsibility to be a zealous and protective advocate . . . .” Id. An
attorney’s “strategies, theories, and mental impressions” are attorney work product.
Storetrax.com, Inc. v. Gurland, 168 Md. App. 50, 93 (2006), aff’d, 397 Md. 37 (2007).
Based on the Commission’s assertion of privileged work product, we decided to
conduct an in camera inspection of Investigative Counsel’s memorandum. Order, Matter
of White, Misc. No. 5, Sept. 2016 Term (Md. Ct. App. June 2, 2017). Upon that
examination we found no confidential information regarding the complaints against Judge
White or Investigative Counsel’s “strategies, theories, and mental impressions.”
Accordingly, Investigative Counsel had no reason to withhold the memorandum because
it was not subject to attorney work product protection. See Forma-Pack, 351 Md. at 407;
Gurland, 168 Md. App. at 93.
Although we sympathize with Judge White’s vexation regarding Investigative
Counsel’s repeated rejections of her request to review the memorandum, we struggle to
30
understand how disclosure of the memorandum, or earlier transmission of the Inquiry
Board report would have bolstered her ability to defend against the complaints.
In an attorney discipline case from the Supreme Court of Vermont, a review board
(operating like the Commission), adopted one version of a preliminary discipline
recommendation, and then a second version, without allowing the respondent attorney an
opportunity, guaranteed by the Vermont rules, to respond to the second version. In re
Illuzzi, 616 A.2d 233, 234 (Vt. 1992) (per curiam). There, the court concluded that the
respondent attorney was entitled to a rehearing on the second version of the
recommendation. Id. at 235. The court reasoned that these circumstances denied the
attorney an opportunity to address the issues raised in the subsequent report. Id. But here,
the Commission had already revisited the issue of probable cause after Judge White had
an opportunity to respond to the Inquiry Board’s report.
Judge White provides no authority for her position that the Commission’s improper
delay in forwarding of the Inquiry Board’s report violated her right to a fair proceeding.
Her only argument is that the delayed transmission impaired her ability to adequately
respond to the Inquiry Board’s conclusions in the report. This assertion ignores the fact
that, after prematurely determining the issue of probable cause, the Commission
reconsidered her case after reviewing her objections and still found probable cause. This
is not a violation of due process. See Wilson, 389 Md. at 92. Without a due process
violation in this mandamus action, we have no jurisdiction to second-guess the validity of
the Commission’s reconsideration of the probable cause question in light of the objections
and memorandum filed by Judge White’s counsel.
31
II. PROCEEDINGS AFTER CHARGES FILED
The second category of Judge White’s complaints relates to events occurring after
public charges were filed against her.
Discovery
Judge White contends that the Commission improperly limited the scope of
discovery before her evidentiary hearing, thus prejudicing her ability to provide a defense.
Specifically, Respondent objects to the Commission’s striking the interrogatories and
request for admissions she served upon Investigative Counsel.
Maryland Rule 18-407(g)(3) provides that the discovery rules for civil actions in the
circuit courts shall apply to proceedings before the Commission. That same Rule also
states that the “Chair of the Commission, rather than the court, may limit the scope of
discovery, enter protective orders permitted by Rule 2-403, and resolve other discovery
issues.” Id. In addition to the civil discovery methods mentioned by this Rule, Md. Rule
18-407(f) also allows the Judge to inspect and copy the Commission record and to
subpoena witnesses and the production of documents or other tangible evidence.
Judge White embraced her right to inspect and copy the Commission record as
provided by Md. Rule 18-407(f). In addition, Investigative Counsel furnished her,
belatedly, with a copy of the Inquiry Board’s report. Wanting still more information to
mount a defense of the charges against her, Judge White served Investigative Counsel with
interrogatories and a request for admissions. Most of Respondent’s interrogatories
requested that Investigative Counsel provide further explanation of Judge White’s
32
“sanctionable conduct.” Respondent also requested the identification of any facts or
evidence reported by Investigative Counsel to the Inquiry Board or the Commission.
Investigative Counsel proffered several reasons why the Chair of the Commission
should strike Judge White’s discovery requests. First, Investigative Counsel argued that
the civil discovery rules provided in Rule 2-401 et seq. only apply to a “party,” and she
was not a “party,” but merely an “attorney appointed by the Commission.” She also
contended that the interrogatories requested her work product, presumably the May 19,
2015 memorandum.
The Commission agreed with Investigative Counsel and struck Judge White’s
discovery requests. Specifically, the Chair agreed that Investigative Counsel should not be
considered a “party” for purposes of applying the civil discovery rules in a judicial
discipline case. Before this Court, the Commission continues to assert that the Chair
properly limited the scope of discovery as permitted by Md. Rule 18-407(g)(3).
The Commission is wrong—discovery cannot be refused on the grounds that
Investigative Counsel is not a party.26 If the Chair could entirely prohibit a respondent
judge’s use of civil discovery because Investigative Counsel is not a “party,” Md. Rule 18-
407(g)(3) would be meaningless. Moreover, such interpretation would also, to be
consistent, preclude discovery sought by Investigative Counsel, which is not a result we
intended. We decline such interpretation of the Rule.
26
The civil discovery rules are to be utilized by one “party” to request information
from another “party.” See Md. Rules 2-411 (depositions); 2-421(a) (interrogatories); 2-
422(a) (requests for production of documents); 2-424(a) (requests for admissions).
33
The procedures in attorney grievance cases are analogous. In attorney grievance
cases, Md. Rule 19-72627—governing discovery—like Md. Rule 18-407(g)(3), also
provides for application of the civil discovery rules. There, interrogatories and requests
for admissions are frequently issued and answered by both Bar Counsel and respondent
attorneys. See, e.g., Attorney Grievance Comm’n v. Frost, 437 Md. 245, 260–61 (2014).
Although Investigative Counsel is an agent of the Commission, she serves nearly the same
function as Bar Counsel in attorney grievance cases. Compare Md. Rules 18-404–407
(powers and responsibilities of Investigative Counsel), with Md. Rule 19-703(b) (powers
and responsibilities of Bar Counsel). We conclude that for purposes of the discovery rules,
Investigative Counsel is a “party” to judicial discipline cases and the civil discovery rules
apply accordingly. Thus, the Commission improperly struck Judge White’s interrogatories
and request for admissions.
Judge White relies on Sapero v. Mayor & City Council of Baltimore, 398 Md. 317,
345–46 (2007), to assert that a complete refusal of discovery results in a violation of due
process. In Sapero, this Court vacated a quick-take condemnation procedure giving an
individual only ten days after being served with a petition for immediate taking of
possession and title to file an answer challenging the City’s right to condemn, and requiring
that a hearing on the merits occur within 15 days thereafter. Id. at 322. This meant that
discovery was virtually impossible, and time to prepare for litigation “drastically
27
Md. Rule 19-726 provides: “After a Petition for Disciplinary or Remedial Action
has been filed, discovery is governed by Title 2, Chapter 400, subject to any scheduling
order entered pursuant to Rule 19-722.” (Emphasis added).
34
shortened.” Id. at 345.28 We held that this shortened procedure, allowing no discovery by
the property owner, violated due process because “the timing under which quick-take
condemnation takes place . . . severely and prohibitively restricts a party’s ability to
prepare for the hearing to challenge the quick-take condemnation.” Id. at 346. The Court
explained, comparing the quick-take procedure with regular condemnation proceedings:
These quick-take condemnations deal with the fundamental
right to property, and any resulting deprivation of process—
that which is normally provided under regular condemnation
proceedings—should not occur unless warranted by extreme
circumstances. Such extreme circumstances can arise when
there is an immediate threat to the public health, safety, and
welfare, or possibly in extreme cases of “hold-outs[.]”
Id. at 347 (citations omitted).
In evaluating the proceedings before the Commission involving Judge White, we
recall that
[t]he fundamental objective of discovery is to advance the
sound and expeditious administration of justice by eliminating,
as far as possible, the necessity of any party to litigation going
to trial in a confused or muddled state of mind, concerning the
facts that gave rise to the litigation.
Rodriguez v. Clarke, 400 Md. 39, 57 (2007) (cleaned up).
But unlike the parties denied discovery in Sapero and Rodriquez, Judge White had
a full opportunity for discovery—despite the Chair’s discovery ruling. The Rules already
require Investigative Counsel to provide open-file discovery to the respondent judge. See
Md. Rule 18-407(g)(1) (“Upon request of the judge at any time after service of charges
28
The City refused discovery in full. Sapero v. Mayor & City Council of Baltimore,
398 Md. 317, 345–46 (2007).
35
upon the judge, Investigative Counsel shall promptly (A) allow the judge to inspect the
Commission Record and to copy all evidence accumulated during the investigation . . . .”).
Judge White had notice of the charges against her and was informed of the conduct the
Commission reviewed when deciding to issue charges. The Commission’s record, which
she reviewed, indicated that Investigative Counsel intended to rely exclusively upon the
video recordings and transcripts of Judge White’s behavior at the Joyner hearings—and
that is exactly what occurred. Although Respondent claims that she went into her
evidentiary hearing “confused and muddled” as to the facts giving rise to her charges, the
record reveals the contrary. Her detailed arguments in response to the Inquiry Board’s
report to the Commission, in her motion to dismiss, and her defenses to the charges, all
indicate that she perfectly understood the nature of the allegations against her. 29
29
Judge White also tries to make hay with an indeterminate argument that a so-
called “third complaint” filed by Mr. Jones that was not the subject of these charges
somehow tainted the Commission’s decision because it accused her of racial
discrimination. Mr. Jones’s complaint, which incorporated by reference his first two
complaints, challenges the Commission’s non-action, which he said, “force[s] me (before
the end of this month if nothing is done by the Commission) to consider federal court and/or
E[qual] E[mployment] O[pportunity] C[omission] involvement.” He used the term
“prejudice” repeatedly, but seemed to refer to Judge White’s own acknowledgment that
she was biased because she found him fully incredulous. The only hint in his complaint
that he thought her bias was racial was his threat to complain to the EEOC. We do not see
how this third complaint possibly could have prejudiced the Commission. First,
Investigative Counsel took no action on the third complaint, and there was no suggestion
in the charges or at the evidentiary hearing that Respondent was racially biased. We do
not even know if the Commission members saw the document. Second, the third complaint
was merely a reiteration of his first two complaints, neither of which alleged racial
discrimination. The mere mention of the EEOC by Mr. Jones would create no prejudice
and provides no basis for relief for Judge White in this mandamus action.
36
Because the evidence adduced against her consisted strictly of transcripts of
hearings and Jones’s complaints that were disclosed to her well before the hearing,
although the Commission improperly struck Judge White’s discovery requests, we
conclude that this mistake did not result in in a fundamentally unfair hearing—because it
resulted in no prejudice to her. An appropriate discovery response would only have
identified these transcripts and complaints and perhaps reproduced them for her
attorneys.30 Investigative Counsel had already sent to Judge White’s counsel copies of the
complaints and recordings of each of the disputed hearings on April 17, 2015.
The Commission Hearing
Judge White has several complaints about the evidentiary hearing before the
Commission. First, she contends that the Commission violated her due process rights by
preventing her from offering relevant evidence, in the form of witness testimony.
Specifically, she objects to the Commission’s decision to limit her examinations of her
witnesses to only ten minutes each. Respondent contends that the witnesses would have
presented valuable “mitigation evidence” relevant to the charged misconduct and her
decision not to recuse herself from the show cause proceedings involving Jones. She
asserts that the excluded evidence would have detailed the circumstances giving rise to the
contempt finding against Jones and explained the proper functioning and importance of the
ADR system.
30
The Commission Chair may have discerned that requiring Investigative Counsel
to answer interrogatories or produce further documents would be futile in light of the nature
of the charges and White’s counsel’s having already reviewed the Commission file.
37
The Commission limited Judge White’s presentation of witnesses. Investigative
Counsel argued that the proffered testimony—regarding the Circuit Court’s ADR program
and Jones’s interactions with opposing counsel—was irrelevant to determining whether
Judge White committed sanctionable misconduct. Without explaining the reasoning for its
ruling, the Commission limited the testimony of Judge Pierson, Judge Smith, and Judge
Handy to ten minutes each. The Commission further limited the testimony of Mr.
Stephenson and Mr. Trueman to matters related to the pretrial settlement conference.
Administrative or quasi-administrative agencies, such as the Commission, “must
observe the basic rules of fairness as to parties appearing before them so as to comport with
the requirements of procedural due process . . . .” Travers v. Baltimore Police Dep’t, 115
Md. App. 395, 411 (1997); see also Schultz v. Pritts, 291 Md. 1, 7 (1981). Evidentiary
rulings can violate a party’s due process rights when, for example, the administrative body
considers additional evidence after the close of the hearing and without providing an
opportunity for cross-examination or rebuttal. Maryland State Police v. Zeigler, 330 Md.
540, 557 (1993). Otherwise, evidentiary rulings are traditionally within the discretion of
the administrative body, and we will only find error when such a ruling offends basic rules
of fairness. See, e.g., Travers, 115 Md. App. at 413–17.
We see no violation of due process here. The Commission charged Judge White
with misconduct for allegedly treating Jones in an unprofessional manner and failing to
recuse herself from his show cause proceedings after stating her bias against him. Although
the proffered testimony of Judge White’s witnesses might have been relevant for
mitigation—to explain why Judge White was justifiably perturbed with Mr. Jones, they
38
were not relevant to the charges of misconduct. A judge cannot justify unprofessional
treatment of a litigant on the judge’s personal misgivings with that litigant.31 Judge White
seems to agree that the testimony of these witnesses related only to mitigation.
Although the testimony was limited in time, her witnesses still managed to testify
extensively regarding Judge White’s good character and her role as supervisor of the ADR
program. Before this Court, Judge White has offered no example of any further evidence
that these witnesses could have offered if allowed to testify beyond the limitations imposed
by the Commission. We see no violation of due process on this record. See Zeigler, 330
Md. at 559–60. Investigative Counsel’s case consisted merely of the recordings and
transcripts of the hearings in Joyner, and Jones’s complaints. Allowing Judge White to
present several character witnesses, and unfettered testimony of her own, complied with
the basic principles of fairness and did not violate her due process rights.
MCJC 1.2 Violation
Judge White finally argues that the Commission sanctioned her for conduct beyond
the scope of the charges when it determined there were violations of MCJC 1.2
(“Promoting Confidence in the Judiciary”)32 relating to the May 5, 2014 hearing. This
contention is belied by the record.
31
Difficult litigants test the mettle of any trial judge. But we would indeed be
stepping onto a slippery slope if we held that judges could violate professional rules in
response to rule-breaking or other misconduct by litigants who appear before them. Md.
Rule 18-101.2(a) requires that, “[a] judge shall act at all times in a manner that promotes
public confidence in the independence, integrity, and impartiality of the judiciary.”
(emphasis added).
32
Md. Rule 18-101.2(a).
39
The charges include the following language:
The investigation specifically revealed the following facts
upon which the charges are based: Judge White presided over
certain hearings in [the Joyner case] in which Rev. Jones
represented the plaintiff. At issue in this investigation was
Judge White’s conduct during the May 5, 2014, October 15,
2014[,] and October 31, 2014 hearings.
The charges alleged that she violated MCJC 1.2, and closed by stating that “Judge
White’s behavior provides evidence that Judge White engaged in conduct that was
prejudicial to the proper administration of justice in Maryland Courts . . . .” Ultimately,
the Commission concluded that Judge White’s “treatment of Rev. Jones at the May 5, 2014,
and October 15, 2014 [hearings], is proof of, and constitutes a violation of [MCJC 1.2].”
Certainly, judges facing disciplinary proceedings are entitled to notice of the
charges against them. Cf. Attorney Grievance Comm’n v. Seiden, 373 Md. 409, 416–21
(2003). A judge’s due process rights are violated, for example, when discipline is based
on a rule violation that was not charged. Id.; see also In re Ruffalo, 390 U.S. 544, 550–51
(1968) (attorney discipline charges “must be known before the proceedings
commence. . . . [and] become a trap when, after they are underway, the charges are
amended on the basis of testimony of the accused.”).
Here though, Judge White was charged with violating MCJC 1.2, and her conduct
at the hearings on May 5, 2014 was identified as a basis for the charges. Unlike the
respondents in Seiden and Ruffalo, who were not charged with the rule violations they were
ultimately found to have committed, Judge White knew that her conduct at this hearing
was part of the complaint and would be considered by the Commission. She had notice of
40
the charged misconduct attributed to her behavior at the May 5, 2014 hearing and the
Commission’s sanction did not exceed the charges.
CONCLUSION
“An accused judge is entitled to a fair proceeding, but not necessarily a perfect
proceeding.” White I, 451 Md. at 648. As we have detailed, the proceeding before the
Commission certainly was not perfect—several mistakes were made. But in this
mandamus proceeding, we look only to whether Judge White received the fundamental due
process protections under the Maryland Constitution and our Rules, namely “notice, an
opportunity to respond, [and] a fair hearing . . . .” Id. Our careful scrutiny of the record
convinces us that she did.
PETITION FOR WRIT OF
MANDAMUS DENIED. JUDGMENT
ENTERED IN FAVOR OF THE
MARYLAND COMMISSION ON
JUDICIAL DISABILITIES. COSTS
TO BE PAID BY JUDGE PAMELA J.
WHITE.
41