In the Matter of Judge Russell

In the Matter of Judge Devy Patterson Russell, JD No. 1, September Term, 2018. Opinion by
Greene, J.
JUDGES – REMOVAL OR DISCIPLINE – SANCTION
Having reviewed the record, the Court of Appeals held that, under the circumstances, the
Maryland Commission on Judicial Disabilities’ conclusion that the Honorable Devy Patterson
Russell committed sanctionable conduct was supported by clear and convincing evidence.
From 2007-2015, Judge Russell failed to handle and process search warrant materials in a
manner consistent with Maryland Rule 4-601 and internal courthouse procedures. Moreover,
Judge Russell instructed a law clerk to destroy the warrant materials. In addition, she repeatedly
yelled at court clerks and judges. She subjected court clerks to lineups when clerical mistakes
were made, and on one occasion physically pushed a clerk. Judge Russell also repeatedly
attempted to undermine the authority of the administrative judge of her court and judges
delegated administrative duties.
Her conduct occurred in the courthouse and often in the public view. Furthermore, her conduct
had sweeping effects on the courthouse to which she was assigned, fostering an uncomfortable,
unprofessional, and tense work environment. Her conduct exhibited a pattern of discourtesy
and uncontrollable incivility that had pervasive effects on the administration of justice in the
District Court of Maryland located in Baltimore City. As demonstrated herein, a judge may be
disciplined if he or she engages in a pattern of inappropriate and discourteous behavior. Here,
the appropriate sanction for Judge Russell’s misconduct is a consecutive six-month suspension
without pay, with her reinstatement conditioned upon her completion of remedial measures set
forth by this Court.
Maryland Commission on Judicial Disabilities IN THE COURT OF APPEALS
Case No. CJD No. 2016-189
Argued: March 4, 2019 OF MARYLAND
JD No. 1
September Term, 2018
______________________________________
IN THE MATTER OF
JUDGE DEVY PATTERSON RUSSELL
JUDGE OF THE DISTRICT COURT
OF MARYLAND LOCATED IN
BALTIMORE CITY, DISTRICT ONE
Greene,
McDonald,
Hotten,
Getty,
Harrell, Glenn T., Jr.,
(Senior Judge, Specially Assigned),
Eyler, Deborah S.,
(Senior Judge, Specially Assigned),
Thieme, Raymond G., Jr.,
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: June 28, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-06-28
16:02-04:00
Suzanne C. Johnson, Clerk
The Maryland Judiciary serves the public by endeavoring to preserve the principles
of justice. In furtherance of the judiciary’s task and role in society, it is critical that
Maryland judges uphold the dignity of the office and aspire to maintain public confidence
in the judiciary. As such, judges, at all times, are expected to conform their conduct to
ethical standards, which are codified in the Maryland Code of Judicial Conduct. When a
judge’s conduct falls short of that which is expected by the Rules, the judge may be subject
to disciplinary proceedings and sanctions. Maryland Rule 18-401(k)(1). The Maryland
Constitution vests the duty of investigating and recommending disposition of instances
involving alleged judicial misconduct in the Commission on Judicial Disabilities
(“Commission”). See generally, Md. Const. Art. IV, §§ 4A, 4B. The Commission is
empowered to investigate judicial misconduct and, in certain instances, directly discipline
judges. Md. Const. Art. IV, § 4B. In the most serious instances, it is this Court’s duty to
take action. See id.
In the present case, the Commission found that Respondent, the Honorable Devy
Patterson Russell (“Judge Russell” or “Respondent”), engaged in misconduct. The
Commission explained that from 2007-2015, Judge Russell abdicated her duty to handle
and process search warrant materials, as required by Maryland Rule 4-601 and internal
courthouse policies. Furthermore, Respondent failed to treat fellow judges and courthouse
staff with dignity and respect, and her misbehavior created an uncomfortable and
unprofessional work environment. The Commission recommended that Judge Russell be
suspended for six months without pay and that she take remedial measures to assist her
when she returns to her duties. The Commission referred the matter to this Court. See Md.
Const. Art. IV, § 4B(b); see also Md. Rule 18-407(j). As such, we are called upon to
review whether Respondent committed sanctionable conduct and decide the appropriate
sanction, if any. See Md. Const. Art. IV, § 4B(b).
I. BACKGROUND
At all relevant times, Judge Russell was an Associate Judge of the District Court of
Maryland, sitting in Baltimore City, District One.1 She was appointed to the District Court
in February 2006 and confirmed to serve an initial 10-year term. In February 2016, Judge
Russell was reappointed and again confirmed to sit on the District Court for a second term
of 10 years.
On January 16, 2018, Investigative Counsel, at the directive of the Commission on
Judicial Disabilities, filed charges against Judge Russell pursuant to Md. Rule 18-407(a).2
The charges followed the Commission’s review of an investigation that was conducted by
Investigative Counsel, which yielded probable cause for the Commission to believe that
1
The State of Maryland has one statewide District Court that is divided into 12 districts.
Md. Code Ann., Courts and Judicial Proceedings, § 1-602. The District Court is composed
of associate judges, who hold court in the 12 districts. Id. at § 1-603. There is one Chief
Judge for the District Court, who is the administrative head of the court. Id. at § 1-605. In
each branch of the District Court, the Chief Judge must designate administrative judges
who are “responsible for the administration, operation, and maintenance” of their particular
geographical jurisdiction. Id. at § 1-607.
Hereinafter, references to the “District Court” mean the District Court located in Baltimore
City, unless specified otherwise.
2
In this Opinion, we utilize the Maryland Rules of Judicial Conduct that were in place at
the time of Respondent’s proceeding. The Rules were amended, effective July 1, 2019,
but the modified Rules are not relevant to the present case. 2019 Md. Court Order 0001.
2
Judge Russell committed sanctionable conduct, as defined by Md. Rule 18-401(k).3 Judge
Russell filed a “Response to Commission’s Charges” on March 14, 2018, consistent with
Md. Rule 18-407(c). Therein, she denied the charges, raised objections to the investigation
procedure and factual predicates, and requested a hearing.
Thereafter, in accord with Md. Rule 18-407, the Commission held a public hearing
on the charges on October 15-19 and November 5, 2018. At the hearing, Judge Russell
appeared with counsel and the Commission was represented by Investigative Counsel. In
total, the Commission received 50 exhibits from Investigative Counsel and 17 exhibits
from Judge Russell; heard testimony from 21 witnesses called by Investigative Counsel
and 14 witnesses called by Judge Russell; reviewed Judge Russell’s prior record with the
Commission; and considered more than four dozen letters supporting Judge Russell.
On December 6, 2018 the Commission filed “Amended Findings of Fact,
Conclusions of Law, Order and Recommendations” pursuant to Md. Rule 18-407(k)(1).4
3
Sanctionable conduct is defined as “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 18-401(k)(1). Here, Judge Russell was charged with
violating several provisions of the Code of Judicial Conduct. Specifically, the Commission
charged Judge Russell with violating Md. Rules 18-101.1 (Compliance with the Law), 18-
101.2 (Promoting Confidence in the Judiciary), 18-102.1 (Giving Precedence to the Duties
of Judicial Office), 18-102.3 (Bias, Prejudice, and Harassment), 18-102.5 (Competence,
Diligence, and Cooperation), 18-102.8 (Decorum, Demeanor, and Communication with
Jurors), 18-102.12 (Supervisory Duties), and 18-102.16 (Cooperation with Disciplinary
Authorities).
4
On November 30, 2018, the Commission rendered its initial “Findings of Fact,
Conclusions of Law, Order and Recommendations.”
3
The Commission found that, from 2007-2015, Judge Russell failed to handle and process
search warrant materials in a manner consistent with Md. Rule 4-601 and internal District
Court procedures. According to the Commission findings, Judge Russell instructed a law
clerk to destroy the warrant materials. In addition, the Commission found that when
clerical errors were made, Judge Russell yelled at court clerks, subjected them to lineups,
and on one occasion physically pushed a clerk. Furthermore, Judge Russell repeatedly
yelled at fellow judges and attempted to undermine the authority of judges delegated
administrative duties. Her conduct occurred in public and in private, and it fostered an
uncomfortable and tense work environment in the courthouse to which Judge Russell was
assigned.
The Commission unanimously found clear and convincing evidence that Judge
Russell’s conduct violated Md. Rules 18-101.1 (Compliance with the Law), 18-101.2
(Promoting Confidence in the Judiciary), 18-102.5 (Competence, Diligence, and
Cooperation), 18-102.8 (Decorum, Demeanor, and Communication with Jurors), and 18-
102.12 (Supervisory Duties).5 Having concluded that Judge Russell committed
sanctionable conduct, the Commission recommended her immediate suspension for a
period of six months without pay. In addition, the Commission recommended that Judge
Russell be required to undertake remedial measures to assist her as she returns to her duties.
The Commission ordered that the matter be referred to this Court for review, in accordance
5
Although Respondent was charged with violating Md. Rules 18-102.1 (Giving
Precedence to the Duties of Judicial Office), 18-102.3 (Bias, Prejudice, and Harassment),
and 18-102.16 (Cooperation with Disciplinary Authorities), the Commission dismissed
those charges for lack of proof.
4
with Md. Rule 18-407(j).
On December 31, 2018, Judge Russell filed “Exceptions by Judge Russell to
Amended Findings of Fact, Conclusions of Law, Order and Recommendation” with this
Court. See Md. Rule 18-408(b) (Exceptions). The Commission responded to Judge
Russell’s Exceptions on January 16, 2019 in a “Response to Exceptions by Judge Russell
to Amended Findings of Fact, Conclusions of Law, Order and Recommendation.” See Md.
Rule 18-408(c) (Response). A hearing was conducted before this Court on March 4, 2019.
See Md. Rule 18-408(d) (Hearing). In this opinion, we review which, if any, Maryland
Rules Respondent violated. See Md. Rule 18-408(e) (Disposition); see also Md. Rule 18-
408(f) (Decision). Upon our determination of the existence of sanctionable conduct, we
impose the appropriate sanction. See Md. Rule 18-408(e) (Disposition).
II. ALLEGED LEGAL ERRORS
As a preliminary matter, Respondent raises several legal challenges to the
Commission’s disposition of her case. Respondent alleges that the Commission erred when
it denied her Motion to Recuse and Motion to Suppress. Furthermore, Respondent claims
that a host of legal doctrines support dismissing the charges against her. Finally,
Respondent argues that several procedural defects occurred, which require that the charges
be dismissed. We review each allegation in turn.
1. Motion to Recuse
On August 31, 2018, Respondent filed a “Motion to Recuse.” Therein, Respondent
requested that the Honorable Susan H. Hazlett (“Judge Hazlett”), who is the Commission’s
Vice Chair and the Administrative Judge for the District Court of Maryland, sitting in
5
Harford County, recuse herself from Respondent’s proceedings. On September 10, 2018,
the Commission filed an Order and a supporting memorandum denying Respondent’s
Motion. The Commission explained that it lacked information concerning any occurrence
involving Respondent with which Judge Hazlett was personally familiar. In addition, the
Commission explained that Judge Hazlett was not predisposed to find any witness credible.
Finally, the Commission determined that, even if Judge Hazlett’s recusal was warranted,
the rule of necessity overrides the rule of recusal. Accordingly, Judge Hazlett participated
in the disposition of Respondent’s case.
Before this Court, Respondent argues that the Commission erred by denying her
Motion to Recuse. She emphasizes that the Honorable John P. Morrissey (“Chief Judge
Morrissey”), Chief Judge of the District Court of Maryland, testified at the Commission
hearing. Respondent argues that Chief Judge Morrissey is Judge Hazlett’s boss, so Judge
Hazlett’s impartiality could reasonably be questioned. The Commission maintains that the
Motion was properly denied because Judge Hazlett’s impartiality was not compromised,
and the rule of necessity required her participation in any event.
Discussion
In the conduct of Commission business, the Commission’s members are bound by
the rule of recusal. Md. Rule 18-402(b). Commission members must recuse themselves
when, inter alia, “the recusal of a judicial member would otherwise be required by the
Maryland Code of Judicial Conduct.” Id. Generally speaking, a judge is required to recuse
himself or herself from a proceeding when a reasonable person with knowledge and
understanding of all the relevant facts would question the judge’s impartiality. Jefferson-
6
El v. State, 330 Md. 99, 106-07, 622 A.2d 737, 741 (1993) (citations omitted). We review
a judge’s decision to recuse or not to recuse under an abuse of discretion standard. Id. at
107, 622 A.2d at 741. “[T]here is a strong presumption in Maryland . . . that judges are
impartial participants in the legal process, whose duty to preside when qualified is as strong
as their duty to refrain from presiding when not qualified.” Id.
For example, in In re Turney, we held that a judge should have recused himself from
a hearing. 311 Md. 246, 246-47, 533 A.2d 916, 916-17 (1987). There, Frederick Leary
was issued a citation and charged with possession of a fake license. Id. at 247, 533 A.2d
at 917. Mr. Leary obtained the fake license from the son of the Honorable Jack R. Turney,
a judge of the District Court of Maryland, sitting in Garrett County. Id. Mr. Leary was
Judge Turney’s ex-wife’s stepson and a close friend of Judge Turney’s son. Id. Mr.
Leary’s case came before the District Court, and Judge Turney presided over the hearing.
Id. at 248, 533 A.2d at 917-18. During the hearing, Judge Turney made efforts to prevent
Mr. Leary from disclosing who he obtained the fake license from, and ultimately accepted
Mr. Leary’s guilty plea and imposed a fine. Id. at 248-50, 533 A.2d at 918-19. Judge
Turney was sanctioned for his conduct. Id. at 257-58, 533 A.2d at 922.
Here, Respondent’s Motion to Recuse was properly denied. Judge Hazlett had no
demonstrable personal ties to Respondent or the outcome of Respondent’s proceeding that
would influence her review of the evidence. As Respondent points out, Judge Hazlett and
Chief Judge Morrissey both preside narrowly or broadly, respectively, over the District
Court of Maryland. There is no allegation that they have a particularly close friendship.
Given that Judge Hazlett is the Administrative Judge for the District Court of Maryland,
7
sitting in Harford County, Chief Judge Morrissey is, perhaps in a colloquial sense, her
boss.6 As Chief Judge of the District Court, Chief Judge Morrissey is the administrative
head of the District Court. He is entrusted with overseeing “the maintenance,
administration, and operation of the [district] court in all its locations throughout the State.”
Md. Code Ann., Cts. & Jud. Proc., § 1-605(a); Md. Rule 16-106(a). In that capacity,
however, he does not have authority over Judge Hazlett’s independent decision making –
in this or any other case. See id. As such, there is no indication that Judge Hazlett formed
an opinion in this case, or was otherwise influenced by, her professional affiliation with
Chief Judge Morrissey.7
Furthermore, as one of three members of the judiciary serving on the Commission,
our Constitution tasks Judge Hazlett, in collaboration with the Commission’s other judicial
members, with reviewing the conduct of and, if appropriate, sanctioning her fellow judges.
Md. Const. Art. IV, § 4B. By the very nature of her position as an Administrative Judge
or Vice Chair of the Commission, Judge Hazlett may be required to assess the performance
6
The powers and duties of the Chief Judge of the District Court of Maryland are set forth
in Md. Code Ann., Cts. & Jud. Proc., § 1-605. For example, he or she is permitted to make
administrative regulations for the District Court and temporarily assign a District Court
judge to sit in a different county. Id.
7
Respondent’s allegation that Judge Hazlett was acquainted with other judges who testified
as witnesses, and judges who she thought would testify at the hearing but did not testify, is
equally unavailing. Furthermore, Respondent has not alleged a factual basis to support her
allegation that Judge Hazlett had personal knowledge of facts in dispute. As the
Commission found, Respondent has not indicated facts concerning any occurrence
involving Respondent with which Judge Hazlett was familiar. Likewise, Respondent
asserts no such facts before this Court. Therefore, the Commission properly denied
Respondent’s Motion to Recuse.
8
of individuals with whom she is professionally acquainted. Indeed, that is her duty. In
accordance with her duties, Judge Hazlett was one of seven Commission members who
participated in the unanimous decision and recommendation in the present case. Under
these circumstances, a reasonable person would not doubt Judge Hazlett’s independent and
impartial judgment. Accordingly, Respondent’s Motion to Recuse Judge Hazlett was
properly denied.8
2. Motion to Suppress
A considerable portion of the hearing before the Commission concerned
Respondent’s handling of search warrants. The circumstances regarding the search warrant
issues are more thoroughly explored later in this opinion. For now, we simply note that
Respondent stored search warrant materials in boxes. The boxes were removed from the
courthouse at the direction of the Honorable Barbara Waxman (“Judge Waxman”),
Administrative Judge9 of the District Court, and delivered to Investigative Counsel on
December 21, 2016. On September 13, 2018, Respondent filed a Motion to Suppress.
Respondent argued that the boxes of warrants were taken in violation of the Fourth and
8
As required by the Maryland Constitution, there were three judicial members of the
Commission – Judge Hazlett, the Honorable Michael W. Reed (“Judge Reed”), Associate
Judge of the Court of Special Appeals, and the Honorable Robert B. Kershaw (“Judge
Kershaw”), Associate Judge of the Circuit Court for Baltimore City. Md. Const. Art. IV,
§ 4A. Judge Reed and Judge Kershaw recused themselves from Respondent’s proceeding.
Nonetheless, because we conclude that Judge Hazlett was not required to recuse herself,
we need not decide whether the rule of necessity required Judge Hazlett’s participation as
the only remaining judicial member in this case. See Md. Rule 18-102.11, Cmt. 3.
9
Administrative judges of the District Court are “responsible for the administration,
operation, and maintenance of the District Court” in the district in which he or she sits and
“for the conduct of the District Court’s business.” Md. Code, Cts. & Jud. Proc, § 1-607.
9
Fourteenth Amendments to the United States Constitution, Articles 22 and 24 of the
Maryland Declaration of Rights, and Maryland Rule 4-601. On September 14, 2018, the
Commission denied Respondent’s Motion to Suppress, concluding that the exclusionary
rule does not apply to proceedings before the Commission. At Respondent’s hearing
before the Commission, the warrants were admitted into evidence. Respondent now
contends that her Motion to Suppress was improperly denied.
Discussion
The Fourth Amendment to the United States Constitution and its Maryland
counterpart protects citizens from unreasonable searches and seizures. Wilkes v. State, 364
Md. 554, 570-71, 774 A.2d 420, 430 (2001). For the Fourth Amendment to apply, an
individual must demonstrate that a government actor infringed upon his or her “actual,
subjective expectation of privacy in [an] item or place searched” and that “the expectation
[of privacy] is one that society is prepared to recognize as reasonable.” Walker v. State,
432 Md. 587, 605, 69 A.3d 1066, 1077 (2013) (citation omitted).
In Walker v. State, this Court explained that public employees may have privacy
expectations in their work spaces. Id. at 608, 69 A.3d at 1079. Such expectations, however,
may be curtailed “by virtue of actual office practices and procedures[.]” Id. There, we
concluded that a teacher lacked a privacy interest in his desk at the elementary school where
he worked. Id. at 612-13, 69 A.3d at 1081-82. The teacher’s desk was in an open room
with a high volume of traffic. Id. at 612, 69 A.3d at 1081. It had labels on its drawers
indicating that work items, not personal items, were stored within it, and the teacher
“fail[ed] to lock the desk when given the option to do so[.]” Id.
10
Here, according to Judge Waxman, Respondent’s search warrant materials were
discovered in a courthouse where Respondent had not worked for approximately two
months. The boxes were labeled “Russell” and “Civil,” and they were found in an unsecure
location. Judge Waxman explained, and neither party disputes, that “[t]he boxes were
found in the law clerks’ office . . . not in a judge’s chambers.” The office was “the judges’
clerks’ office where there’s a little portion of the clerks’ office that’s been set aside for the
law clerks, but it’s all one big area.” In that location, the boxes were accessible by
individuals working inside and outside of the judiciary. In sum, Respondent stored her
boxes of warrants unsecure and in a high-traffic area that was outside of her personal
workspace and immediate attention. As a result, Respondent cannot claim a reasonable
expectation of privacy in the boxes, as is necessary to prevail on her Motion to Suppress.
Therefore, we conclude that Respondent’s Motion to Suppress was properly denied
pursuant to the Fourth and Fourteenth Amendments to the United States Constitution,
Articles 22 and 24 of the Maryland Declaration of Rights, and Md. Rule 4-601.10
10
Even if Respondent had a legitimate privacy interest in her boxes, it is questionable as
to whether the exclusionary rule applies to proceedings before the Commission. Where
evidence is obtained in violation of an individual’s Fourth Amendment rights, the
exclusionary rule provides that the evidence will be inadmissible at trial. United States v.
Janis, 428 U.S. 433, 445-46, 96 S. Ct. 3021, 3028, 49 L.Ed.2d. 1046 (1976). “As with any
remedial device, the application of the rule has been restricted to those areas where its
remedial objectives are thought most efficaciously served.” Id. at 447, 96 S.Ct. at 3028
(citations omitted); see Motor Vehicle Admin. v. Richards, 356 Md. 356, 373, 739 A.2d 58,
68 (1999) (holding that the exclusionary rule does not apply to administrative license
suspension proceedings, which serve “to protect the public from unscrupulous or unskilled
operators who would otherwise engage in the licensed activity.”). Proceedings before the
Commission are neither civil nor criminal, and they do not fall within the ambit of the
Administrative Procedure Act. In re Diener and Broccolino, 268 Md. 659, 670, 304 A.2d
(continued . . .)
11
3. Limitations, Laches, Res Judicata, Estoppel, Separation of Powers (Constitutional
Reappointment), and Fundamental Fairness
Respondent contends that allegations of her misconduct were not brought to the
attention of Maryland Governor Lawrence J. Hogan, Jr. (“Governor Hogan”) or the
Maryland Senate in February 2016 when she was reappointed and confirmed for her second
term as a judge. Respondent notes that many of the Commission’s Findings of Fact and
Conclusions of Law are predicated on events that took place before February 2016, and
were known by and discussed with Respondent’s colleagues and supervisors. Respondent
explains that “[i]t is difficult to articulate a concise neat legal theory for the legal objections
in this section[,]” but she maintains that it is unfair for her to be disciplined for conduct
that occurred prior to her 2016 reappointment. Accordingly, Respondent invites us to
dismiss the charges brought against her.11 The Commission contends that Respondent’s
(. . . continued)
587, 594 (1973). “[T]hey are merely an inquiry into the conduct of a judicial officer[,] the
aim of which is the maintenance of the honor and dignity of the judiciary and the proper
administration of justice rather than the punishment of the individual.” Id.
11
Respondent posits that any one of the doctrines of limitations, laches, constitutional
separation of powers, res judicata, estoppel, or fundamental fairness may warrant dismissal.
By way of background, “a statute of limitations represents . . . a policy decision regarding
what constitutes an adequate period of time for a person of ordinary diligence to pursue his
claim.” Georgia-Pacific Corp. v. Benjamin, 394 Md. 59, 84, 904 A.2d 511, 526 (2006).
The limitations period constitutes the quantity of time that a plaintiff has to bring an action
against another before he or she is deemed to have waived the right to sue and acquiesced
to the defendant’s alleged wrongdoing. Id. at 84-85, 904 A.2d at 526. Laches is a different
but related doctrine. State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md.
451, 603, 92 A.3d 400, 491 (2014). Laches “applies when there is an unreasonable delay
in the assertion of one’s rights and that delay results in prejudice to the opposing party.”
Id. at 586, 438 A.3d at 480 (citations omitted). Unlike limitations, laches is an equitable
(continued . . .)
12
position is unsubstantiated, and that a judge may be sanctioned for his or her conduct so
long as the judge remains in office.
(. . . continued)
doctrine which must be evaluated on a case by case basis. Schaeffer v. Anne Arundel
County, 338 Md. 75, 83, 656 A.2d 751, 755 (1995).
Separation of powers is a constitutionally created doctrine, “integral to our tripartite system
of government.” Meyer v. State, 445 Md. 648, 672, 128 A.3d 147, 161 (2015). Article 8
of the Maryland Declaration of Rights provides “[t]hat the Legislative, Executive, and
Judicial powers of government ought to be forever separate and distinct from each other;
and no person exercising the functions of one of said Departments shall assume or
discharge the duties of any other.” Id. at 672 n. 14, 128 A.3d at 161 n. 14. Though we
have applied the doctrine with a “sensible degree of elasticity,” it ensures that the three
branches of our State government possess equal and independent power to exercise the
functions committed to them. See generally id. at 671-75, 128 A.3d at 160-63.
The doctrine of res judicata is otherwise known as claim preclusion. Anne Arundel County
Bd. of Educ. v. Norville, 390 Md. 93, 106, 887 A.2d 1029, 1036 (2005). It prohibits
relitigating a claim if a final judgment was obtained in previous litigation, and “the parties,
the subject matter and [the] causes of action are identical or substantially identical as to
issues actually litigated and as to those which could have or should have been raised in the
previous litigation.” Id. at 106-07, 887 A.2d at 1037.
Equitable estoppel provides a defense to an individual who, in reliance on another’s
voluntary conduct or representation, changed his or her position for the worse. Creveling
v. Government Employees Ins. Co., 376 Md. 72, 101-02, 828 A.2d 229, 246 (2003). Under
such circumstances, the party who relied on the representation may preclude the estopped
party “at law and in equity, from asserting rights which might perhaps have otherwise
existed[.]” Id. (citations omitted).
Fundamental fairness is a broad concept with precepts extending to every proceeding
before a tribunal. In the present case, we understand Respondent’s assertion to be that an
error was committed that was so prejudicial to her that the charges against her cannot stand.
See Diggs v. State, 409 Md. 260, 286, 973 A.2d 796, 811 (2009) (Under plain error analysis,
reversal may be warranted if an error caused prejudice that is so “compelling,
extraordinary, exceptional or fundamental” to the right to a fair trial) (internal quotations
and citations omitted).
13
Discussion
We are unpersuaded that the host of legal theories that Respondent asserts warrant
dismissing the charges against her. The Maryland Rules do not set forth a statute of
limitations for when the Commission must commence disciplinary proceedings against a
judge. Rather, the Rules afford the Commission broad discretion to discipline
“sanctionable conduct,” defined as “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.” Md. Rule 18-401(k)(1). In addition, the allegations of judicial
misconduct brought against Respondent have not been the subject of a prior action before
any tribunal which resulted in a final judgment.
Furthermore, we cannot fathom, and Respondent does not articulate, how it is
prejudicial or unfair to Respondent for the Commission to hold her accountable for conduct
that she committed while serving as a judge, albeit before her reappointment in 2016.
Given that Respondent is serving as a Maryland judge, she is subject to the authority of the
Commission and this Court for disciplinary matters. See Md. Rule 18-407 (affording the
Commission discretion to review and discipline “sanctionable conduct,” as defined in Md.
Rule 18-401(k)). Moreover, the Commission was not presented with an isolated instance
of Respondent’s conduct that occurred before 2016. The Commission reviewed instances
of conduct that reflect a larger pattern of uncooperative and unseemly behavior. Absent
any discernible prejudice to Respondent, to limit the Commission’s authority to act on
judicial misconduct based off of what the Governor and the General Assembly may or may
not have known at the time of Respondent’s reappointment would be speculative, arbitrary,
14
and repulsive to the administration of justice. Therefore, we decline to dismiss the charges
against Respondent based upon limitations, laches, res judicata, estoppel, constitutional
separation of powers, or fundamental fairness.
4. Motion to Dismiss
Finally, Respondent filed a number of pleadings in this case, raising alleged
procedural defects. On March 14, 2018, Respondent filed a “Response to the
Commission’s Charges” that asserted procedural defects. In addition, Respondent filed a
Petition for a Writ of Mandamus with this Court on March 14, 2018, which we denied on
March 22, 2018. Finally, on October 12, 2018, Respondent filed a Motion to Dismiss with
the Commission. The Commission denied the Motion to Dismiss on November 7, 2018.
Before this Court, Respondent maintains that procedural defects occurred before
charges were brought against her. Specifically, she contends that the procedural
requirements in Md. Rules 18-404 and 18-405 were not followed to her detriment.
Respondent claims that she was not given a reasonable opportunity to present information
to the Judicial Inquiry Board12 (“Board”) or object to the Board’s report and
recommendation. Finally, Respondent claims that she was not given notice of her
“disrespectful, combative, and unprofessional interactions with fellow judges and other
courthouse staff” before the charges were filed. The Commission insists that Respondent’s
allegations are unfounded.
12
The Judicial Inquiry Board is a body separate from the Commission. See Md. Rule 18-
403(a). Its members consist of two judges, two attorneys, and three members of the public
who are not attorneys or judges, all of whom are appointed by the Commission. Id.
15
Discussion
Respondent was afforded and utilized the procedural mechanisms available to her
under the Rules. Investigative Counsel issued her report to the Judicial Inquiry Board on
September 25, 2017. Included within that report were 13 responses from Respondent, thus
indicating that Respondent was permitted to supply information with regard to the
investigation before it concluded. See Md. Rule 18-404(e)(5). Less than 45 days later, on
October 16, 2017, the Board sent the Commission its report and recommendation. See Md.
Rule 18-404(j)(3). The Board recommended that the Commission find probable cause to
believe that Respondent committed sanctionable conduct. To reach its disposition, the
Board reviewed the 13 items submitted by Respondent, in addition to exhibits, statements,
and other items that were submitted by Investigative Counsel. On October 26, 2017, the
Board released its report to Respondent and Investigative Counsel. Thereafter, Respondent
requested and was granted an extension of time to respond to the Board’s report. On
December 7, 2017, Respondent filed objections to the report, challenging the Board’s
recommendation.
We fail to see how the procedural requirements for the preliminary investigation
and Board review under Md. Rules 18-404 and 18-504 were violated. Under the
unambiguous language of Md. Rule 18-404(e), Respondent was not, as she contends,
entitled to present information to the Judicial Inquiry Board. Md. Rule 18-404(e) does not
apply to the Board. It provides that “Investigative Counsel shall afford the judge a
reasonable opportunity to present, in person or in writing, such information as the judge
chooses” during the preliminary investigation. Md. Rule 18-404(e)(5). The record
16
indicates that Respondent presented 13 items to Investigative Counsel. Furthermore,
contrary to Respondent’s contention, she was permitted to and did in fact object to the
Board’s report and recommendations. She was even extended extra time to do so.
Finally, the Rules do not require the Commission or this Court to dismiss an action
when procedural requirements are not met with strict compliance. At best, when certain
time requirements regarding the preliminary investigation into the conduct of a judge are
not met, the Commission may – but is not required to – terminate the proceeding. Md.
Rule 18-404(e)(6). Respondent was given ample notice of the charges brought against her,
and a full and fair opportunity to defend herself against them. Accordingly, the charges
brought against Respondent should not be dismissed based on the alleged procedural
defects.
III. RESPONDENT’S EXCEPTIONS TO THE COMMISSION’S FINDINGS OF
FACT AND CONCLUSIONS OF LAW
We now direct our attention to Respondent’s Exceptions to the Commission’s
Findings of Fact and Conclusions of Law. The Commission issued findings of fact and
conclusions of law, in which it found by clear and convincing evidence that Respondent’s
conduct violated Md. Rules 18-101.1 (Compliance with the Law), 18-101.2 (Promoting
Confidence in the Judiciary), 18-102.5 (Competence, Diligence, and Cooperation), 18-
102.8 (Decorum, Demeanor, and Communication with Jurors), and 18-102.12
(Supervisory Duties), and that her violations amounted to sanctionable conduct.13
13
Md. Rule 18-101.1. Compliance with the Law
A judge shall comply with the law, including this Code of Judicial Conduct.
(continued . . .)
17
“Upon our independent review, this Court must determine whether the charges
against the [R]espondent are supported by clear and convincing evidence and which, if any,
[Rules] have been violated.” In re Lamdin, 404 Md. 631, 637, 948 A.2d 54, 57 (2008)
(citing In re Diener and Broccolino, 268 Md. 659, 670, 304 A.2d 587, 594 (1973)).
“[A]lthough the [Commission’s] report is only advisory, [we] should give full
consideration to it, particularly with respect to the credibility of witnesses, where the
testimony is conflicting.” See In re Bennett, 301 Md. 517, 530, 483 A.2d 1242, 1248
(1984) (quoting Bar Ass’n v. Marshall, 269 Md. 510, 307 A.2d 677 (1973)). Accordingly,
the Commission’s “findings of fact from the evidence are prima facie correct and they will
(. . . continued)
Md. Rule 18-101.2. Promoting Confidence in the Judiciary
(a) A judge shall act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary.
Md. Rule 18-102.5. Competence, Diligence, and Cooperation
(a) A judge shall perform judicial and administrative duties competently, diligently,
promptly, and without favoritism or nepotism.
(b) A judge shall cooperate with other judges and court officials in the
administration of court business.
(c) A judge shall not willfully fail to comply with administrative rules or reasonable
directives of a judge with supervisory authority.
Md. Rule 18-102.8. Decorum, Demeanor, and Communication with Jurors
(b) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses,
attorneys, court staff, court officials, and others with whom the judge deals in an
official capacity, and shall require similar conduct of attorneys, court staff, court
officials, and others subject to the judge’s direction and control.
Md. Rule 18-102.12. Supervisory Duties
(a) A judge shall require court staff, court officials, and others subject to the judge’s
direction and control to act in a manner consistent with the judge’s obligations under
this Code.
18
not be disturbed unless determined to be clearly erroneous.” Id. If this Court concludes
that sanctionable conduct has occurred, we “must then determine what discipline, if any, is
appropriate under the circumstances.” Lamdin, 404 Md. at 637, 948 A.2d at 57. Our
decision “shall be evidenced by an Order of the Court, certified under seal and shall be
accompanied by a written opinion.” Id. (citation omitted); see Md. Rule 18-408(f).
In her Exceptions, Respondent objected to nearly all of the Commission’s findings
of fact and conclusions of law. For purposes of organization, we have divided the
Commission’s findings of fact and conclusions of law, and Respondent’s objections
thereto, into two categories: (1) Search Warrant Issues; and (2) Interpersonal Issues. We
review each category in turn.
1. Search Warrant Issues
By way of background, the Maryland Rules set forth procedures for judges to follow
when, inter alia, granting search warrants, handling search warrant materials, and
processing search warrant materials. See generally Md. Rule 4-601. When a judge issues
a search warrant, he or she must sign it and deliver the warrant and a copy of the application
and its supporting affidavit to the applicant. Md. Rule 4-601(c). In addition, the judge
must retain a copy of the application, affidavit, and warrant. Md. Rule 4-601(d)(2).
Additionally, “[a] search warrant shall be issued with all practicable secrecy.” Md. Rule
4-601(d)(1).
Thereafter, the warrant may or may not be executed. If the warrant is executed, the
19
executing officer must prepare a search warrant return14 and deliver the warrant, warrant
return, and a verified list of inventory that was seized to, preferably, the judge who issued
the warrant. Md. Rule 4-601(f). Then, according to testimony on the record, a judge who
receives warrant materials from an officer will generally have the officer affirm the
property that was recovered, and the judge will sign the warrant return. Subsequently, the
judge must compile the warrant, warrant return, verified inventory, “and all other papers
in connection with the issuance, execution, and return, including the copies retained by the
issuing judge, and shall file them with the clerk of the court for the county from which the
warrant was issued.” Md. Rule 4-601(g). If the warrant is not executed, the executing
officer must return the warrant to the issuing judge who, upon receiving the unexecuted
warrant, “may destroy the warrant and related papers or make any other disposition the
judge deems proper.” Md. Rule 4-601(h)(2).
The Commission’s Findings of Fact and Conclusions of Law
The Commission found that over the course of several years, Respondent failed to
process her search warrants in a timely manner. Specifically, Respondent failed to keep
the warrants in her possession confidential and secure pending possible return and
processing. Additionally, Respondent did not promptly match warrants with warrant
returns and transmit them to the clerk for filing. Based on testimony at the hearing, the
Commission found that Respondent had boxes containing at least 135 warrants that should
have been, but were not, matched with a return and sent to the clerk for filing. “By the
14
A search warrant return is a document that specifies the date and time that a warrant was
executed and an inventory of property that was seized. Md. Rule 4-601(f).
20
Commission’s own count, however, there were [23] more warrants that were either
processable or potentially processable.” The Commission concluded that Respondent’s
failure to process search warrants in a timely manner and related conduct violated Md.
Rules 4-601(g), 18-101.1 (Compliance with the Law), and 18-102.5(a) (performing judicial
and administrative duties competently, diligently, and promptly).
The Commission found that in 2016, Respondent tasked Ama Asare, a law clerk,
with taking boxes in which Respondent accumulated warrant-related materials and
matching warrants with warrant returns. The Commission found that Respondent
ultimately told Ms. Asare, “Just get rid of them,” referring to the search warrants that she
was tasked with matching up. The Commission concluded that Respondent’s direction to
Ms. Asare violated Md. Rules 18-101.1 (Compliance with the Code of Judicial Conduct)
and 18-102.12(a) (Supervisory Duties).
The Commission also found that Respondent violated existing internal policies,
followed by judges serving on the District Court, relating to search warrants. One of the
policies was implemented by Administrative Judge Waxman and “direct[ed] District Court
judges not to review and sign warrants while sitting at the Civil Courthouse except under
exigent circumstances.” The Commission found that Respondent continued to review and
sign search warrants while assigned to work at the Civil Courthouse. Respondent admitted
to her conduct when she testified, and two of her witnesses confirmed her testimony.
Additionally, the Commission found that the District Court had a policy that
prohibited a judge from signing a search warrant return for another judge unless the two
judges were assigned to the same court location. The policy served to ensure that search
21
warrants were handled confidentially and securely, as search warrants contain sensitive
information and may be evidence. The Commission found that “[i]n November 2017,
[R]espondent signed a search warrant for Judge Joan Bossman Gordon while Judge Gordon
was assigned to a different court location.” Moreover, “[t]he return was transmitted to
Judge Gordon through interoffice mail, also violating the policy.” The Commission found
that Respondent’s conduct violated Md. Rules 18-101.1 (Compliance with the Law,
including the Code of Judicial Conduct), 18-102.5(b) (Cooperation with other judges and
court officials), and 18-102.5(c) (Compliance with administrative rules or reasonable
directives of supervisors).
Respondent’s Exceptions to the Commission’s Findings of Fact and Conclusions of Law
Respondent denies violating Md. Rule 4-601. She contends that she properly
processed and securely maintained her search warrant materials. Respondent explains that,
since becoming a judge, she has never destroyed any of her search warrant materials, but
she treated her “non-processable” and “processable” warrants differently. She opted to
keep “non-processable” warrants, even though Md. Rule 4-601 permitted her to destroy
them. The “non-processable” warrants were the documents that she kept in boxes, which
she referred to as her “nomad boxes.” By contrast, Respondent maintains that for warrants
that she deemed “processable” she would, immediately or periodically, match up the
various documents and file them. With these methods in practice, when she transferred to
a different courthouse, she would not have to carry her “processable” warrants with her.
She would simply carry her nomad boxes, containing her accumulation of warrants that
she deemed “non-processable.”
22
Ultimately, Respondent’s nomad boxes were collected by Judge Waxman, the
Administrative Judge, and the Honorable Mark F. Scurti (“Judge Scurti”), the Judge in
Charge15 of the Civil Docket for the District Court. Judge Waxman examined and collated
the documents in the nomad boxes, and she discovered 135 warrants that should have been
filed with the clerk’s office. According to Respondent, however, the documents that Judge
Waxman found were “non-processable” warrants because there was no “judicial” copy of
them.
In addition, Respondent argues that the Commission misunderstood the scenario
involving Ms. Asare. Respondent explains that in September 2016, she was transferred to
a new courthouse, so she emptied a drawer that had accumulated search warrants. She
assigned Ms. Asare the task of matching up the warrants with warrant returns. Then, she
instructed Ms. Asare to “get rid” of warrants that Ms. Asare could not match up, which
Respondent alleges was permitted by the Rules. According to Respondent, however, the
warrants “would not be ‘gotten rid of[,]’ they would be kept in the nomad boxes.” She
argues that Ms. Asare, a “brand-new inexperienced law clerk[,]” misinterpreted her
instructions.
Lastly, Respondent argues that the Commission misstated the policy change
implemented by Judge Waxman. Furthermore, Respondent posits that her handling of
15
Judge Scurti testified that each building that represents part of the District Court has a
judge in charge. The judge in charge “is responsible for scheduling, building issues, any
problems that arise by the clerks, just primarily handling any issues that c[ome] up day to
day at the courthouse.” In addition, the judge in charge “can recommend changes in
policies and procedure and implement them . . . with [the] administrative judge’s approval,”
and ensures that existing policies and procedures are carried out.
23
Judge Gordon’s warrant return, albeit improper, did not cause any harm. Accordingly,
Respondent asserts that her conduct was not sanctionable.
Discussion
We agree with Respondent that, as to the Commission’s factual finding regarding
Judge Waxman’s internal search warrant policy, the Commission’s conclusion that
Respondent violated the policy is not supported by the record. Judge Waxman’s testimony
indicates that her policy initiative was discretionary.16 As such, Respondent’s election to
continue signing non-emergency warrants while assigned to work at the Civil Courthouse
did not violate Judge Waxman’s policy, and Respondent’s corresponding exception is
sustained.
Otherwise, the Commission’s factual findings regarding Respondent’s handling of
search warrant materials are supported by clear and convincing evidence in the record and,
thus, are adopted by this Court. See In re Bennett, 301 Md. 517, 536, 483 A.2d 1242, 1251
(1984). When Judge Waxman testified before the Commission, she described the unsecure
location where Respondent’s boxes of warrants were located. Judge Waxman explained
that “[t]he boxes were found in the law clerks’ office; so [it wa]s not a secure area. It’s not
in a judge’s chambers. It was on the floor. It could have been even mistaken as trash.”
16
The policy, according to Judge Waxman, provided that in exigent circumstances, an
officer could come to the Civil Division at any time to have a warrant reviewed and signed.
Warrants that were routine or non-exigent, however, would have to be reviewed and signed
at another courthouse location. Judge Waxman explained that if a judge at Civil wanted to
review warrants, he or she could do so. “But if there was a judge who looked at the warrant
and said[,] ‘This really isn’t an emergency, please go to another court building,’ he or she
could.”
24
The boxes were accessible by members of “[o]ther agencies in the building [that] use the
copier, Legal Aid, Public Justice, mediators, everybody.” Judge Waxman further testified
that Respondent had not been working in the courthouse where the warrants were located
and had been transferred nearly two months before they were found.
Furthermore, Judge Waxman attested to her personal examination of Respondent’s
nomad boxes. Judge Waxman explained that she sorted the documents in the boxes by
year. Then she separated the warrants that had been executed and returned by a police
officer – “the ones that should have been [processed]” with the clerk’s office. In total,
Judge Waxman identified and set aside “approximately 135” warrants dating from 2007-
2015 that should have been “sent to the clerk’s office” for filing.
Indeed, the warrants that Judge Waxman set aside were admitted into evidence at
the disciplinary proceeding. Judge Waxman went through several of the exhibits, and she
described their contents. Based on her testimony, the warrants had been executed; they
were signed by an officer and detailed any inventory that was seized. As such, they
“need[ed] to be filed with the” clerk. Md. Rule 4-601(g) (providing that executed warrants
must be filed with the clerk of the court). Although Judge Waxman did not detail every
warrant and its related documents, she affirmed that the exhibits that she described were
representative of approximately 135 warrants from the nomad boxes that she had set aside.
Moreover, Ms. Asare testified that after Respondent instructed her to match up the
warrants in her boxes, Respondent told Ms. Asare, “Just get rid of it.” Ms. Asare
interpreted Respondent’s instruction as “asking [Ms. Asare] to destroy the warrants” in the
nomad boxes – at least 135 of which needed to be filed with the clerk’s office. Though
25
Respondent claims that Ms. Asare misunderstood her instruction, the Commission found
Ms. Asare’s testimony credible, and chose not to credit Respondent’s testimony. The
Commission, like the hearing judge in the analogous setting of Attorney Grievance
Commission proceedings, must “pick and choose what evidence to believe.” Attorney
Grievance Comm’n v. Woolery, 462 Md. 209, 230, 198 A.3d 835, 847 (2018) (citation and
internal quotation omitted). “The Commission was in the best position to evaluate
[R]espondent’s demeanor and we do not find [its] observations to be clearly erroneous.”
See In re Lamdin, 404 Md. 631, 655, 948 A.2d 54, 68 (2008). Therefore, we overrule
Respondent’s exceptions to the Commission’s findings of fact with regard to Respondent’s
handling of warrants.
We now turn our attention to the Commission’s conclusions of law. The Maryland
Rules require judges to “perform judicial and administrative duties competently, diligently,
and promptly[.]” Md. Rule 18-102.5(a). There is not a “rigid and finite formula” for
determining whether a judge has competently, diligently, and promptly performed his or
her duties. See Matter of Reese, 461 Md. 421, 441, 193 A.3d 187, 199 (2018) (holding that
a judge did not violate Md. Rule 18-102.5 when she performed her judicial duties by
appreciating the facts presented, understanding the applicable law, and drawing a
reasonable conclusion). Here, however, Respondent utterly failed to fulfill her duty under
Md. Rule 4-601 to file executed warrants with the clerk’s office. She also admittedly failed
to comply with the internal policy that prohibited a judge from signing a search warrant
return for another judge unless the two judges were assigned to the same court when she
handled a search warrant return for Judge Gordon. Moreover, her nomad boxes were kept
26
in a public area, accessible to numerous individuals inside and outside of the judiciary. Her
inattention demonstrates a disregard for the critical nature of search warrants and her duties
under Md. Rule 4-601.
To be sure, as Respondent contends, Md. Rule 4-601 does not establish a deadline
or time period for when a judge must file a warrant with the clerk’s office. See generally,
Md. Rule 4-601. Respondent, however, cannot seek refuge in the Rule’s lack of a deadline.
The warrants in Respondent’s nomad boxes dated back to 2007, and it became apparent in
2016 that she had neglected to file warrant materials with the clerk’s office. As such, her
conduct violated Md. Rule 4-601(g) – if not its tenets, then its spirit. Even though there is
no strict deadline to which she must adhere, Respondent, at the very least, failed to file her
warrants with the clerk of the court promptly. Md. Rule 18-102.5(a) (performing judicial
and administrative duties competently, diligently, and promptly). Accordingly, we
conclude that Respondent’s conduct violated Md. Rules 18-101.1 (Compliance with the
Law) and 18-102.5 (Competence, Diligence, Promptness). We sustain the Commission’s
legal conclusions and overrule Respondent’s exceptions thereto.
Finally, members of the judiciary who have supervisory control over other court
employees must “require court staff . . . to act in a manner consistent with the judge’s
obligations[.]” Md. Rule 18-102.12(a). Judges “may not direct court personnel to engage
in conduct on the judge’s behalf . . . when such conduct would violate [the Code of Judicial
Conduct] if undertaken by the judge.” Id. (Comment 1). Although Respondent has
apparently kept in her nomad boxes all of her warrants since becoming a judge, in 2016
she instructed a law clerk to destroy the contents of her nomad boxes. The evidence shows
27
that the boxes contained 135 executed search warrants. Respondent’s duty was to promptly
file the executed warrants with the clerk’s office; she did not have discretion to destroy
them. See Md. Rule 4-601; see also Md. Rule 18-101.1 (Compliance with the Law).
Directing the law clerk to destroy them, however, would remove the existence of the
executed warrants that Respondent had failed to file with the clerk. Respondent was not
permitted to use a judicial law clerk, Ms. Asare, as an instrumentality for destroying
evidence of her misconduct. See Md. Rule 18-102.12(a) (Supervisory Duties). When
Respondent directed Ms. Asare to destroy the warrants, she ordered Ms. Asare to engage
in conduct that contravened Respondent’s own ethical obligations. In doing so,
Respondent violated Md. Rules 18-101.1 (Compliance with the Law) and 18-102.12(a)
(Supervisory Duties). For the foregoing reasons, we uphold the Commission’s legal
conclusions, and we overrule Respondent’s exceptions thereto.
2. Interpersonal Issues
The Commission’s Findings of Fact and Conclusions of Law
The Commission made several findings that related to instances where Respondent
disciplined court staff. The Commission found that, in 2012, Respondent summoned Kim
Brown (“Ms. Brown”), the Division Chief of the District Court, and Faye Walker (“Ms.
Walker”), the Supervising Clerk for the District Court, to her courtroom at the Eastside
Courthouse before the docket began, concerning a scheduling issue. “Respondent took
Ms. Brown and Ms. Walker to a hallway outside of the courtroom and began to yell at
them.” She was yelling loudly enough that litigants and lawyers in the courtroom could
hear the interaction, and the courtroom became silent as the incident occurred. The
28
Commission concluded that Respondent’s conduct violated Md. Rules 18-101.1
(Compliance with the Law), 18-101.2(a) (Promoting Confidence in the Judiciary), and 18-
102.8(b) (Patient, dignified, and courteous demeanor toward others with whom the judge
deals in an official capacity).
In addition, the Commission found that, in 2012, Respondent summoned Ms.
Walker to her courtroom concerning a petitioner in a domestic violence case whose file
was missing. “Respondent instructed Ms. Walker to escort the petitioner to the clerk’s
office to have a ‘lineup’ in an effort to determine which clerk had assisted the litigant and
made the error regarding the missing file.” The interaction was loud, in open court and in
front of the litigant and members of the public. During the interaction, Respondent said,
“So did you do it? Are you going to own up to it? No one is owning up to it? Somebody
. . . did it. People aren’t telling the truth.” The Commission found that Respondent’s
conduct violated Md. Rules 18-101.1 (Compliance with the Law) and 18-102.8(b) (Patient,
dignified, and courteous demeanor toward others with whom the judge deals in an official
capacity).
Next, the Commission found that, in 2013, Respondent was discussing the clerical
error in the domestic violence case with Ms. Brown and Ms. Walker. They were in the
chambers of the Honorable Shannon E. Avery (“Judge Avery”), then-Associate Judge on
the District Court and Judge in Charge of the Eastside Courthouse.17 “Respondent was
angry and all three [] raised their voices. Respondent said to both Ms. Brown and Ms.
17
Judge Avery is currently an Associate Judge of the Circuit Court for Baltimore City. She
began serving on the Circuit Court in 2014.
29
Walker[,] ‘Your protection is gone. Lonnie (Ferguson, a previous administrative clerk)
and Judge Hargrove aren’t here anymore.’” Respondent acknowledged making this
statement. The Commission found that Respondent’s conduct violated Md. Rules 18-101.1
(Compliance with the Law) and 18-102.8(b) (Patient, dignified, and courteous demeanor
toward others with whom the judge deals in an official capacity).
Finally, the Commission found that, in 2013, “Respondent intentionally pushed
[Ms.] Brown while Ms. Brown was standing at the mail table at the Eastside District Court
location.” The Commission found that Respondent’s conduct violated Md. Rules 18-101.1
(Compliance with the Law) and 18-102.8(b) (Patient, dignified, and courteous demeanor
toward others with whom the judge deals in an official capacity).
In addition, the Commission made several factual findings regarding Respondent’s
interpersonal issues with other judges. In 2014, Judge Waxman, acting through the
Honorable Halee F. Weinstein (“Judge Weinstein”) who was the Judge in Charge of the
Eastside District Court and Associate Judge on the District Court, asked Respondent not to
call clerks into her courtroom to conduct lineups.18 In response to Judge Weinstein’s
request, Respondent said, “You can’t tell me what to do.” The Commission found that
Respondent’s conduct violated Md. Rules 18-101.1 (Compliance with the Law), 18-
18
The Commission noted that there had been an additional instance where Respondent
instructed a litigant to go to the clerk’s office and identify the clerk who had given the
litigant incorrect instructions. The Commission, however, did not find Respondent’s
conduct sanctionable. It merely referenced the incident to provide context for Judge
Waxman’s instruction to Respondent.
30
102.5(b) (Cooperation with other judges and court officials), and 18-102.5(c) (Compliance
with administrative rules or reasonable directives of supervisors).
In 2015, Respondent began copying the Honorable Mary Ellen Barbera (“Chief
Judge Barbera”), Chief Judge of the Court of Appeals of Maryland, “on emails concerning
ongoing docket[s], chambers, [and] duty and leave assignments in [Respondent’s] court.”
Chief Judge Morrissey of the District Court instructed Respondent to stop involving Chief
Judge Barbera in the day-to-day internal management issues of the District Court because
Chief Judge Morrissey is the administrative head of the District Court of Maryland. The
Commission found that Respondent failed to comply with Chief Judge Morrissey’s
directive by continuing to copy Chief Judge Barbera on emails, even though she was
instructed to stop. The Commission determined that Respondent’s conduct violated Md.
Rules 18-101.1 (Compliance with the Law), 18-102.5(b) (Cooperation with other judges
and court officials), and 18-102.5(c) (Compliance with administrative rules or reasonable
directives of supervisors).
In April 2015, Respondent had a meeting with Chief Judge Morrissey. Chief Judge
Morrissey had requested the meeting in order to ask Respondent to work to get along better
with her colleagues. “Shortly after the meeting started, Respondent stood up and yelled,
‘You threatened me[.]’” The accusation occurred within earshot of several employees and
Respondent’s husband, who were outside of the Chief Judge’s office. The Commission
found that there was, in fact, no threat to Respondent. Furthermore, the Commission
concluded that Respondent’s conduct violated Md. Rules 18-101.1 (Compliance with the
Law), 18-102.5(b) (Cooperation with other judges and court officials), and 18-102.8(b)
31
(Patient, dignified, and courteous demeanor toward others with whom the judge deals in
an official capacity) because she was not cooperative, courteous, and dignified during her
meeting with Chief Judge Morrissey.
In 2016, Respondent was assigned to assist in the orientation of the Honorable Katie
M. O’Hara (“Judge O’Hara”), a newly appointed Associate Judge of the District Court.
The Commission found that, while Respondent and Judge O’Hara were eating lunch
together, Respondent said to Judge O’Hara, “[Judge Scurti, the [J]udge in [C]harge of the
civil docket,] is not in charge of anything. Don’t listen to him.” Respondent also said
“Judge Waxman (the Administrative Judge) is not your boss. You don’t need to listen to
her. You don’t need to listen to Judge Morrissey (Chief Judge of the District Court).” The
Commission concluded that Respondent’s conduct violated Md. Rules 18-101.1
(Compliance with the Law), 18-102.5(b) (Cooperation with other judges and court
officials), and 18-102.8(b) (Patient, dignified, and courteous demeanor toward others with
whom the judge deals in an official capacity).
In June 2017, Respondent entered the courtroom of Judge O’Hara through the public
entrance, while a trial was underway, and “interrupted Judge O’Hara’s ongoing court
proceeding.” She asked two attorneys, who were sitting at trial counsel tables, to get their
calendars so they could schedule a specially set case. In addition to the lawyers, there were
numerous litigants and witnesses present in the courtroom at the time. The interruption
was recorded, and the exchange ran contrary to the process that has been established for
32
scheduling specially set cases.19 The Commission determined that Respondent’s conduct
violated Md. Rules 18-101.1 (Compliance with the Law), 18-102.5(b) (Cooperation with
other judges and court officials), and 18-102.5(c) (Compliance with administrative rules or
reasonable directives of supervisors).
One day in 2017, the Honorable William M. Dunn (“Judge Dunn”), Associate Judge
for the District Court, was temporarily designated as duty judge.20 Judge Dunn left the
courthouse to get lunch before a noon meeting and when he returned, “Respondent was
waiting for Judge Dunn as he came through the front door of the courthouse” in order to
publicly chastise him. Respondent “raised her voice, yelling and screaming at [Judge
Dunn] in front of lawyers, bailiffs, and other judges about his departure from the
courthouse [while] duty judge.” The Commission found that Respondent’s conduct
violated Md. Rules 18-101.1 (Compliance with the Law), 18-102.5(b) (Cooperation with
other judges and court officials), and 18-102.8 (Patient, dignified, and courteous demeanor
toward others with whom the judge deals in an official capacity).
In addition “in 2017[,] Respondent commented to several subordinate court
employees including clerks and bailiffs, that ‘Judge Waxman is a complete and utter
incompetent vicious coward.’” The comment was made in the hallway, and it was heard
19
According to Judge Scurti, there is a policy requiring attorneys who wish to schedule
specially set cases to speak with the clerk who is assigned to that task. The policy ensures
that the date on which the matter is scheduled is convenient for all of the parties.
20
Judge Dunn explained during his testimony that “at each courthouse, one judge a day is
asked to be duty judge.” The duty judge is tasked to “handle [any] emergencies [that come
up] throughout the day.”
33
by Judge Dunn as he was walking to chambers. The Commission concluded that
Respondent’s conduct violated Md. Rules 18-101.1 (Compliance with the Law) and 18-
102.8 (Patient, dignified, and courteous demeanor toward others with whom the judge deals
in an official capacity).
On another occasion, Respondent went to Judge Scurti’s office with a bailiff and a
court clerk. Judge Scurti’s office door was closed, yet Respondent entered unannounced
and uninvited and “proceeded to yell and scream at Judge Scurti.” At the time, the
Honorable David B. Aldouby (“Judge Aldouby”), Associate Judge of the District Court,
was in Judge Scurti’s office, and witnessed the interaction. Neither Judge Scurti nor Judge
Aldouby could remember about what Respondent was upset. The Commission concluded
that Respondent’s conduct violated Md. Rules 18-101.1 (Compliance with the Law), 18-
102.5(b) (Cooperation with other judges and court officials), and 18-102.8(b) (Patient,
dignified, and courteous demeanor toward others with whom the judge deals in an official
capacity).
Finally, the Commission found that “Respondent yell[ed] at Judge Weinstein[,]” the
Judge in Charge of the Eastside Courthouse, while discussing Respondent’s docket. The
yelling occurred “in front of court staff, as well as Judge Aldouby,” who was in Judge
Weinstein’s chambers at the time. The Commission concluded that Respondent’s conduct
violated Md. Rules 18-101.1 (Compliance with the Law), 18-102.5(b) (Cooperation with
other judges and court officials), and 18-102.8(b) (Patient, dignified, and courteous
demeanor toward others with whom the judge deals in an official capacity).
34
Respondent’s Exceptions to the Commission’s Findings of Fact and Conclusions of Law
In essence, the Exceptions reflect that Respondent views herself as the victim and a
problem solver. She asserts that members of the District Court’s administrative staff,
including Ms. Brown and Ms. Walker, simply do not like her. Respondent characterizes
her conduct as solving problems, ensuring competent, efficient service to the public, and
engaging in “lively discussion.” Respondent maintains that her actions did not constitute
sanctionable conduct.
Respondent denies the allegation that she failed to comply with a reasonable
directive of a judicial supervisor. Respondent contends that there are interpersonal
relationship issues among the judges of the District Court, and her colleagues have rebuffed
her efforts to work through their differences. She argues that “hurt feelings, the silent
treatment, the ending of friendships, being hard to get along with, and other interpersonal
interactions between judges is not sanctionable conduct for which discipline should be
imposed.”
Discussion
Having reviewed the record, we conclude that the Commission’s factual
determinations are supported by clear and convincing evidence. See In re Bennett, 301
Md. 517, 528-29, 483 A.2d 1242, 1247-48 (1984). Notably, although Respondent views
her conduct as appropriate under the Maryland Rules, she does not provide a basis for
concluding that the Commission’s factual findings are erroneous. As such, we sustain the
Commission’s factual findings, and overrule Respondent’s exceptions thereto.
35
We now turn our attention to the Commission’s conclusions of law. Under Md.
Rule 18-102.5, judges are required to interact with others in a cooperative and respectful
manner. See In re Lamdin, 404 Md. 631, 650-52, 948 A.2d 54, 65-66 (2008). Judges must
also be “patient, dignified, and courteous to . . . court staff, court officials, and others with
whom the judge deals in an official capacity[.]” Md. Rule 18-102.8(b). Similarly, judges
must refrain from “willfully fail[ing] to comply with administrative rules or reasonable
directives of a judge with supervisory authority.” Md. Rule 18-102.5(c). “A judge shall
act at all times in a manner that promotes public confidence in the independence, integrity,
and impartiality of the judiciary.” Md. Rule 18-101.2(a). A judge may be disciplined if
he or she makes inappropriate comments and uses vulgar language in the courtroom,
criticizes colleagues in public, and speaks discourteously toward litigants. See Lamdin,
404 Md. at 650-52, 948 A.2d at 65-66. “No matter how frustrated or stressed a judge may
be, a judge should not use vulgar or offensive language in the courtroom or in the
performance of judicial duties.” Id. at 651, 948 A.2d at 66. Such conduct “lack[s] dignity,
courtesy, and patience” and “erode[s] the public trust and confidence in the Judiciary.” Id.
When handling clerical errors, Respondent failed to maintain an equanimous
demeanor. Lacking a modicum of civility, Respondent was eruptive, disrespectful, and
demeaning toward courthouse staff. Respondent yelled at, accused, and humiliated staff
members. She physically shoved an employee of the judiciary, Ms. Brown. Respondent’s
erratic behavior occurred in front of litigants and lawyers. Likewise, Respondent
repeatedly yelled at her colleagues, and did so in front of other judges, court staff, and
members of the public. She interrupted an ongoing trial presided over by another judge to
36
address a scheduling matter, which not only violated internal operating procedures, but
disturbed the ongoing proceedings in that court. On multiple occasions, Respondent defied
the directives of administrators and supervisors, and even attempted to undermine their
authority. On one occasion, Respondent accused her Chief Judge of threatening her
without cause.
Respondent exhibited a pattern of divisive, combative, and volatile interpersonal
issues. Her conduct is unbecoming of a member of the judiciary, and it fails to maintain
the demeanor that our Rules require of judges. See Lamdin, 404 Md. at 648-52, 948 A.2d
at 64-66 (speaking inappropriately toward and criticizing colleagues while performing
judicial duties violates the Rules). This Court agrees that Respondent’s conduct violated
Md. Rules 18-102.5(b) (Cooperation with other judges and court officials), 18-102.8(b)
(Patient, dignified, and courteous demeanor toward others with whom the judge deals in
an official capacity), 18-101.2(a) (Promoting Confidence in the Judiciary) and 18-101.1
(Compliance with the Law). We, therefore, uphold the Commission’s conclusions of law
and overrule Respondent’s exceptions thereto.
Sanction
Under our State Constitution, we may impose a sanction against a judge for his or
her conduct “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.” Md. Const. Art. IV, § 4B(b)(1); see also Md. Rule 18-401(k). “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 18-401(k). We
37
have concluded that where a judge repeatedly exhibits an inappropriate demeanor, lacking
dignity, courtesy, and patience, the judge’s conduct is sanctionable because it is prejudicial
to the administration of justice. Lamdin, 404 Md. at 650, 948 A.2d at 65. In addition,
“critici[zing] judicial colleagues, particularly from the bench in the courtroom, hardly leads
to trust and confidence by the public in the Judiciary.” Id.
We adopt the Commission’s conclusion that Respondent committed sanctionable
conduct. Respondent’s pattern of misbehavior was prejudicial to the administration of
justice and therefore warrants sanction. Id. The record reflects that commencing in 2007,
Respondent failed to properly handle and process search warrants and related materials in
accordance with her judicial duties prescribed by Md. Rule 4-601 and courthouse
procedures, all the way through 2015 – a span of about eight years. Testimony at the
hearing indicated that no less than 135 warrants were not processed due to Respondent’s
failure to comply with the applicable rules and procedures. Moreover, the interpersonal
issues spawned by Respondent’s misconduct involved both verbal and physical
confrontations with courthouse staff. Her interpersonal conflicts were not limited to
encounters with courthouse personnel, but also occurred between fellow judges.
Respondent’s conduct included yelling at other judges, both in chambers and in locations
where she could be overheard by employees of the judiciary and members of the general
public. Respondent went so far as to attempt to undermine judges with administrative
authority. There is evidence that, beginning in 2014, Respondent engaged in undignified
confrontations and misbehavior with judges and court personnel on no less than 13
occasions in three years (2014-2017).
38
Respondent denies that any of her conduct is sanctionable. To support her position,
Respondent repeatedly points to things that she did not do. For instance, she did not refuse
a transfer to a new court location, accept a bribe or gratuity, or engage in improper ex parte
communications. The fact that Respondent did not commit certain forms of misconduct
does not absolve her of the repeated and serious instances of her misbehavior. Respondent
also posits that there is no evidence that her conduct adversely impacted any civil or
criminal case. Although we accept Respondent’s assertion, neither the Rules nor the
Constitution require that her conduct implicate a particular case in order to sanction judicial
misconduct. Significantly, however, the Commission found that Respondent’s behavior
negatively impacted the daily operations of the court in Baltimore City.
In addition, Respondent argues that the matter before this Court presents mere
personality disputes, which are not sanctionable. We disagree with Respondent’s
characterization of this case.21 “We recognize that judges differ in both style and
personality and that these qualities, in and of themselves, are not matters for discipline.”
21
We take this opportunity to emphasize that Respondent’s misconduct did not amount to
mere personality disputes. Such a factual pattern would not qualify as sanctionable conduct
and require intervention by either the Commission or this Court. To maintain a judicial
temperament, a judge need not be constantly affable and loquacious. Judges may engage
in genuine disagreements and lively discussions with fellow judges and courthouse staff;
and judges may disagree or be incompatible with colleagues. Each case must be considered
on its own facts to determine whether a judge’s conduct has exceeded the bounds of a
permissible judicial temperament. Here, Respondent has unrelentingly exhibited a pattern
of discourteous and disrespectful behavior. Taken in isolation, any single instance of
Respondent conflicting with her colleagues would likely not amount to sanctionable
conduct. Taken together, however, the unyielding pattern of Respondent’s conduct has
fostered a toxic environment in the District Court, and it leads this Court to conclude that
her conduct is sanctionable.
39
Disciplinary Counsel v. O’Neill, 103 Ohio St. 3d 204, 213 (2004). Nonetheless, “patience,
dignity and common courtesy are essential parts of judging, whatever the personality of
the judge, and a pattern of judicial discourtesy represents a profound threat to the institution
of the law and requires a strong response.” Id. (citation and internal quotation marks
omitted). Respondent, indeed, has exhibited a pattern of incivility that has had
demonstrated adverse effects on the District Court where she sits. The Commission has
pointed to 15 judges and several members of the courthouse staff who came forth to testify
in this proceeding about Respondent’s behavior from 2007-2015. Her colleagues identified
no less than 13 instances in three years (2014-2017) where Respondent exhibited
disrespectful and demeaning behavior, many instances of which were in public. Her
conduct resulted in a toxic environment. Collectively, her colleagues described that, when
working in the same courthouse as Respondent, the atmosphere was hostile, tense,
dysfunctional, stressful, and unpleasant. They explained that when Respondent is in the
vicinity, judges tend to keep to themselves, close their doors, and “[e]verybody is walking
on eggshells.” Her conduct, according to her District Court colleagues, “has created . . . a
division and divide among [their] bench.”
The supervisors who serve on Respondent’s court have attempted to remedy
administratively the situation. Chief Judge Morrissey met with Respondent in April 2015
and asked her to work to get along with her colleagues. Respondent failed to adjust her
behavior. Chief Judge Morrissey also sought recourse with the human resources
department, and eventually he arranged for mediation to be held between Respondent and
one of her colleagues. Again, Respondent failed to adjust her behavior. Despite his efforts,
40
Chief Judge Morrissey received information from more than a dozen District Court judges
who indicated that they were in contentious relationships with Respondent. Respondent
has demonstrated a pattern of violating the Maryland Rules. Her misconduct has fostered
an uncomfortable work environment in the District Court, yet Respondent has maintained
an unwillingness to alter her conduct. The widespread effects that her misbehavior has had
on the administration of justice warrants this Court’s sanction.
Turning our attention to the Commission’s sanction recommendation, the
Commission recommended that Respondent be suspended from her position as an associate
judge for six months. At oral argument, the Commission made clear its intention that the
suspension be served without pay. In addition, the Commission recommended that
Respondent “undertake such remedial measures as this Court recommends to assist her,
and the District Court . . . as [Respondent] returns to her duties.” In addition to its findings
of fact and conclusions of law, the Commission provided the Court with a detailed list of
factors that informed its recommendation as to the appropriate sanction. The list is attached
hereto in an Appendix.
The Commission’s recommendation is entitled to great weight. Lamdin, 404 Md.
at 652, 948 A.2d at 66. This Court, however, is not bound by the Commission’s
recommendation. See id.; see also Md. Rule 18-408(e). “[I]t is incumbent upon this Court
to make an independent assessment of the appropriate sanction.” Lamdin, 404 Md. at 653,
948 A.2d at 66 (citing In re Diener and Broccolino, 268 Md. 659, 683, 304 A.2d 587, 600
(1973)). In fashioning a sanction, we consider the broad circumstances surrounding each
particular case. See Md. Rule 18-100.1(b)(1)(B). For instance, we consider “the
41
seriousness of the transgression, the facts and circumstances at the time of the
transgression, the extent of any pattern of improper activity, whether there have been
previous violations, and the effect of the improper activity upon the judicial system or
others.” Id.
We are also mindful of the purpose of disciplining judges for judicial misconduct.
The purpose is not to punish. Lamdin, 404 Md. at 653, 948 A.2d at 66. “It is the
constitutional responsibility of this Court to fashion judicial discipline in a manner that
preserves the integrity and independence of the Judiciary and reaffirms, maintains and
restores public confidence in the administration of justice.” Id. at 652, 948 A.2d at 66. In
this opinion, we strive to further the judiciary’s goal of preserving the principles of justice
and impress upon the public and the judiciary that judicial misconduct will not be
condoned. In addition, we seek to deter the sanctioned judge and other members of the
judiciary from engaging in similar conduct.
In many respects, the present case may be likened to In re Lamdin. 404 Md. 631,
948 A.2d 54. There, the Honorable Bruce S. Lamdin used vulgar language and criticized
colleagues while presiding over cases. Id. at 637-50, 948 A.3d at 57-65. We explained
that Judge Lamdin’s use of inappropriate language was prejudicial to the administration of
justice. Id. at 650, 948 A.2d at 65. Judge Lamdin sought to mitigate his misbehavior by
“s[eeking] guidance from his colleagues and under[going] voluntary monitoring when the
Judicial Disabilities Commission charges were brought to his attention.” Id. at 654, 948
A.2d at 67-68. Even so, he made excuses for his misbehavior in a way that was defensive
42
and hostile. Id. at 654, 948 A.2d at 68. Ultimately, this Court suspended Judge Lamdin
for 30 consecutive days without pay. Id. at 655, 948 A.2d at 68.
Not unlike Lamdin, Respondent exhibited a broader pattern of misbehavior. See id.
She neglected her responsibilities concerning search warrants from, at least, 2007-2015.
Likewise, the Commission’s findings encompassed interpersonal disputes that spanned
from 2014-2017. Although, Respondent’s misconduct did not occur while she was
presiding over cases on the bench, distinguishing this case from Lamdin, every instance of
her irate misbehavior occurred at the courthouse and many outbursts occurred in the
presence of the public. Above and beyond the behavior that we reviewed in Lamdin, her
misconduct had sweeping effects on the morale and working relationships between judges
and courthouse staff. She rejected the authority of her supervisors and often attempted to
undermine their authority and directions.
We also take under consideration, as mitigating factors, that Respondent apparently
has changed prospectively the way that she processes, handles, and stores search warrants
and has assisted her colleagues by “pulling cases” from them to assist with the flow of the
dockets. Respondent also called witnesses who testified to her skills as an appellate lawyer,
and she produced letters of support written on her behalf when she sought higher judicial
office in 2016. Notwithstanding the mitigating factors, Respondent’s misconduct created,
over a long period of time, a pervasive, unyielding and serious pattern of disrespectful and
blatant disregard for the dignity of Maryland jurists. Indeed, the Commission was not
relieved by Respondent’s attempts at mitigation. As the Commission found, even
Respondent’s witnesses acknowledged the tense and unpleasant work environment among
43
judges in the District Court when Respondent is present. Accordingly, we endeavor to
intervene and restore as best we can the public’s trust and confidence in the judiciary. In
attempting to restore public trust and confidence, we are concerned that Respondent has
yet to express remorse for her misbehavior or acknowledge any wrongdoing. Instead of
admitting to her mistakes and seeking help to improve her behavior, she places blame on
others and plays the role of the victim. Respondent fails to recognize the deleterious effects
that her misconduct has had on the operation of the District Court and, thus, the severity of
her wrongdoings.
The Commission asked this Court to impose a sanction that will aid Respondent and
the District Court as she returns to her duties. The Commission’s recommendation and the
testimony of Respondent’s colleagues begs for assurances that Respondent will
meaningfully change her behavior. In determining how to best effectuate the change, we,
like the Commission, are confounded as to whether Respondent is unable or merely
unwilling to change her behavior. The Commission found it significant that one of
Respondent’s supervisors expressed concern for Respondent’s mental wellbeing.
We look to the many outbursts and unprovoked intemperate actions of Respondent
as evidence of a potential behavioral cause for her misconduct that would be best addressed
by health care professionals. See O’Neill, 103 Ohio St. 3d at 216 (In determining the
appropriate sanction, the court considered, among many factors, the judge’s “repeated
volatile outbursts and unprovoked intemperate actions evidence a potential behavioral
cause for her misconduct” that persuaded the court to obtain the evaluation of a mental
health professional as a condition precedent to reinstatement and to help explain the reason
44
for the judge’s misconduct); see also Atty Griev. Comm’n v. Shuler, 443 Md. 494, 511, 117
A.3d 38, 49 (2015) (noting that in imposing conditions to reinstatement the Court is not
determining that the lawyer has a mental or physical condition; it is seeking additional
information in furtherance of the Court’s goals to protect the public and the public’s
confidence in the legal profession by requiring, as a condition precedent to reinstatement,
evidence that the lawyer is mentally and physically competent to resume the practice of
law.). We do not conclude as a matter of fact or law that Respondent has a mental or
physical condition that is contributing to her misconduct. Rather, we are persuaded that
additional information from a health care professional or professionals will furnish the
Court with necessary assurances that will guide the reinstatement process and help restore
the public’s trust and confidence in the judiciary.
After a careful, independent review of the record, we conclude that the
Commission’s recommended sanction is appropriate for Respondent’s misconduct. See
Md. Const. Art. IV, § 4B(b)(1) (vesting this Court broad discretion to “remove [a] judge
from office or . . . censure or otherwise discipline [a] judge[.]”). We, therefore, suspend
Respondent for six months without pay from her service as a judge of the District Court,
to commence on July 1, 2019. We set as conditions precedent to Respondent’s
reinstatement of her duties as a judge that Respondent shall: (1) submit to a health care
evaluation, to be performed by a qualified health care professional or professionals who
are acceptable to the Commission and, ultimately, this Court, for a complete emotional and
behavioral assessment; (2) fully cooperate in the health care evaluation and comply with
the recommended course of treatment, including counselling, if any; and (3) if and when
45
Respondent applies for reinstatement, she shall provide, to the Commission and ultimately
this Court, a written report from the evaluating health care professional or professionals as
to her current medical condition, including any reason for which she should not be
reinstated as a judge of the District Court. In addition, Respondent’s reinstatement is
conditioned upon her satisfactory completion of an approved course on judicial ethics as
recommended by the Commission.22
IT IS SO ORDERED; THIS ORDER IS
EFFECTIVE BEGINNING ON JULY 1,
2019; RESPONDENT SHALL PAY ALL
COSTS AS TAXED BY THE CLERK OF
THIS COURT, INCLUDING COSTS OF
ALL TRANSCRIPTS.
22
This Court and courts from other jurisdictions have previously imposed a sanction with
conditions for reinstatement with respect to judges and in the analogous context of attorney
disciplinary proceedings. See, e.g., Attorney Grievance Comm’n v. Christopher, 383 Md.
624, 649-50, 861 A.2d 692, 707 (2004) (requiring, as a condition to his reinstatement to
the bar, that the attorney provide a signed statement from a qualified health care
professional, certifying that he is mentally and physically competent to practice law and is
receiving treatment); Attorney Grievance Comm’n v. Schuler, 443 Md. 494, 513, 117 A.3d
38, 50 (2015) (imposing a sanction of suspension from the practice of law for thirty days,
with a condition precedent that the attorney satisfactorily demonstrate that he is mentally
and physically competent to resume the practice of law). See also Disciplinary Counsel v.
O’Neill, 103 Ohio St. 3d 204, 216 (2014) (imposing a two-year suspension with one year
stayed on the condition that the judge, inter alia, submit to a mental health evaluation to
be performed by the health professional of her choice and fully cooperate with any
recommended course of treatment); In re Case of Snow, 140 N.H. 618, 628 (1996)
(suspending a judge for six months without pay, and requiring the judge, “[a]s a condition
of his reinstatement . . . [to] complete successfully a comprehensive course in judicial
ethics, to be approved in advance by [the Supreme Court of New Hampshire].”); Matter of
Templeton, 99 N.J. 365, 378 (1985) (suspending an attorney for five years and conditioning
his reinstatement upon the attorney “1. be[ing] evaluated psychiatrically as to his continued
mental and emotional stability; 2. cooperat[ing] fully with such an examination; [and] 3.
continu[ing] any course of psychiatric counseling that might be recommended for as long
as may be necessary[.]”); In re Gates, 686 So. 2d 816, 816 (1997) (suspending an attorney
for one year, with his reinstatement conditioned upon him “seeking counseling and
treatment for his avoidance problem” in a reciprocal disciplinary matter).
46
APPENDIX
III. [THE COMMISSION’S] CONSIDERATIONS REGARDING THE IMPOSITION
OF DISCIPLINE.
A. As to the appropriate discipline in a judicial conduct case, the Commission is guided by
the General Provisions of the Maryland Code of Judicial Conduct, Maryland Rule 18—
100.1(b)(1)(B), which provides:
Whether discipline should be imposed should be determined
through a reasonable and reasoned application of the Rules and
should depend upon factors such as the seriousness of the
transgression, the facts and circumstances at the time of the
transgression, the extent of any pattern of improper activity,
whether there have been previous violations, and the effect of
the improper activity upon the judicial system or others.
Additionally, the Commission finds significant the following behaviors and comments
which, while not sanctionable conduct by the clear and convincing standard, helped inform
the Commission’s recommendation as to the appropriate sanction.
A. Interrupting Judge Waxman during a social event while Judge Waxman was talking
with a colleague as Respondent “put her arm in between us, and she literally pushed
me back two steps in order to interrupt a conversation I was having with a colleague,
almost knocked me [Judge Waxman] over” (Transcript pp. 464-65);
B. Continually arriving late to court without informing anyone that she will not be on
time;
C. Respondent saying “Which broom Closet is she putting me in today?” (Transcript
p. 464), “Where am I today? In a closet? In the lockup?" to various judicial assistants
upon arrival at different court locations for her daily assignments (Transcript p.
744);
D. Saying “l didn’t know you were such a good writer”, to Judge Rachel Skolnik, after
learning that Judge Skolnik authored a response signed by fourteen colleagues to
Respondent’s “open letter” to the District Court bench (Transcript p. 697);
E. “You better be careful because warrants might end up getting shredded or put in the
trash”, Respondent, to a police officer, in the presence of Judge Skolnik (Transcript
p. 699);
F. Advising Judge Waxman that she would not comply with the deadline to request
annual leave;
G. “I drive past the other judge’s house at 11 o’clock at night to look and see whose
vehicle is in the driveway", stated by Respondent to Judge Gordon, in detailing a
rumor concerning a colleague’s alleged infidelity (Transcript p. 822);
H. “I’m shredding, I'm shredding. Look, I’m shredding", Respondent’s comments to
court staff after the charges in the current matter became public (Transcript p. 464);
I. Respondent, while in her vehicle, hit Judge Gordon’s car in March 2015, causing
damage, minutes after a conversation in which Judge Gordon asked Respondent to
stop some of her behaviors. Respondent provided insurance claim information to
Judge Gordon and indicated the impact was not intentional;
J. “Are you going to get dressed up (in a Halloween costume)?" to Judge Scurti during
a bench meeting in October 2018, after the first week of this proceeding had taken
place (Transcript p. 1236);
K. Judge Weinstein sitting in the clerk‘s office at Eastside Courthouse to prevent any
confrontation between clerks and Respondent;
L. Judges hastily moving their cars to accommodate Respondent when she is expected
at a court location.
The Commission took note of the atmosphere described by nearly every judge – even
Respondent’s own witnesses — in each court location that exists when Respondent is
assigned to sit at said location.
Those comments include:
Judge Aldouby: “If I were blindfolded and brought to a building, I could tell you . .
. whether Judge Russell was assigned to that courthouse that day. There is a certain
chill that is there.” (Transcript pp. 764-65) "It’s gotten worse in recent years . . . it’s
walking on eggshells and you're just praying that it's a good day and that there is no
conflict (with Respondent)" (Transcript p. 765); “There’s situations where it has just
been openly hostile (Respondent’s conduct), like what I saw in Judge Scurti’s
Chambers" (Transcript p. 778);
Judge Scurti: “Judge Russell has created such a division and divide among our
bench" (Transcript p. 163); “Everybody is walking on eggshells, from bailiffs to
clerks to other judges. And it is just not a pleasant situation.” (Transcript p. 163);
Judge Waxman: “I would describe (Respondent) as seeming to enjoy hurting other
people on the bench, openly hostile at times, rude, intimidating, taking joy when
other judges would have negative things said about them in the press, disrespectful.”
(Transcript p. 467);
Judge Skolnik: “I shut my door 90% of the time (when Respondent is in that
courthouse) . . . I don’t want to hear the comments, and I don’t want to respond.”
(Transcript p. 701); She is "mean spirited, argumentative, and unprofessional";
(Transcript p.702);
Judge Avery: “I repeatedly asked Judge Waxman to essentially take Judge Russell
off of the dockets at Eastside District Court.” (Transcript p. 723);
2
Judge Weinstein: “Judge Russell creates a hostile work environment." (Transcript
p. 743); and “She yells at me in front of staff’ (Transcript p. 743);
Judge Kevin Wilson: “Uncomfortable, the comments that she makes under her
breath . . . it just makes it for a very intense, uncomfortable situation”, in describing
bench meetings with Respondent present (Transcript p. 794);
Judge Jennifer Etheridge: “(She goes from) zero to sixty immediately" (Transcript
p.889);
Judge Kathleen Sweeney: “People are always concerned about what she might do
next . . . She was constantly egging people on. She was trying to get reactions out
of people” (Transcript p. 812);
Judge Gordon: “The interactions are never pleasant between the two of them
(Respondent and Judge Scurti). The unpleasantness is always one-sided, and it just
makes everyone tense. She will frequently sit directly across from him at bench
meetings and just stare at him" (Transcript p. 843); and ”People tend to just walk
away (from Respondent) and stop congregating or talking to each other and go into
their rooms. Some judges have started to keep their doors closed because they just
don’t want to hear the acrimony” (Transcript p. 844); and “She turns petty things
into major things, and private issues into court issues";
Judge James Green: "(Judge Russell’s conduct) has created an atmosphere that is
nothing short of dysfunctional . . . It has created open hostility, open challenge of
authority, open challenge of rules, and it is very difficult conduct to deal with. I look
at the calendar every day . . . to see where my colleague Judge Russell is assigned,
because I have to prepare my day" (Transcript pp. 931-32); and in describing why
he wrote a letter to Chief Judge Morrissey concerning Judge Russell’s conduct: “I
have an obligation under the rule, as a judge, to report what . . . I perceive to be
misconduct if it has gotten to a point where it potentially doesn’t show a fitness . . .
my letter was drawn from that” (Transcript p. 931);
Judge O’Hara: "On days that Judge Russell is at the Eastside Courthouse, there is
kind of a cloud of concern or cloud of angst. . . Several of my colleagues and
particularly the staff, administrative staff, are concerned about the day" (Transcript
pp. 1026-27);
Chief Judge Morrissey: “I was concerned that someone would write an open letter
actively antagonizing the entire rest of her court, and I thought maybe something
was mentally wrong” (Transcript p. 1008);
Comments of significance from clerical witnesses include:
3
Kim Brown: “(Respondent) had continued to do little things that I just chalked it up
as her just being very immature and unprofessional. The whole time everything was
unprofessional” (Transcript p. 612); “I had had enough of Judge Russell . . . She
was out of control” (Transcript p. 613); “l felt very stressed" (Transcript p. 617);
Faye Walker: “I have to avoid walking down a hall just in case (Respondent) is
coming through with the bailiffs to go to her courtroom . . . she would have this
strange laughter when she encounters me” (Transcript p. 662); “I just avoided her
when she was in the building . . . we did not want to be singled out in a courtroom
and embarrassed in front of the citizens or our coworkers”; “Never (had similar
interactions with any other judge of the bench)” (Transcript pp. 662-65);
Tracey Whye: “I can tell you that there are individuals who may not come through
chambers when they know (Respondent) is on the roster for the day." (Transcript p.
230).
And Respondent's own witnesses:
Judge Cooper: “With some staff. . . she has a good reputation. With other staff, it’s not so
good” (Transcript pp. 1046-47);
Judge Boles: “People watch what they do and say." (Transcript p. 1238); and “It made it
very unpleasant" describing a comment made by Respondent to Judge Scurti, during a
bench meeting in October 2018 (Transcript p. 1236);
Judge Baylor Thompson; “There was one letter [open letter to all her colleagues, IC Exhibit
11] that was written to all of the judges, and I thought it was a little insulting to one of my
colleagues" (Transcript p. 1256);
Judge Dorsey: “The atmosphere is tense (when Respondent is present) . . . Colleagues tend
to keep to themselves . . . they tend to close their doors” (Transcript p. 1267);
Judge Jack Lesser: “I am always thinking is this the day something is going to happen”
(Transcript not available as Judge Lesser testified via a video deposition).
The Commission has no doubt that this difficult, uncomfortable, tense and
unprofessional work environment is created by Respondent and her behavior. The
Commission finds it significant that these above behaviors have resulted in the loss of very
close friendships between Respondent and Judge Avery, Judge Gordon and Judge
Weinstein, respectively, and ended the “warm, cordial friendship" Respondent had
previously enjoyed with Judge Waxman.
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The Commission also finds informative the comments expressed by Chief Judge
Morrissey in that he is “concerned for Judge Russell’s mental well-being" and that he is
“out of options” in describing his ability to address the situation in Baltimore City. The
Commission is also not able to determine whether Respondent is unable or merely
unwilling to change her behavior, but has no doubt that her behavior greatly impacts the
daily court operations in Baltimore City.
The Commission has found that the comments and behaviors of Judge Russell were
undignified, uncooperative. discourteous, demeaning, and clearly demonstrate a pattern of
serious violations of the Maryland Code of Judicial Conduct that strike at the very heart of
the integrity of the judiciary and the public’s confidence in such integrity.
B. The Commission considered the testimony of Chief Judge Joseph F. Murphy, Retired,
the character witness offered by Judge Russell, who described the Respondent as "an
excellent appellate lawyer, both as a member of the Public Defender’s office and the
Attorney General’s office”.
Judge Murphy seemed unfamiliar with some of the behavior of Respondent as
described by her colleagues during the hearing. When questioned, Judge Murphy suggested
that some of the information, if true, would give him pause, and perhaps change his
opinion. “Yes (my opinion of Respondent’s character would be changed if I knew she
intentionally damaged another judge’s car)." (Transcript p. 1292); (See also Transcript pp.
1290-94).
C. The Commission carefully considered the evidence, witnesses and testimony of
Respondent, which included her explanations for the numerous incidents detailed before
the Commission by her colleagues, subordinates and superiors, and her stated belief that
the issues of concern in the Baltimore City District Court began in 2015. Respondent was
unable to identify anything she would change or do differently concerning nearly every
one of the incidents described herein. Respondent acknowledged engaging in various of
these behaviors, but expressed no regret. (Transcript pp. 1661-1684) She fails to see herself
as the common denominator in these incidents; she blames others and takes no
responsibility for her actions. The Commission has no doubt that Respondent is volatile,
unpredictable, and responsible for the enormously difficult work environment in the
Baltimore City District Court.
Additionally, the Commission reviewed letters of support written on behalf of Judge
Russell from her 2016 quest for higher judicial office, and Judge Russell's prior contacts
with the Commission on Judicial Disabilities once the Commission determined
sanctionable conduct occurred
Subsequent to the Hearing, the Commission reviewed proposed Findings of Fact
and Conclusions of Law submitted by Judge Russell and Investigative Counsel. Judge
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Russell has made no recommendation of a sanction, in that she denies committing
sanctionable conduct. Investigative Counsel also makes no specific recommendation as to
an appropriate sanction, deferring to the Commission.
The Commission hereby refers this matter to the Court of Appeals with a
recommendation to impose the discipline set forth in Paragraph IV, B.2, m. In the
Commission’s view, the imposition of a public reprimand is not commensurate with the
serious violation of misconduct in office committed by Judge Russell and does not reassure
the public, her colleagues and co-workers that Judge Russell will be deterred from
engaging in similar behavior in the future. The Commission concludes that the gravity of
the Code violations require the imposition of a significant sanction.
The Commission did, however, consider several mitigating factors presented by Judge
Russell, through counsel, at the Hearing in determining its recommendation as to the
appropriate discipline. The Commission found it persuasive that Respondent has changed
the way she processes, handles and stores warrants. (Transcript p. 1680) The Commission
also notes that Respondent has become more helpful to her colleagues in terms of “pulling
cases", even if such helpfulness is self-serving. The Commission concludes that its
recommendation of a lengthy suspension is commensurate with the gravity and pervasive
nature of Judge Russell’s misconduct and the extent to which it jeopardizes the integrity
and dignity of the judiciary and the public’s confidence in such integrity and dignity. The
Commission strongly considered recommending various courses of instruction or
remediation for Respondent during this period of suspension, but will not make such
recommendation given this Court’s opinion in Matter of Reese for Howard Ctv., Tenth
Judicial Circuit, 461 Md. 421 (2018), reconsideration denied (Oct. 15, 2018).
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