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In re White

Court of Appeals of Maryland

March 27, 2018


          Argued: November 4, 2016

          Reargued: January 9, 2018.

          Maryland Commission on Judicial Disabilities Case No.: CJD2014-114.

          Barbera, C.J., Greene, Adkins, McDonald, Hotten, Getty, Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned) JJ.


          ADKINS, J.

         We must decide whether proceedings before the Maryland Commission on Judicial Disabilities ("Commission") violated a judge's due process rights. As we explained last year, although we have no appellate jurisdiction to review a judge's exceptions to the Commission's determination to issue a public reprimand after public charges and a contested hearing, the common law writ of mandamus provides an avenue for a judge to challenge the fundamental fairness of the proceedings before the Commission. Matter of White, 451 Md. 630, 649-50 (2017) (per curiam) [hereinafter White I]. We previously refrained from deciding the due process claims made by Petitioner, Judge Pamela J. White, because we did not have the full record of the Commission proceedings before us. Id. at 652-53. After review of the complete record, we hold that, although the Commission violated applicable Maryland Rules, these violations did not ultimately deprive Judge White of a fundamentally fair proceeding.


         Discipline Or Removal Of Judges

         Article IV, §§ 4A-4B of the Maryland Constitution provides a special process for the discipline or removal of a judge who has committed misconduct, or who is found to suffer from a disability. Article IV, § 4A(a) creates the Commission, and Article IV, § 4B(a)(1) authorizes it to conduct investigations of complaints about judges. At the conclusion of the investigation, the Commission may "issue a reprimand and [has] the power to recommend to the Court of Appeals the removal, censure, or other appropriate disciplining of a judge or, in an appropriate case, retirement." Id., § 4B(a)(2). Commission proceedings are confidential and privileged, except as provided by rule of this Court. Id., § 4B(a)(3). The General Assembly granted the Commission additional powers relating to investigations and hearings. See Md. Code (1973, 2013 Repl. Vol.), §§ 13-401-13-403 of the Courts and Judicial Proceedings Article (power to issue and enforce subpoenas, administer oaths or affirmations, and grant immunity to witnesses).

         The Constitution also delegates to this Court the task of prescribing "the means to implement and enforce the powers of the Commission and the practice and procedure before the Commission." Md. Const. art. IV, § 4B(a)(5). We have done so in the Maryland Rules at 18-401 et seq.[1]

         Maryland Rule 18-402(d) empowers the Commission to appoint an Investigative Counsel. Upon submission of a complaint to the Commission, Investigative Counsel may dismiss the complaint if "the complaint does not allege facts that, if true, would constitute a disability or sanctionable conduct and that there are no reasonable grounds for a preliminary investigation . . . ." Md. Rule 18-404(c). If Investigative Counsel does not dismiss the complaint, she then conducts a preliminary investigation of the alleged misconduct. Id. (d). Unless the Commission or the Judicial Inquiry Board ("Inquiry Board") (discussed infra) directs otherwise, Investigative Counsel shall notify the judge of the pendency of the investigation before its conclusion.[2] Id. (e)(4). Investigative Counsel must "afford the judge a reasonable opportunity to present, in person or in writing, such information as the judge chooses." Id. (e)(5). Investigative Counsel has 90 days to complete her preliminary investigation. Id. (e)(6). Upon application by Investigative Counsel, and for good cause, the Inquiry Board shall extend the time for completing the preliminary investigation for an additional 30-day period. Id. The Commission may dismiss the complaint and terminate an investigation if Investigative Counsel fails to comply with these time requirements. Id.

         Maryland Rule 18-403(a) requires the Commission to "appoint an [Inquiry] Board consisting of two judges, two attorneys, and three public members who are not attorneys or judges." After completing a preliminary investigation, Investigative Counsel shall report the results of her investigation to the Inquiry Board with a recommendation of either: (1) dismissal; (2) authorization of further investigation; (3) entering into a private reprimand or deferred discipline agreement; or (4) filing public charges. Md. Rule 18- 404(f). The Inquiry Board must continually monitor the investigation and review the reports and recommendations of Investigative Counsel. Id. (g).

         Upon reviewing the results of the preliminary investigation, the Inquiry Board prepares a report for submission to the Commission. Id. (j)(1). The report must include a recommendation for further action by the Commission. The Inquiry Board may not recommend a dismissal with warning, a private reprimand, or a deferred discipline agreement unless the respondent judge consents to the remedy. Id. After the Commission receives the Inquiry Board's report, it must promptly transmit a copy to the judge and Investigative Counsel. Id. (j)(4). Both Investigative Counsel and the judge have an opportunity to file objections to the Inquiry Board's report. Id. (k).

         After reviewing the Inquiry Board's report and upon a finding of probable cause, the Commission may direct Investigative Counsel to begin proceedings against the judge by filing charges with the Commission. Md. Rule 18-407(a). The judge may then file a response to the charges. Id. (c). The Commission must also notify the judge of the date, time, and place of a hearing on the charges. Id. (d).

         Following the filing of charges, the respondent judge has several procedural rights expressly recognized by the Rules:

The judge has the right to inspect and copy the Commission Record, to a prompt hearing on the charges, to be represented by an attorney, to the issuance of subpoenas for the attendance of witnesses and for the production of designated documents and other tangible things, to present evidence and argument, and to examine and cross-examine witnesses.

Id. at (f). The Rules also provide that prehearing discovery is "governed by Title 2, Chapter 400 of these Rules, [3] except that the Chair of the Commission, rather than the court, may limit the scope of discovery, enter protective orders permitted by Rule 2-403, and resolve other discovery issues." Id. (g)(3). At the hearing, the rules of evidence apply. Id. (i)(5).

         If the Commission finds clear and convincing evidence that the judge has committed sanctionable conduct, "it shall either issue a public reprimand for the sanctionable conduct or refer the matter to the Court of Appeals . . . ." Id. (j). If it finds otherwise, the Commission will dismiss the charges and terminate the proceedings. Id.

         Joyner v. Veolia Transp. Servs. Inc.

         Since 2007, Judge Pamela J. White (whom we shall sometimes refer to as "Respondent")[4] has served as an Associate Judge of the Circuit Court for Baltimore City. She also served as the Supervising Judge for the Circuit Court's Civil Alternative Dispute Resolution Program ("ADR") from 2009 until 2015. In 2014, Respondent presided over hearings in a civil matter. Louise V. Joyner v. Veolia Transp. Servs. Inc., et al., Case No. 24-C-014000589 (Baltimore City Circuit Court). Attorney Rickey Nelson Jones represented the plaintiff, Joyner, in her action for negligence while attorney Andrew Stephenson represented the defendant, Veolia.[5]

         Early in the litigation, Veolia moved to dismiss Joyner's punitive damages claim. When counsel for both parties appeared before Judge White for a hearing on the motion to dismiss, Jones tried to justify his claim for punitive damages, which stemmed from the phone calls made by an insurance adjuster to the plaintiff following the accident. Dissatisfied with Jones's attempted explanation, Judge White said:

The Court: Oh Mr. Jones, are you telling me this with a straight face? . . . . Are you telling me as an officer of the court, admitted to the bar, with a straight face, that you think you have an ill-will punitive damages claim against Veolia Transportation because of something that an insurance adjuster, employed by an insurance company, has said in the course of calling your client to inquire of her status? . . . . Do you think this allegation can stand, in the face of your responsibility as an officer of the court?
Jones: Do I believe that a representative of the defendant can act on their behalf, I do believe they can act on their behalf. If you're asking me do I believe another corporation-
The Court: I'm asking you, is there any conceivable case authority, any statutory authority, that allows you the chutzpah to claim punitive damages in a negligence case suggesting that a claims adjuster working for an insurance company asking questions of your client about the status her injury should be attributed as an ill-will punitive damages claim by Veolia Transportation?
Jones: I have no case law on that, Your Honor.

         After this exchange, Respondent granted Veolia's motion and dismissed the punitive damages claim with prejudice.

         The pretrial scheduling order for Joyner required that "all counsel, their clients and insurance representatives must attend the pretrial conference in person, " on September 17, 2014, before another judge of the court (not Judge White). The order also directed that "[a]ny request for accommodation under the Americans with Disabilities Act should be directed to the Administrative Office of the Circuit Court for Baltimore City, " and provided a phone number to contact that office. Finally, the order permitted modification "only upon a written motion for modification setting forth a showing of good cause that the schedule cannot reasonably be met despite the diligence of the parties seeking modification." On September 5, 2014, Jones filed a pretrial conference statement in which, under the heading "Other Matters, " he wrote "Plaintiff requests that her attorney attend the Pretrial Conference alone due to her poor health and doctor recommendation that she not travel without ambulance assistance." (Emphasis in original). Joyner did not attend the pretrial conference.

         After the pretrial conference, Jeff Trueman, then the Deputy Director of the Circuit Court's Civil ADR program, advised Judge White of Joyner's unexcused absence at the conference. Judge White issued a show cause order requiring Joyner and Jones to appear at the Circuit Court on October 31, 2014, and explain why the Court should not hold them in civil contempt. In his response to the order, Jones contended that his proffer in the pretrial conference statement sufficed as the written "motion" required for modification of the pretrial scheduling order. Jones also included, in a postscript to his letter response that was not sent to opposing counsel, an offer to speak to Judge White about the postponement. Judge White immediately responded in writing that trial would go forward.

         The next day, October 15, 2014, Jones and opposing counsel appeared before Judge White for trial. Jones requested a postponement and presented a motion for Judge White's recusal. He alleged three "partial" acts by Respondent. First, he argued that the Judge insulted him by "questioning his bar membership" during the May 5, 2014 hearing. Second, he alleged that Respondent incorrectly issued the show cause order. Finally, he contended that Respondent was not impartial because she had directed him to Postponement Court. Responding to the recusal motion in open court, Judge White recused herself and said the following:

[B]ecause I am incredulous, because I am in disbelief, because I find myself incapable of believing virtually anything that Mr. Jones has just told me, I'm in the unfamiliar territory of finding that I must recuse myself from any further proceedings in this case because I cannot believe anything that the Reverend Rickey Nelson Jones[, ] Esquire[6]-and I'm reading off the letterhead-tells me.
I think that 99% of what Mr. Jones has told me about his conduct on behalf of his client is pure bullshit[.] So I'm forced to recuse myself and I can't get past the idea that I cannot believe a darn thing that Mr. Jones tells me now.
So I am compelled under . . . Rule 2.11 [of the Maryland Code of Judicial Conduct][7] to disqualify myself in any further proceedings in this case, because I now believe, based on Mr. Jones' conduct and representations in this case, in his discussion and exploration of "who struck John" in recent days about his request for accommodation, all without following the precise instructions and procedures in the Scheduling Order and the website and resources available to him.
I find that I cannot be impartial. I am personally biased or prejudiced concerning Mr. Jones and his conduct. So, I'm going to recuse myself.

         Regarding the request for postponement, Judge White raised her voice and admonished Jones for offering to engage in ex parte communication with the Court. She then added:

I am dumbfounded at your irresponsible behavior, Mr. Jones. All the more reason I am compelled by your dumbfounding behavior to recuse myself because I cannot believe a single word you say. And what I am compelled to do now because the Rules of Professional Conduct and the Judicial Code compel me to do so is to reexamine what I just said and heard and reported on the record whether I must report you to the Attorney Grievance Commission.
In addition to not believing a word that Mr. Jones tells me, I am so very frustrated with his failure to attend to the basic rules of procedure.

         At the conclusion of the hearing, Judge White issued a written order explaining her recusal from Joyner.[8]

         At the hearing on the show cause order, Jones attempted to explain why his client could not come to court without an ambulance. Judge White acknowledged the plaintiff's status and inquired as to how Jones felt he had complied with the pretrial scheduling order. Jones presumed that his warning that he would attend without his client, made in his pretrial conference statement, sufficed as a "motion" to modify the scheduling order. After some discussion, Judge White held Jones in contempt of Court.[9]

          Proceedings Before The Inquiry Board

         Five days after Judge White recused herself from Joyner, the Commission received Jones's first complaint regarding her.[10] He complained of Respondent's comments and conduct during the hearings on Veolia's motion to dismiss, and on his motion to recuse. He also averred that, although Judge White had recognized she could not be impartial, she refused to recuse herself from the hearing on her show cause order. After receiving Jones's first complaint, the Commission's Investigative Counsel, then Carol A. Crawford, opened a preliminary investigation into Respondent's conduct.

         On November 17, 2014, the Commission received Jones's second complaint against Judge White. Jones based this complaint on Respondent's conduct during the October 31 hearing. He also alleged that Judge White improperly decided not to recuse herself from considering the show cause order.

         The Inquiry Board extended the time to complete the preliminary investigation and delayed giving notice to Judge White, for "good cause shown, " in January, February, and April. In April, Investigative Counsel sent a letter notifying Judge White of the two complaints.[11]

         Judge White timely responded to Jones's first two complaints, asserting that her demeanor toward Jones was appropriate because he showed no concern for the rules of procedure or proper professional behavior. She also averred that she properly presided over the show cause proceedings because Maryland Code of Judicial Conduct ("MJCJ") Rule 2.11 did not require her recusal.

         The following day, Investigative Counsel submitted a memorandum to the Inquiry Board recommending that the Inquiry Board find that Judge White committed sanctionable conduct "with regard to her demeanor throughout the [Joyner] proceedings, " and by failing to recuse herself from the October 31 hearing. Investigative Counsel recommended that the Inquiry Board, in turn, recommend to the Commission, that a private reprimand be issued. The memorandum attached copies of Jones's complaints, audio recordings of the hearings, and Respondent's response to the complaints. On December 11, 2015, the Inquiry Board forwarded its report and recommendation to the Commission, but no copy was sent to Respondent.

         Proceedings Before The Commission

         At its December 2015 meeting, the Commission reviewed the complaints, recordings of the hearings, Judge White's correspondence with Investigative Counsel, and the recommendations of the Inquiry Board and Investigative Counsel. The Commission concluded that probable cause existed to believe that Respondent had committed sanctionable conduct and, by unanimous vote, directed Investigative Counsel to initiate proceedings against Respondent by filing public charges.

         It was only when Judge White was notified of this action that her counsel requested, and finally received on January 12, 2016, a copy of the Inquiry Board's report. In a 40-page filing, Respondent objected to the report and argued that her conduct in Joyner did not amount to misconduct, and requested a hearing before the Commission. At its February 2016 meeting, the Commission voted to set the matter for further discussion at a special meeting.

         That special meeting was held on March 2, 2016. But the Commission rejected Respondent's objections to the Inquiry Board's report, denied her request for a hearing, [12]and again directed Investigative Counsel to file charges.

         The Commission filed public charges against Judge White on March 31, 2016, alleging that she violated several provisions of the Code of Judicial Conduct, specifically MCJC 1.1 (Compliance with the Law), [13] 1.2 (Promoting Confidence in the Judiciary), [14]2.2 (Impartiality and Fairness), [15] 2.3 (Bias, Prejudice, and Harassment), [16] 2.11 (Disqualification).[17] In her answer, Respondent moved to dismiss the charges. She argued that her decisions in Joyner were legal judgments not subject to scrutiny through the disciplinary process and that, even if the Commission had the authority to review her actions, she did not commit misconduct. Respondent also alleged a due process violation after Investigative Counsel failed to comply with certain time standards, did not inform her of Jones's complaints in a timely fashion, and failed to convey information about the proceedings to Judge White.

         Respondent served interrogatories on Investigative Counsel pursuant to the civil discovery rules, specifically Md. Rule 2-421. In response, Investigative Counsel filed a request to strike the discovery demands. Investigative Counsel explained that, although the Rules expressly provide that discovery in judicial disciplinary proceedings shall be governed by civil discovery rules, this "does not mean that every rule in [the civil discovery rules] is relevant, appropriate, or applicable to proceedings before the Commission." Investigative Counsel also contended that Judge White could not serve her with requests for admissions because Investigative Counsel "is neither a party nor a witness . . . ." Investigative Counsel closed her request by asking the Commission to enter a protective order prohibiting Judge White from receiving certain documents prepared by Investigative Counsel. Investigative Counsel claimed that these documents were subject to confidentiality restrictions (see, e.g., Md. Rule 18-409(a)(4)) and amounted to attorney work product.

         After a hearing, where both Investigative Counsel and Respondent's attorney appeared, the Commission denied Judge White's motion to dismiss. The Commission opined that it had no power to dismiss the charges under Md. Rule 18-406 until after it held a hearing on the merits under Md. Rule 18-407. The Commission also interpreted the discovery rules to vest complete discovery authority in the Chair of the Commission. Without further explanation, the Commission simply stated that the decision to strike Respondent's interrogatories and request for admissions did not eliminate her access "to a fair discovery process."

         The Commission held an evidentiary hearing on July 7 and 8, 2016. Investigative Counsel called no witnesses, but offered five exhibits: (1) the Baltimore City Circuit Court file for Joyner; (2) video recordings of the May 5, 2014, October 15, 2014, and October 31, 2014 proceedings before Judge White; (3) a transcript of the October 15, 2014 proceeding; (4) a transcript of the October, 31, 2014 hearing; and (5) a copy of the ...

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