IN THE MATTER OF THE HONORABLE PAMELA J. WHITE
Argued: November 4, 2016
Reargued: January 9, 2018.
Maryland Commission on Judicial Disabilities Case No.:
Barbera, C.J., Greene, Adkins, McDonald, Hotten, Getty,
Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned)
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.
Or Removal Of Judges
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).
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
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. 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.
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.
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.
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).
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,  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).
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.
v. Veolia Transp. Servs. Inc.
2007, Judge Pamela J. White (whom we shall sometimes refer to
as "Respondent") 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,
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
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
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
this exchange, Respondent granted Veolia's motion and
dismissed the punitive damages claim with prejudice.
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.
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.
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-and I'm reading off the
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
So I am compelled under . . . Rule 2.11 [of the Maryland Code
of Judicial Conduct] 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
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.
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.
conclusion of the hearing, Judge White issued a written order
explaining her recusal from Joyner.
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.
Proceedings Before The Inquiry Board
days after Judge White recused herself from Joyner,
the Commission received Jones's first complaint regarding
her. 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.
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.
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.
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.
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
Before The Commission
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
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.
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,
and again directed Investigative Counsel
to file charges.
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),  1.2 (Promoting Confidence in
the Judiciary), 2.2 (Impartiality and Fairness),
2.3 (Bias, Prejudice, and Harassment),  2.11
(Disqualification). 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.
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.
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."
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 ...