In the Matter of Hon. Pamela J. White

In the Matter of the Honorable Pamela J. White, Misc. No. 5, September Term, 2016,

Opinion by Adkins, J.

JUDGES — REMOVAL OR DISCIPLINE — REPRIMAND — PROCEEDINGS

AND REVIEW — MANDAMUS — MARYLAND RULE 18-404(j)(4): Maryland

Rule 18-404(j)(4) requires the Maryland Commission on Judicial Disabilities

(“Commission”) to “promptly” transmit a copy of the report and recommendation from the

Judicial Inquiry Board (“Inquiry Board”) to a judge. The judge then has an opportunity to

file objections prior to the Commission’s probable cause determination. The Commission

violated Md. Rule 18-404(j)(4) when it failed to provide a judge with a copy of the Inquiry

Board’s report prior to making a probable cause determination. The Commission,

however, cured this rule violation by allowing the judge to file a response to the Inquiry

Board’s report before a subsequent reevaluation of probable cause.

JUDGES — REMOVAL OR DISCIPLINE — REPRIMAND — PROCEEDINGS

AND REVIEW — MANDAMUS — DISCOVERY: Maryland Rule 18-407(g)(3)

provides for the application of the civil discovery rules to judicial discipline proceedings.

The Commission improperly struck the entirety of a judge’s discovery requests when it

ruled that Investigative Counsel was not a “party” to judicial discipline proceedings.

Despite this improper discovery limitation, sweeping open-file discovery in judicial

discipline proceedings allowed the judge to understand the nature of the charges against

her. Therefore, the judge had adequate information to prepare for her evidentiary hearing

before the Commission.

JUDGES — REMOVAL OR DISCIPLINE — REPRIMAND — PROCEEDINGS

AND REVIEW — MANDAMUS — FAIRNESS OF PROCEEDINGS: According to

the Maryland Constitution and our Rules “an accused judge is entitled to these elements of

procedural due process—notice, an opportunity to respond, [and] a fair hearing . . . .”

Matter of White, 451 Md. 630, 648 (2017) (per curiam). The Commission’s procedures,

even after accounting for the improper withholding of the Inquiry Board’s report and an

improper discovery ruling, did not deny a judge notice, an opportunity to respond, and a

fair hearing.

Maryland Commission on Judicial Disabilities

Case No.: CJD2014-114

Argued: November 4, 2016

Reargued: January 9, 2018

IN THE COURT OF APPEALS

OF MARYLAND

Misc. No. 5

September Term, 2016

IN THE MATTER OF THE

HONORABLE PAMELA J. WHITE

Barbera, C.J.

Greene

Adkins

McDonald

Hotten

Getty

Harrell, Glenn T., Jr.,

(Senior Judge, Specially Assigned)

JJ.

Opinion by Adkins, J.

Filed: March 27, 2018

We must decide whether proceedings before the Maryland Commission on Judicial

Disabilities (“Commission”) violated a judge’s due process rights. As we explained last

year, although we have no appellate jurisdiction to review a judge’s exceptions to the

Commission’s determination to issue a public reprimand after public charges and a

contested hearing, the common law writ of mandamus provides an avenue for a judge to

challenge the fundamental fairness of the proceedings before the Commission. Matter of

White, 451 Md. 630, 649–50 (2017) (per curiam) [hereinafter White I]. We previously

refrained from deciding the due process claims made by Petitioner, Judge Pamela J. White,

because we did not have the full record of the Commission proceedings before us. Id. at

652–53. After review of the complete record, we hold that, although the Commission

violated applicable Maryland Rules, these violations did not ultimately deprive Judge

White of a fundamentally fair proceeding.

BACKGROUND

Discipline Or Removal Of Judges

Article IV, §§ 4A–4B of the Maryland Constitution provides a special process for

the discipline or removal of a judge who has committed misconduct, or who is found to

suffer from a disability. Article IV, § 4A(a) creates the Commission, and Article IV,

§ 4B(a)(1) authorizes it to conduct investigations of complaints about judges. At the

conclusion of the investigation, the Commission may “issue a reprimand and [has] the

power to recommend to the Court of Appeals the removal, censure, or other appropriate

disciplining of a judge or, in an appropriate case, retirement.” Id., § 4B(a)(2). Commission

proceedings are confidential and privileged, except as provided by rule of this Court. Id.,

§ 4B(a)(3). The General Assembly granted the Commission additional powers relating to

investigations and hearings. See Md. Code (1973, 2013 Repl. Vol.), §§ 13-401–13-403 of

the Courts and Judicial Proceedings Article (power to issue and enforce subpoenas,

administer oaths or affirmations, and grant immunity to witnesses).

The Constitution also delegates to this Court the task of prescribing “the means to

implement and enforce the powers of the Commission and the practice and procedure

before the Commission.” Md. Const. art. IV, § 4B(a)(5). We have done so in the Maryland

Rules at 18-401 et seq.1

Maryland Rule 18-402(d) empowers the Commission to appoint an Investigative

Counsel. Upon submission of a complaint to the Commission, Investigative Counsel may

dismiss the complaint if “the complaint does not allege facts that, if true, would constitute

a disability or sanctionable conduct and that there are no reasonable grounds for a

preliminary investigation . . . .” Md. Rule 18-404(c). If Investigative Counsel does not

dismiss the complaint, she then conducts a preliminary investigation of the alleged

misconduct. Id. (d). Unless the Commission or the Judicial Inquiry Board (“Inquiry

Board”) (discussed infra) directs otherwise, Investigative Counsel shall notify the judge of

1

As we explained in Matter of White, 451 Md. 630, 636 n.3 (2017) (per curiam)

[hereinafter White I], when the investigation in this case commenced and during most of the

Maryland Commission on Judicial Disabilities’ proceedings, these Rules were codified at

Maryland Rule 16-801 et seq. During the pendency of this case, the Rules were recodified in

the current form effective July 1, 2016. Rules Order (June 6, 2016),

http://mdcourts.gov/rules/rodocs/178troparts1x2x3.pdf (https://perma.cc/3LYM-YPJN).

Unless stated otherwise, we shall refer to the Rules by their current codification.

2

the pendency of the investigation before its conclusion.2 Id. (e)(4). Investigative Counsel

must “afford the judge a reasonable opportunity to present, in person or in writing, such

information as the judge chooses.” Id. (e)(5). Investigative Counsel has 90 days to

complete her preliminary investigation. Id. (e)(6). Upon application by Investigative

Counsel, and for good cause, the Inquiry Board shall extend the time for completing the

preliminary investigation for an additional 30-day period. Id. The Commission may

dismiss the complaint and terminate an investigation if Investigative Counsel fails to

comply with these time requirements. Id.

Maryland Rule 18-403(a) requires the Commission to “appoint an [Inquiry] Board

consisting of two judges, two attorneys, and three public members who are not attorneys

or judges.” After completing a preliminary investigation, Investigative Counsel shall

report the results of her investigation to the Inquiry Board with a recommendation of either:

(1) dismissal; (2) authorization of further investigation; (3) entering into a private

reprimand or deferred discipline agreement; or (4) filing public charges. Md. Rule 18-

2

Md. Rule 18-404(e)(4) requires Investigative Counsel to notify the judge:

(A) that Investigative Counsel has undertaken a preliminary

investigation into whether the judge has a disability or has

committed sanctionable conduct; (B) whether the preliminary

investigation was undertaken on Investigative Counsel’s

initiative or on a complaint; (C) if the investigation was

undertaken on a complaint, of the name of the person who filed

the complaint and the contents of the complaint; (D) of the

nature of the disability or sanctionable conduct under

investigation; and (E) of the judge’s rights under subsection

(e)(5) of this Rule.

3

404(f). The Inquiry Board must continually monitor the investigation and review the

reports and recommendations of Investigative Counsel. Id. (g).

Upon reviewing the results of the preliminary investigation, the Inquiry Board

prepares a report for submission to the Commission. Id. (j)(1). The report must include a

recommendation for further action by the Commission. The Inquiry Board may not

recommend a dismissal with warning, a private reprimand, or a deferred discipline

agreement unless the respondent judge consents to the remedy. Id. After the Commission

receives the Inquiry Board’s report, it must promptly transmit a copy to the judge and

Investigative Counsel. Id. (j)(4). Both Investigative Counsel and the judge have an

opportunity to file objections to the Inquiry Board’s report. Id. (k).

After reviewing the Inquiry Board’s report and upon a finding of probable cause,

the Commission may direct Investigative Counsel to begin proceedings against the judge

by filing charges with the Commission. Md. Rule 18-407(a). The judge may then file a

response to the charges. Id. (c). The Commission must also notify the judge of the date,

time, and place of a hearing on the charges. Id. (d).

Following the filing of charges, the respondent judge has several procedural rights

expressly recognized by the Rules:

The judge has the right to inspect and copy the Commission

Record, to a prompt hearing on the charges, to be represented

by an attorney, to the issuance of subpoenas for the attendance

of witnesses and for the production of designated documents

and other tangible things, to present evidence and argument,

and to examine and cross-examine witnesses.

4

Id. at (f). The Rules also provide that prehearing discovery is “governed by Title 2, Chapter

400 of these Rules,[3] except that the Chair of the Commission, rather than the court, may

limit the scope of discovery, enter protective orders permitted by Rule 2-403, and resolve

other discovery issues.” Id. (g)(3). At the hearing, the rules of evidence apply. Id. (i)(5).

If the Commission finds clear and convincing evidence that the judge has committed

sanctionable conduct, “it shall either issue a public reprimand for the sanctionable conduct

or refer the matter to the Court of Appeals . . . .” Id. (j). If it finds otherwise, the

Commission will dismiss the charges and terminate the proceedings. Id.

Joyner v. Veolia Transp. Servs. Inc.

Since 2007, Judge Pamela J. White (whom we shall sometimes refer to as

“Respondent”)4 has served as an Associate Judge of the Circuit Court for Baltimore City.

She also served as the Supervising Judge for the Circuit Court’s Civil Alternative Dispute

Resolution Program (“ADR”) from 2009 until 2015. In 2014, Respondent presided over

hearings in a civil matter. Louise V. Joyner v. Veolia Transp. Servs. Inc., et al., Case No.

24-C-014000589 (Baltimore City Circuit Court). Attorney Rickey Nelson Jones

3

Title 2, Chapter 400 of the Maryland Rules provides discovery procedures for civil

cases.

4

Judge White is the Petitioner here, but was the Respondent in the proceedings

before the Maryland Commission on Judicial Disabilities. We refer to her as Respondent

here for ease of understanding.

5

represented the plaintiff, Joyner, in her action for negligence while attorney Andrew

Stephenson represented the defendant, Veolia.5

Early in the litigation, Veolia moved to dismiss Joyner’s punitive damages claim.

When counsel for both parties appeared before Judge White for a hearing on the motion to

dismiss, Jones tried to justify his claim for punitive damages, which stemmed from the

phone calls made by an insurance adjuster to the plaintiff following the accident.

Dissatisfied with Jones’s attempted explanation, Judge White said:

The Court: Oh Mr. Jones, are you telling me this with a

straight face? . . . . Are you telling me as an officer of the court,

admitted to the bar, with a straight face, that you think you have

an ill-will punitive damages claim against Veolia

Transportation because of something that an insurance

adjuster, employed by an insurance company, has said in the

course of calling your client to inquire of her status? . . . . Do

you think this allegation can stand, in the face of your

responsibility as an officer of the court?

Jones: Do I believe that a representative of the defendant can

act on their behalf, I do believe they can act on their behalf. If

you’re asking me do I believe another corporation—

The Court: I’m asking you, is there any conceivable case

authority, any statutory authority, that allows you the chutzpah

to claim punitive damages in a negligence case suggesting that

a claims adjuster working for an insurance company asking

questions of your client about the status her injury should be

attributed as an ill-will punitive damages claim by Veolia

Transportation?

Jones: I have no case law on that, Your Honor.

5

Veolia Transportation Services operates mobility vehicles for the Maryland

Transit Administration. Louise Joyner sued Veolia for negligence after she was injured

when attempting to enter a mobility van.

6

After this exchange, Respondent granted Veolia’s motion and dismissed the punitive

damages claim with prejudice.

The pretrial scheduling order for Joyner required that “all counsel, their clients and

insurance representatives must attend the pretrial conference in person,” on September 17,

2014, before another judge of the court (not Judge White). The order also directed that

“[a]ny request for accommodation under the Americans with Disabilities Act should be

directed to the Administrative Office of the Circuit Court for Baltimore City,” and provided

a phone number to contact that office. Finally, the order permitted modification “only upon

a written motion for modification setting forth a showing of good cause that the schedule

cannot reasonably be met despite the diligence of the parties seeking modification.” On

September 5, 2014, Jones filed a pretrial conference statement in which, under the heading

“Other Matters,” he wrote “Plaintiff requests that her attorney attend the Pretrial

Conference alone due to her poor health and doctor recommendation that she not travel

without ambulance assistance.” (Emphasis in original). Joyner did not attend the pretrial

conference.

After the pretrial conference, Jeff Trueman, then the Deputy Director of the Circuit

Court’s Civil ADR program, advised Judge White of Joyner’s unexcused absence at the

conference. Judge White issued a show cause order requiring Joyner and Jones to appear

at the Circuit Court on October 31, 2014, and explain why the Court should not hold them

in civil contempt. In his response to the order, Jones contended that his proffer in the

pretrial conference statement sufficed as the written “motion” required for modification of

the pretrial scheduling order. Jones also included, in a postscript to his letter response that

7

was not sent to opposing counsel, an offer to speak to Judge White about the postponement.

Judge White immediately responded in writing that trial would go forward.

The next day, October 15, 2014, Jones and opposing counsel appeared before Judge

White for trial. Jones requested a postponement and presented a motion for Judge White’s

recusal. He alleged three “partial” acts by Respondent. First, he argued that the Judge

insulted him by “questioning his bar membership” during the May 5, 2014 hearing.

Second, he alleged that Respondent incorrectly issued the show cause order. Finally, he

contended that Respondent was not impartial because she had directed him to

Postponement Court. Responding to the recusal motion in open court, Judge White recused

herself and said the following:

[B]ecause I am incredulous, because I am in disbelief, because

I find myself incapable of believing virtually anything that Mr.

Jones has just told me, I’m in the unfamiliar territory of finding

that I must recuse myself from any further proceedings in this

case because I cannot believe anything that the Reverend

Rickey Nelson Jones[,] Esquire[6]—and I’m reading off the

letterhead—tells me.

I think that 99% of what Mr. Jones has told me about his

conduct on behalf of his client is pure bullshit[.] So I’m forced

to recuse myself and I can’t get past the idea that I cannot

believe a darn thing that Mr. Jones tells me now.

So I am compelled under . . . Rule 2.11 [of the Maryland Code

of Judicial Conduct][7] to disqualify myself in any further

6

Jones used the honorific title “reverend” in his office letterhead.

7

Judge White presumably referred to then Rule 2.11 of the Maryland Code of

Judicial Conduct (“MCJC”), which provides in pertinent part:

8

proceedings in this case, because I now believe, based on Mr.

Jones’ conduct and representations in this case, in his

discussion and exploration of “who struck John” in recent days

about his request for accommodation, all without following the

precise instructions and procedures in the Scheduling Order

and the website and resources available to him.

I find that I cannot be impartial. I am personally biased or

prejudiced concerning Mr. Jones and his conduct. So, I’m

going to recuse myself.

Regarding the request for postponement, Judge White raised her voice and

admonished Jones for offering to engage in ex parte communication with the Court. She

then added:

I am dumbfounded at your irresponsible behavior, Mr. Jones.

All the more reason I am compelled by your dumbfounding

behavior to recuse myself because I cannot believe a single

word you say. And what I am compelled to do now because

the Rules of Professional Conduct and the Judicial Code

compel me to do so is to reexamine what I just said and heard

and reported on the record whether I must report you to the

Attorney Grievance Commission.

****

In addition to not believing a word that Mr. Jones tells me, I

am so very frustrated with his failure to attend to the basic rules

of procedure.

(a) A judge shall disqualify himself or herself in any

proceeding in which the judge’s impartiality might reasonably

be questioned, including the following circumstances:

(1) The judge has a personal bias or prejudice concerning a

party or a party’s attorney, or personal knowledge of facts

that are in dispute in the proceeding.

Md. Rule 18-102.11.

9

At the conclusion of the hearing, Judge White issued a written order explaining her recusal

from Joyner.8

At the hearing on the show cause order, Jones attempted to explain why his client

could not come to court without an ambulance. Judge White acknowledged the plaintiff’s

status and inquired as to how Jones felt he had complied with the pretrial scheduling order.

Jones presumed that his warning that he would attend without his client, made in his pretrial

conference statement, sufficed as a “motion” to modify the scheduling order. After some

discussion, Judge White held Jones in contempt of Court.9

8

Judge White explained that she did not know whether her recusal from Louise V.

Joyner v. Veolia Transp. Servs. Inc., et al., Case No. 24-C-014000589 (Baltimore City

Circuit Court), would also require her recusal from future cases involving Jones:

While I am shocked, frustrated, appalled and consequently

don’t believe anything Mr. Jones has told me about the conduct

of his office and himself in this case and I don’t believe that

he’s honored the Court’s Orders in this case, I don’t understand

or believe that necessarily will carry over to any future other

cases. I will take each case as it comes.

We do have a date. I am not recusing myself from a Show

Cause hearing on October the 3lst. It is my responsibility to

address the Show Cause hearing on October 31st and I will

address that Motion. It’s not a Motion. You responded to the

Show Cause Order. I’ll address that in due course. I haven’t

seen your Answer, Mr. Jones, and I’ll address it in due course.

9

She explained:

The suggestion by Mr. Jones that the request made in the last

paragraph of the pretrial statement that he submitted on

September 5th as complying in any way, shape or form with

the Scheduling Order or with the mandate of Rule 2–311 is

shocking and is soundly and roundly rejected by this Court as

10

Proceedings Before The Inquiry Board

Five days after Judge White recused herself from Joyner, the Commission received

Jones’s first complaint regarding her.10 He complained of Respondent’s comments and

conduct during the hearings on Veolia’s motion to dismiss, and on his motion to recuse.

He also averred that, although Judge White had recognized she could not be impartial, she

refused to recuse herself from the hearing on her show cause order. After receiving Jones’s

first complaint, the Commission’s Investigative Counsel, then Carol A. Crawford, opened

a preliminary investigation into Respondent’s conduct.

On November 17, 2014, the Commission received Jones’s second complaint against

Judge White. Jones based this complaint on Respondent’s conduct during the October 31

hearing. He also alleged that Judge White improperly decided not to recuse herself from

considering the show cause order.

reflecting (A) any diligent effort on the part of Mr. Jones; (B)

any good cause effort by Mr. Jones on behalf of his client,

either to comply with the Scheduling Order, to conform to the

Rules or otherwise show respect for the process and procedures

of this Court.

The utter absence of respect by Mr. Jones to the procedures and

process of this Court are disappointing at least, contemptuous

at worst.

10

Shortly after our decision in White I, and pursuant to Md. Rule 18-409(b)(1),

Judge White submitted a waiver of confidentiality regarding the Commission record.

Accordingly, we shall discuss the normally confidential investigation process employed by

Investigative Counsel and the Inquiry Board.

11

The Inquiry Board extended the time to complete the preliminary investigation and

delayed giving notice to Judge White, for “good cause shown,” in January, February, and

April. In April, Investigative Counsel sent a letter notifying Judge White of the two

complaints.11

Judge White timely responded to Jones’s first two complaints, asserting that her

demeanor toward Jones was appropriate because he showed no concern for the rules of

procedure or proper professional behavior. She also averred that she properly presided

over the show cause proceedings because Maryland Code of Judicial Conduct (“MJCJ”)

Rule 2.11 did not require her recusal.

The following day, Investigative Counsel submitted a memorandum to the Inquiry

Board recommending that the Inquiry Board find that Judge White committed sanctionable

conduct “with regard to her demeanor throughout the [Joyner] proceedings,” and by failing

to recuse herself from the October 31 hearing. Investigative Counsel recommended that

the Inquiry Board, in turn, recommend to the Commission, that a private reprimand be

issued. The memorandum attached copies of Jones’s complaints, audio recordings of the

hearings, and Respondent’s response to the complaints. On December 11, 2015, the

Inquiry Board forwarded its report and recommendation to the Commission, but no copy

was sent to Respondent.

11

On May 4, 2015, Jones appeared before Judge White for a hearing on the

contempt charge, which Jones had not yet purged. At the hearing, Respondent explained

that she had received notice that Jones had filed complaints with the Commission. She

then instructed Jones that she would not make any further decision regarding the finding

of contempt in light of his complaints.

12

Proceedings Before The Commission

At its December 2015 meeting, the Commission reviewed the complaints,

recordings of the hearings, Judge White’s correspondence with Investigative Counsel, and

the recommendations of the Inquiry Board and Investigative Counsel. The Commission

concluded that probable cause existed to believe that Respondent had committed

sanctionable conduct and, by unanimous vote, directed Investigative Counsel to initiate

proceedings against Respondent by filing public charges.

It was only when Judge White was notified of this action that her counsel requested,

and finally received on January 12, 2016, a copy of the Inquiry Board’s report. In a 40-

page filing, Respondent objected to the report and argued that her conduct in Joyner did

not amount to misconduct, and requested a hearing before the Commission. At its February

2016 meeting, the Commission voted to set the matter for further discussion at a special

meeting.

That special meeting was held on March 2, 2016. But the Commission rejected

Respondent’s objections to the Inquiry Board’s report, denied her request for a hearing,12

and again directed Investigative Counsel to file charges.

The Commission filed public charges against Judge White on March 31, 2016,

alleging that she violated several provisions of the Code of Judicial Conduct, specifically

12

The Rules do not oblige the Commission to hold a pre-charging hearing.

13

MCJC 1.1 (Compliance with the Law),13 1.2 (Promoting Confidence in the Judiciary),14

2.2 (Impartiality and Fairness),15 2.3 (Bias, Prejudice, and Harassment),16 2.11

13

MCJC 1.1 provides: “A judge shall comply with the law, including this Code of

Judicial Conduct.” Md. Rule 18-101.1.

14

MCJC 1.2 provides:

(a) Promoting Public Confidence. A judge shall act at all times

in a manner that promotes public confidence in the

independence, integrity, and impartiality of the judiciary.

(b) Avoiding Perception of Impropriety. A judge shall avoid

conduct that would create in reasonable minds a perception of

impropriety.

Md. Rule 18-101.2.

15

MCJC 2.2 provides:

(a) A judge shall uphold and apply the law and shall perform

all duties of judicial office impartially and fairly.

(b) A judge may make reasonable efforts, consistent with the

Maryland Rules and other law, to facilitate the ability of all

litigants, including self-represented litigants, to be fairly heard.

Md. Rule 18-102.2.

16

MCJC 2.3 provides:

(a) A judge shall perform the duties of judicial office, including

administrative duties, without bias or prejudice.

(b) In the performance of judicial duties, a judge shall not, by

words or conduct, manifest bias, prejudice, or harassment

based upon race, sex, gender, religion, national origin,

ethnicity, disability, age, sexual orientation, marital status,

socioeconomic status, or political affiliation. A judge shall

require attorneys in proceedings before the court, court staff,

14

(Disqualification).17 In her answer, Respondent moved to dismiss the charges. She argued

that her decisions in Joyner were legal judgments not subject to scrutiny through the

disciplinary process and that, even if the Commission had the authority to review her

actions, she did not commit misconduct. Respondent also alleged a due process violation

after Investigative Counsel failed to comply with certain time standards, did not inform her

of Jones’s complaints in a timely fashion, and failed to convey information about the

proceedings to Judge White.

Respondent served interrogatories on Investigative Counsel pursuant to the civil

discovery rules, specifically Md. Rule 2-421. In response, Investigative Counsel filed a

request to strike the discovery demands. Investigative Counsel explained that, although

the Rules expressly provide that discovery in judicial disciplinary proceedings shall be

governed by civil discovery rules, this “does not mean that every rule in [the civil discovery

rules] is relevant, appropriate, or applicable to proceedings before the Commission.”

Investigative Counsel also contended that Judge White could not serve her with requests

for admissions because Investigative Counsel “is neither a party nor a witness . . . .”

court officials, and others subject to the judge’s direction and

control to refrain from similar conduct.

(c) The restrictions of section (b) of this Rule do not preclude

judges or attorneys from making legitimate references to the

listed factors, or similar factors, when they are relevant to an

issue in a proceeding.

Md. Rule 18-102.3.

17

See supra note 7.

15

Investigative Counsel closed her request by asking the Commission to enter a protective

order prohibiting Judge White from receiving certain documents prepared by Investigative

Counsel. Investigative Counsel claimed that these documents were subject to

confidentiality restrictions (see, e.g., Md. Rule 18-409(a)(4)) and amounted to attorney

work product.

After a hearing, where both Investigative Counsel and Respondent’s attorney

appeared, the Commission denied Judge White’s motion to dismiss. The Commission

opined that it had no power to dismiss the charges under Md. Rule 18-406 until after it held

a hearing on the merits under Md. Rule 18-407. The Commission also interpreted the

discovery rules to vest complete discovery authority in the Chair of the Commission.

Without further explanation, the Commission simply stated that the decision to strike

Respondent’s interrogatories and request for admissions did not eliminate her access “to a

fair discovery process.”

The Commission held an evidentiary hearing on July 7 and 8, 2016. Investigative

Counsel called no witnesses, but offered five exhibits: (1) the Baltimore City Circuit Court

file for Joyner; (2) video recordings of the May 5, 2014, October 15, 2014, and October

31, 2014 proceedings before Judge White; (3) a transcript of the October 15, 2014

proceeding; (4) a transcript of the October, 31, 2014 hearing; and (5) a copy of the charges.

Investigative Counsel then played recordings of the May 4, October 15, and October 31

proceedings for the Commission.

In addition to her own testimony, Judge White presented five witnesses: (1) Circuit

Administrative Judge W. Michel Pierson; (2) Judge in charge of the Civil Docket, Athea

16

M. Handy; (3) retired Judge Carol E. Smith; (4) Jeff Trueman; and (5) Andrew Stephenson.

Investigative Counsel thoroughly cross-examined Judge White. Members of the

Commission also questioned her.

On August 3, 2016, the Commission, by unanimous vote, publicly reprimanded

Judge White. The Commission concluded that Judge White violated the Maryland Code

of Judicial Conduct through her “undignified, discourteous, and unprofessional” treatment

of Jones and her failure to recuse herself from the show cause hearing after admitting that

she could not be impartial.

DISCUSSION

As we explained in our earlier opinion, while we do not have “appellate jurisdiction

for review of Judge White’s claims, this Court is able to review her allegation that the

Commission proceeding denied her procedural due process as a petition for a common law

writ of mandamus.” White I, 451 Md. at 649 (emphasis in original). Our jurisprudence on

common law mandamus is well established:

[C]ommon law mandamus is an extraordinary remedy that is

generally used to compel inferior tribunals, public officials or

administrative agencies to perform their function, or perform

some particular duty imposed upon them which in its nature is

imperative and to the performance of which the party applying

for the writ has a clear legal right. The writ ordinarily does not

lie where the action to be reviewed is discretionary or depends

on personal judgment.

Falls Road Cmty. Ass’n, Inc. v. Baltimore Cty., 437 Md. 115, 139 (2014) (cleaned up);

“‘Mandamus is an original action, as distinguished from an appeal.’” Goodwich v. Nolan,

343 Md. 130, 145 (1996) (cleaned up). The Commission’s public reprimand of a sitting

17

judge is a unique circumstance, which permits the availability of the ancient writ for our

review of a judge’s claims of constitutional defects, but not review of a claim that there

was no sanctionable conduct. We reiterate our previous holding wherein we explained that

the common law writ of mandamus may not be employed to review the merits of the

Commission’s decision to issue a public reprimand. White I, 451 Md. at 651–52. Such a

decision is “properly classified as a non-ministerial discretionary act that is dependent upon

the judgment of the Commission members[,]” and beyond the scope of mandamus review.

Id.18

18

The Maryland Constitution expressly provides the Commission with the power to

issue a reprimand. See Md. Const. art. 4, § 4B(a)(2). The Constitution only calls for this

Court to decide a judicial discipline matter if the Commission recommends the removal,

censure, or other appropriate discipline of a judge. Id. Keeping in mind the Commission’s

high degree of independence—at least when issuing a public reprimand—we refrain from

assessing whether the Commission properly found sanctionable conduct or ordered a public

reprimand in this case. Thus, we do not address the applicability of the general rule that

recusal is entirely within the discretion of the judge. See, e.g., Jefferson-El v. State, 330

Md. 99, 107 (1993) (“The recusal decision . . . is discretionary, and the exercise of that

discretion will not be overturned except for abuse.”) (citations omitted). But see Surratt v.

Prince George’s Cty., 320 Md. 439, 466 (1990) (“We hold that when the asserted basis for

recusal is personal conduct of the trial judge that generates serious issues about his or her

personal misconduct, then the trial judge must permit another judge to decide the motion

for recusal.”).

This is not “administrative mandamus,” which is an extension of common law

mandamus, “for judicial review of certain quasi-judicial administrative decisions when

judicial review is not otherwise expressly provided by law.” White I, 454 Md. at 650 n.15;

See also, Hughes v. Moyer, 452 Md. 77, 90–91 (2017) (differentiating administrative

mandamus from common law mandamus). But the Commission, as an entity specifically

created by the Maryland Constitution, has a unique status. With its complete discretion to

issue a public reprimand, the Commission differs from the administrative agencies in cases

where this Court has applied the “administrative mandamus” doctrine. See e.g., Maryland-

Nat’l Capital Park and Planning Comm’n v. Rosenberg, 269 Md. 520, (administrative

mandamus appropriate to overturn arbitrary decision of county planning board); State

18

As we explained in White I, 451 Md. at 651, “the Commission has a duty to provide

procedural due process, as set forth in the State Constitution and Maryland Rules, to an

accused judge . . . .” The Maryland Constitution “defers to this Court the task of designing

a fair process by rule.” Id. at 647. During the disciplinary process, the Commission is

bound by “the fundamental rules of fairness.” Id. at 647–48. According to the Maryland

Constitution and our Rules “an accused judge is entitled to these elements of procedural

due process—notice, an opportunity to respond, [and] a fair hearing—regardless of the

outcome—i.e., whether the Commission ultimately decides to dismiss the charges,

reprimand the judge, or recommend that we censure, discipline, or remove the judge.” Id.

at 648. Minor deviation from the Rules without prejudice to the judge does not undermine

this guarantee. Id.

Judge White contends that the Commission proceedings lacked fundamental

fairness, in several respects, and denied her right to procedural due process. In our

Discussion, below, we divide her contentions into two categories: (1) those relating to

preliminary matters before the Commission decided to issue charges (“Proceedings

Preliminary to Charges”), and (2) those relating to events occurring after public charges

were filed against her (“Proceedings After Charges Filed”).

Overall, Judge White insists that the Commission’s material deviations from the

requirements of the Maryland Constitution and the Rules were serious failures that

Dept. of Health v. Walker, 238 Md. 512 (1965) (administrative mandamus applied to

overturn Board of Health’s abuse of discretion in denial of a sewage system permit); Heaps

v. Cobb, 185 Md. 372, 379 (1945) (administrative mandamus invoked to correct arbitrary

decision of board of trustees of a city employees’ retirement system).

19

deprived her of procedural due process and thus rendered the proceedings fundamentally

unfair.

I. PROCEEDINGS PRELIMINARY TO CHARGES

Prompt Notification Of Investigation

Judge White contends that Investigative Counsel failed to promptly notify her of the

complaints. Specifically, she asserts that Investigative Counsel waited approximately six

months from when Jones filed his first complaint to notify her. Respondent asserts that

this delayed notification prejudiced her ability to dispute the allegations before the Inquiry

Board, and to raise objections to Investigative Counsel’s failure to comply with time

standards.

Maryland Rule 18-404(e)(4) requires that Investigative Counsel notify the judge of

a complaint before the completion of the preliminary investigation, which is due within 90

days of the complaint filing. It also permits the Inquiry Board to delay giving notice of the

investigation to the judge “for good cause shown” by Investigative Counsel. Id. Because

Jones filed his first complaint on October 20, 2014, the preliminary investigation was due

to be completed on January 19, 2015. Id. (e)(6). Judge White did not receive notice until

three months after that date—on April 17, 2015. In the meantime, though, on January 15,

2015, the Inquiry Board granted a 30-day extension “for good cause shown” as allowed by

the same Rule, and a second 60-day extension thereafter. The minutes for the Inquiry

20

Board meeting, and the Commission’s brief, fail to articulate any explanation of the “good

cause” the Inquiry Board relied upon to extend the deadline. See Md. Rule 18-405(a).19

This Court can readily understand Judge White’s frustration when she learned that

the complaint was filed six months before she was given notice thereof, especially when

the “good cause” extension was unclear. Judges, who hold positions of great responsibility

and respect, need to be trusted by the public, and are rightfully sensitive about ethics

complaints against them. Her frustration may have been compounded when she later

learned that Investigative Counsel’s disposition recommendation explained that the

investigation consisted merely of reviewing: (1) Mr. Jones’s complaints; (2) the recordings

of the hearings held before Judge White; and (3) Judge White’s response.

At oral argument, the Commission explained that there can be extensive delays in

obtaining either a recording or transcript from a trial court. This, we think, would be

sufficient reason to grant an extension under Md. Rule 18-404(e)(4). On the other hand,

Investigative Counsel’s volume of work would probably not be sufficient, absent some

unusual circumstance. There is nothing in the record to document the reason for the delay

in this case. Although there is no requirement in Md. Rules 18-404 or 18-405 that the

Commission document the reason for extension, it would be better practice in future cases

19

In permitting delayed notice, the judge must receive notice of the charges at least

30 days before Investigative Counsel makes a disposition recommendation to the Inquiry

Board, which occurred in this case on May 19, 2015. See Md. Rule 18-405(a). Judge

White did not receive notice of the complaint or the preliminary investigation until, at the

earliest, April 17, 2015 (32 days prior to the disposition recommendation). In her brief

before this Court, Judge White asserts that she received notice from Investigative Counsel

on April 30, 2015, clearly less than required. We do not resolve this dispute as to the timing

of notice.

21

to do so—thus, perhaps, avoiding a future challenge of this nature. To resolve this case,

we assume that the delay was without due cause, and move on to consider the consequences

of this Rule violation.

Judge White contends that the delay affected her due process rights because it

prejudiced her ability to defend herself even at the very early stages in the disciplinary

process. We are not persuaded this is so. As we recognized in White I, 451 Md. at 648,

“an accused judge is entitled to . . . notice, an opportunity to respond, [and] a fair

hearing . . . .” But deviation from the Rules without infringing on these rights would not

undermine this guarantee. Id.

Other jurisdictions have held that due process considerations do not require a judge

to receive notice of a preliminary investigation before a determination of probable cause.

See Ryan v. Comm’n on Judicial Performance, 754 P.2d 724, 729 (Cal. 1988), modified on

denial of reh’g (June 30, 1988) (judge’s due process claim rejected because, “[s]imply

stated, a judge does not have the right to defend against a proceeding that has not yet been

brought”); In re Flanagan, 690 A.2d 865, 874–76 (Conn. 1997) (“[T]he due process

protections afforded in disciplinary proceedings . . . are inapplicable unless and until the

review council brings formal charges . . . .”); In re Graziano, 696 So. 2d 744, 752–53 (Fla.

1997);20 In re Karasov, 805 N.W.2d 255, 273–74 (Minn. 2011) (“[D]ue process does not

require notice of a judicial discipline investigation.”).

20

In re Graziano, 696 So. 2d 744, 752–53 (Fla. 1997), involved a judge who claimed

that her due process rights were violated when the disciplinary authority failed to give her

notice of an investigation. Specifically, the judge argued that she was prohibited from

22

This rule applies to the judicial discipline process in Maryland as well. In terms of

due process, Judge White had sufficient opportunity, even before the filing of public

charges, to defend against the misconduct allegations made by Jones, and she took

advantage of that opportunity, filing extensive written objections with the Commission

before public charges, and afterwards, a motion to dismiss the charges, with a hearing

thereon, as well as a full-fledged defense on the merits. Further, Respondent does not offer

any explanation of what she would have done during those 90 days ending with April 17,

2015, to enhance her defense against the charges. We can see no due process violation.21

Investigative Counsel’s Communications With The Inquiry Board And The

Commission

Judge White objects to several instances of so-called “ex parte” communications

between Investigative Counsel and the Inquiry Board or Commission. The Inquiry Board

discussed Respondent’s case with Investigative Counsel, but without Respondent’s

counsel, at its meetings in 2015. Investigative Counsel advised the Inquiry Board of her

conversations with Respondent’s attorneys, yet Respondent’s attorneys were not present

during these meetings. After the Inquiry Board issued its report to the Commission,

presenting witnesses before the disciplinary authority found probable cause to issue

charges against her. The court rejected this claim, relying on the principle that “due process

is met when one is given notice of proceedings and an opportunity to be heard, and

proceedings are essentially fair.” Id.

21

Notably, Md. Rule 18-404(6) accords to the Commission the discretion as to the

remedy for Investigative Counsel’s failure to comply with the time limits for completing

the preliminary investigation. See id. (“For failure to comply with the time requirements

of this section, the Commission may dismiss any complaint and terminate the

investigation.”). In this mandamus action, we do not review the Commission’s decision

for an abuse of discretion.

23

Investigative Counsel was present when Respondent’s case was discussed at the

Commission meetings. Again, Judge White’s attorney did not attend these meetings.

Respondent contends that Investigative Counsel’s communications with the Inquiry Board

and Commission resulted in prejudice to her because she had no way of knowing that her

submissions to the Inquiry Board and Commission were presented accurately and she could

not refute any assertions made by Investigative Counsel.

As the Commission argues, the Rules plainly contemplate ongoing communications

and coordinated activity between Investigative Counsel, the Inquiry Board, and the

Commission. Specifically, the Rules permit Investigative Counsel to take several actions

without notice to the judge. Investigative Counsel must “inform the Board or Commission

that the preliminary investigation is being undertaken.” Md. Rule 18-404(e)(1).

Investigative Counsel can also apply to the Inquiry Board for an extension of the time for

completing the preliminary investigation and must report the results of the preliminary

investigation to the Inquiry Board. Id. (e)(6), (f). Investigative Counsel must also “report

and make recommendations to the Commission as directed by the Commission.” Md. Rule

18-402(d). Indeed, the Maryland Constitution authorizes the Commission to investigate,

as well as hear charges. See Md. Const. art. 4, § 4B(a).

We have previously examined the unique role of the Commission. In In re Diener,

268 Md. 659, 677 (1973), we considered two judges’ contentions that they were denied a

fair process “because the Commission acted as investigator, prosecutor, judge and jury

in . . . [a judicial discipline] proceeding.” We ultimately recognized that judges are not

denied a fair and impartial process merely because the Commission operates as both

24

investigator (through Investigative Counsel) and decision-maker in judicial discipline

cases. Id. at 678–79.

Diener’s recognition that a quasi-judicial body may determine probable cause and

continue to adjudicate the matter, without creating impermissible bias or prejudice, is

consistent with Supreme Court precedent as well as other cases from this Court. See, e.g.,

Withrow v. Larkin, 421 U.S. 35, 52–58 (1975) (“It is also very typical for the members of

administrative agencies to receive the results of investigations, to approve the filing of

charges or formal complaints instituting enforcement proceedings and then to participate

in the ensuing hearings. This mode of procedure . . . does not violate due process of

law.”);22 Public Serv. Comm’n v. Wilson, 389 Md. 27, 92 (2005) (“We are unwilling to

assume the apparent premise of . . . [the] argument that some kind of blind pride of

authorship or hubris of power renders an administrative decision-maker ipso facto unable

to assess fairly and objectively arguments that his or her decision should be revisited,

changed, or abandoned.”); see also Mississippi Comm’n on Judicial Performance v.

Russell, 691 So. 2d 929, 946 (Miss. 1997) (bifurcated judicial disciplinary process

presented “no more evidence of bias or the risk of bias . . . than inheres in the very fact that

the Board had investigated and would now adjudicate.”). Indeed, Judge White cites no

authority holding to the contrary.

22

We have previously recognized that due process provisions in the Maryland and

Federal Constitutions have the same meaning and therefore, Supreme Court decisions

interpreting due process claims function as authority for determining Maryland’s due

process requirements. See, e.g., Pitsenberger v. Pitsenberger, 287 Md. 20, 27 (1980).

25

By modifying our Rules of Procedure, we have taken steps intended to reduce the

potential that the Commission would learn of unfairly prejudicial information in its role as

investigator. At the Commission’s request in 2007, we created the Inquiry Board—which

would monitor investigations by Investigative Counsel, and submit a report and

recommendation to the Commission that filtered out any inadmissible evidence regarding

a pending case. See Md. Rule 18-404(j)(2) (“The information transmitted by the Board to

the Commission shall be limited to a proffer of evidence that the Board has determined

would be likely to be admitted at a plenary hearing.”) (emphasis added); see also Standing

Comm. on Rules of Practice and Procedure, 157th Report, 239 (2006); 157th Report of the

Standing Comm. on Rules of Practice and Procedure: Hearing, Court of Appeals of

Maryland (2007) (testimony of Sally D. Adkins, former Chair of the Comm’n on Judicial

Disabilities). We did not, however, undertake to insulate the Commission entirely from its

constitutionally authorized power to investigate, conduct hearings, and issue reprimands.

See Md. Const. art. 4, § 4B. We always bear in mind, that, absent violation of a Federal

constitutional right, we are constrained by the Maryland Constitution and the General

Assembly’s legislative mandates. White I, 451 Md. at 634–37, 646–47; In re Diener, 268

Md. at 688–89. The Commission was accorded the authority and obligation to investigate,

initiate prosecutions, and make decisions. Md. Const. art. IV, § 4B(a)(1)–(2). To override

a decision on the merits of a complaint by the Commission because it also made

26

preliminary decisions in its oversight of Investigative Counsel would, we think, run afoul

of the Maryland Constitution and the General Assembly’s legislative intent.23

Our own precedent also constrains us. We rejected an argument similar to Judge

White’s in Diener. 268 Md. at 679 (“It is well settled that a combination of investigative

and judicial functions within an agency does not violate due process.” (cleaned up)).

Before any finding of sanctionable conduct or discipline, Judge White appeared and

presented her defenses—both at the hearing on her motion to dismiss and at the evidentiary

hearing. We conclude that her lack of any personal appearance before the Commission,

23

We also conclude that the Commission’s oversight of Investigative Counsel does

not offend the requirement, in administrative law, that agencies maintain “ethics walls”

dividing adjudication processes from an agency’s investigatory processes. See Jeff Bush

& Kristal Wiitala Knutson, The Building and Maintenance of “Ethics Walls” in

Administrative Adjudicatory Proceedings, 24 J. Nat’l Ass’n Admin. L. Judges 1, 15–18

(2004) (explaining best practices for administrative agencies when separating adjudicatory

and investigatory functions of an agency).

Regardless of the hearing official’s employment or fiscal

relationship with a party agency, the hearing official should

exercise independence of action, decision, and judgment to

protect the due process rights of parties and achieve a legally

correct result in a case. The hearing official’s maintenance of

decisional independence from agency management and

programs is crucial.

Id. at 15. The Commission’s preliminary communications with Investigative Counsel do

not prevent the Commission from rendering a fair and impartial judgment after a hearing

on the merits of the Commission’s charges. Furthermore, the Commission is not beholden

to Investigative Counsel’s recommendations because the Commission, and not a superior

agency head with authority over the Commission, appoints Investigative Counsel. Id. at

2–6.

27

prior to her charging, did not violate the Rules and did not prevent her from being accorded

a fair proceeding.

Respondent made a request to appear before the Commission, but her request was

denied.24 Md. Rule 18-404(l) (Commission may authorize a judge, upon a written request

to “appear before the Commission on terms and conditions established by the

Commission.”). Nevertheless, she was given an opportunity to present written objections

to the Inquiry Board’s report. She did so and the Commission reviewed her objections.

Her correspondence with Investigative Counsel was always forwarded to the Inquiry Board

or the Commission for review. Most vitally, Judge White was afforded an opportunity, as

required by the Rules, to appear before the Commission after the issuance of charges. Md.

Rule 18-407(f).

Disclosure Of Inquiry Board Report

The Inquiry Board did not fully comply with the directions in the 2007 Rules

concerning the Inquiry Board, and Judge White claims foul play. She points to the failure

to promptly send her a copy of the Inquiry Board’s report regarding her case. See Md. Rule

18-404(j)(4). Respondent views the delay as prejudicial—claiming that it prevented her

from filing objections with the Commission to contest the Inquiry Board’s

recommendation of a finding that she committed sanctionable conduct and that she receive

a reprimand.

24

There is no record that Respondent or her attorneys requested an informal meeting

with the Inquiry Board, and Judge White does not argue that she did. See Md. Rule 18-

404(i) (“The [Inquiry] Board may meet informally with the judge for the purpose of

discussing an appropriate disposition.”).

28

The Rules require the Commission to promptly transmit a copy of the Inquiry

Board’s report to both Investigative Counsel and the respondent judge. Id. The judge and

Investigative Counsel then have the opportunity to file objections with the Commission.

Id. (k). After reviewing the Inquiry Board’s report and any timely objections, the

Commission can then proceed by dismissal, private reprimand or deferred discipline, 25 or

by filing public charges. See Md. Rules 18-406; 18-407(a).

The Inquiry Board submitted its report to the Commission on December 11, 2015,

but no copy was sent to Judge White. The report was not sent to Respondent until January

12, 21 days later, after she requested the report upon being notified that charges would be

filed. This was a clear violation of the Rule—Judge White should have been given a chance

to file objections to the Inquiry Board’s report prior to the Commission’s finding of

probable cause. Md. Rule 18-404(k)–(l). Upon learning of the mistake, the Commission

agreed to reconsider the matter after Respondent filed a written response to the report,

although it denied her a personal appearance. Respondent then filed extensive objections,

which the Commission reviewed before it proceeded to file public charges. A special

meeting was called on March 2, 2016 for the Commission to reconsider the case in light of

Respondent’s objections. It did so, with Investigative Counsel, but not Judge White or her

attorney present (other than through the papers they filed), and the Commission voted again

to find probable cause and proceed with public charges.

25

Both a warning, a private reprimand, and a “deferred disciplinary agreement” can

be rejected by the judge, in which case, the Commission must choose to proceed with

public charges under Md. Rule 18-407 or dismiss the matter.

29

Yet another aspect of this dispute is that when the Commission sent Judge White

the Inquiry Board’s report, it declined to send Investigative Counsel’s May 19, 2015

memorandum, which was an attachment thereto. Judge White challenged that, when filing

this mandamus action, she still had not seen that memorandum. The Commission

maintained that the memorandum was attorney work product and therefore confidential.

The attorney work product doctrine protects from disclosure “the work of an attorney done

in anticipation of litigation or in readiness for trial.” E.I. du Pont de Nemours & Co. v.

Forma-Pack, Inc., 351 Md. 396, 407 (1998). “When confronted with the work product

doctrine, courts must balance the need for efficient litigation through liberal disclosure

against the attorney’s responsibility to be a zealous and protective advocate . . . .” Id. An

attorney’s “strategies, theories, and mental impressions” are attorney work product.

Storetrax.com, Inc. v. Gurland, 168 Md. App. 50, 93 (2006), aff’d, 397 Md. 37 (2007).

Based on the Commission’s assertion of privileged work product, we decided to

conduct an in camera inspection of Investigative Counsel’s memorandum. Order, Matter

of White, Misc. No. 5, Sept. 2016 Term (Md. Ct. App. June 2, 2017). Upon that

examination we found no confidential information regarding the complaints against Judge

White or Investigative Counsel’s “strategies, theories, and mental impressions.”

Accordingly, Investigative Counsel had no reason to withhold the memorandum because

it was not subject to attorney work product protection. See Forma-Pack, 351 Md. at 407;

Gurland, 168 Md. App. at 93.

Although we sympathize with Judge White’s vexation regarding Investigative

Counsel’s repeated rejections of her request to review the memorandum, we struggle to

30

understand how disclosure of the memorandum, or earlier transmission of the Inquiry

Board report would have bolstered her ability to defend against the complaints.

In an attorney discipline case from the Supreme Court of Vermont, a review board

(operating like the Commission), adopted one version of a preliminary discipline

recommendation, and then a second version, without allowing the respondent attorney an

opportunity, guaranteed by the Vermont rules, to respond to the second version. In re

Illuzzi, 616 A.2d 233, 234 (Vt. 1992) (per curiam). There, the court concluded that the

respondent attorney was entitled to a rehearing on the second version of the

recommendation. Id. at 235. The court reasoned that these circumstances denied the

attorney an opportunity to address the issues raised in the subsequent report. Id. But here,

the Commission had already revisited the issue of probable cause after Judge White had

an opportunity to respond to the Inquiry Board’s report.

Judge White provides no authority for her position that the Commission’s improper

delay in forwarding of the Inquiry Board’s report violated her right to a fair proceeding.

Her only argument is that the delayed transmission impaired her ability to adequately

respond to the Inquiry Board’s conclusions in the report. This assertion ignores the fact

that, after prematurely determining the issue of probable cause, the Commission

reconsidered her case after reviewing her objections and still found probable cause. This

is not a violation of due process. See Wilson, 389 Md. at 92. Without a due process

violation in this mandamus action, we have no jurisdiction to second-guess the validity of

the Commission’s reconsideration of the probable cause question in light of the objections

and memorandum filed by Judge White’s counsel.

31

II. PROCEEDINGS AFTER CHARGES FILED

The second category of Judge White’s complaints relates to events occurring after

public charges were filed against her.

Discovery

Judge White contends that the Commission improperly limited the scope of

discovery before her evidentiary hearing, thus prejudicing her ability to provide a defense.

Specifically, Respondent objects to the Commission’s striking the interrogatories and

request for admissions she served upon Investigative Counsel.

Maryland Rule 18-407(g)(3) provides that the discovery rules for civil actions in the

circuit courts shall apply to proceedings before the Commission. That same Rule also

states that the “Chair of the Commission, rather than the court, may limit the scope of

discovery, enter protective orders permitted by Rule 2-403, and resolve other discovery

issues.” Id. In addition to the civil discovery methods mentioned by this Rule, Md. Rule

18-407(f) also allows the Judge to inspect and copy the Commission record and to

subpoena witnesses and the production of documents or other tangible evidence.

Judge White embraced her right to inspect and copy the Commission record as

provided by Md. Rule 18-407(f). In addition, Investigative Counsel furnished her,

belatedly, with a copy of the Inquiry Board’s report. Wanting still more information to

mount a defense of the charges against her, Judge White served Investigative Counsel with

interrogatories and a request for admissions. Most of Respondent’s interrogatories

requested that Investigative Counsel provide further explanation of Judge White’s

32

“sanctionable conduct.” Respondent also requested the identification of any facts or

evidence reported by Investigative Counsel to the Inquiry Board or the Commission.

Investigative Counsel proffered several reasons why the Chair of the Commission

should strike Judge White’s discovery requests. First, Investigative Counsel argued that

the civil discovery rules provided in Rule 2-401 et seq. only apply to a “party,” and she

was not a “party,” but merely an “attorney appointed by the Commission.” She also

contended that the interrogatories requested her work product, presumably the May 19,

2015 memorandum.

The Commission agreed with Investigative Counsel and struck Judge White’s

discovery requests. Specifically, the Chair agreed that Investigative Counsel should not be

considered a “party” for purposes of applying the civil discovery rules in a judicial

discipline case. Before this Court, the Commission continues to assert that the Chair

properly limited the scope of discovery as permitted by Md. Rule 18-407(g)(3).

The Commission is wrong—discovery cannot be refused on the grounds that

Investigative Counsel is not a party.26 If the Chair could entirely prohibit a respondent

judge’s use of civil discovery because Investigative Counsel is not a “party,” Md. Rule 18-

407(g)(3) would be meaningless. Moreover, such interpretation would also, to be

consistent, preclude discovery sought by Investigative Counsel, which is not a result we

intended. We decline such interpretation of the Rule.

26

The civil discovery rules are to be utilized by one “party” to request information

from another “party.” See Md. Rules 2-411 (depositions); 2-421(a) (interrogatories); 2-

422(a) (requests for production of documents); 2-424(a) (requests for admissions).

33

The procedures in attorney grievance cases are analogous. In attorney grievance

cases, Md. Rule 19-72627—governing discovery—like Md. Rule 18-407(g)(3), also

provides for application of the civil discovery rules. There, interrogatories and requests

for admissions are frequently issued and answered by both Bar Counsel and respondent

attorneys. See, e.g., Attorney Grievance Comm’n v. Frost, 437 Md. 245, 260–61 (2014).

Although Investigative Counsel is an agent of the Commission, she serves nearly the same

function as Bar Counsel in attorney grievance cases. Compare Md. Rules 18-404–407

(powers and responsibilities of Investigative Counsel), with Md. Rule 19-703(b) (powers

and responsibilities of Bar Counsel). We conclude that for purposes of the discovery rules,

Investigative Counsel is a “party” to judicial discipline cases and the civil discovery rules

apply accordingly. Thus, the Commission improperly struck Judge White’s interrogatories

and request for admissions.

Judge White relies on Sapero v. Mayor & City Council of Baltimore, 398 Md. 317,

345–46 (2007), to assert that a complete refusal of discovery results in a violation of due

process. In Sapero, this Court vacated a quick-take condemnation procedure giving an

individual only ten days after being served with a petition for immediate taking of

possession and title to file an answer challenging the City’s right to condemn, and requiring

that a hearing on the merits occur within 15 days thereafter. Id. at 322. This meant that

discovery was virtually impossible, and time to prepare for litigation “drastically

27

Md. Rule 19-726 provides: “After a Petition for Disciplinary or Remedial Action

has been filed, discovery is governed by Title 2, Chapter 400, subject to any scheduling

order entered pursuant to Rule 19-722.” (Emphasis added).

34

shortened.” Id. at 345.28 We held that this shortened procedure, allowing no discovery by

the property owner, violated due process because “the timing under which quick-take

condemnation takes place . . . severely and prohibitively restricts a party’s ability to

prepare for the hearing to challenge the quick-take condemnation.” Id. at 346. The Court

explained, comparing the quick-take procedure with regular condemnation proceedings:

These quick-take condemnations deal with the fundamental

right to property, and any resulting deprivation of process—

that which is normally provided under regular condemnation

proceedings—should not occur unless warranted by extreme

circumstances. Such extreme circumstances can arise when

there is an immediate threat to the public health, safety, and

welfare, or possibly in extreme cases of “hold-outs[.]”

Id. at 347 (citations omitted).

In evaluating the proceedings before the Commission involving Judge White, we

recall that

[t]he fundamental objective of discovery is to advance the

sound and expeditious administration of justice by eliminating,

as far as possible, the necessity of any party to litigation going

to trial in a confused or muddled state of mind, concerning the

facts that gave rise to the litigation.

Rodriguez v. Clarke, 400 Md. 39, 57 (2007) (cleaned up).

But unlike the parties denied discovery in Sapero and Rodriquez, Judge White had

a full opportunity for discovery—despite the Chair’s discovery ruling. The Rules already

require Investigative Counsel to provide open-file discovery to the respondent judge. See

Md. Rule 18-407(g)(1) (“Upon request of the judge at any time after service of charges

28

The City refused discovery in full. Sapero v. Mayor & City Council of Baltimore,

398 Md. 317, 345–46 (2007).

35

upon the judge, Investigative Counsel shall promptly (A) allow the judge to inspect the

Commission Record and to copy all evidence accumulated during the investigation . . . .”).

Judge White had notice of the charges against her and was informed of the conduct the

Commission reviewed when deciding to issue charges. The Commission’s record, which

she reviewed, indicated that Investigative Counsel intended to rely exclusively upon the

video recordings and transcripts of Judge White’s behavior at the Joyner hearings—and

that is exactly what occurred. Although Respondent claims that she went into her

evidentiary hearing “confused and muddled” as to the facts giving rise to her charges, the

record reveals the contrary. Her detailed arguments in response to the Inquiry Board’s

report to the Commission, in her motion to dismiss, and her defenses to the charges, all

indicate that she perfectly understood the nature of the allegations against her. 29

29

Judge White also tries to make hay with an indeterminate argument that a so-

called “third complaint” filed by Mr. Jones that was not the subject of these charges

somehow tainted the Commission’s decision because it accused her of racial

discrimination. Mr. Jones’s complaint, which incorporated by reference his first two

complaints, challenges the Commission’s non-action, which he said, “force[s] me (before

the end of this month if nothing is done by the Commission) to consider federal court and/or

E[qual] E[mployment] O[pportunity] C[omission] involvement.” He used the term

“prejudice” repeatedly, but seemed to refer to Judge White’s own acknowledgment that

she was biased because she found him fully incredulous. The only hint in his complaint

that he thought her bias was racial was his threat to complain to the EEOC. We do not see

how this third complaint possibly could have prejudiced the Commission. First,

Investigative Counsel took no action on the third complaint, and there was no suggestion

in the charges or at the evidentiary hearing that Respondent was racially biased. We do

not even know if the Commission members saw the document. Second, the third complaint

was merely a reiteration of his first two complaints, neither of which alleged racial

discrimination. The mere mention of the EEOC by Mr. Jones would create no prejudice

and provides no basis for relief for Judge White in this mandamus action.

36

Because the evidence adduced against her consisted strictly of transcripts of

hearings and Jones’s complaints that were disclosed to her well before the hearing,

although the Commission improperly struck Judge White’s discovery requests, we

conclude that this mistake did not result in in a fundamentally unfair hearing—because it

resulted in no prejudice to her. An appropriate discovery response would only have

identified these transcripts and complaints and perhaps reproduced them for her

attorneys.30 Investigative Counsel had already sent to Judge White’s counsel copies of the

complaints and recordings of each of the disputed hearings on April 17, 2015.

The Commission Hearing

Judge White has several complaints about the evidentiary hearing before the

Commission. First, she contends that the Commission violated her due process rights by

preventing her from offering relevant evidence, in the form of witness testimony.

Specifically, she objects to the Commission’s decision to limit her examinations of her

witnesses to only ten minutes each. Respondent contends that the witnesses would have

presented valuable “mitigation evidence” relevant to the charged misconduct and her

decision not to recuse herself from the show cause proceedings involving Jones. She

asserts that the excluded evidence would have detailed the circumstances giving rise to the

contempt finding against Jones and explained the proper functioning and importance of the

ADR system.

30

The Commission Chair may have discerned that requiring Investigative Counsel

to answer interrogatories or produce further documents would be futile in light of the nature

of the charges and White’s counsel’s having already reviewed the Commission file.

37

The Commission limited Judge White’s presentation of witnesses. Investigative

Counsel argued that the proffered testimony—regarding the Circuit Court’s ADR program

and Jones’s interactions with opposing counsel—was irrelevant to determining whether

Judge White committed sanctionable misconduct. Without explaining the reasoning for its

ruling, the Commission limited the testimony of Judge Pierson, Judge Smith, and Judge

Handy to ten minutes each. The Commission further limited the testimony of Mr.

Stephenson and Mr. Trueman to matters related to the pretrial settlement conference.

Administrative or quasi-administrative agencies, such as the Commission, “must

observe the basic rules of fairness as to parties appearing before them so as to comport with

the requirements of procedural due process . . . .” Travers v. Baltimore Police Dep’t, 115

Md. App. 395, 411 (1997); see also Schultz v. Pritts, 291 Md. 1, 7 (1981). Evidentiary

rulings can violate a party’s due process rights when, for example, the administrative body

considers additional evidence after the close of the hearing and without providing an

opportunity for cross-examination or rebuttal. Maryland State Police v. Zeigler, 330 Md.

540, 557 (1993). Otherwise, evidentiary rulings are traditionally within the discretion of

the administrative body, and we will only find error when such a ruling offends basic rules

of fairness. See, e.g., Travers, 115 Md. App. at 413–17.

We see no violation of due process here. The Commission charged Judge White

with misconduct for allegedly treating Jones in an unprofessional manner and failing to

recuse herself from his show cause proceedings after stating her bias against him. Although

the proffered testimony of Judge White’s witnesses might have been relevant for

mitigation—to explain why Judge White was justifiably perturbed with Mr. Jones, they

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were not relevant to the charges of misconduct. A judge cannot justify unprofessional

treatment of a litigant on the judge’s personal misgivings with that litigant.31 Judge White

seems to agree that the testimony of these witnesses related only to mitigation.

Although the testimony was limited in time, her witnesses still managed to testify

extensively regarding Judge White’s good character and her role as supervisor of the ADR

program. Before this Court, Judge White has offered no example of any further evidence

that these witnesses could have offered if allowed to testify beyond the limitations imposed

by the Commission. We see no violation of due process on this record. See Zeigler, 330

Md. at 559–60. Investigative Counsel’s case consisted merely of the recordings and

transcripts of the hearings in Joyner, and Jones’s complaints. Allowing Judge White to

present several character witnesses, and unfettered testimony of her own, complied with

the basic principles of fairness and did not violate her due process rights.

MCJC 1.2 Violation

Judge White finally argues that the Commission sanctioned her for conduct beyond

the scope of the charges when it determined there were violations of MCJC 1.2

(“Promoting Confidence in the Judiciary”)32 relating to the May 5, 2014 hearing. This

contention is belied by the record.

31

Difficult litigants test the mettle of any trial judge. But we would indeed be

stepping onto a slippery slope if we held that judges could violate professional rules in

response to rule-breaking or other misconduct by litigants who appear before them. Md.

Rule 18-101.2(a) requires that, “[a] judge shall act at all times in a manner that promotes

public confidence in the independence, integrity, and impartiality of the judiciary.”

(emphasis added).

32

Md. Rule 18-101.2(a).

39

The charges include the following language:

The investigation specifically revealed the following facts

upon which the charges are based: Judge White presided over

certain hearings in [the Joyner case] in which Rev. Jones

represented the plaintiff. At issue in this investigation was

Judge White’s conduct during the May 5, 2014, October 15,

2014[,] and October 31, 2014 hearings.

The charges alleged that she violated MCJC 1.2, and closed by stating that “Judge

White’s behavior provides evidence that Judge White engaged in conduct that was

prejudicial to the proper administration of justice in Maryland Courts . . . .” Ultimately,

the Commission concluded that Judge White’s “treatment of Rev. Jones at the May 5, 2014,

and October 15, 2014 [hearings], is proof of, and constitutes a violation of [MCJC 1.2].”

Certainly, judges facing disciplinary proceedings are entitled to notice of the

charges against them. Cf. Attorney Grievance Comm’n v. Seiden, 373 Md. 409, 416–21

(2003). A judge’s due process rights are violated, for example, when discipline is based

on a rule violation that was not charged. Id.; see also In re Ruffalo, 390 U.S. 544, 550–51

(1968) (attorney discipline charges “must be known before the proceedings

commence. . . . [and] become a trap when, after they are underway, the charges are

amended on the basis of testimony of the accused.”).

Here though, Judge White was charged with violating MCJC 1.2, and her conduct

at the hearings on May 5, 2014 was identified as a basis for the charges. Unlike the

respondents in Seiden and Ruffalo, who were not charged with the rule violations they were

ultimately found to have committed, Judge White knew that her conduct at this hearing

was part of the complaint and would be considered by the Commission. She had notice of

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the charged misconduct attributed to her behavior at the May 5, 2014 hearing and the

Commission’s sanction did not exceed the charges.

CONCLUSION

“An accused judge is entitled to a fair proceeding, but not necessarily a perfect

proceeding.” White I, 451 Md. at 648. As we have detailed, the proceeding before the

Commission certainly was not perfect—several mistakes were made. But in this

mandamus proceeding, we look only to whether Judge White received the fundamental due

process protections under the Maryland Constitution and our Rules, namely “notice, an

opportunity to respond, [and] a fair hearing . . . .” Id. Our careful scrutiny of the record

convinces us that she did.

PETITION FOR WRIT OF

MANDAMUS DENIED. JUDGMENT

ENTERED IN FAVOR OF THE

MARYLAND COMMISSION ON

JUDICIAL DISABILITIES. COSTS

TO BE PAID BY JUDGE PAMELA J.

WHITE.

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