COURT OF APPEALS STANDING COMMITTEE

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ON RULES OF PRACTICE AND PROCEDURE

Minutes of a meeting of the Rules Committee held in Rooms

UL4 and 5 of the Judiciary Education and Training Center, 2011

Commerce Park Drive, Annapolis, Maryland on September 8, 2016.

Members present:

Hon. Alan M. Wilner, Chair

H. Kenneth Armstrong, Esq.

James E. Carbine, Esq.

Hon. John P. Davey

Christopher R. Dunn, Esq.

Hon. Angela M. Eaves

Hon. JoAnn M. Ellinghaus-Jones

Victor H. Laws, III, Esq.

Bruce L. Marcus, Esq.

Donna Ellen McBride, Esq.

Hon. Danielle M. Mosley

Hon. Douglas R. M. Nazarian

Hon. Paul A. Price

Scott D. Shellenberger, Esq.

Steven M. Sullivan, Esq.

Dennis J. Weaver, Clerk

Robert Zarbin, Esq.

In attendance:

Sandra F. Haines, Esq., Reporter

David R. Durfee, Jr., Esq., Assistant Reporter

Sherie B. Libber, Esq., Assistant Reporter

Hon. Anne L. Dodd, Orphans’ Court for Howard County

William T. Lawrie, Esq., Office of the Attorney General

Ms. Calisa Smith, Court of Special Appeals

Michele Gagnon, Esq., Lyons, Doughty & Veldhuis PC/PA

D. Robert Enten, Esq., Gordon Feinblatt, LLC

Jeffrey B. Fisher, Esq.

Ms. Hilda Austin

Lauren E. Kitzmiller, Esq., District Court Headquarters

Tanya Bernstein, Esq., Commission on Judicial Disabilities

Hon. Alexander Wright, Jr., Chair, Commission on Judicial

Disabilities

Carol A. Crawford, Esq., Executive Director, Commission on

Judicial Disabilities

Phillip Robinson, Esq., Consumer Law Center, LLC

Gregory Hilton, Clerk, Court of Special Appeals

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Allan J. Gibber, Esq., Neuberger, Quinn, Gielen, Rubin &

Gibber, P.A.

Charlotte K. Cathell, Register of Wills for Worcester County

Margaret H. Phipps, Register of Wills for Calvert County

Byron E. Macfarlane, Register of Wills for Howard County

Anne C. Ogletree, Esq.

Stephane Latour, Esq., Legal Affairs, Administrative Office of

the Courts

Kim Doan, Esq., Circuit Court for Anne Arundel County, Office

of Case Management

Leland Sampson, Executive Assistant, Administrative Office of

the Courts

Faye D. Matthews, Deputy State Court Administrator,

Administrative Office of the Courts

Michele J. McDonald, Esq., Office of the Attorney General,

Courts and Judicial Affairs

The Chair convened the meeting.

He welcomed everyone back

from the summer break.

Agenda Item 1. Consideration of proposed revised Title 18, Chapter

400 (Judicial Disabilities and Discipline)

___________________________________________________________________

The Chair told the Committee that an earlier version of

proposed revisions to Title 18, Chapter 400, the Rules on

Judicial Disabilities and Discipline, had been before the

Committee and had been approved.

The Rules had been included in

a Supplement to Part II of the 178th Report to the Court of

Appeals.

He explained that the draft had been worked out in

collaboration with the Chair of the Judicial Disabilities

Commission and Investigative Counsel, and it seemed that

everything was as it should be.

However, prior to the Court’s

hearing, some concerns were expressed by a few former members of

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the Commission and the Inquiry Board, mostly on how to handle

recommendations by Investigative Counsel that a complaint be

dismissed.

Under the current Rule, those recommendations went

to the Inquiry Board for consideration and then to the

Commission, which had the final say over whether the complaint

should be dismissed.

The draft Rule provided that those

recommendations of dismissal of the complaint be sent directly

to the Commission and not to the Board.

whether that was a good policy.

There was some question

Prior to the Court hearing,

when this issue surfaced, the Chair asked the Court to let the

Rules Committee speak with the people who had raised these

concerns, the current Chair of the Commission, and Investigative

Counsel.

The Court agreed to this.

The current Rule was left

unchanged but renumbered as part of the revision contained in

the Report.

After discussions at several meetings, a compromise

was reached.

The Chair explained that the solution was to permit

recommendations of outright dismissal of the complaint with no

warning to go directly to the Commission.

The judge is not

going to complain about the outcome, so there would be no

controversy.

But if the recommendation of Investigative Counsel

is to dismiss with a warning – there has been a suggestion to

change this terminology – it would go to the Inquiry Board for

consideration.

There may be some question in that situation

regarding whether dismissal is a proper disposition and what the

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warning should say.

Rather than the Commission getting directly

involved up front, this is something that the Board should

review first.

The Chair noted that as this issue was being resolved, some

other issues came up.

The Rules that are before the Committee

today have additional changes, most of which are not

substantive.

The Chair said that he would go through the changes to each

Rule.

The Chair presented Rule 18-401, Commission on Judicial

Disabilities – Definitions, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-401. COMMISSION ON JUDICIAL

DISABILITIES - DEFINITIONS

In The following definitions apply in

this Chapter the following definitions apply

except as otherwise expressly otherwise

provided or as necessary implication

requires:

(a)

Address of Record

"Address of record" means a judge's

current home address or another address

designated in writing by the judge.

Cross reference: See Rule 18-409 (a)(1) 18410 (a) concerning confidentiality of a

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judge's home address.

(b)

Board

"Board" means the Judicial Inquiry

Board appointed pursuant to Rule 18-403.

(c)

Charges

"Charges" means the charges filed

with the Commission by Investigative Counsel

pursuant to Rule 18-407 18-408.

(d)

Commission

"Commission" means the Commission on

Judicial Disabilities created by Art. IV,

§4A of the Maryland Constitution.

(e)

Commission Record

"Commission record" means all

documents pertaining to the judge who is the

subject of charges that are filed with the

Commission or made available to any member

of the Commission and the record of all

proceedings conducted by the Commission with

respect to that judge.

Cross reference:

(f)

See Rule 18-402 (g).

Complainant

"Complainant" means a person who has

filed a complaint, and in Rule 18-404

(a)(1), (a)(3), and (a)(4), “complainant”

also includes a person who has filed a

written allegation of misconduct by or

disability of a judge that is not under oath

or supported by an affidavit.

(g)

Complaint

“Complaint” means a written

communication under oath or supported by an

affidavit alleging that a judge has a

disability or has committed sanctionable

conduct.

(h)

Disability

"Disability" means a mental or

physical disability that seriously

interferes with the performance of a judge's

duties and is, or is likely to become,

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permanent.

(i) Formal Complaint

“Formal complaint” means a written

communication under affidavit signed by the

complainant, alleging facts indicating that

a judge has a disability or has committed

sanctionable conduct.

Committee note: The complainant may comply

with the affidavit requirement of this

section by signing a statement in the

following form: “I solemnly affirm under

the penalties of perjury that the contents

of the foregoing paper are true to the best

of my knowledge, information, and belief.”

It is not required that the complainant

appear before a notary public.

(j) (i)

Judge

"Judge" means (1) a judge of the

Court of Appeals, the Court of Special

Appeals, a circuit court, the District

Court, or an orphans' court, and (2) a

retired judge during any period that the

retired judge has been approved to sit for

recall.

Cross reference: See Md. Const., Art. 4,

§3A and Code, Courts Article, §1-302.

(k) (j) Sanctionable Conduct

(1) "Sanctionable conduct" means

misconduct while in office, the persistent

failure by a judge to perform the duties of

the judge's office, or conduct prejudicial

to the proper administration of justice. A

judge's violation of any of the provisions

of the Maryland Code of Judicial Conduct

promulgated by Title 18, Chapter 100 may

constitute sanctionable conduct.

(2) Unless the conduct is occasioned by

fraud or corrupt motive or raises a

substantial question as to the judge's

fitness for office, "sanctionable conduct"

does not include:

(A) making an erroneous finding of

fact, reaching an incorrect legal

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conclusion, or misapplying the law; or

(B) failure to decide matters in a

timely fashion unless such failure is

habitual.

Committee note: Sanctionable conduct does

not include a judge's simply making wrong

decisions - even very wrong decisions - in

particular cases.

Cross reference: Md. Const., Art. IV, §4B

(b)(1). For powers of the Commission in

regard to any investigation or proceeding

under §4B of Article IV of the Constitution,

see Code, Courts Article, §§13-401 to

through 13-403.

Source: This Rule is derived from former

Rule 16-803 (2016).

The Chair said that Rule 18-401 has no substantive change

from the version the Committee previously had seen and approved.

By consensus, the Committee approved Rule 18-401 as

presented.

The Chair presented Rule 18-402, Commission, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-402.

(a)

COMMISSION

Chair and Vice Chair

The judicial member from the Court of

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Special Appeals shall serve as Chair of the

Commission. The Commission shall select one

of its another of its judicial members to

serve as Chair and another to serve as Vice

Chair for such terms as the Commission shall

determine. The Vice Chair shall perform the

duties of the Chair whenever the Chair is

disqualified or otherwise unable to act.

(b)

Interested Member Recusal

A member of the Commission shall not

participate as a member in any proceeding in

which (1) the member is a complainant, (2)

the member's disability or sanctionable

conduct is in issue, (3) the member's

impartiality might reasonably might be

questioned, (4) the member has personal

knowledge of disputed material evidentiary

facts involved in the proceeding, or (5) the

recusal of a judicial member would otherwise

would be required by the Maryland Code of

Judicial Conduct.

Cross reference: See Md. Const., Article

IV, §4B (a), providing that the Governor

shall appoint a substitute member of the

Commission for the purpose of a proceeding

against a member of the Commission.

The Commission may select an attorney

as Executive Secretary. The Executive

Secretary shall serve at the pleasure of the

Commission, advise and assist the

Commission, have other administrative powers

and duties assigned by the Commission, and

receive the compensation set forth in the

budget of the Commission.

(d) Investigative Counsel; Assistants

(1) Appointment; Compensation

The Commission shall appoint an

attorney as Investigative Counsel. Before

appointing Investigative Counsel, the

Commission shall notify bar associations and

the general public of the vacancy and shall

consider any recommendations that are timely

submitted. Investigative Counsel shall

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serve at the pleasure of the Commission and

shall receive the compensation set forth in

the budget of the Commission.

(2) Duties

Investigative Counsel shall have the

powers and duties set forth in these the

Rules in this Chapter and shall report and

make recommendations to the Commission as

required under these Rules or directed by

the Commission.

(3) Additional Attorneys and Staff

As the need arises and to the extent

funds are available in the Commission's

budget, the Commission may appoint

additional attorneys or other persons to

assist Investigative Counsel. Investigative

Counsel shall keep an accurate record of the

time and expenses of additional persons

employed and ensure that the cost does not

exceed the amount allocated by the

Commission.

(e) Quorum

The presence of a majority of the

members of the Commission constitutes a

quorum for the transaction of business,

provided that at least one judge, one lawyer

attorney, and one public member are present.

At a hearing on charges held pursuant to

Rule 18-407 18-408 (i), a Commission member

is present only if the member is physically

present in person. Under all other

circumstances, a member may be physically

present in person or present by telephone,

video, or other electronic conferencing.

Other than adjournment of a meeting for lack

of a quorum, no action may be taken by the

Commission without the concurrence of a

majority of members of the Commission.

(f) General Powers of Commission

In accordance with Maryland

Constitution, Article IV, §4B and Code,

Courts Article, §13-401 through 13-403, and

in addition to any other powers provided in

the Rules in this Chapter, the Commission

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may:

(1) administer oaths and affirmations;

(2) issue subpoenas and compel the

attendance of witnesses and the production

of evidence;

(3) require persons to testify and

produce evidence by granting them immunity

from prosecution or from penalty or

forfeiture; and

(4) in case of contumacy by any person

or refusal to obey a subpoena issued by the

Commission, invoke the aid of the circuit

court for the county where the person

resides or carries on a business.

(f) (g) Record

The Commission shall keep a record of

all documents filed with the Commission and

all proceedings conducted by the Commission

concerning a judge, subject to a retention

schedule determined by the Commission.

(g) (h) Annual Report

The Not later than September 1 of each

year, the Commission shall submit an annual

report to the Court of Appeals, not later

than September 1, regarding its operations

and including. The Report shall include

statistical data with respect to complaints

received and processed, subject to the

provisions of Rule 18-409 but shall not

include material declared confidential under

Rule 18-417.

(h) (i) Request for Home Address

Upon request by the Commission or the

Chair of the Commission, the Administrative

Office of the Courts shall supply to the

Commission the current home address of each

judge.

Cross reference: See Rules 18-401 (a) and

18-409 (a)(1) 18-417 (a).

Source: This Rule is derived from former

Rule 16-804 (2016).

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The Chair said that Rule 18-402 addresses the Commission on

Judicial Disabilities.

Section (a) poses a policy question.

Neither the Constitution, which created the Commission in

Article IV, §§4A and 4B, nor Code, Courts Article, §13-401, that

was passed by the legislature to implement that provision,

provide for the existence of a Chair and Vice Chair of the

Commission.

The Chair noted that the Commission consists of 11

individuals, all appointed by the Governor.

judges:

There are three

one from the District Court, one from a circuit court,

and one from the Court of Special Appeals.

There are also three

attorneys and five members of the public.

With one exception,

the member from the Court of Special Appeals has always been the

Chair of the Commission.

The one exception was that for a time,

the Hon. Barbara Howe, who was a circuit court judge, was the

Chair.

The Chair commented that the proposal before the Committee

is to provide for the selection of the Chair and Vice Chair in

the Rule.

Section (a) states that the judicial member from the

Court of Special Appeals will be the Chair and that the Vice

Chair will be one of the other two judges.

The Chair explained that section (f) sets forth the general

powers of the Commission.

section (f).

There is no substantive change in

The powers are those that are provided for in the

Constitution itself.

The thought was that they should be in the

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Rule for transparency and completeness.

Sections (g) and (h)

have some modifications, but they are mostly clarification and

style changes.

By consensus, the Committee approved Rule 18-402 as

presented.

The Chair presented Rule 18-403, Judicial Inquiry Board,

for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-403.

(a)

JUDICIAL INQUIRY BOARD

Creation and Composition

The Commission shall appoint a

Judicial Inquiry Board consisting of two

judges, two attorneys, and three public

members who are not attorneys or judges. No

member of the Commission may serve on the

Board.

(b)

Compensation

A member of the Board may not receive

compensation for serving in that capacity

but is entitled to reimbursement for

expenses reasonably incurred in the

performance of official duties in accordance

with standard State travel regulations.

(c)

Chair and Vice Chair

The Chair of the Commission shall

designate a judicial member of the Board who

is a lawyer or judge to serve as Chair of

the Board and the other judicial member to

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serve as Vice Chair. The Vice Chair shall

perform the duties of the Chair whenever the

Chair is disqualified or otherwise unable to

act.

(d)

Removal or Replacement

The Commission by majority vote may

remove or replace members of the Board at

any time.

(e)

Quorum

The presence of a majority of the

members of the Board constitutes a quorum

for the transaction of business, so long as

at least one judge, one lawyer attorney, and

one public member are present. A member of

the Board may be physically present in

person or present by telephone, video, or

video other electronic conferencing. Other

than adjournment of a meeting for lack of a

quorum, no action may be taken by the Board

without the concurrence of a majority of

members of the Board.

(f) Powers and Duties

The powers and duties of the Board are

set forth in Rules 18-404 and 18-405.

(g) (f)

Record

The Board shall keep a record of all

documents filed with the Board and all

proceedings conducted by the Board

concerning a judge. The Executive Secretary

of the Commission shall attend the Board

meetings and keep a record of those meetings

in the form that the Commission requires,

subject to the retention schedule

established by the Commission.

Source: This Rule is derived from former

Rule 16-804.1 (2016).

The Chair said that the same policy question addressed in

Rule 18-402 exists in Rule 18-403 regarding the existence of the

Chair and Vice Chair of the Judicial Inquiry Board.

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He said

that they should be judges and not public members or attorneys.

This is provided for in section (c).

that are not substantive.

Section (f) has amendments

They add the current practice for the

record before the Board into the Rule.

By consensus, the Committee approved Rule 18-403 as

presented.

The Chair presented Rule 18-404, Complaints; Initial Review

by Investigative Counsel, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-404. COMPLAINTS; PRELIMINARY

INVESTIGATIONS INITIAL REVIEW BY

INVESTIGATIVE COUNSEL

(a) Procedure on Receipt of Complaints

(1) Referral to Investigative Counsel

All The Commission shall refer all

complaints and other written allegations of

misconduct or disability against a judge

shall be sent to Investigative Counsel.

Complaint that Fails to Allege Disability or

Sanctionable Conduct

If Investigative Counsel concludes

that the a complaint does not fails to

allege facts that, if true, would constitute

a disability or sanctionable conduct and

that there are no reasonable grounds for a

preliminary investigation, Investigative

Counsel shall (A) dismiss the complaint, and

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(B) notify the Complainant and the

Commission, in writing, that the complaint

was filed and dismissed and the reasons for

the dismissal. If a complainant does not

file a formal complaint within the time

stated in section (a) of this Rule,

Investigative Counsel may dismiss the

complaint. Upon dismissing a complaint,

Investigative Counsel shall notify the

complainant and the Commission that the

complaint has been dismissed. If the judge

has learned of the complaint and has

requested notification, Investigative

Counsel shall also notify the judge that the

complaint has been dismissed.

Committee note: Subsection (a)(2) of this

Rule does not preclude Investigative Counsel

from communicating with the complainant or

making an inquiry under Rule 18-405 in order

to clarify general or ambiguous allegations

that may suggest a disability or

sanctionable conduct. Outright dismissal is

warranted when the complaint, on its face,

complains only of conduct that clearly does

not constitute a disability or sanctionable

conduct.

(3) Written Allegation of Disability or

Sanctionable Conduct not Under Oath or

Supported by Affidavit

Except as provided by section (c) of

this Rule, the Commission may not act upon a

written allegation of misconduct or

disability unless it is a complaint. Upon

receiving a complaint that does not qualify

as a formal complaint but indicates If a

written allegation alleges facts indicating

that a judge may have a disability or may

have committed sanctionable conduct but is

not under oath or supported by an affidavit,

Investigative Counsel, if possible, shall,

if possible: (1) (A) inform the complainant

of the right to file a formal complaint that

the Commission acts only upon complaints

under oath or supported by an affidavit, (2)

(B) inform provide the complainant that a

formal complaint must be supported by with

an appropriate form of affidavit and provide

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the complainant with the appropriate form of

affidavit, and (3) (C) inform the

complainant that unless a formal complaint

under oath or supported by an affidavit is

filed within 30 days after the date of the

notice, Investigative Counsel is not

required to take action, and the complaint

the matter may be dismissed.

(4) Failure to File Complaint Under Oath

or Supported by Affidavit

If, after Investigative Counsel has

given the notice provided for in subsection

(a)(3) of this Rule or has been unable to do

so, the complainant fails to file a timely

complaint under oath or supported by an

affidavit, Investigative Counsel may dismiss

the matter and notify the complainant and

the Commission, in writing, that a written

allegation of misconduct or disability was

filed and dismissed and the reasons for the

dismissal.

Committee note: In contrast to dismissal of

a complaint under Rule 18-405, which

requires action by the Commission,

Investigative Counsel may dismiss an

allegation of disability or sanctionable

conduct under this Rule when, for the

reasons noted, the allegation fails to

constitute a complaint. Subject to section

complaint, there is no basis for conducting

an investigation.

(b) Formal Complaints Opening File on

Receipt of Complaint

Investigative Counsel shall number and

open a numbered file on each formal properly

filed complaint received and promptly in

writing (1) acknowledge receipt of the

complaint and (2) explain to the complainant

the procedure for investigating and

processing the complaint.

(d) (c) Inquiry

Upon receiving information from any

source indicating that a judge may have a

disability or may have committed

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sanctionable conduct, Investigative Counsel

may open a file and make an inquiry. An

inquiry may include obtaining additional

information from a complainant and any

potential witnesses, reviewing public

records, obtaining transcripts of court

proceedings, and communicating informally

with the judge. Following the inquiry,

Investigative Counsel shall (1) close the

file and dismiss any complaint in conformity

with section (c) subsection (a)(2) of this

Rule or (2) proceed as if a formal complaint

had been properly filed and undertake a

preliminary an investigation in accordance

with section (e) of this Rule Rule 18-405.

Source: This Rule is derived from former

Rule 16-805 (2016).

The Chair noted that the proposed changes to Rule 18-404

are mostly a clarification of the current procedure.

Committee note after subsection (a)(4) is intended to clarify

the difference between dismissals of the complaint by

Investigative Counsel and by the Commission.

Investigative

Counsel can dismiss a complaint on his or her own initiative if

the complaint, on its face, does not allege either sanctionable

conduct or a disability.

The Commission can dismiss a complaint

because there is no evidence to support it, which does happen.

If the complaint is about something the judge said, the

Commission will listen to the recording or review the

transcript.

If the recording or transcript shows that the judge

did not say what was alleged, it is a reason to dismiss the

complaint for lack of evidence.

The Committee note points out

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the difference between the two bases for dismissal.

By consensus, the Committee approved Rule 18-404 as

presented.

The Chair presented Rule 18-405, Investigation by

Investigative Counsel, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-405. FURTHER INVESTIGATION BY

INVESTIGATIVE COUNSEL

(e) (a) Preliminary Conduct of

Investigation

(1) Duty to Conduct; Notice to Board and

Commission

If a complaint is not dismissed in

accordance with section (c) or (d) of this

Rule 18-404, Investigative Counsel shall

conduct a preliminary an investigation to

determine whether there are reasonable

grounds to believe that the judge may have a

disability or may have committed

sanctionable conduct. Investigative Counsel

shall promptly inform the Board or and the

Commission that the preliminary

investigation is being undertaken.

(2) Upon application by Investigative

Counsel and for good cause, the Chair of the

Commission may authorize Investigative

Counsel to issue a subpoena to obtain

evidence during a preliminary investigation.

(3) During a preliminary investigation,

Investigative Counsel may recommend to the

Board or Commission that the complaint be

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dismissed without notifying the judge that a

preliminary investigation has been

undertaken.

(4) Unless directed otherwise by the

Board or Commission for good cause,

Investigative Counsel shall notify the judge

before the conclusion of the preliminary

investigation (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. The notice

shall be given by first class mail or by

certified mail requesting "Restricted

Delivery - show to whom, date, address of

delivery" addressed to the judge at the

judge's address of record.

(5) Except when Investigative Counsel

has recommended that the complaint be

dismissed without notifying the judge and

the Board or Commission has accepted the

recommendation, before the conclusion of the

preliminary investigation, Investigative

Counsel shall afford the judge a reasonable

opportunity to present, in person or in

writing, such information as the judge

chooses.

(6) Investigative Counsel shall complete

a preliminary investigation within 90 days

after the investigation is commenced. Upon

application by Investigative Counsel within

the 90-day period and for good cause, the

Board shall extend the time for completing

the preliminary investigation for an

additional 30-day period. For failure to

comply with the time requirements of this

section, the Commission may dismiss any

complaint and terminate the investigation.

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(f) Recommendation by Investigative

Counsel

Upon completion of a preliminary

investigation, Investigative Counsel shall

report to the Board the results of the

investigation in the form that the

Commission requires. The report shall

include one of the following

recommendations: (1) dismissal of any

complaint and termination of the

investigation, with or without a warning,

(2) entering into a private reprimand or a

deferred discipline agreement, (3)

authorization of a further investigation, or

(4) the filing of charges.

(g)

Monitoring and Review by Board

The Board shall monitor

investigations by, and review the reports

and recommendations of, Investigative

Counsel.

(b) (2) Subpoenas

(1) Upon application by Investigative

Counsel and for good cause, the Chair of the

Commission may authorize Investigative

Counsel to issue the issuance of a subpoena

to compel the attendance of witnesses and

the production of person to whom it is

directed to attend, give testimony, and

produce designated documents or other

tangible things at a time and place

specified in the subpoena.

Cross reference: See Code, Courts Article,

§§13-401 - 403.

(3) Grant of Immunity

Upon application by Investigative

Counsel and for good cause, the Commission

may grant immunity to any person from

prosecution, or from any penalty or

forfeiture, for or on account of any

transaction, matter, or thing concerning

which that person testifies or produces

evidence, documentary or otherwise.

Cross reference: See Md. Constitution, Art.

IV §4B (a)(1)(ii) and Code, Courts Article,

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§13-403.

Committee note: The need for a grant of

immunity in order to compel the production

of evidence may arise at any stage. Placing

a reference to it here is not intended to

preclude an application to the Commission in

a later proceeding.

(a) (4) Notice to Judge

(A) Upon approval of a further

investigation by the Board or Commission

Except as provided in subsection (a)(4)(C)

of this Rule, before the conclusion of the

investigation, Investigative Counsel

promptly shall notify the judge (1), in

writing, that the Board or Commission (i)

Investigative Counsel has authorized the

further undertaken an investigation into

whether the judge has a disability or has

committed sanctionable conduct; (ii) whether

the investigation was undertaken on

Investigative Counsel’s initiative or on a

complaint; (iii) if the investigation was

undertaken on a complaint, the name of the

person who filed the complaint and the

contents of the complaint; (2) (iv) of the

specific nature of the alleged disability or

sanctionable conduct under investigation;

and (3) that the judge may file a written

response within 30 days of the date on the

notice (v) the judge’s rights under

subsection (a)(5) of this Rule.

(B) The notice shall be given by (1)

first class mail to or by certified mail

requesting “Restricted Delivery – show to

whom, date, address of delivery” and shall

be addressed to the judge at the judge’s

address of record. Or (2) if previously

authorized by the judge, by first class mail

to an attorney designated by the judge. The

Board or Commission, for good cause, may

defer the giving of notice must be given not

less than 30 days before Investigative

Counsel makes a recommendation as to

disposition.

this Rule if (i) Investigative Counsel

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determines, prior to the conclusion of the

investigation, that the recommendation of

Investigative Counsel will be dismissal of

the complaint without a letter of cautionary

advice, or (ii) as to other recommended

dispositions, the Commission or Board, for

good cause, directs a temporary delay of

providing notice and includes in its

directive a mechanism for providing the

judge reasonable opportunity to present

information to the Board.

(5) Opportunity of Judge to Respond

Upon the issuance of notice pursuant

to subsection (a)(4) of this Rule,

Investigative Counsel shall afford the judge

a reasonable opportunity which, unless the

Commission orders otherwise, shall be no

less than 30 days, to present such

information as the judge chooses.

Investigative Counsel shall complete

a further an investigation within 60 90 days

after it is authorized by the Board or

Commission the investigation is commenced.

Upon application by Investigative Counsel

made within the 60 90-day period and served

by first class mail upon the judge or

counsel of record, for good cause, the Chair

of the Commission, for good cause, may

extend the time for completing the further

investigation for a specified reasonable

time period. The Chair shall notify the

Board of any extension granted. For failure

to comply with the time requirements of this

section, the Commission may dismiss the any

complaint and terminate the investigation

for failure to comply with the time

requirements of this section.

(d) (b) Report and Recommendation by

Investigative Counsel

(1) Duty to Make

Within the time for completing a

Upon completion of an investigation,

Investigative Counsel shall make a report of

the results of the investigation to the

-22-

Board of the Commission in the form that the

Commission requires.

(2) Contents

Investigative Counsel shall include

in the report or attach to it any response

or other information provided by the judge

pursuant to subsection (a)(5) of this Rule.

The report shall include a statement that

the investigation indicates probable

sanctionable conduct, probable disability,

both, or neither, together with one of the

following recommendations, as appropriate:

(1) (A) dismissal of any complaint,

and termination of the investigation, with

or without a warning without a letter of

cautionary advice;

(B) dismissal of any complaint, with a

letter of cautionary advice;

(2) (D) entering into a private

reprimand or a deferred discipline

agreement;

(E) a public reprimand; or

(3) (F) the filing of charges.

(3) Recipient of Report

(A) If the recommendation is dismissal

of the complaint without a letter of

cautionary advice, the report and

recommendation shall be made to the

Commission. Upon receipt of the

recommendation, the Commission shall proceed

in accordance with Rule 18-408 (a)(2).

(B) Otherwise, the report and

recommendation shall be made to the Board.

Committee note: A complaint may be

dismissed outright and without a letter of

cautionary advice for various reasons, at

different stages, and by different entities.

Investigative Counsel may dismiss a claim on

his or her own initiative, without opening a

file, pursuant to Rule 18-404 (a). In that

instance, no notice need be given to the

-23-

judge unless the judge has requested notice.

If Investigative Counsel opens a file

pursuant to Rule 18-404 (b) and performs an

investigation under this Rule, Investigative

Counsel may recommend dismissal without a

letter of cautionary advice because, as a

factual matter, there is insufficient

evidence of a disability or sanctionable

conduct. In that situation, if the

Commission adopts the recommendation, there

is no need for notice to the judge unless

the judge has requested such notice. If the

matter proceeds to the Board, the judge must

receive notice, even if the ultimate

decision is to dismiss the complaint.

approved by the Commission, Investigative

Counsel shall keep a record of the

investigation.

Source: This Rule is derived from former

Rule 16-805 (2016).

The Chair explained that Rule 18-405 is a reorganization of

the current material.

There are references to “preliminary” and

“further” investigations, but there is only one investigation

that is done by Investigative Counsel up front.

When the

Inquiry Board or the Commission gets the complaint,

Investigative Counsel can be asked to conduct further

investigation, which is provided for in Rule 18-407.

The Chair drew the Committee’s attention to subsection

(a)(6), which addresses the time for Investigative Counsel to

complete an investigation.

The proposal is to extend the time

from 60 to 90 days, subject to reasonable extensions approved by

the Commission.

The reason for this is an increase in

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complaints:

in 2010, the Commission received 123 complaints; in

2016, it received 201 complaints – a 63 percent increase.

The

Commission asked for more time to complete the investigation.

The Chair said that in subsection (b)(2)(B), there is a

reference to a “letter of cautionary advice,” which is addressed

in Rule 18-408, Dismissal of Complaint.

The letter takes the

place of a “dismissal with a warning,” which cannot be done

without the consent of the judge.

Some judges have objected to

this, in part because they may feel that they have not done

anything wrong or they may be concerned that, despite the

confidentiality provisions, this information may be publicly

disclosed.

changed.

The judge has a right to object, and this has not

The question was whether the word “warning” has a

confrontational or punitive tone.

The Chair noted that research was done as to how this is

handled in other states; most states have some kind of

disposition equivalent to a dismissal with something attached to

it.

Some states use the word “warning,” just as Maryland has

done.

Other states try to soften it somewhat and use terms such

as “letter of advice,” “letter of caution,” etc.

Rule 18-408

explains the intent of the proposal, which substitutes a “letter

of cautionary advice” for the term “warning.”

A judge may feel

more comfortable with this.

Mr. Shellenberger referred to subsection (a)(3) of Rule 18405.

He expressed his concern about the grant of immunity from

-25-

prosecution.

The Chair responded that this is taken directly

from the Constitution, and it was put in the Rule because very

few people know about it.

It has been used at least once.

Article IV, §4B of the Constitution lists the powers of the

Commission:

to issue process, to compel the attendance of

witnesses and the production of evidence, and to require persons

to testify and produce evidence by granting them immunity from

prosecution or from penalty or forfeiture.

Mr. Shellenberger asked whether it would be advisable in

the Rule to suggest a consultation with the local State’s

Attorney before immunity from prosecution is granted.

The Chair

replied that the Constitution does not provide for this.

Mr.

Shellenberger remarked that the Constitution provides for the

power; all the Rule would be suggesting is that the State’s

Attorney be consulted.

Mr. Shellenberger moved to add language to Rule 18-405

(a)(3) providing that the State’s Attorney be consulted before

immunity from prosecution is granted.

Mr. Shellenberger

commented that otherwise, the Commission has a tremendous amount

of power and can overrule an elected official who is normally

instilled with the power to make those decisions.

The motion

was seconded.

Judge Alexander Wright, Chair of the Commission, pointed

out that one of the problems with requiring a consultation with

the State’s Attorney is confidentiality.

-26-

This may be early on

in the investigation of a judge.

Mr. Shellenberger responded

that he deals with some very confidential issues.

Judge Wright

explained that the Commission is not allowed to tell anyone

about the investigation of a judge.

Mr. Zarbin noted that not

all judges are elected, such as District Court judges.

There

are retention elections for the Court of Special Appeals.

of the circuit court judges are elected.

Many

Mr. Shellenberger

remarked that he and the 23 other State’s Attorneys are elected,

but the Commission was not elected by the citizens to decide

which crimes will be prosecuted in their county and which will

not.

The Chair said that the only history of this that he was

aware of was when he prosecuted two judges shortly after the

Commission was first created.

of parking tickets.

It involved the wholesale fixing

When the story broke, there was outrage

from the public and the Baltimore City State’s Attorney

empaneled a grand jury but enlisted the aid of private attorneys

to help, because there were so many records.

After many months,

one person – who was not a judge – was indicted.

The Court of

Appeals struck the indictment because private attorneys who were

not Assistant State’s Attorneys should not have been presenting

evidence to a grand jury.

Nothing came of it.

The Chair

explained that the Maryland State Bar Association then decided

to get involved, but then after looking into it, declined to

act.

The Commission had just been created and took this matter

-27-

on.

No Investigative Counsel existed then, so the Chair had

been appointed to that role.

no names on them.

dockets.

The parking tickets involved had

The only documentary evidence was the

This was in the old Municipal Court of Baltimore City

before the District Court was created.

The dockets looked a

little odd, because they showed the cases being tried.

They

showed people coming to court and pleading not guilty.

Some of

the names on the dockets were false; there was no way to connect

the dots.

The judges were saying that they did not know

anything about it and that a clerk was keeping these dockets.

The clerk refused to provide any evidence because she was afraid

of being caught up in criminal charges and losing her job.

The

Chair was able to get immunity for her from the Commission.

The

Chief Judge of the District Court, which by then had replaced

the Municipal Court, assured the clerk that she would not be

retaliated against for cooperating.

The clerk gave evidence

that resulted in the removal of two judges from the bench.

Without that immunity, the case would never have been able to

proceed.

Mr. Shellenberger asked what would be wrong with contacting

the local prosecutor to see if immunity from prosecution is a

good idea.

The Chair said that the prosecutor had already been

in the case he had referred to, so that there had been no need

to contact him.

The Chair was not sure that the grant of

immunity had ever been used since then.

-28-

This case took place in

the late 1960s.

The Chair called for a vote on the motion to require

contacting the prosecutor before granting immunity from

prosecution.

The motion failed with one member in favor.

The Chair drew the Committee’s attention to subsection

(b)(3), which contains a substantive change.

Recommendations of

outright dismissal with no cautionary letter would go directly

to the Commission.

For the information of the Rules Committee,

Investigative Counsel prepared statistics on the last two fiscal

years, 2015 and 2016.

In those two years, there was a combined

total of 186 recommendations for an outright dismissal that went

to the Board, as required.

The Inquiry Board could make its own

determination, but in every case, it approved Investigative

Counsel’s recommendation.

the Commission.

The recommendations then had to go to

There was no opposition to the proposed

amendment, which streamlines the process.

By consensus, the Committee approved Rule 18-405 as

presented.

The Chair presented Rule 18-406, Proceedings Before Board;

Review by Commission, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

-29-

Rule 18-406. PROCEEDINGS BEFORE BOARD;

REVIEW BY COMMISSION

(a) Review of Investigative Counsel’s

Report

The Board shall review the reports and

recommendations made to the Board by

Investigative Counsel.

(i) (b) Informal Meeting with Judge; Peer

Review

(1) Generally

The Board may meet informally with

the judge for the purpose of discussing an

appropriate disposition.

(2) Peer Review

(A) As part of or in furtherance of

that meeting, the Chair of the Board, with

the consent of the judge, may convene a peer

review panel consisting of not more than two

judges on the same level of court upon which

the judge sits to confer with the judge

about the complaint and suggest options for

the judge to consider. The judges may be

incumbent judges or retired judges eligible

for recall to that level of court.

(B) The discussion may occur in person

or by telephone or other electronic

conferencing but shall remain informal and

confidential. The peer review panel (i)

shall have no authority to make any findings

or recommendations, other than to the judge;

(ii) shall make no report to Investigative

Counsel, the Board, or the Commission; and

(iii) may not testify regarding the

conference with the judge before the

Commission or in any court proceeding.

Committee note: The peer review panel is

not intended as either an arbitrator or a

mediator but, as judicial colleagues, simply

to provide an honest and neutral appraisal

for the judge to consider.

(h) (c) Authorization of Further

Investigation

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The Board may direct Investigative

Counsel to make a further investigation to

be conducted pursuant to Rule 18-405 18-407.

(j) (d) Board’s Report to Commission

(1) Contents

Upon receiving After considering

Investigative Counsel’s report and

recommendation concerning a further

investigation or a preliminary investigation

if no further investigation was conducted

and subject to subsection (j)(2) of this

Rule, the Board shall submit to the

Commission a report that includes to the

Commission. The Board shall include in its

report the recommendation made to the Board

by Investigative Counsel. Subject to

subsection (d)(2) of this Rule, the report

shall include one of the following

recommendations:

(A) dismissal of any complaint,

without a letter of cautionary advice

pursuant to Rule 18-408 (a), and termination

of the any investigation with or without a

warning;

(B) dismissal of any complaint, with a

letter of cautionary advice pursuant to

Rules 18-408 (b) and 18-414;

pursuant to Rules 18-409 and 18-414;

(B) (D) entering into a private

reprimand or deferred discipline agreement

pursuant to Rules 18-410 and 18-414;

(E) a public reprimand pursuant to

Rules 18-411 and 18-414;

(F) retirement of the judge pursuant

to Rules 18-412 and 18-414; or

probable cause that the judge has a

disability or has committed sanctionable

conduct, the filing of charges, unless the

Board determines that there is a basis for

private disposition under the standards of

Rule 18-406 pursuant to Rule 18-413.

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(2) Condition and Limitation

(A) The Board may not recommend (i) a

dismissal with a warning letter of

cautionary advice if the judge has objected

to that disposition pursuant to Rule 18-408

(b), or (ii) a conditional diversion

agreement, a private reprimand, or a

deferred discipline agreement a public

reprimand, or retirement unless the

respondent judge has consented in writing to

this that remedy pursuant to the applicable

Rules in this Chapter.

Committee note: A public reprimand or

recommendation of retirement, without the

consent of the judge, may be issued by the

Commission only after the filing of charges

and a hearing before the Commission.

(2) Limitation on Contents of Report

(B) The information transmitted by the Board

to the Commission shall be limited to a

proffer of evidence that the Board has

determined would likely be admitted at a

plenary hearing before the Commission. The

Chair of the Board may consult with the

Chair of the Commission in making the

determination as to what determining the

information is to be transmitted to the

Commission.

(3) Time for Submission of Report

(A) Generally

Unless the time is extended by the

Chair of the Commission, the Board shall

transmit the report to the Commission within

45 days after the date the Board receives

received Investigative Counsel’s report and

recommendation.

(B) Extension

Upon a written request by the

Chair of the Board, the Chair of the

Commission may grant one 30-day a reasonable

extension of time for transmission of the

report.

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If the Board does not fails to

issue its report within the time allowed,

the Chair of the Commission and

Investigative Counsel shall conform the

report and recommendation of Investigative

Counsel to the requirements of subsection

(j)(2) subsections (f)(1) and (2) of this

Rule and refer the matter to the Commission,

which may proceed, using the report and

recommendation of Investigative Counsel.

(4) Copy to Investigative Counsel and

Judge

Upon receiving the report and

recommendation, the Commission promptly

shall transmit a copy of it to Investigative

Counsel and, except for a recommendation of

dismissal without a letter of cautionary

advice, to the judge.

(k) (e) Filing of Objections Response

Investigative Counsel and, except for a

recommendation of dismissal without a letter

of cautionary advice, the judge shall may

file with the Commission any objections to

the a written response to the Board’s report

and recommendation. Unless the Chair of the

Commission, Investigative Counsel, and the

judge agree to an extension, any response

shall be filed within 15 days of after the

date the Commission transmitted copies of

the report and recommendation unless to

Investigative Counsel, and the judge, and

the Chair of the Commission agree to an

extension of the time for filing an

objection.

(l) (f) Action by Commission on Board

Report and Recommendation

(1) Review

The Commission shall review the

report and recommendation and any timely

filed objections responses.

(2) Appearance by Judge

Upon written request by the judge,

with a copy provided to Investigative

Counsel, the Commission may permit the judge

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to appear before the Commission on

reasonable terms and conditions established

by the Commission.

(3) Disposition

Upon its review of the report and

recommendation and any timely filed

responses and consideration of any evidence

or statement by the judge pursuant to

subsection (f)(2) of this Rule, Unless the

Commission authorizes shall:

(A) direct Investigative Counsel

to conduct a further investigation in

accordance with pursuant to Rule 18-405 18407;

(B) remand the matter to the Board

for further consideration and direct the

Board to file a supplemental report within a

specified period of time;

Commission shall be in accordance with Rule

18-406 or 18-407 (a), as appropriate

pursuant to Rule 18-408, 18-409, 18-410, 18411, or 18-412;

(D) enter an appropriate

disposition to which the judge has filed a

written consent in accordance with the Rules

in this Chapter, including a disposition

under Rule 18-414 (a)(5); or

(E) direct Investigative Counsel

to file charges pursuant to Rule 18-413.

Source: This Rule is derived from former

Rule 16-805 (2016).

The Chair said that some detail as to what the Board does

and what the Commission does has been added to Rule 18-406.

Subsection (b)(2) is new.

With the approval of the Commission

and Investigative Counsel as well as the Chair of the Inquiry

Board, a provision for a peer review process – like the Attorney

-34-

Grievance procedure – has been added.

The Chair noted that the

peer review process in Rule 18-406 is “lighter ” than the

Attorney Grievance process and is not intended to be a formal

part of the disciplinary process.

He suggested that the peer

review process would probably be used in two circumstances:

when there is either a recommendation of dismissal with a

cautionary letter or a recommendation of a private reprimand and

the judge objects.

Judges have made these objections, and the

thought was that if a judge could hear from two of his or her

colleagues from the same level of court, it could be a useful

reality check.

The judge would have to consent to this process,

and it would be totally confidential.

The two peer review

judges would not make any findings, nor would they be serving as

arbitrators or mediators.

They would just be there to talk to

the judge and suggest options for the judge to consider.

Judge Ellinghaus-Jones commented that she and her

colleagues had received an administrative order last week that

changed the name of “retired judges” to “senior judges.”

Subsection (a)(2) would have to be changed to reflect this new

terminology.

By consensus, the Committee approved Rule 18-406 as

presented, subject to confirmation of the stylistic change

pertaining to “retired judge.”

The Chair presented Rule 18-407, Further Investigation, for

the Committee’s consideration.

-35-

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-405 18-407.

FURTHER INVESTIGATION

(a) Notice to Judge of Investigation

Upon approval of a directive for a

further investigation by the Board pursuant

to Rule 18-406 (c) or by the Commission

pursuant to Rule 18-405 (b)(3)(A) or 18-406

(f)(3), Investigative Counsel promptly shall

promptly (A) provide the notice and

opportunity to respond required by Rule 18405 (a)(4) and (5) if such notice and

opportunity have not already been provided,

and (B) notify the judge (1) that the Board

or Commission has authorized the further

investigation, (2) of the specific nature of

the disability or sanctionable conduct under

investigation, and (3) that the judge may

file a written response within 30 days of

the date on the notice. The notice shall be

given (1) by first class mail to the judge’s

address of record, or (2) if previously

authorized by the judge, by first class mail

to an attorney designated by the judge. The

Board or Commission, for good cause, may

defer the giving of notice, but notice must

be given not less than 30 days before

Investigative Counsel makes a recommendation

as to disposition at the judge’s address of

record that the Board or Commission has

directed a further investigation.

(b) Subpoenas

(1) Issuance

Upon application by Investigative

Counsel and for good cause, the Chair of the

Commission may authorize Investigative

Counsel to issue the issuance of a subpoena

to compel the attendance of witnesses and

the production of person to whom it is

-36-

directed to attend, give testimony, and

produce designated documents or other

tangible things at a time and place

specified in the subpoena.

(2) Notice to Judge

Promptly after service of the

subpoena and in addition to any other notice

required by law, Investigative Counsel shall

provide to the judge under investigation

notice of the service of the subpoena. The

notice to the judge shall be sent by first

class mail to the judge’s address of record

or, if previously authorized by the judge,

by first class mail to an attorney

designated by the judge any other reasonable

method.

(2) (3) Motion for Protective Order

The judge or the, a person served

with named in the subpoena, or a person

named or depicted in an item specified in

the subpoena may file a motion for a

protective order pursuant to Rule 2-510 (e).

The motion shall be filed in the circuit

court for the county in which the subpoena

was served or, if the judge under

investigation is a judge serving serves on

that circuit court, another circuit court

designated by the Commission. The court may

enter any order permitted by Rule 2-510 (e).

(4) Failure to Comply

Upon a failure to comply with a

subpoena issued pursuant to this Rule, the

court, on motion of Investigative Counsel,

may compel compliance with the subpoena as

provided in Rule 18-402 (f).

(3) (5) Confidentiality

(A) Subpoena

To the extent practicable, a

subpoena shall not divulge the name of the

judge under investigation.

(B) Court Files and Records

Files and records of the court

pertaining to any motion filed with respect

-37-

to a subpoena shall be sealed and shall be

open to inspection only upon order of the

Court of Appeals.

Hearings before the circuit court

on any motion filed with respect to a

subpoena shall be on the record and shall be

conducted out of the presence of all persons

individuals except those whose presence is

necessary.

Cross reference:

§§13-401 - 403.

See Code, Courts Article,

Investigative Counsel shall complete a

further investigation within 60 days after

it is authorized the time specified by the

Board or Commission. Upon application by

Investigative Counsel made within the 60-day

that period and served by first class mail

upon the judge or counsel the judge’s

attorney of record, the Chair of the

Commission, for good cause, may extend the

time for completing the further

investigation for a specified reasonable

time. The Commission may dismiss the

complaint and terminate the investigation

for failure to comply with the time

requirements of this section complete the

investigation within the time allowed.

(d) Report and Recommendation by

Investigative Counsel

(1) Duty to Make

Within the time allowed for

completing a the further investigation,

Investigative Counsel shall make a report

the results of the investigation to the

Board or the Commission, whichever

authorized the further investigation, in the

form that the Commission requires.

(2) Contents

Unless the material already has been

provided to the recipient of the report,

Investigative Counsel shall include in the

-38-

report or attach to it any response or other

information provided by the judge pursuant

to section (a) of this Rule or Rule 18-405

(a)(5). The report shall include a

statement that the investigation indicates

probable sanctionable conduct, probable

disability, both, or neither, together with

one of the following recommendations:

(1) (A) dismissal of any complaint and

termination of the investigation, with or

without a warning, without a letter of

cautionary advice;

(B) dismissal of any complaint, with a

letter of cautionary advice;

(2) (D) entering into a private

reprimand or a deferred discipline

agreement, or;

(E) a public reprimand;

(3) (F) the filing of charges; or

(G) retirement of the judge based upon

a finding of disability.

Source: This Rule is derived from former

Rule 16-806 (2016).

The Chair informed the Committee that the changes to Rule

18-407 are mostly for clarification.

Section (c), pertaining to

the time for completion of an investigation, addresses the

situation where either the Inquiry Board or the Commission would

like more information.

The time for completing the

investigation will be as specified by the Board or Commission,

subject to extension by the Chair of the Commission.

It does

not necessarily have to be the same time in every case; it

depends on how much more work Investigative Counsel has to do.

-39-

The Chair said that subsection (d)(2) refers to a

“conditional diversion agreement” and also to the “retirement of

the judge based upon a finding of disability.”

The conditional

diversion agreement is simply a name change from the current

term, “deferred discipline agreement,” which is a misnomer.

The

premise of such an agreement is that if a judge enters it, the

judge will comply with the conditions he or she has agreed to,

and the case will be resolved.

They are called “conditional

diversion agreements,” because that is what they are; they

divert the case from a disciplinary one to a consensual one,

where it hopefully is resolved.

By consensus, the Committee approved Rule 18-407 as

presented.

The Chair presented Rule 18-408, Dismissal of Complaint,

for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-406 18-408. DISPOSITION WITHOUT

PROCEEDINGS ON CHARGES DISMISSAL OF

COMPLAINT

(a) Dismissal Without Letter of Cautionary

Advice

(1) Evidence Fails to Show Disability or

-40-

Sanctionable Conduct Generally

If, after an investigation by

Investigative Counsel, The the Commission

shall dismiss a complaint if, after an

investigation, it concludes that the

evidence fails to show that the judge has a

disability or has committed sanctionable

conduct, it shall dismiss the complaint

without a letter of cautionary advice.

Unless the judge has requested in writing

notice of any dismissal, the Commission

shall need not notify the judge and each of

the dismissal but shall notify the

complainant of the dismissal and the Board.

(2) Upon Recommendation Pursuant to Rule

18-405 (b)(3)

If Investigative Counsel has

recommended dismissal of the complaint

without a letter of cautionary advice

pursuant to Rule 18-405 (d)(3), without

submission to the Board, the Commission may

(A) accept the recommendation and dismiss

the complaint, (B) refer the matter to the

Board for its consideration, or (C) direct

Investigative Counsel to undertake a further

investigation pursuant to Rule 18-407.

(2) (b) Sanctionable Conduct Not Likely to

be Repeated With Letter of Cautionary Advice

(1) When Appropriate

If the Commission determines that

any sanctionable conduct that may have been

committed by the judge will be sufficiently

addressed by the issuance of a warning

letter of cautionary advice, the Commission

may accompany a dismissal with a warning

against future sanctionable conduct such a

letter.

The contents of the warning are private

and confidential, but the Commission has the

option of notifying the complainant of the

fact that a warning was given to the judge.

At least 30 days before a warning is issued,

the Commission shall mail to the judge a

notice that states (A) the date on which it

intends to issue the warning, (B) the

-41-

content of the warning, and (C) whether the

complainant is to be notified of the

warning. Before the intended date of

issuance of the warning, the judge may

reject the warning by filing a written

rejection with the Commission. If the

warning is not rejected, the Commission

shall issue it on or after the date stated

in the initial notice to the judge. If the

warning is rejected, it shall not be issued,

the proceeding shall resume as if no warning

had been proposed, and the fact that a

warning was proposed or rejected may not be

admitted into evidence.

Committee note: A warning by the Commission

under this section is not a reprimand and

does not constitute discipline.

Committee note: A letter of cautionary

advice may be appropriate where the conduct

was marginally sanctionable or, if

sanctionable, was not particularly serious,

was not intended to be harmful, may have

been the product of a momentary lapse in

judgment or the judge being unaware that the

conduct was not appropriate, and does not

warrant discipline. The letter is intended

to be remedial in nature, so that the judge

will be careful not to repeat that or

similar conduct.

(2) Notice to Judge

Before a dismissal with a letter of

cautionary advice is issued, the Commission

shall mail to the judge a notice that states

(i) that the Commission intends to dismiss

the complaint accompanied by a letter of

cautionary advice, (ii) the content of the

letter, (iii) whether the complainant is to

be notified that such a letter was issued;

(iv) that the judge has the right to object

to the letter by filing a written objection

with the Commission within 30 days after the

date of the notice; (v) if a written

objection is not filed within that time, the

Commission may issue the letter as an

accompaniment to the dismissal; and (vi) if

a timely objection is filed, the proposed

disposition will be regarded as withdrawn

-42-

and the matter shall proceed as if the

proposed disposition was never made.

(3) Objection by Judge

The judge may object to the proposed

dismissal accompanied by the letter of

cautionary advice by filing a written

objection with the Commission within the 30day period stated in the notice. If a

timely objection is not filed, the

Commission may proceed with the proposed

disposition upon the expiration of the time

for filing an objection. If a timely

objection is filed, the Commission shall not

proceed with the proposed disposition, the

proceeding shall resume as if no dismissal

with a letter of cautionary advice had been

proposed, and the fact that a dismissal with

an accompanying letter of cautionary advice

was proposed and withdrawn may not be

admitted into evidence.

(4) Confidentiality of Content of Letter

of Cautionary Advice

The contents of the letter are

private and confidential, except that the

Commission may notify the complainant that a

letter of cautionary advice was given to the

judge.

(5) Not a Form of Discipline

A letter of cautionary advice is not

a reprimand and does not constitute a form

of discipline.

Source: This Rule is derived from former

Rule 16-807 (2016).

The Chair said that Rule 18-408 clarifies the practices of

the Commission regarding dismissals.

The Committee note after

subsection (b)(2) refers to a “letter of cautionary advice,”

explaining its use.

By consensus, the Committee approved Rule 18-408 as

-43-

presented.

The Chair presented Rule 18-409, Conditional Diversion

Agreement, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-406 18-409.

AGREEMENT

CONDITIONAL DIVERSION

Appropriate

The Commission and the judge may enter

into a deferred discipline conditional

diversion agreement if, after an

investigation:

(A) (1) the Commission concludes that

the alleged sanctionable conduct was not so

serious, offensive, or repeated as to

warrant formal proceedings and that the

appropriate disposition is for the judge to

undergo specific treatment, participate in

one or more specified educational programs,

issue an apology to the complainant, or take

other specific corrective or remedial

action; and

(B) (2) the judge, in the agreement, (i)

(A) agrees to the specified conditions, (ii)

(B) waives the right to a hearing before the

Commission and subsequent proceedings before

the Court of Appeals, and (iii) (C) agrees

that the deferred discipline conditional

diversion agreement may be revoked for

noncompliance in accordance with the

provisions of subsection (c)(2) section (b)

of this Rule.

(2) (b) Compliance

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The Commission shall direct

Investigative Counsel to monitor compliance

with the conditions of the agreement and may

direct the judge to document compliance.

Investigative Counsel shall give written

notice to the judge of the nature of any

alleged failure to comply with a condition

of the agreement. If after affording the

judge at least 15 days to respond to the

notice, the Commission finds that the judge

has failed to satisfy a material condition

of the agreement, the Commission may revoke

the agreement and proceed with any other

disposition authorized by these rules.

(c)

Not a Form of Discipline

An agreement under this section does

not constitute discipline or a finding that

sanctionable conduct was committed.

(3) (d) Confidentiality

The Commission shall notify the

complainant that the complaint has resulted

in an agreement with the judge for

corrective or remedial action. Unless the

judge consents in writing, Except as

permitted in Rule 18-417, the terms of the

agreement shall remain confidential and not

be disclosed to the complainant or any other

person unless the judge consents in writing.

An agreement under this section does not

constitute discipline or a finding that

sanctionable conduct was committed.

(4) (e) Termination of Proceedings

Upon notification by Investigative

Counsel that the judge has satisfied all

conditions of the agreement, the Commission

shall terminate the proceedings.

Source: This Rule is derived from former

Rule 16-807 (2016).

The Chair explained that Rule 18-409 had not been changed,

except for the terminology.

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By consensus, the Committee approved Rule 18-409 as

presented.

The Chair presented Rule 18-410, Private Reprimand, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-406 18-410.

PRIVATE REPRIMAND

(b) (a) When Appropriate

(1) The Commission may issue a private

reprimand to the judge if, after an

investigation:

(A) (1) the Commission concludes that

the judge has committed sanctionable conduct

that warrants some form of discipline;

(B) (2) the Commission further concludes

that the sanctionable conduct was not so

serious, offensive, or repeated as to

warrant formal proceedings and that a

private reprimand is the appropriate

disposition under the circumstances; and

of the reprimand retained by the Commission,

(i) (A) waives the right to a hearing before

the Commission and subsequent proceedings

before the Court of Appeals and the right to

challenge the findings that serve as the

basis for the private reprimand, (ii) (B)

consents to the reprimand, and (iii) (C)

agrees that the reprimand may be admitted in

any subsequent disciplinary proceeding

against the judge to the extent that it is

relevant to the charges at issue or the

sanction to be imposed.

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(b) Form of Discipline

A private reprimand constitutes a form

of discipline.

(1) Generally

Except as otherwise provided by

subsection (c)(2) of this Rule and Rule 18417, a private reprimand is confidential and

shall not be disclosed unless the judge

consents, in writing, to the disclosure.

(2) Notice to Complainant

Upon the issuance of a private

reprimand, the Commission shall notify the

complainant of that disposition that such a

reprimand was issued but shall not disclose

the text of the reprimand.

Source: This Rule is derived from former

Rule 16-807 (2016).

The Chair said that the changes to Rule 18-410 are for

clarification, but none of them are substantive.

Mr. Laws asked

whether the complainant is told about a conditional diversion

agreement or private reprimand.

The Chair replied

affirmatively, but he added that the complainant is not told

about the terms.

Mr. Laws commented that the complaining public

may find this to be inadequate.

The Chair responded that this

is the same as the current Rule.

By consensus, the Committee approved Rule 18-410 as

presented.

The Chair presented Rule 18-411, Public Reprimand, for the

Committee’s consideration.

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-411.

PUBLIC REPRIMAND

(a) When Appropriate

The Commission may issue a public

reprimand upon a finding by the Commission

that (1) the judge has committed

sanctionable conduct, (2) the conduct, by

reason of its nature, repetition, or effect,

is sufficiently serious as to make a private

reprimand or a conditional diversion

agreement inappropriate but not sufficiently

serious to warrant the judge being suspended

or removed from office.

(b) With or Without Consent

(1) A public reprimand may be issued

with the written consent of the judge

pursuant to subsection (b)(2) of this Rule

or, after the filing of charges and a

hearing, without the judge’s consent.

(2) A consent by the judge shall be in

writing and shall include a waiver of (A)

the right to a hearing before the Commission

and subsequent proceedings before the Court

of Appeals, and (B) the right to challenge

the findings that serve as the basis for the

public reprimand.

A public reprimand shall be posted on

the Judiciary website and may be otherwise

disclosed. A copy of the public reprimand

shall be sent to the complainant.

(d) Form of Discipline

A public reprimand constitutes a form

of discipline.

Source:

This Rule is new.

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The Chair said that section (a) provides guidance to the

Committee, explaining when a public reprimand is appropriate.

Section (b) provides that a public reprimand may be issued with

the consent of the judge without the filing of any charges or by

the Commission as discipline after charges are filed.

The

Reporter commented that the tagline for section (b) is also

recommended to be changed to “Consent of Judge,” for clarity.

By consensus, the Committee approved Rule 18-411 as

amended.

The Chair presented Rule 18-412, Retirement, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-412.

RETIREMENT

(a) When Appropriate

Retirement of a judge may be an

appropriate disposition upon a determination

that (1) the judge suffers from a

disability, as defined in Rule 18-401 (h),

and (2) any alleged conduct that may

otherwise be sanctionable conduct was

predominantly the product of that disability

and did not involve misconduct so serious

that, if proven, would warrant suspension or

removal of the judge from office.

(b) Effect

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(1) Retirement under this Rule is

permanent. A judge who is retired under

this Rule may not be recalled to sit on any

court, but the judge shall lose no other

retirement benefit to which he or she is

entitled by law.

(2) Retirement under this Rule does not

constitute discipline.

Cross reference: See Md. Constitution, Art.

IV, §4B (a)(2), authorizing the Commission

to recommend to the Court of Appeals

retirement of a judge “in an appropriate

case.” See also Rule 19-740 authorizing a

comparable disposition for attorneys who

have a disability.

Source:

This Rule is new.

The Chair told the Committee that Rule 18-412 is an

important new Rule.

There is no real substantive change from

the current law, but it fills a hole in the Rules.

A judge can

always retire voluntarily, either before or after a complaint is

filed, hoping that retirement will end the matter, although it

does not necessarily do that.

The current Rules do not address

this situation.

The Chair explained that the Constitution permits the

Commission to recommend, and permits the Court of Appeals to

impose, an involuntary, mandated retirement as a disposition “in

an appropriate case.”

been done.

To the Chair’s knowledge, this has never

However, the authority to do it exists in the

Constitution.

The question is what an “appropriate case” is.

In the case the Chair had referred to earlier involving the

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parking tickets in Baltimore City, the Court of Appeals, in its

opinion, made a general reference to mandated retirement, but it

was not appropriate in that case.

It is more appropriate in a

case where any otherwise sanctionable conduct is really a

product of a disability rather than inexcusable misconduct on

the part of a judge.

Judge Wright, Chair of the Commission; the

Honorable Robert A. Greenberg, Chair of the Inquiry Board; and

Carol Crawford, Esq., Investigative Counsel, had agreed that the

disability situation is the appropriate case for a retirement.

The current Rules do not address this, and the thought was that

they should.

The Chair commented that there may be cases where what the

judge said or did or where the judge’s persistent absences or

inability to perform his or her judicial duties may be

attributable to a mental, emotional, or other illness that is

not likely to improve.

Retirement, rather than something like a

reprimand, suspension, or removal would serve the public purpose

equally well and be much more fair and humane to the judge.

is not discipline.

The Committee recognized that.

recommendation is to make this clear in the Rules.

The

Rule 18-412

provides that it does not affect the judge’s pension.

By consensus, the Committee approved Rule 18-412 as

presented.

The Chair presented Rule 18-413, Filing of Charges;

Proceedings Before Commission, for the Committee’s

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consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 - JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-407 18-413. FILING OF CHARGES;

PROCEEDINGS BEFORE COMMISSION

(a) Filing of Charges

(1) Direction by Commission

After considering the report and

recommendation of the Board or Investigative

Counsel submitted pursuant to Rule 18-404

(j), 18-406 and any timely filed response,

and upon a finding by the Commission of

probable cause to believe that a judge has a

disability or has committed sanctionable

conduct, the Commission may direct

Investigative Counsel to initiate

proceedings against the judge by filing with

the Commission charges that the judge has a

disability or has committed sanctionable

conduct.

(2) Content of Charges

The charges shall (1) (A) state the

nature of the alleged disability or

sanctionable conduct, including each Rule of

the Maryland Code of Judicial Conduct

allegedly violated by the judge, (2) (B)

allege the specific facts upon which the

charges are based, and (3) (C) state that

the judge has the right to file a written

response to the charges within 30 days after

service of the charges.

(b) Service; Notice

The charges may be served upon the

judge by any means reasonably calculated to

give actual notice. A return of service of

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the charges shall be filed with the

Commission pursuant to Rule 2-126. Upon

service, the Commission shall notify any

complainant that charges have been filed

against the judge.

Cross reference:

IV, §4B (a).

See Md. Const., Article

Within 30 days after service of the

charges, the judge may file with the

Commission an original and 11 copies of a

written response or may file a response

electronically in a format acceptable to the

Commission.

(d) Notice of Hearing

Upon the filing of a response or, if

no response is filed, upon expiration of the

time for filing if one, the Commission shall

notify the judge of the date, time, and

place of a hearing. Unless the judge has

agreed to an earlier hearing date, the

notice shall be mailed at least 60 days

before the date set for the hearing hearing

shall not be held earlier than 60 days after

the notice was sent. If the hearing is on a

charge of sanctionable conduct, the

Commission also shall notify the complainant

and publish post a notice in the Maryland

limited to (1) the name of the judge, (2)

the date, time, and place of the hearing,

and (3) a statement that the charges that

have been filed and any response by from the

judge are available for inspection at the

Office of the Commission.

Cross reference: See Rule 18-409 (a)(3) 18417 (a)(3), concerning the time for posting

on the Judiciary website.

(e) Extension of Time

The Commission may extend the time for

filing a response and for the commencement

of a hearing.

(f) Procedural Rights of Judge

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The judge has the right (1) to inspect

and copy the Commission Record, (2) to a

prompt hearing on the charges in accordance

with this Rule, (3) to be represented by an

attorney, (4) to the issuance of subpoenas

for the attendance of witnesses and for the

production of designated documents and other

tangible things, (5) to present evidence and

argument, and (6) to examine and crossexamine witnesses.

(g) Exchange of Information

(1) Generally

Upon request of the judge at any

time after service of charges upon the

judge, Investigative Counsel promptly shall

(A) allow the judge to inspect the

Commission Record and to copy all evidence

accumulated during the investigation and all

statements as defined in Rule 2-402 (f) and

(B) provide to the judge summaries or

reports of all oral statements for which

contemporaneously recorded substantially

verbatim recitals do not exist, and.

(2) List of Witnesses; Documents

Not later than 30 days before the

date set for the hearing, Investigative

Counsel and the judge shall each provide

each to the other with a list of the names,

addresses, and telephone numbers of the

witnesses that each intends to call and

copies of the documents that each intends to

introduce in evidence at the hearing.

(3) Scope of Discovery

Discovery is governed by the

applicable Rules in 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.

(4) Mental or Physical Examination

When disability of the judge is an

issue, on its own the initiative of the

Commission or its Chair or on motion request

-54-

for good cause, the Chair of the Commission

may order the judge to submit to a mental or

physical examination pursuant to in

accordance with Rule 2-423.

(h) Amendments

At any time before the hearing, the

Commission on motion request may allow

amendments to the charges or the response.

If an amendment to the charges is made less

than 30 days before the hearing, the judge,

upon request, shall be given a reasonable

time to respond to the amendment and to

prepare and present any defense.

(i) Hearing on Charges

(1) At a The hearing on charges the

applicable provisions of Rule 18-405 (b)

shall govern subpoenas. shall be conducted

in the following manner:

(2) (1) At the hearing, Upon application

by Investigative Counsel shall present

evidence in support of the charges or the

judge, the Commission shall issue subpoenas

to compel the attendance of witnesses and

the production of documents or other

tangible things at the hearing. To the

extent otherwise relevant, the provisions of

Rule 2-510 (c), (d), (e), (g), (h), (i),

(j), and (k) shall apply.

(3) (2) The Commission may proceed with

the hearing whether or not the judge has

filed a response or appears at the hearing.

(4) (3) Except for good cause shown, a

motion for recusal of a member of the

Commission shall be filed not less than at

least 30 days before the hearing.

(5) (4) The At the hearing,

Investigative Counsel shall be conducted in

accordance with the rules of evidence in

present evidence in support of the charges.

(5) Title 5 of these rules the Maryland

Rules shall apply.

(6) The proceedings at the hearing shall

be recorded verbatim, either by electronic

-55-

means or stenographically recorded, as

directed by the Chair of the Commission.

Except as provided in section (k) of this

Rule, the Commission is not required to have

a transcript prepared. The judge may, at

the judge’s expense, may have the record of

the proceeding transcribed.

(7) with the approval of the Chair of

the Commission, the judge and Investigative

Counsel may each submit proposed findings of

fact and conclusions of law within the time

period set by the Chair.

(j) Commission Findings and Action

(1) Finding of Disability

If the Commission finds by clear and

convincing evidence that the judge has a

disability or has committed sanctionable

conduct, it shall either issue a public

reprimand for the sanctionable conduct or

refer the matter to the Court of Appeals

pursuant to section (k) of this Rule.

Otherwise, the Commission shall dismiss the

charges filed by the Investigative Counsel

and terminate the proceeding, whether or not

the Commission also finds that the judge

committed sanctionable conduct.

(2) Finding of Sanctionable Conduct

If the Commission finds by clear and

convincing evidence that the judge has

committed sanctionable conduct but does not

find that the judge has a disability, it

shall either issue a public reprimand to the

judge or refer the matter to the Court of

Appeals.

(3) Finding of No Disability or

Sanctionable Conduct

If the Commission does not find that

the judge has a disability and does not find

that the judge committed sanctionable

conduct, it shall dismiss the charges and

terminate the proceeding.

(k) Record Duties of Commission on

Referral to Court of Appeals

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If the Commission refers the case to

the Court of Appeals, the Commission shall:

(1) make written findings of fact and

conclusions of law with respect to the

issues of fact and law in the proceeding,

state its recommendations, and enter those

findings and recommendations in the record

in the name of the Commission;

(2) cause a transcript of all

proceedings at the hearing to be prepared

and included in the record;

(3) make the transcript available for

review by the judge and the judge's attorney

in connection with the proceedings or, at

the judge's request, provide a copy to the

judge at the judge's expense;

(4) file with the Court of Appeals the

entire hearing record, which shall be

certified by the Chair of the Commission and

shall include the transcript of the

proceedings, all exhibits and other papers

filed or marked for identification in the

proceeding, and all dissenting or concurring

statements by Commission members; and

(5) promptly mail to the judge at the

judge's address of record notice of the

filing of the record and a copy of the

findings, conclusions, and recommendations

and all dissenting or concurring statements

by Commission members.

Source: This Rule is derived from former

Rule 16-808 (2016).

The Chair said that Rule 18-413 has no substantive changes.

It does make clear that at a hearing before the Commission, the

judge can subpoena witnesses.

The current Rule refers only to

Investigative Counsel subpoenaing witnesses.

clarifies options for the Commission.

-57-

Rule 18-413 also

By consensus, the Committee approved Rule 18-413 as

presented.

The Chair presented Rule 18-414, Consent to Disposition,

for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-407 18-414.

CONSENT TO DISPOSITION

(a) Generally

At any time after completion of an

investigation by Investigative Counsel, a

judge may consent to:

(1) dismissal of the complaint

accompanied by a letter of cautionary advice

by failing to object pursuant to Rule 18-408

(b);

(2) a conditional diversion agreement

pursuant to Rule 18-409;

(3) a private reprimand pursuant to Rule

18-410;

(4) a public reprimand;

(5) suspension or removal from judicial

office; or

(6) retirement from judicial office

pursuant to Rule 18-412.

(b) Form of Consent

(1) Generally

(1) After the filing of charges

alleging sanctionable conduct and before a

decision by the Commission, the jduge and

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Investigative Counsel may enter into an

agreement in which the judge Except for a

consent by failure to object to a dismissal

accompanied by a letter of cautionary

advice, a consent shall be in the form of a

written agreement between the judge and the

Commission.

(2) If Charges Filed

If the agreement is executed after

charges have been filed, it shall contain:

(1) (A) admits an admission by the

judge to all or part of the charges;

(2) (B) as to the charges admitted,

admits an admission by the judge to the

truth of all facts constituting the

sanctionable conduct or disability as set

forth in the agreement;

(3) (C) agrees an agreement by the

judge to take any corrective or remedial

action provided for in the agreement;

(4) (D) consents a consent by the

judge to the stated sanction;

(5) (E) states a statement that the

consent is freely and voluntarily given; and

(6) (F) waives a waiver by the judge

of the right to further proceedings before

the Commission and subsequent proceedings

before the Court of Appeals.

(3) If Charges Not Yet Filed

If the agreement is executed before

charges have been filed, it shall contain a

statement by the Commission of the charges

that would be filed but for the agreement

and the consents and admissions required in

subsection (b)(2) of this Rule shall relate

to that statement.

The agreement requiring the approval

of the Court of Appeals shall be submitted

to the Court of Appeals, which shall either

approve or reject the agreement. Until

approved by the Court of Appeals, the

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agreement is confidential and privileged.

If the Court approves the agreement and

imposes the stated sanction, the agreement

shall be made public. If the Court rejects

the stated sanction, the proceeding shall

resume as if no consent had been given, and

all admissions and waivers contained in the

agreement are withdrawn and may not be

admitted into evidence.

Source:

This Rule is new.

The Chair noted that Rule 18-414 has no substantive

changes.

It clarifies that a judge may consent to a

disposition, either before or after charges are filed.

It also

clarifies what a judge may consent to.

By consensus, the Committee approved Rule 18-414 as

presented.

The Chair presented Rule 18-415, Proceedings in Court of

Appeals, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-408 18-415.

APPEALS

(a)

PROCEEDINGS IN COURT OF

Expedited Consideration

Upon receiving the hearing record

file pursuant to Rule 18-407 18-413 (k), the

Clerk of the Court of Appeals shall docket

the case for expedited consideration.

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(b)

Exceptions

The judge may except to the findings,

conclusions, or recommendation of the

Commission by filing with the Court of

Appeals eight copies of exceptions within 30

days after service of the notice of filing

of the record and in accordance with Rule

20-405. The exceptions shall set forth with

particularity all errors allegedly committed

by the Commission and the disposition

sought. A copy of the exceptions shall be

served on the Commission in accordance with

Rules 1-321 and 1-323.

(c)

Response

The Commission shall file eight

copies of a response within 15 days after

service of the exceptions in accordance with

Rule 20-405. The Commission shall be

represented in the Court of Appeals by its

Executive Secretary or such other counsel

attorney as the Commission may appoint. A

copy of the response shall be served on the

judge in accordance with Rules 1-321 and 1323.

(d)

Hearing

If exceptions are timely filed, upon

the filing of a response or, if no response

is filed, upon the expiration of the time

for filing it, the Court shall set a

schedule for filing memoranda in support of

the exceptions and response and a date for a

hearing. The hearing on exceptions shall be

conducted in accordance with Rule 8-522. If

no exceptions are timely filed or if the

judge files with the Court a written waiver

of the judge's right to a hearing, the Court

may decide the matter without a hearing.

(e)

Disposition

The Court of Appeals may (1) impose

the sanction recommended by the Commission

or any other sanction permitted by law; (2)

dismiss the proceeding; or (3) remand for

further proceedings as specified in the

order of remand.

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Cross reference: For rights and privileges

of the judge after disposition, see Md.

Const., Article IV, §4B (b).

(f)

Decision

The decision shall be evidenced by

the an order of the Court of Appeals, which

shall be certified under the seal of the

Court by the Clerk and shall be accompanied

by an opinion. An opinion shall accompany

the order or be filed at a later date.

Unless the case is remanded to the

Commission, the record shall be retained by

the Clerk of the Court of Appeals.

Source: This Rule is derived from former

Rule 16-809 (2016).

The Chair said that Rule 18-415 had no substantive changes.

Mr. Durfee, an Assistant Reporter, noted that section (e)

addresses disposition of the case.

He asked whether retirement

should be included as one of the dispositions.

The Chair

responded that section (e) provides for “any other sanction

permitted by law.”

Mr. Durfee remarked that retirement may not

be considered a sanction.

The Chair suggested that the language

could be “any other disposition permitted by law.”

consensus, the Committee agreed with this change.

By consensus, the Committee approved Rule 18-415 as

amended.

The Chair presented Rule 18-416, Suspension of Execution of

Discipline, for the Committee’s consideration.

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-416.

DISCIPLINE

SUSPENSION OF EXECUTION OF

(a) Authority

In imposing discipline upon a judge

pursuant to the Rules in this Chapter,

whether pursuant to an agreement between the

judge and the Commission or otherwise, the

Court of Appeals, in its Order, may suspend

execution of all of part of the discipline

upon terms it finds appropriate.

(b) Monitoring Compliance

(1) Unless the Court orders otherwise,

the Commission shall monitor compliance with

the conditions stated in the order. The

Commission may direct Investigative Counsel

to monitor compliance on its behalf.

(2) The Commission may direct the judge

to provide to Investigative Counsel such

information and documentation and to

authorize other designated persons to

provide such information and documentation

to Investigative Counsel as necessary for

the Commission to monitor effectively

compliance with the applicable conditions.

(3) Upon any material failure of the

judge to comply with those requirements or

upon receipt of information that the judge

otherwise has failed to comply with a

condition imposed by the Court,

Investigative Counsel shall promptly file a

report with the Commission and send written

notice to the judge that it has done so.

The notice shall include a copy of the

report and inform the judge that, within

fifteen days from the date of the notice,

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the judge may file a written response with

the Commission.

(4) The Commission shall promptly

schedule a hearing on the report and any

timely response filed by the judge and

report to the Court its findings regarding

any material violation by the judge. The

report shall include any response filed by

the judge.

(5) If a material violation found by the

Commission is conduct by the judge that

could justify separate discipline for that

conduct, the Commission may direct

Investigative Counsel to proceed as if a new

complaint had been filed and shall include

that in its report to the Court.

Within fifteen days after the filing

of the Commission’s report, the judge may

file a response with the Court. The judge

shall serve a copy of any response on the

Commission. The Court shall hold a hearing

on the Commission’s report and any timely

response filed by the judge and may take

whatever action it finds appropriate. The

Commission may be represented in the

proceeding by its Executive Secretary or any

other attorney the Commission may appoint.

Source:

This Rule is new.

The Chair explained that Rule 18-416 is new.

In two recent

cases, the Court of Appeals has suspended a judge for a specific

period and then suspended the execution of part of that time,

with conditions.

as probation.

It is akin to probation but is not referred to

Nothing in the Rules or in the orders that the

Court issued in those cases provides for who is going to monitor

compliance with the conditions and report to the Court if there

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is non-compliance.

A gap existed.

The thought was that a Rule

should be written that would provide for monitoring by the

Commission, which can be delegated to Investigative Counsel.

there is any evidence that a judge is not complying with a

condition, the Commission will hold a hearing and make findings

of fact, which can then be presented to the Court.

will hold a hearing.

The Court

This is similar to the procedure for the

discipline of attorneys.

Mr. Weaver pointed out a typographical error in section

(a).

The word “of” should be the word “or,” so that the phrase

at the end of the sentence reads “all or part of the

discipline.”

By consensus, the Committee agreed.

The Reporter

commented that the title of the Rule is “Suspension of Execution

of Discipline.”

She suggested that the title be simply

“Execution of Discipline.” By consensus, the Committee agreed to

this change.

The Reported noted that there are additional

amendments in this Rule which can be addressed by the Style

Subcommittee.

By consensus, the Committee approved Rule 18-416 as

amended.

The Chair presented Rule 18-417, Confidentiality, for the

Committee’s consideration.

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND

DISCIPLINE

Rule 18-409 18-417.

CONFIDENTIALITY

(a)

PUBLIC ACCESS

Generally

Except as otherwise expressly

provided by these rules, proceedings and

information relating to a complaint or

charges shall be either open to the public

or confidential and not open to the public,

as follows:

(1) Address of Record

The judge's current home address

shall remain confidential at all stages of

proceedings under these rules. Any other

address of record shall be open to the

public if the charges and proceedings are

open to the public.

(2) Complaints and; Investigations;

Disposition Without Charges

All Except as otherwise required by

Rule 18-408, 18-409, and 18-410, all

proceedings under Rules 18-404 and 18-405

through 18-410 shall be confidential.

(3) Upon Resignation, Voluntary

Retirement, Filing of a Response, or

Expiration of the Time for Filing a Response

After the filing of a response to

charges Charges alleging sanctionable

conduct, whether or not joined with charges

of disability, or expiration of the time for

filing a response, the charges and all

subsequent proceedings before the Commission

on them those charges shall be open to the

public upon the first to occur of (A) the

resignation or voluntary retirement of the

judge, (B) the filing of a response by the

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judge to the charges, or (C) expiration of

the time for filing a response. If the

charges allege only that the judge has a

disability, the charges and all proceedings

before the Commission on them shall be

confidential.

(4) Work Product, Proceedings, and

Deliberations

Except to the extent admitted into

evidence before the Commission, the

following matters shall be confidential: (A)

Investigative Counsel's work product and

records not admitted into evidence before

the commission, the Commission’s

deliberations, and records of the

Commission’s deliberations shall be

confidential; (B) proceedings before the

Board, including any peer review proceeding;

Commission; and (D) records of the Board’s

and Commission's deliberations.

(5) Proceedings in the Court of Appeals

Unless otherwise ordered by the

Court of Appeals, the record of Commission

proceedings filed with that Court and any

proceedings before that Court shall be open

to the public.

(b) Permitted Release of Information by

Commission

(1) Written Waiver

The Commission may release

confidential information upon a written

waiver by the judge.

(2) Explanatory Statement

The Commission may issue a brief

explanatory statement necessary to correct

any public misperception about actual or

possible proceedings before the Commission.

(3) To Chief Judge of Court of Appeals

(A) Upon request by the Chief Judge of

the Court of Appeals or the Chief Judge of

that Court, the Commission shall disclose to

the Court or the Chief Judge:

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(A) information about any completed

proceeding that did not result in a

dismissal, including reprimands and deferred

discipline agreements; and

(B) (i) the fact that whether a

complaint is pending against the judge who

is the subject of the request.; and

(ii) the disposition of each

complaint that has been filed against the

judge within the preceding five years.

(B) The Chief Judge may disclose this

information to the incumbent judges of the

Court of Appeals in connection with the

exercise of any administrative matter over

which the Court has jurisdiction. Each

judge who receives information pursuant to

subsection (b)(3) of this Rule shall

maintain the applicable level of

confidentiality of the information otherwise

required by the Rules in this Chapter.

(4) Nominations; Appointments; Approvals

(A) Permitted Disclosures

Upon a written application made by

a judicial nominating commission, a Bar

Admission authority, the President of the

United States, the Governor of a state,

territory, district, or possession of the

United States, or a committee of the General

Assembly of Maryland or of the United States

Senate which asserts that the applicant is

considering the nomination, appointment,

confirmation, or approval of a judge or

former judge, the Commission shall disclose

to the applicant:

(i) Information about any completed

proceedings that did not result in

dismissal, including reprimands and deferred

discipline agreements conditional diversion

agreements and private reprimands; and

(ii) The mere fact that a formal

complaint is pending.

Committee note: A dismissal with a letter

of cautionary advice does not constitute

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discipline and is not disclosed under

subsection (b)(5)(A)(i) of this Rule.

(B) Restrictions

When Unless the judge waives the

restrictions set forth in this subsection,

when the Commission furnishes information to

an applicant under this section, the

Commission shall furnish only one copy of

the material and it, which shall be

furnished under seal. As a condition to

receiving the material, the applicant shall

agree that (i) the applicant will not to

copy the material or permit it to be copied;

(ii) when inspection of the material has

been completed, the applicant shall seal and

return the material to the Commission; and

(iii) the applicant will not to disclose the

contents of the material or any information

contained in it to anyone other than another

member of the applicant.

The Commission shall send the

judge a copy of all documents disclosed

under this subsection.

Cross reference: For the powers of the

Commission in an investigation or proceeding

under Md. Const., Article IV, §4B, see Code,

Courts Article, §§13-401, 402, and 403

through 13-403.

The Commission may include in a

publicly available statistical report the

number of complaints received,

investigations undertaken, and dispositions

made within each category of disposition

during a fiscal or calendar year, provided

that, if a disposition has not been made

public, the identity of the judge involved

is not disclosed or readily discernible.

Source: This Rule is derived from former

Rule 16-810 (2016).

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The Chair said that Rule 18-417 is mostly clarification.

Subsection (b)(3) is new.

The Court of Appeals had requested

that the Chief Judge be able to request information about a

particular judge or judges.

The reasons that the Court would

like this are (1) when considering senior judges for recall, the

Court needs to know if the judge has anything pending that would

prevent him or her from sitting, and (2) because the Chief Judge

designates judges as Administrative Judges, she would like to

know if there is any reason why a judge should not be so

designated.

Judges can also be appointed to committees, such as

the Judicial Council.

Rule 18-417 is very limited in scope.

allows the Chief Judge to make a request of the Commission

without notifying the judge who is the subject of an inquiry and

to share that information with the other members of the Court of

Appeals.

By consensus, the Committee approved Rule 18-417 as

presented.

The Reporter drew the Committee’s attention to the letter

from Judge Wright dated August 29, 2016 (See Appendix 1).

Judge

Wright had made some suggestions for changes to Rules 18-405

(b)(2), 18-406 (d)(1)(A), 18-407 (d)(1), 18-408 (a)(2), 18-413

(a)(1), and 18-414 (c).

The Chair asked if anyone had a problem

with those suggested changes, which are mostly clarifications.

The Reporter said that she disagreed with the suggestion to

change Rule 18-406 (d)(1)(A) by removing the phrase “and

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termination of any investigation.”

That phrase should be

retained, because there might not have been a complaint.

might have been on the initiative of Investigative Counsel.

The

language in the phrase closes the loop, and it should be left

in.

By consensus, the Committee approved the changes to the

Rules on Judicial Disabilities and Discipline suggested by Judge

Wright, except for the change to Rule 18-406 (d)(1)(A).

Agenda Item 5. Consideration of proposed new Title 12, Chapter

800 (Action to Quiet Title) and a conforming amendment to Rule

1-101 (Applicability)

________________________________________________________________

Mr. Dunn told the Committee that Agenda Item 5 is a

proposed new Title 12, Chapter 800 to govern actions to quiet

title.

The Reporter’s note to Rule 12-801 states that Code,

Real Property Article, §14-108 authorizes a civil action to

quiet title in the circuit court.

The Maryland Land Title

Association had reported that there were inconsistent procedures

from county to county for these actions.

Chapter 396, 2016 Laws

of Maryland (HB 920) was enacted by the legislature to provide

uniform procedures.

Mr. Dunn informed the Committee that the

Property Subcommittee, aided by former Committee member Anne

Ogletree, Esq. and Assistant Reporter Libber, drafted Rules

tracking the statute.

Some of the contents of the statute have

been reorganized in the Rules to make it more practicable.

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Mr. Dunn presented Rule 12-801, Definitions, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

Rule 12-801.

DEFINITIONS

In this Chapter, the terms “claim,”

“holder,” “property,” and “security

instrument” have the meanings set forth in

Code, Real Property Article, §14-601.

Source:

This Rule is new.

Rule 12-801 was accompanied by the following Reporter’s

note.

Code, Real Property Article, §14-108

authorizes the initiation of a civil action

to quiet title in the circuit courts, but

there had been no procedures provided to be

followed in an action to quiet title. The

Maryland Land Title Association had reported

that inconsistent procedures were being used

from case to case and county to county. The

2016 legislature enacted Chapter 396, Laws

of 2016 (HB 920) to provide a uniform

procedure for actions to quiet title.

Proposed new Title 12, Chapter 800 is based

on the procedures set out in the new

statute.

Rule 12-801 is derived from Code, Real

Property Article, §14-601.

Mr. Dunn told the Committee that the definitions in Rule

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12-801 are taken directly from the statute, Code, Real Property

Article, §14-601.

By consensus, the Committee approved Rule 12-801 as

presented.

Mr. Dunn presented Rule 12-802, Scope, for the Committee’s

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

Rule 12-802.

SCOPE

(a) Generally

An action may be brought under this

Chapter to establish title to property

pursuant to Code, Real Property Article,

§14-108 and §14-601 et seq.

(b) Authority of Court

(1) Possession and Control

In an action under this Chapter, the

court is deemed to have obtained possession

and control of the property.

(2) Court Not Limited

This Chapter does not limit any

authority the court may have to grant

equitable relief that may be proper under

the circumstances of the case.

Cross reference: See Code, Real Property

Article, §§14-602 and 14-603.

Source:

This Rule is new.

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Rule 12-802 was accompanied by the following Reporter’s

note.

The scope of actions to quiet title has

been governed by Code, Real Property

Article, §14-108, which has been in effect

for many years. The scope has now been

expanded by Code, Real Property Article,

§14-601 et seq.

Mr. Dunn said that Rule 12-802 is taken from Code, Real

Property Article, §§14-602 and 14-603.

By consensus, the Committee approved Rule 12-802 as

presented.

Mr. Dunn presented Rule 12-803, Venue, for the Committee’s

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

Rule 12-803.

VENUE

An action to quiet title shall be filed

in the circuit court for the county where

the property lies or where any part of the

property is located.

Cross reference: See Code, Real Property

Article, §§14-108. See Rule 12-102 for

property located in more than one

jurisdiction.

Source:

This Rule is new.

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Rule 12-803 was accompanied by the following Reporter’s

note.

Since the property at issue may be

located in more than one county, the action

to quiet title may be filed where any part

of the property is located. The Property

Subcommittee recommends the addition of a

cross reference to Rule 12-102, because

filing a lis pendens in one or more counties

in which part of the property is located

puts people on notice that an action to

quiet title has been filed in a different

county.

Mr. Dunn noted that Rule 12-803 pertains to venue, which is

where the property lies and which may be in more than one

county.

A cross reference to Rule 12-102 has been added.

explained that filing a lis pendens in a county in which part of

the property is located provides notice that an action to quiet

title has been filed in a different county.

By consensus, the Committee approved Rule 12-803 as

presented.

Mr. Dunn presented Rule 12-804, Complaint to Quiet Title,

for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

Rule 12-804.

COMPLAINT TO QUIET TITLE

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The complaint shall be signed and

verified by the plaintiff and shall contain

at least the following information:

(a) a description of the property that is

the subject of the action, including its

legal description and its street address or

common designation, if any;

(b) the title of the plaintiff as to which

a determination is sought and the basis of

the title;

possession, the specific facts constituting

the adverse possession;

(d) the names of all persons having

adverse claims to the title of the plaintiff

that are of record, known to the plaintiff,

or reasonably apparent from an inspection of

the property;

(e) the adverse claims asserted against

plaintiff’s title for which determination is

sought;

(f) if the plaintiff admits the validity

of any adverse claim, a statement to this

effect;

(g) if the name of a person required to be

named as a defendant is not known to the

plaintiff, a statement that the name is

unknown and, if applicable, a statement that

there are persons unknown to the plaintiff

who may (1) have a legal or equitable

interest in the property or (2) assert that

there may be a cloud on plaintiff’s title;

(h) if the claim of a person required to

be named as a defendant is unknown,

uncertain, or contingent, a statement by the

plaintiff to this effect;

(i) if the lack of knowledge, uncertainty,

or contingency is caused by a transfer to an

unborn or unascertained person or class

member, or by a transfer in the form of a

contingent remainder, vested remainder

subject to defeasance, executory interest,

or similar disposition, the name, age, and

legal disability, if any, of the person in

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being who would be entitled to assert the

claim had the contingency on which the claim

depends occurred before the commencement of

the action, if known; and

(j) a prayer for a determination of the

title of the plaintiff against the adverse

claims.

Cross reference: See Code, Real Property

Article, §§14-606, 14-608, and 14-609.

Source:

This Rule is new.

Rule 12-804 was accompanied by the following Reporter’s

note.

The contents of a complaint in an

action to quiet title are derived from Code,

Real Property Article, §§14-606, 14-608, and

14-609, but the contents have been

reorganized into one Rule according to the

way complaints are generally filed.

Requiring the plaintiff to state that there

may be defendants whose claims are unknown,

uncertain, or contingent provides the court

with the knowledge that there may be people

with possible claims to the property.

Mr. Dunn said that Rule 12-804 sets forth the required

contents for a complaint to quiet title.

This is derived from

Code, Real Property Article, §§14-606, 14-608, and 14-609.

By consensus, the Committee approved Rule 12-804 as

presented.

Mr. Dunn presented Rule 12-805, Joinder of Additional

Parties, for the Committee’s consideration.

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MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

Rule 12-805.

JOINDER OF ADDITIONAL PARTIES

(a) Generally

The court on its own motion or on

motion of any party may issue any

appropriate order to require joinder of any

additional parties that are necessary or

proper.

(b) By Plaintiff - Deceased Defendants

(1) Personal Representative Known

If a person required to be named as

a defendant pursuant to Rule 12-804 (d) is

dead or is believed by the plaintiff to be

dead, and the plaintiff knows of a personal

representative, the plaintiff shall join the

personal representative as a defendant.

(2) Personal Representative Unknown

If a person required to be named as

defendant pursuant to Rule 12-804 (d) is

dead, or is believed by the plaintiff to be

dead, and the plaintiff knows of no personal

representative, the plaintiff shall state

those facts in an affidavit filed with the

court.

(3) Testate and Intestate Successors

If, by affidavit under subsection

(b)(2) of this Rule, the plaintiff states

that a person is dead, or is believed to be

dead, the plaintiff may join as defendants

“the testate and intestate successors of

___________________________________________

(Naming the decedent)

or ________________________________________,

(Naming the person believed to be deceased)

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and all persons claiming by, through or

under _____________________________________

(Naming the decedent)

or _______________________________________.”

(Naming the person believed to be deceased)

Cross reference: See Code, Real Property

Article, §§14-610, 14-611, and 14-612.

A person who has a claim to the

property described in a complaint under this

Chapter may appear in the proceeding.

Source:

This Rule is new.

Rule 12-805 was accompanied by the following Reporter’s

note.

Rule 12-805 is based on Code, Real

Property Article, §§14-610, 14-611, and 14612, but these have been reorganized into

one Rule containing all the joinder

provisions.

Mr. Dunn explained that Rule 12-805 tracks the statutes,

Code, Real Property Article, §§14-610, 14-611, and 14-612.

The

Chair noted that in section (a), instead of the language that

reads:

“the court on its own motion,” the preferred language

used in the Rules is “the court on its own initiative.”

can be changed by the Style Subcommittee.

This

Ms. Ogletree remarked

that this language had been taken directly from the statute.

By consensus, the Committee approved Rule 12-805, subject

to review by the Style Subcommittee.

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Mr. Dunn presented Rule 12-806, Appointment of Attorney to

Protect Individuals Not in Being or Whose Identity or

Whereabouts is Unknown, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

Rule 12-806. APPOINTMENT OF ATTORNEY TO

PROTECT INDIVIDUALS NOT IN BEING OR WHOSE

IDENTITY OR WHEREABOUTS IS UNKNOWN

The court on its own motion or on

motion of any party may issue an order for

appointment of an attorney to protect the

interest of any party to the same extent and

effect as provided under Rule 2-203 with

respect to individuals not in being or of

any party whose identity or whereabouts is

unknown.

Cross reference: See Code, Real Property

Article, §14-614.

Source:

This Rule is new.

Rule 12-806 was accompanied by the following Reporter’s

note.

Code, Real Property Article, §14-614

addresses the appointment of an attorney to

protect the interest of any individual not

in being. To afford greater due process,

the Property Subcommittee has expanded this

to include protecting the interests of any

party whose identity or whereabouts is

unknown.

Mr. Dunn said that the statute, Code, Real Property

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Article, §14-614, refers to appointment of an attorney for an

individual not in being.

The Subcommittee recommends that, to

comply with due process, this be expanded to include appointment

of an attorney for individuals whose identity or whereabouts is

unknown.

The Reporter pointed out that the same stylistic

amendment should be made for the court acting “on its own

initiative.”

By consensus, the Committee approved Rule 12-806, subject

to review by the Style Subcommittee.

Mr. Dunn presented Rule 12-807, Notice to Holders Not Named

as Defendants, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

Rule 12-807.

DEFENDANTS

NOTICE TO HOLDERS NOT NAMED AS

(a) Contents of Notice

At the time a complaint is filed, the

plaintiff shall send each holder that is not

named as a party in the action a copy of the

complaint with exhibits as well as a

statement that the holder is not a party in

the proceeding, and that any judgment in the

proceeding will not affect any claims of the

holder. If the holder elects to appear in

the proceeding, the holder will appear as a

defendant and be bound by any judgment

entered in the proceeding.

(b) By Certified and First-Class Mail

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The complaint and statement shall be

sent by certified mail, return receipt

requested, and by first-class mail to the

holder at the address set forth in the

security instrument for the holder’s receipt

of notices, or if no address for the

holder’s receipt of notices is set forth in

the security instrument, at the last known

address of the holder.

Cross reference: See Code, Real Property

Article, §14-605.

Source:

This Rule is new.

Rule 12-807 was accompanied by the following Reporter’s

note.

Rule 12-807 is derived from Code, Real

Property Article, §14-605. It requires that

the plaintiff send notice to any holder (a

mortgage, trustee, beneficiary, nominee, or

assignee of record) who is not a party in

the proceeding to protect the holder’s

interest. The statute requires notice to be

sent by certified and first-class mail to

the address in the security instrument or to

the last known address of the holder if

there is no address in the security

instrument.

Mr. Dunn told the Committee that Rule 12-807 tracks the

statute, Code, Real Property Article, §14-605.

By consensus, the Committee approved Rule 12-807 as

presented.

Mr. Dunn presented Rule 12-808, Process, for the

Committee’s consideration.

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MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

Rule 12-808.

PROCESS

(a) Service on Defendants Named in

Complaint

Upon the filing of the complaint, the

clerk shall issue a summons as in any other

civil action. The summons, complaint, and

exhibits shall be served in accordance with

Rule 2-121 on each defendant required by the

plaintiff to be named pursuant to Rule 12804 (d).

(b) Service by Publication

(1) Generally

If, on affidavit of the plaintiff,

it appears to the satisfaction of the court

that the plaintiff has used reasonable

diligence to ascertain the identity and

residence of the persons named as unknown

defendants and persons joined as testate or

intestate successors of a person known or

believed to be dead, the court shall order

service by publication in accordance with

Rule 2-122 of the Maryland Rules and the

provisions of this Chapter.

(2) Exception

Subsection (b)(1) of this Rule does

not authorize service by publication on any

person named as an unknown defendant who is

in open and actual possession of the

property.

(3) Content and Posting of Order of

Publication

If the court orders service by

publication, the plaintiff shall:

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(A) use the legal description of the

property and its street address, or other

common description, if any;

(B) not later than 10 days after the

date the order is issued, post a copy of the

summons and complaint in a conspicuous place

on the property that is the subject of the

action; and

been served, posted, and published as

required in the order.

Cross reference: See Code, Real Property

Article, §§14-608, 14-615, and 14-616.

Source:

This Rule is new.

Rule 12-808 was accompanied by the following Reporter’s

note.

Code, Real Property Article, §14-604

provides that the Maryland Rules apply to

actions to quiet title, except to the effect

that they are inconsistent with the

provisions of Code, Real Property Article,

Title 14, Subtitle 6, Actions to Quiet

Title. The statute does not address process

on defendants named in the complaint.

Section (a) of Rule 12-808 is similar to the

language of Rule 14-503, Process, pertaining

to tax sales. Section (b) is derived from

Code, Real Property Article, §§14-615 and

14-616. The Property Subcommittee noted

that subsection (b)(3)(B) requiring the

plaintiff to post a copy of the summons and

complaint in a conspicuous place on the

property that is the subject of the action

not later than 10 days after the date the

order is issued may not comport with the

actual practice in some counties. The 10day period may not be sufficient. This

issue should be flagged for the legislature.

Mr. Dunn explained that one of the issues that arose in

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implementing the statute was the time requirement in subsection

(b)(3)(B).

The Rule provides that not later than 10 days after

the order of publication is issued, the plaintiff shall post a

copy of the summons and complaint in a conspicuous place on the

property that is the subject of the action.

The question was

whether 10 days is enough notice.

Ms. Ogletree explained that in some counties, the sheriff

does not even get the order for publication for at least 10

days.

Although the statute provides for 10 days, the reality is

that this requirement will be violated and the legislature may

want to review this provision.

Mr. Dunn commented that the

Committee does not have the authority to expand this time

period.

Judge Price inquired whether the judge would have

authority by motion to extend this period.

Ms. Ogletree

reiterated that the statute provides for 10 days which,

unfortunately, is not practical in some counties.

The Chair asked if the procedure in those counties could be

modified to accommodate the 10-day period.

answered that she did not know.

Ms. Ogletree

The Maryland Electronic Courts

initiative (“MDEC”) just became effective in Caroline County,

and the orders are not being received until at least 10 days

after they are signed.

them.

The attorneys do not even know about

It is a practical issue, because in certain counties –

and on the Eastern Shore in particular – Ms. Ogletree said that

she has filed cases to get an order of publication signed, then

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the clerk’s office transmits them to the sheriff.

then has to send someone out to the property.

The sheriff

The person may

need directions to the property in order to post it.

The 10-day

period may not be enough; 15 days may be preferable.

The Chair

said that this can be pointed out to the General Assembly.

Mr. Zarbin asked whether language could be added to Rule

12-808 to the effect of “upon a showing of good cause,” the

court may extend the time period.

He agreed with Judge Price

that a court should have the authority to extend the time,

especially if it is for good cause.

It will not be easy to get

the legislature to make this change.

Mr. Dunn pointed out that

the statute is mandatory, and if the trial court changes the

time, it will be a direct violation of the statute.

Mr. Zarbin

said that he would argue that he was not given 10 days, so there

is a violation.

Either way, there will be a violation.

The

court should be given the authority to extend the time period.

Mr. Weaver asked whether the statute uses the phrase “after

the date the order is issued.”

It is similar to a judgment,

which is not entered until the clerk processes it.

word “issued” be changed to the word “entered”?

with the 10-day requirement.

Could the

This may help

Ms. Ogletree replied that the

order of publication is signed by the clerk, not the judge.

The

judge orders the publication, but the notice is signed by the

clerk.

The Chair said that this can certainly be brought to the

attention of the General Assembly.

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If it is a matter of

practice and procedure, the Court of Appeals has the

constitutional authority to trump this by Rule.

prefers not to do this.

The Court

Judge Mosley remarked that she thought

that this could be changed, but she asked what happens when

there is a conflict between the court Rule and the statute.

The

Chair answered that the Court of Appeals will decide, but, in

general, the later-enacted provision will prevail.

The Chair pointed out that there are two choices:

leave

Rule 12-808 alone and raise the issue for the legislature or

recommend to the Court of Appeals that it consider some escape

hatch.

Mr. Carbine noted that it is the plaintiff who does the

posting.

Ms. Ogletree explained that the plaintiff pays for the

posting, but the sheriff does the actual posting.

Mr. Carbine

responded that this is not what the Rule provides.

Ms. Ogletree

acknowledged this, but she added that it does not happen that

way.

The Rule pertaining to service, Rule 2-123, Process — By

Whom Served, provides that the posting must be done by the

sheriff.

Someone can ask the court to have a private process

server post the property.

Ms. Ogletree reiterated that 10 days

after the order of publication is issued is not sufficient for

posting the property.

Mr. Zarbin suggested changing Rule 12-808 to provide for

posting not later than 10 days after the order is provided to

the sheriff.

Mr. Carbine commented that the problem is that

this is not what the statute provides.

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He suggested leaving the

Rule as it is, and it can be worked around.

Mr. Marcus noted

that it is not just a problem with the 10 days; the Rule also

provides that the plaintiff shall post the property, which is

not the general practice.

He added that he would be reluctant

to recommend that the Rule rewrite the statute; it exceeds the

scope of how the Rule should be written.

The Committee does not

have the ability or authority to digress from the statute.

Mr.

Zarbin pointed out that the Court of Appeals has done so in the

past.

Mr. Weaver remarked that Rule 2-123 provides that any

service other than delivery, mailing, or publication shall be

executed by the sheriff, unless the court orders otherwise.

Carbine suggested that Rule 12-808 be left alone.

Mr.

The Chair

said that the Rule should be left alone, but when it is

discussed at the Court hearing, the Court should be told about

this discussion, and the legislature will be alerted to address

these problems.

By consensus, the Committee approved Rule 12-808 as

presented.

Mr. Dunn presented Rule 12-809, Answer, for the Committee’s

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

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Rule 12-809.

ANSWER

(a) Generally

An answer to a complaint under this

Chapter shall be verified and shall set

forth:

(1) any claim the defendant has to the

property that is the subject of the action;

(2) any facts tending to controvert

material allegations of the complaint; and

(3) a statement of any new facts

constituting a defense to the plaintiff’s

claim.

(b) No Recovery of Costs

If the defendant disclaims any

interest in the title of the property in the

answer or allows judgment to be taken by

default, the plaintiff may not recover

costs.

Cross reference: See Code, Real Property

Article, §14-607.

Source:

This Rule is new.

Rule 12-809 was accompanied by the following Reporter’s

note.

Rule 12-809 is substantially the same

as Code, Real Property Article, §14-607. If

a defendant disclaims any interest in the

title or allows judgment to be taken by

default, the statute provides that the

plaintiff may not recover costs.

Mr. Dunn said that Rule 12-809 tracks the statute, Code,

Real Property Article, §14-607.

By consensus, the Committee approved Rule 12-809 as

presented.

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Mr. Dunn presented Rule 12-810, Hearing, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

Rule 12-810.

HEARING

In all contested cases, the plaintiff

shall submit evidence at a hearing to

establish plaintiff’s title. The court may

receive any evidence offered supporting the

claims of any defendant other than those

defendants’ claims admitted by the plaintiff

in the complaint.

Cross reference: See Code, Real Property

Article, §§14-612 and 14-617.

Source:

This Rule is new.

Rules 12-810 was accompanied by the following Reporter’s

note.

Rule 12-810 is derived from Code, Real

Property Article, §14-617. The Property

Subcommittee has modified the statutory

provision by adding that a hearing will be

held in all contested cases as opposed to

all cases. This comports with actual

practice in many of the counties.

QUERY TO RULES COMMITTEE: A defendant who is

alleging adverse possession has a right to a

jury trial, but the plaintiff who files the

action to quiet title does not. Should

there be a right to a jury trial in all

quiet title cases given the merger of law

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and equity? Otherwise, the plaintiff is at

a disadvantage.

Mr. Dunn explained that Rule 12-810 tracks the statutes,

Code, Real Property Article, §§14-612 and 14-617.

An issue had

arisen regarding the hearing, which the Subcommittee discussed

at length.

A defendant who is alleging adverse possession has a

right to a jury trial, but the plaintiff who files an action to

quiet title does not.

The question that came up at the

Subcommittee meeting was whether a plaintiff should have a right

to a jury trial in all actions to quiet title, given the merger

of law and equity.

It would seem that the plaintiff is at a

disadvantage.

The Chair said that he did not know whether the Court of

Appeals can decide who gets a jury trial by Rule.

substantive law.

This is

The Court can interpret two articles of the

Constitution, Article 5 (Application of Common Law and Statutes

of England; Trial by Jury) and Article 23 (Trial by Jury).

The

Chair said that the way that he read the statute, particularly

the pre-existing one, it provides that the action to quiet title

is in rem and in equity.

In the pre-existing statute, the words

“in equity” had been stricken.

The newer statute refers to a

hearing before the court.

Ms. Ogletree commented that there is another issue

pertaining to the hearing before the court:

the practice in

some areas around the State, particularly on the Eastern Shore,

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is that the case is referred to an examiner, and then the court

reviews it and either enters an order or not.

To finesse the

required hearing, Rule 12-810 was drafted to provide that in a

contested case, there must be a hearing, meaning an adversarial

hearing.

There is still a hearing before an examiner who is a

judicial officer, but the change essentially blurred the

distinction between a hearing before an examiner and a court

hearing, so that the practice of a hearing before an examiner

could be continued.

If there is a case where a part of a

property was parceled out in 1903 and this is not known for 40

years, once everything is straightened out and no one objects,

it is not necessary to waste the court’s time on this by

requiring a hearing.

It is important to preserve this practice

to the extent possible and still comply with the statute by

requiring a hearing.

The Chair pointed out that this gets to the issue of

whether there is a hearing, not whether the hearing is before a

jury.

Ms. Ogletree said that she did not understand why anyone

in a real property case would want a jury.

If there is a

problem because of the way the property law developed, that can

be addressed first, which is the case at law, and then there

could be the case of the defense alleging adverse possession.

Code, Real Property Article, §14-108 melded the two contests,

but it still kept them in equity, so there was no jury.

The

issue is that when the defense was adverse possession, the

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defendant could plead a jury, and this is still the case.

The

Chair asked whether there are cases on this when a person is

claiming a right by adverse position and sues the title holder.

This is an action for ejectment, and it is a law case where the

claimant is entitled to a jury.

On the other hand, it may be

the title-holder who is suing to quiet title.

Ms. Ogletree

responded that this is the inequity, because both parties should

have the right to a jury trial.

The Chair commented that the

person claiming adverse possession could file an action to quiet

title.

Ms. Ogletree said that it is the appropriate way to do

it.

The Chair observed that the titleholder could sue to remove

a cloud from a title, and the cloud is a claim of adverse

possession.

If he or she files an action to quiet title, it is

an equity action.

The person claiming adverse possession or a

prescriptive right to an easement wants to join that defendant.

If the person files a counterclaim for ejectment, then he or she

gets a jury.

However, if he or she does not do that, then it is

an equity case.

Ms. Ogletree remarked that she had a case where she had

filed an action to quiet title, and the other side filed for a

prescriptive right to an easement and asked for a jury.

The

Chair said that what is in the statute does not preclude a jury

trial as long as the person files an action for ejectment.

Ms.

Ogletree noted that the statute uses the word “claim” for both

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the claim of an adverse possessor trying to get title and the

claim of a titleholder who is being opposed by an adverse

possessor.

It is very confusing.

To the extent possible, the

Rules were drafted to try to clear this up.

The Chair asked whether it would be helpful to have a

Committee note that would state that Rule 12-810 does not affect

any right to a jury trial a party may have in an ejectment

action.

help.

Ms. Ogletree replied that she thought that this would

Mr. Dunn agreed that it would be useful.

Mr. Sullivan

commented that an action to quiet title could be combined with

another action.

Ms. Ogletree responded that the only action

would be an action for ejectment.

Historically, if someone is

seeking possession but is not entitled to it, the person would

file an action for ejectment.

This does not work, because

someone cannot have record title and file.

twist to this:

There is another

a case held that to quiet title, the possession

must be peaceable.

One circuit court determined that if there

is any kind of dispute between the parties, an action to quiet

title is not available.

The Chair referred to Higgins v. Barnes, 310 Md. 532

(1987), which has been followed several times.

That case arose

shortly after the merger of law and equity when someone filed a

counterclaim in an equitable action, the same claim, but the

counterclaim was a law action.

The Court held that if there was

a right to a jury trial on the facts pertaining to the claim,

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the judge is bound by the jury’s verdict.

cited a number of times.

The case has been

An example of what could happen is

that someone comes in with a suit to quiet title in an ejectment

action and prays a jury trial.

The other side appeals.

He or she would get the jury.

The appellate court would decide it.

It will get sorted out.

Mr. Dunn moved that a neutral Committee note as suggested

by the Chair be added, the motion was seconded, and it passed by

a majority vote.

By consensus, the Committee approved Rule 12-810 as

amended.

Mr. Dunn presented Rule 12-811, Judgment, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 12 - PROPERTY ACTIONS

CHAPTER 800 - ACTION TO QUIET TITLE

Rule 12-811.

JUDGMENT

(a) Recording

A judgment in an action under this

Chapter shall be recorded in the land

records of the counties in which any portion

of the property is located.

(b) Indexing

The clerk shall index the judgment in

accordance with Code, Real Property Article,

§3-302, with the parties against whom the

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judgment is entered as grantor, and the

party in whose favor the judgment is entered

as grantee.

Cross reference: Code, Real Property

Article, §14-617. See Code, Real Property

Article, §§14-618 through 14-621 for the

effects of a judgment in an action to quiet

title.

Source:

This Rule is new.

Rule 12-811 was accompanied by the following Reporter’s

note.

Rule 12-811 is substantially the same

as Code, Real Property Article, §14-617.

Mr. Dunn told the Committee that Rule 12-811 is derived

from Code, Real Property Article, §14-617.

Mr. Weaver remarked that statutes that provide that an

order shall be recorded in the land records cause confusion for

clerks.

Often this issue gets clarified by the Attorney General

as to who does the recording, and then the clarification is

lost.

Mr. Weaver suggested that Rule 12-811 should have

language added to the effect that the party in whose favor

judgment is entered shall cause a copy of the judgment to be

recorded in the land records.

The question that comes up is

whether the clerk automatically records the judgment for no fee,

or whether someone has to pay for it.

Mr. Dunn noted that the language of Rule 12-811 comes

directly from the statute.

Mr. Sullivan observed that the Rule

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should indicate that the judgment will be recorded in the

regular way.

Mr. Weaver asked whether a Committee note would be

appropriate.

The Chair inquired whether other Rules have

language similar to Mr. Weaver’s suggestion.

Mr. Weaver

answered that he could not think of another Rule, but he keeps

the index for the land records, and this issue had come up

before where the language of the Rule does not provide who is to

record the judgment.

Ms. Ogletree said that inquisitions and condemnation cases

are automatically recorded in the land records.

same issue.

This is the

The Maryland Land Title Association wants to ensure

that the judgment is recorded in the land records, so anyone

searching the case can find it.

Mr. Weaver commented that if

this was the intent, the Rule should clarify that the clerk

shall record the judgment.

Ms. Ogletree suggested that the prevailing party should

record.

Mr. Weaver agreed, but he explained that he had thought

that the expectation was that the clerk shall automatically do

the recording.

Ms. Ogletree responded that the language of the

statute leads to that conclusion.

There is no language

providing that the prevailing party should do the recording.

The Chair asked for a motion.

Mr. Weaver moved that Rule

12-811 be amended to put the burden on the prevailing party to

record the judgment.

The motion was seconded.

that the Rule would read:

The Chair said

“...the party in whose favor the

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judgment is entered shall cause the judgment to be recorded.”

The motion passed by majority vote.

By consensus, the Committee approved Rule 12-811 as

amended.

Agenda Item 6. Consideration of a proposed amendment to: Rule

14-102 (Judgment Awarding Possession)

_______________________________________________________________

Mr. Dunn presented Rule 14-102, Judgment Awarding

Possession, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 14 - SALES OF PROPERTY

CHAPTER 100 - GENERAL PROVISIONS

AMEND Rule 14-102 by adding a sentence

to subsection (d)(4) addressing when a

timely motion for judgment awarding

possession is filed, as follows:

Rule 14-102.

JUDGMENT AWARDING POSSESSION

. . .

(d)

Service and Response

(1) On Whom

The motion and all accompanying

documents shall be served on the person in

actual possession and on any other person

affected by the motion.

(2) Party to Action or Instrument

(A) If the person to be served was a

party to the action that resulted in the

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sale or to the instrument that authorized

the sale, the motion shall be served in

accordance with Rule 1-321.

(B) Any response shall be filed within

the time set forth in Rule 2-311.

(3) Not a Party to Action or Instrument

(A) If the person to be served was not

a party to the action that resulted in the

sale or a party to the instrument that

authorized the sale, the motion shall be

served:

(i) by personal delivery to the

person or to a resident of suitable age and

discretion at the dwelling house or usual

place of abode of the person, or

(ii) if on at least two different

days a good faith effort was made to serve

the person under subsection (d)(3)(A)(i) of

this Rule but the service was not

successful, by (a) mailing a copy of the

motion by certified and first-class mail to

the person at the address of the property

and (b) posting in a conspicuous place on

the property a copy of the motion, with the

date of posting conspicuously written on the

copy.

(B) Any response shall be filed within

the time prescribed by sections (a) and (b)

of Rule 2-321 for answering a complaint. If

the person asserts that the motion should be

denied because the person is a bona fide

tenant having a right of possession under

the Federal Protecting Tenants at

Foreclosure Act of 2009 (P.L. 111-22), or

Code, Real Property Article, § 7-105.6, the

response shall (i) state the legal and

factual basis for the assertion and (ii) be

accompanied by a copy of any bona fide lease

or documents establishing the existence of

such a lease or state why the lease or

documents are not attached.

(4) Judgment of Possession

If a timely response to the motion

is not filed and the court finds that the

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motion complies with the requirements of

sections (a) and (b) of this Rule, the court

may enter a judgment awarding possession.

If a timely response to the motion is filed,

and the court finds that the motion complies

with the requirements of sections (a) and

(b) of this Rule, the court may hold a

hearing.

. . .

Rule 14-102 was accompanied by the following Reporter’s

note.

The Chair of the Rules Committee

pointed out that subsection (d)(4) of Rule

14-102 does not address the situation where

a timely response to a motion for judgment

awarding possession of the property is

filed. The Property Subcommittee recommends

the addition of a sentence to subsection

(d)(4) permitting the court to hold a

hearing if a timely response is filed, but

the court finds that the motion complies

with the requirements set out in Rule 14-216

(a) and (b).

Mr. Dunn explained that additional language is being

proposed for subsection (d)(4) of Rule 14-102.

The new language

provides that if a timely response to the motion for judgment

awarding possession is filed, and the court finds that the

motion complies with the requirements of the Rule, the court may

hold a hearing.

Mr. Dunn noted that Russell R. Reno, Jr., Esq.

had sent an e-mail expressing his concern about the word “may,”

because it means that the hearing is discretionary.

The problem

is that if one party asks for a hearing, the court cannot grant

the motion without a hearing.

The Chair added that this is the

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case if the motion is a dispositive one.

Judge Eaves expressed the view that the added language is

unnecessary.

The Chair commented that a cross reference to Rule

2-311, Motions, could be added instead.

that this is all that is needed.

Judge Eaves responded

By consensus, the Committee

approved the addition of a cross reference to Rule 2-311 instead

of the proposed new language.

The Chair said that the cross

reference would be placed at the end of Rule 14-102, and it

would refer to Rule 2-311 (f).

By consensus, the Committee approved Rule 14-102 as

amended.

Agenda Item 7. Consideration of proposed amendments to: Rule

14-211 (Stay of the Sale; Dismissal of Action) and Rule 14-305

(Procedure Following Sale)

_______________________________________________________________

Mr. Dunn presented Rules 14-211, Stay of the Sale;

Dismissal of Action, and 14-305, Procedure Following Sale, for

the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 14 - SALES OF PROPERTY

CHAPTER 200 - FORECLOSURE OF LIEN

INSTRUMENTS

AMEND Rule 14-211 by adding to the

cross reference after subsection (a)(1), as

follows:

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Rule 14-211.

ACTION

(a)

STAY OF THE SALE; DISMISSAL OF

Motion to Stay and Dismiss

(1) Who May File

The borrower, a record owner, a

party to the lien instrument, a person who

claims under the borrower a right to or

interest in the property that is subordinate

to the lien being foreclosed, or a person

who claims an equitable interest in the

property may file in the action a motion to

stay the sale of the property and dismiss

the foreclosure action.

Cross reference: See Code, Real Property

Article, §§7-101 (a) and 7-301 (f)(1). See

Rule 2-331; Higgins v. Barnes, 310 Md. 532

(1987); Fairfax Savings, F.S.B. v. Kris Jen

Ltd. Partnership, 338 Md. 1 (1995); and

Code, Real Property Article, §7-105.1 (m)(3)

as to filing a counterclaim in a foreclosure

proceeding.

(2) Time for Filing

(A) Owner-occupied Residential

Property

In an action to foreclose a lien

on owner-occupied residential property, a

motion by a borrower to stay the sale and

dismiss the action shall be filed no later

than 15 days after the last to occur of:

(i) the date the final loss

mitigation affidavit is filed;

(ii) the date a motion to strike

postfile mediation is granted; or

(iii) if postfile mediation was

requested and the request was not stricken,

the first to occur of:

(a) the date the postfile

mediation was held;

(b) the date the Office of

Administrative Hearings files with the court

a report stating that no postfile mediation

was held; or

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after transmittal of the borrower's request

for postfile mediation or, if the Office of

Administrative Hearings extended the time to

complete the postfile mediation, the

expiration of the period of the extension.

(B) Other Property

In an action to foreclose a lien

on property, other than owner-occupied

residential property, a motion by a borrower

or record owner to stay the sale and dismiss

the action shall be filed within 15 days

after service pursuant to Rule 14-209 of an

order to docket or complaint to foreclose. A

motion to stay and dismiss by a person not

entitled to service under Rule 14-209 shall

be filed within 15 days after the moving

party first became aware of the action.

For good cause, the court may

extend the time for filing the motion or

excuse non-compliance.

Cross reference: See Rules 2-311 (b), 1203, and 1-204, concerning the time allowed

for filing a response to the motion.

(3) Contents

A motion to stay and dismiss shall:

(A) be under oath or supported by

affidavit;

(B) state with particularity the

factual and legal basis of each defense that

the moving party has to the validity of the

lien or the lien instrument or to the right

of the plaintiff to foreclose in the pending

action;

Committee note: The failure to grant loss

mitigation that should have been granted in

an action to foreclose a lien on owneroccupied residential property may be a

defense to the right of the plaintiff to

foreclose in the pending action. If that

defense is raised, the motion must state

specific reasons why loss mitigation

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pursuant to a loss mitigation program should

have been granted.

documents or other material in the

possession or control of the moving party

and any request for the discovery of any

specific supporting documents in the

possession or control of the plaintiff or

the secured party;

(D) state whether there are any

collateral actions involving the property

and, to the extent known, the nature of each

action, the name of the court in which it is

pending, and the caption and docket number

of the case;

(E) state the date the moving party

was served or, if not served, when and how

the moving party first became aware of the

action; and

(F) if the motion was not filed within

the time set forth in subsection (a)(2) of

this Rule, state with particularity the

reasons why the motion was not filed timely.

To the extent permitted in Rule 14-212,

the motion may include a request for

referral to alternative dispute resolution

pursuant to Rule 14-212.

. . .

Rule 14-211 was accompanied by the following Reporter’s

note.

The issue of whether counterclaims can

be filed in mortgage foreclosure proceedings

is a murky one. Two Court of Appeals cases

have allowed it, Higgins v. Barnes, 310 Md.

532 (1987) and Fairfax Savings, F.S.B. v.

Kris Jen Ltd. Partnership, 338 Md. 1 (1995);

however, an unreported Court of Special

Appeals opinion held that there can be no

third-party practice in a foreclosure case.

Code, Real Property Article, §7-105.1 (m)(3)

states: “Nothing in this Subtitle precludes

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the mortgagor or grantor from pursuing

another remedy or legal defense available to

the mortgagor or grantor.” This would seem

to allow the filing of a counterclaim.

To clarify this, the Property

Subcommittee recommends adding a cross

reference after Rule 14-211 (a)(1) to Rule

2-331, Counterclaim and Cross-claim, to the

two reported Court of Appeals decisions, and

to Code, Real Property Article, §7-105.1

(m)(3). To ensure that the filing of a

counterclaim does not necessarily delay a

decision in a foreclosure proceeding, the

Subcommittee recommends adding language from

Rule 2-602, Judgments Not Disposing of

Entire Action, to Rule 14-305.

MARYLAND RULES OF PROCEDURE

TITLE 14 SALES OF PROPERTY

CHAPTER 300 - JUDICIAL SALES

AMEND Rule 14-305 by adding a new

section pertaining to filing a counterclaim,

as follows:

Rule 14-305.

(a)

PROCEDURE FOLLOWING SALE

Report of Sale

As soon as practicable, but not more

than 30 days after a sale, the person

authorized to make the sale shall file with

the court a complete report of the sale and

an affidavit of the fairness of the sale and

the truth of the report.

(b)

Affidavit of Purchaser

Before a sale is ratified, unless

otherwise ordered by the court for good

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cause, the purchaser shall file an affidavit

setting forth:

(1) whether the purchaser is acting as

an agent and, if so, the name of the

principal;

(2) whether others are interested as

principals and, if so, the names of the

other principals; and

(3) that the purchaser has not directly

or indirectly discouraged anyone from

bidding for the property.

Notice

Upon the filing of a report of sale

of real property or chattels real pursuant

to section (a) of this Rule, the clerk shall

issue a notice containing a brief

description sufficient to identify the

property and stating that the sale will be

ratified unless cause to the contrary is

shown within 30 days after the date of the

notice. A copy of the notice shall be

published at least once a week in each of

three successive weeks before the expiration

of the 30-day period in one or more

newspapers of general circulation in the

county in which the report of sale was

filed.

(d)

Exceptions to Sale

(1) How Taken

A party, and, in an action to

foreclose a lien, the holder of a

subordinate interest in the property subject

to the lien, may file exceptions to the

sale. Exceptions shall be in writing, shall

set forth the alleged irregularity with

particularity, and shall be filed within 30

days after the date of a notice issued

pursuant to section (c) of this Rule or the

filing of the report of sale if no notice is

issued. Any matter not specifically set

forth in the exceptions is waived unless the

court finds that justice requires otherwise.

(2) Ruling on Exceptions; Hearing

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The court shall determine whether to

hold a hearing on the exceptions but it may

not set aside a sale without a hearing. The

court shall hold a hearing if a hearing is

requested and the exceptions or any response

clearly show a need to take evidence. The

clerk shall send a notice of the hearing to

all parties and, in an action to foreclose a

lien, to all persons to whom notice of the

sale was given pursuant to Rule 14-206 (b).

(e) If a Counterclaim is Filed

If a counterclaim has been filed in

the proceeding, and the court expressly

determines in a written order that there is

no just reason for delay, it may direct in

the order the entry of a final judgment as

to one or more but fewer than all of the

claims or parties.

(e) (f) Ratification

The court shall ratify the sale if

(1) the time for filing exceptions pursuant

to section (d) of this Rule has expired and

exceptions to the report either were not

filed or were filed but overruled, and (2)

the court is satisfied that the sale was

fairly and properly made. If the court is

not satisfied that the sale was fairly and

properly made, it may enter any order that

it deems appropriate.

(f) (g) Referral to Auditor

Upon ratification of a sale, the

court, pursuant to Rule 2-543, may refer the

matter to an auditor to state an account.

(g) (h) Resale

If the purchaser defaults, the court,

on application and after notice to the

purchaser, may order a resale at the risk

and expense of the purchaser or may take any

other appropriate action.

Source: This Rule is derived from former

Rule BR6.

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Rule 14-305 was accompanied by the following Reporter’s

note.

See the Reporter’s note to Rule 14-211.

Mr. Dunn explained that the issue raised in Agenda Item 7

is whether a counterclaim may be filed in a mortgage foreclosure

proceeding.

The Property Subcommittee had lengthy discussions

about this issue.

The two Court of Appeals cases that provide

that a counterclaim may be filed are cited in the Committee

note, Higgins v. Barnes, 310 Md. 532 (1987) and Fairfax Sav.,

F.S.B. v. Kris Jen Ltd. Partnership, 338 Md. 1 (1995).

unreported Court of Special Appeals case held that no thirdparty practice is permitted in a foreclosure proceeding.

The

Subcommittee is recommending clarification of this issue by

adding a cross reference that refers to counterclaims after

subsection (a)(1) of Rule 14-211 and by adding a new section (e)

to Rule 14-305.

Jeffrey Fisher, Esq. addressed the Committee.

He said that

notwithstanding the opinion of the Court of Appeals, there is no

good place in a foreclosure proceeding for counterclaims, crossclaims, or third-party practice.

trumps his view.

However, the Court of Appeals

He had advocated for clarification at the

Subcommittee and had suggested the addition of language from

Rule 2-602, Judgments not Disposing of Entire Action, pertaining

to finality of judgments.

If a counterclaim is pending, but the

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judge has allowed the sale to go forward, the court can ratify

the sale and make a final order, which can be appealed, so that

title is assured and people can rely on it.

Mr. Fisher

commented that his issue is not so much with the cross reference

but that he wants to make sure that the language of Rule 14-211

allows finality of the foreclosure ratification.

Philip Robinson, Esq., addressed the Committee.

He said

that the language from Rule 2-602 that Mr. Fisher had referred

to is proposed to be added to Rule 14-305, Procedure Following

Sale, as a new section (e).

what goes first.

This creates the equity issue of

The circuit courts have different practices;

Mr. Fisher’s recommendation at the Subcommittee, concurred with

by Mr. Robinson, was to add section (e) to Rule 14-305, which

effectively allows the circuit court judge to determine what

goes first.

There is no reason to delay the foreclosure, and it

can go forward.

Mr. Robinson remarked that the practicality of how this

works is that he may file a motion pursuant to Rule 14-211 on

behalf of his clients, most of the time stating that they will

make monthly payments.

Someone could file a counterclaim that

he or she does not have the means to pay the bill.

Sections (e)

and (f) give the trial court the discretion to allow the party

to proceed with his or her counterclaim, but the foreclosure

process will not be forestalled.

The Chair asked whether this is covered by Rule 2-602.

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Mr.

Robinson replied that the reason Rule 2-602 was not incorporated

into Rule 14-211 was that Mr. Fisher would argue whether it even

applies, and there is a great amount of bad case law as to this

issue.

The Court of Appeals does not like it when decisions are

overturned.

Because of the case law, Mr. Robinson had suggested

language without the reference to Rule 2-602, so that the bad

case law cannot be argued later on.

Those who represent

homeowners as Mr. Robinson does and also Mr. Fisher and his

colleagues would like to go forward with the proposal in the

right circumstances.

Mr. Robinson commented that Rule 14-211 allows a great deal

of discretion so that the trial judge can make the correct

decision.

If there is no sustainable solution, and the

counterclaim is filed for delay purposes, the trial judge should

be able to determine who goes first on the foreclosure, whether

there is a just reason for a stay, or whether the counterclaim

should be dismissed and foreclosure declared to be final.

Then

this issue can be appealed.

The Chair asked Mr. Robinson whether his thought was that

the proposed language in Rule 14-305 would be interpreted in a

more liberal fashion than the Court is interpreting Rule 2-602.

Mr. Robinson replied that he would expect this.

If Rule 2-602

is incorporated, it would invite the case law from that Rule.

The Chair reminded Mr. Robinson that he had termed this “bad

case law.”

Mr. Robinson expressed the view that the Court of

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Appeals does not like those cases.

The Chair responded that

this is because the Court does not want cases to be appealed

three times.

Mr. Robinson remarked that the Chair had written

decisions based on Mr. Robinson’s cases, which held that because

there was no final judgment, the appeal was not proper.

Mr.

Robinson said that the proposed changes to Rules 14-211 and 14305 allow the trial court some discretion generally in a

foreclosure proceeding.

Mr. Fisher said that foreclosure practitioners consider it

an open issue as to how much the Title 2 Rules apply in Title

14.

For that reason, he and his colleagues would want to see a

solution to the problem in the Title 14 Rules as opposed to the

Title 2 Rules being engrafted on the Title 14 Rules.

Mr. Dunn reiterated that the proposal is to add a new

section (e) to Rule 14-305.

Judge Nazarian commented that he

could not understand how adding language to the cross reference

in Rule 14-211 solves the problem of counterclaims.

The

interplay between the Title 14 Rules and the Title 2 Rules is a

challenge.

The cases start with an order to docket that is a

collection of documents plus a streamlined response period.

Judge Nazarian added that he did not read Higgins v. Barnes to

clearly answer whether a counterclaim is possible.

He did see

it in Fairfax v. Kris Jen, but those cases long predate the

amendments to the Title 14 Rules in 2010.

An unreported Court

of Special Appeals opinion cannot be cited, so it should not be

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referred to in the Committee note for any purpose.

Judge Nazarian said that he was not inclined to recommend

the proposed changes because the issue is more complicated than

the suggested solution.

The Court of Special Appeals sees cases

involving claims that may or may not have had any merit, but

they are being raised in such a manner that they can be

dismissed on their face.

Someone may have waited until after

the period to file a motion to dismiss has run or until after

the sale.

This is a different problem, but it is difficult to

understand the interplay between claims that bear on the

elements of the lending relationship and how to put this into

the streamlined foreclosure procedure.

Judge Nazarian added

that he did not think that he had ever seen a timely

counterclaim that actually got litigated in a foreclosure case.

It may be because the ones that are allowed do not turn into

appeals.

Judge Nazarian reiterated that he was struggling to

understand why the addition of section (e) is a good idea.

The Chair asked what relationship proposed section (e) of

Rule 14-305 had with the expanded cross reference in Rule 14211.

Mr. Laws said that it seemed that what is being suggested

is to strike the expanded cross reference but leave the proposed

new section (e) in Rule 14-305.

Judge Nazarian responded that

his view was that neither of these changes should be made.

explained that he was speaking personally and not on behalf of

the Court of Special Appeals but that he was not in favor of the

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idea of counterclaims in foreclosure proceedings.

Mr. Laws

expressed the view that the change was necessary in Rule 14-305.

A foreclosure is an

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