# COURT OF APPEALS STANDING COMMITTEE > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A37d021234d4dd737 ## Record - **Collection:** Court rules - **Document type:** Court rule ## Text COURT OF APPEALS STANDING COMMITTEE 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 -1- 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 -2- 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 -3- 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 -4- 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, -5- 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 -6- 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 -7- 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. (c) Executive Secretary 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 -8- 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 -9- 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). -10- 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 -11- 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 -12- 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. -13- 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. (c) (2) Dismissal by 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 -14- (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 -15- 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 (c) of this Rule, if there is no cognizable 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 -16- 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. A 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 -17- 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 -18- 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. -19- (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, -20- §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. (C) Notice shall not be given under this Rule if (i) Investigative Counsel -21- 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. (c) (6) Time for Completion 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; (C) a conditional diversion agreement; (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. (C) Subject to a retention schedule 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 -24- 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 -30- 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; (C) a conditional diversion agreement 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 (C) (G) upon a determination of 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. -31- (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. (C) Failure to File Timely Report -32- 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 -33- 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; (C) enter a disposition by the 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. (C) Hearings 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, (c) Time for Completion of Investigation 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; (C) a conditional diversion agreement; (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 (c) (a) Deferred Discipline Agreement When 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 -44- 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. -45- 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 (C) (3) the judge, in writing on a copy 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. -46- (b) Form of Discipline A private reprimand constitutes a form of discipline. (c) Confidentiality; Notice to Complainant (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. -47- 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. (c) Publication 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. -48- 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 -49- (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 -50- 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 -51- It 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 -52- 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 (c) Response 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 Register on the Judiciary website that is 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 -53- 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 -56- 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 -58- 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. (c) Submission to Court of Appeals 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 -59- 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. -60- (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. -61- 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.” By 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. -62- 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, -63- 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. (c) Response; Hearing 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 -64- 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. If 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. -65- 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 -66- 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; (C) deliberations of the Board and 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: -67- (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 -68- 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. (C) Copy to Judge 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. (c) Statistical Reports 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). -69- 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. It 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 -70- termination of any investigation.” That phrase should be retained, because there might not have been a complaint. It 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. -71- 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 -72- 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. -73- 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. -74- 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. He 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 -75- 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; (c) if the title is based on adverse 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 -76- 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. -77- 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) -78- 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. (c) By Any Other Claimant 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. -79- 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 -80- 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 -81- 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. -82- 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: -83- (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 (C) file proof that the summons has 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A37d021234d4dd737. Public record. Not legal advice.