In Re Formal Inquiry Concerning Judge Bennett

SMITH, Judge. For the second time in Maryland history we shall be obliged to remove a judge from office. See In Re Diener and Broccolino, 268 Md. 659 , 304 A.2d 587 (1973), cert. denied, 415 U.S. 989 , 94 S.Ct. 1586 , 39 L.Ed.2d 885 (1974), for the earlier such instance and the background for our current constitutional provision. Acting pursuant to Md. Const, art.

IV, § 4B and Maryland Rule 1227, the Commission on Judicial Disabilities formally notified Judge Stanley Y. Bennett of the District Court of Maryland, District II, sitting in Frederick County that he was charged with a number of violations of the Canons of Judicial Ethics and the Rules of Judicial Ethics. The following facts pertinent to this opinion were alleged: “1. That ... [Judge Bennett] made promises or statements to Mr. Marion Rice and/or members of his family indicating that ... [the judge] would assist in or attempt to obtain a revised disposition of a guilty verdict which ⁵²⁰ had been entered against Randy Marion Demaris by Judge Mary Ann Stepler on April 6, 1982 with respect to Citation No. 7540135 in the District Court of Maryland. “2. Knowing that Randy Marion Demaris had been found guilty of a traffic offense by another judge, ... [Judge Bennett] advised a supporter of ... [his] campaign for election to the Circuit Court that ... [the judge] would ‘look into’ the matter, or words to that effect. “3.

That in June, 1982 ... [the judge] prepared or caused to be prepared an Exception Report with respect to Citation No. 7540135 and did forge or caused to be forged or aided and assisted in the forgery of the signature of Judge Stepler thereto.” The Commission held extensive hearings. It filed an opinion, the pertinent parts of which not otherwise set forth in this opinion are reproduced in an appendix to this opinion. It concluded that Judge Bennett violated Canons IV, XIII, XXIX, and XXXIII of the Canons of Judicial Ethics as well as Rules 1 and 15 of the Rules of Judicial Ethics as promulgated in Rule 1231. 1 The opinion said: ⁵²¹ “Findings of Fact “The Commission, based on clear and convincing evidence, finds as fact that: “a. There was no attempt to ‘frame’ Judge Bennett so as to cause him to lose the judicial contest for a seat on the Frederick County Circuit Court. “b.

Marion ‘Pus’ Rice approached Judge Bennett and asked him to see what he could do to remove the traffic violation from Randy M. Demaris’ driving record. ⁵²² “c. The matter of Demaris’ driving record was of singular importance to Rice. “d. Being elected to the Circuit Court was of prime importance to Judge Bennett, and he sought the favor and political support of ‘Pus’ Rice. “e. As a result of Rice’s importuning, Judge Bennett did make promises to Rice and or members of Rice’s family indicating that he would assist in an attempt to obtain a revised, disposition of the guilty verdict entered by Judge Stepler against Randy M. Demaris on April 6, 1982, on traffic citation No. 7540135. “f.

Judge Bennett, knowing that Randy M. Demaris had been found guilty of a traffic offense, advised Rice, a campaign supporter, that he, Judge Bennett, would ‘look into’ the matter, thus implying to Rice and his family that the judge would use his office in an effort to delete the violation from the records of Randy M. Demaris so that Demaris could obtain a driver’s license from the Motor Vehicle Administration. “g. Judge Bennett did, sometime during the period June 17, 1982, to June 23, 1982, trace forge the signature of Judge Mary Ann Stepler to the Exception Report (Commission Exhibit No. 17), or he did cause her signature to be trace forged on the Exception Report (Commission Exhibit No. 17). “We make clear that as to the findings of fact in paragraphs ‘a’ and ‘g’ that the Commission so decided by a vote of 6 to 1. The Commission wás unanimous with respect to all other factfindings.” It was the unanimous recommendation of the Commission that Judge Bennett be removed from office. Judge Bennett filed the following exceptions: ⁵²³ “1.

The Commission erred in having failed to grant the Motion to Dismiss filed by Respondent prior to the evidentiary hearing, on the issue of collateral estoppel/double jeopardy/res judicata on the basis of a Grand Jury having refused to indict the Respondent herein on the same evidence which was to have been presented to the Commission. “2. The Commission erred in having failed to properly rule that there was ‘sufficient cause to warrant further proceedings’, i.e., formal hearing, pursuant to Rule 1227, [f], 4, upon determination that the statement or complaint which generated this inquiry was not ‘verified’. “3. Upon a review of the evidence presented, the evidence does not support, by clear and convincing weight, a conclusion that the Respondent forged or aided in the forgery of the Exception Report. “4. The conclusion of the Commission that the Respondent forged or aided in the forgery was against the weight or [sic] the evidence. “5.

The Commission Chairman erred in having permitted, over objection, Corporal Irvin Lambdin, to return to the witness stand, two days after his original testimony, and change his testimony. “6. The Commission Chairman erred in permitting testimony from Barbara Day, the last witness called by the Commission, when she was not identified as a witness who would be called by the Commission.” We shall discuss each exception but not in the order in which they appear. 1. The Collateral Estoppel/Double Jeopardy/Res Judicata Issue The grand jury of Frederick County was called into special session after the allegations here arose. Evidence pertaining to this matter was presented to it.

It appears that it received evidence similar to that placed before the Commission. It failed to return any indictments. This failure generates the argument in the first exception. ⁵²⁴ Before there can be double jeopardy there must be jeopardy. Bennett was not placed in jeopardy when a grand jury considered whether it should return an indictment.

There is nothing to prevent a subsequent grand jury from indicting him. It is generally held with respect to a jury trial that a defendant is placed in jeopardy when the jury is selected and sworn and as to a non-jury trial when the judge begins to hear or receive evidence. Blondes v. State, 273 Md. 435, 444 , 330 A.2d 169, 173-74 (1975). Hence, there can be no double jeopardy here.

Moreover, in the analogous situation of an attorney grievance proceeding we said in Maryland St. Bar Ass’n v. Sugarman, 273 Md. 306, 318 , 329 A.2d 1, 7 (1974), cert. denied, 420 U.S. 974 , 95 S.Ct. 1397 , 43 L.Ed.2d 654 (1975), “[W]e hold that this proceeding is not a 'criminal case’ within the purview of ... the Fifth Amendment to the Constitution of the United States.” This proceeding is not a criminal case. Res judicata and collateral estoppel were discussed in Cook v. State, 281 Md. 665 , 381 A.2d 671 , cert. denied, 439 U.S. 839 , 99 S.Ct. 126 , 58 L.Ed.2d 136 (1978). There Judge Levine said for the Court: “It is beyond question that the closely related doctrines of res judicata and collateral estoppel apply to criminal as well as civil causes. Rouse v. State, 202 Md. 481, 486 , 97 A.2d 285 , cert. denied, 346 U.S. 865 [ 74 S.Ct. 104 , 98 L.Ed. 376 ] (1953); State v. Coblentz, 169 Md. 159, 164-66 , 180 A. 266 (1935); see also United States v. Oppenheimer, 242 U.S. 85, 87 , 37 S.Ct. 68 [69], 61 L.Ed. 161 (1916).

See generally Annot. 9 A.L.R.3d 203 (1966). Suffice it to say that under the doctrine of res judicata, sometimes known as direct estoppel, a final and valid judgment rendered in one proceeding between two parties operates as a bar in a second proceeding between them on all matters that have been or could have been decided in the original litigation, where the second proceeding involves the same subject matter as the first cause of action. MPC, Inc. v. Kenny, 279 Md. 29, 32 , 367 A.2d 486 (1977); Sterling v. Local 438, 207 Md. 132, 140-41 , 113 A.2d 389 , ⁵²⁵ cert. denied, 350 U.S. 875 [ 76 S.Ct. 119 , 100 L.Ed. 773 ] (1955). On the other hand, where a prior judgment is relied upon to preclude a second adjudication of some previously determined factual or legal issue in subsequent litigation between the same parties concerning a different cause of action, courts apply the doctrine of collateral estoppel.

MPC, Inc. v. Kenny, 279 Md. at 32-33 [ 367 A.2d 486 ], See also Wash. Sub. San. Comm’n v. TKU Associates, 281 Md. 1, 18-19 , 376 A.2d 505 (1977).

Under this latter doctrine, once an issue of ultimate fact has been determined by a final and valid judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443 , 90 S.Ct. 1189 [1194], 25 L.Ed.2d 469 (1970); Cousins v. State, 277 Md. 383, 398 , 354 A.2d 825 , cert. denied, 429 U.S. 1027 [ 97 S.Ct. 652 , 50 L.Ed.2d 631 ] (1976).” 281 Md. at 668-69, 381 A.2d at 673 (footnote omitted). As Judge Davidson pointed out for the Court in Powers v. State, 285 Md. 269, 283-84 , 401 A.2d 1031 , cert. denied, 444 U.S. 937 , 100 S.Ct. 288 , 62 L.Ed.2d 197 (1979), in a criminal context, “[T]he primary purpose of the doctrine of collateral estoppel is to protect an accused from the unfairness of being required to relitigate an issue which has once been determined in his favor by a verdict of acquittal.” The doctrine is not applicable here. The failure of the grand jury to indict is not a binding final judgment.

We hold that the failure of the grand jury to indict Judge Bennett does not prevent the bringing of charges by the Judicial Disabilities Commission. 2. The Alleged Failure of the Commission to Rule That There Was “Sufficient Cause to Warrant Further Proceedings ____” The investigation of Judge Bennett began when the Chief Judge of the District Court of Maryland brought to the attention of the Judicial Disabilities Commission allegations that there had been a forgery of a court docu ⁵²⁶ ment changing the disposition in a motor vehicle case. Rule 1227 f 1 provides that the Commission, “upon receiving a verified statement, not obviously unfounded or frivolous, alleging facts indicating that a judge has committed acts constituting misconduct in office ... shall make a preliminary investigation to determine whether formal proceedings should be instituted and a hearing held.” The letter from the Chief Judge of the District Court was not verified. However, Rule 1227 f 2 provides, “The Commission without receiving a verified statement may make such a preliminary investigation on its own motion.” The Commission complied with Rule 1227 f 3 pertaining to notice by giving Judge Bennett notice under date of February 28, 1983, that it was “making a preliminary investigation to determine whether formal proceedings should be instituted” against him, setting forth the “areas of alleged conduct” which were said to constitute violations of the Canons or Rules of Judicial Ethics.

Under date of May 1, 1983, formal notice was given to him that the Commission had “made and completed a preliminary investigation on its own motion pursuant to Maryland Rule 1227(f)(2)” and “ha[d] instituted formal proceedings to inquire into the matters [t]here[in]after set forth.” Rule 1227 f 4, to which Bennett alluded in his exception, requires a majority of the members of the Commission to be present at a hearing. It apparently is the belief of Bennett that the record should reflect that the Commission met and formally approved the charges against him. The formal complaint is evidence of this. “There is a strong presumption that public officers properly perform their duties.” Lerch v. Md. Port Authority, 240 Md. 438, 457 , 214 A.2d 761, 771 (1965). Such a presumption is equally applicable to a commission such as this.

We deem this contention to be without merit. 3. The Witnesses a. Corporal Lambdin Corporal Irvin J. Lambdin of the Maryland State Police had testified extensively in this proceeding. He was re ⁵²⁷ called because certain of the members of the Commission had some questions they wished answered.

His earlier testimony was that the forgery was with a blue ink pen. Judge Bennett, according to the evidence, always used black ink. The transcript of that further testimony covers twenty-five pages. The only objection on behalf of Bennett to be found in any of those pages of the transcript came when Mr. Fisher on behalf of the Commission was well into his examination of Lambdin.

The record reflects: “Q. Now, looking at the exception report, the typing was in what kind of ink? “A. That’s the black ink. “Q. And the signature? “A. That appears to be a black or darker blue than was on the exception report. “MR. GLENN: Objection. Mr. Fisher is trying to impeach his own witness. “CHAIRMAN GILBERT: Overruled.” In Von Lusch v. State, 279 Md. 255, 264 , 368 A.2d 468, 473 (1977), we said, “[Wjhere counsel clearly states specific grounds for an objection without a request by the trial court, he waives the right to challenge the evidence on other grounds----” The ordinary rules of evidence do not apply in a proceeding before the Judicial Disabilities Commission. In Diener, 268 Md. 659 , 304 A.2d 587 , Judge McWilliams said for the Court: “[I]t suffices to say that the Commission, functioning as a fact-finding body, was not bound by strict rules of evidence, but only by the fundamental rules of fairness, Hyson v. Montgomery County Council, 242 Md. 55 , 217 A.2d 578 (1966); Dal Maso v. Board of County Comm’rs of Prince George’s County, 238 Md. 333 , 209 A.2d 62 (1965).” 268 Md. at 682 , 304 A.2d at 599-600 .

All factors considered, we find no breach of the “fundamental rules of fairness.” Accordingly, we hold this contention to be without merit. ⁵²⁸ b. Barbara Day Barbara Day, criminal investigator for the State’s Attorney for Frederick County, the last witness called to support the complaint, was not among the witnesses listed before the beginning of the hearing. After discussion between counsel and members of the Commission relative to counsel’s objection to the testimony of this witness, inquiry was made of the attorney for Bennett as to whether he needed time to speak to the witness. He replied, “No. Admittedly, I know what she is going to say.” - Under those circumstances if there were error we deem it harmless.

Were this a criminal case we would say that it was harmless beyond a reasonable doubt.. 4. Sufficiency of the Evidence Rule BV 10 d pertaining to disciplinary actions against attorneys provides that “[fjactual findings shall be supported by clear and convincing evidence.” No similar provision is found in Rule 1227 applicable here. In Diener, 268 Md. 659 , 304 A.2d 587 , the Court said: “We have made an independent review of the entire record, and we think its conclusion is supported by clear and convincing evidence, which, in our judgment, is the proper test to be applied in these circumstances. See In re Farris [ 229 Or. 209 ], 367 P.2d 387, 392 (1961).

It is clear, we think, that the Commission is not within the ambit of the Administrative Procedure Act, Code (1971 Repl.Vol.), Art. 41, § 244(a), and that proceedings before it are neither civil nor criminal in nature; they are merely an inquiry into the conduct of a judicial officer the aim of which is the maintenance of the honor and dignity of the judiciary and the proper administration of justice rather than the punishment of the individual. In re Kelly, 238 So.2d 565, 569 (Fla.1970); Memphis & Shelby County Bar Association v. Vick, 290 S.W.2d 871, 875 , 40 Tenn. App. 206 (1955). Nevertheless, we. are fully persuaded that the severity of the impact of the Commission’s findings upon the individual compels the application of ⁵²⁹ the clear and convincing test.” 268 Md. at 670 , 304 A.2d at 594 .

As indicated in Diener , similar standards have been applied elsewhere. See, e.g., Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 275 , 110 Cal.Rptr. 201 , 515 P.2d 1 (1973), cert. denied, 417 U.S. 932 , 94 S.Ct. 2643 , 41 L.Ed.2d 235 (1974); In Re Hanson, 532 P.2d 303, 308 (Alaska 1975); In Re Crowell, 379 So.2d 107, 109 (Fla.1979); In Re Rome, 218 Kan. 198, 206 , 542 P.2d 676 (1975); Matter of Cieminski, 270 N.W.2d 321, 326 (N.D.1978); In Re Jordan, 290 Ore. 303, 307 , 622 P.2d 297 (1981); Matter of Heuermann, 90 S.D. 312, 317 , 240 N.W.2d 603 (1976). In Berkey v. Delia, 287 Md. 302, 320 , 413 A.2d 170, 178 (1980), we adopted the definition of clear and convincing evidence enunciated by Judge Orth for the Court of Special Appeals in Whittington v. State, 8 Md.App. 676, 679, n. 3 , 262 A.2d 75, 77, n. 3 (1970): “more than a preponderance of the evidence and less than evidence beyond a reasonable doubt ....” Judge Bennett argues strongly that clear and convincing evidence has not been adduced to sustain the charges against him. A proceeding such as this is analogous to an attorney grievance proceeding.

In each case we must make the ultimate findings of fact but in neither case do we hear the testimony, it being heard by others. In the analogous situation of a conflict in evidence before a three-judge hearing panel, as was then required in attorney disciplinary proceedings, Judge Digges said for the Court in Bar Ass’n v. Marshall, 269 Md. 510 , 307 A.2d 677 (1973): “In resolving this conflict in the testimony, we consider the findings of fact of the hearing court in support of its recommendation to have, before us, a similar force and effect to those contained in a master’s report in equity. See In Re Member of Bar, 226 A.2d 705 (Del.1967). Previous opinions of this Court have discussed the importance to be attached to the findings of fact in a master’s report by the ultimate trier of fact.

In those cases we ⁵³⁰ have said that although the report is only advisory, the court should give full consideration to it, particularly with respect to the credibility of witnesses, where the testimony is conflicting. And, the master’s findings of fact from the evidence are prima facie correct and they will not be disturbed unless determined to be clearly erroneous. Bris Realty v. Phoenix, 238 Md. 84, 89 , 208 A.2d 68 (1965); Alexander v. Hergenroeder, 226 Md. 559, 560 , 174 A.2d 580 (1961); Pinkston, Tr. v. Higham, 224 Md. 513, 522 , 168 A.2d 712 (1961); Maryland Lumber Co. v. White, 205 Md. 180, 196 , 107 A.2d 73 (1954).” 269 Md. at 515-16 , 307 A.2d at 680 . We have continued to make similar observations.

See, e.g., Attorney Griev. Comm’n v. Collins, 295 Md. 532, 550 , 457 A.2d 1134 (1983); Attorney Griev. Comm’n v. Kahn, 290 Md. 654, 678 , 431 A.2d 1336 (1981); Attorney Griev. Comm’n v. Willcher, 287 Md. 74, 77 , 411 A.2d 83 (1980).

We follow the Marshall rule here. The fact that the evidence here is circumstantial is no bar. In a criminal context, a capital case, we said in Gilmore v. State, 263 Md. 268 , 283 A.2d 371 (1971), modified on other grounds, 408 U.S. 940 , 92 S.Ct. 2876 , 32 L.Ed.2d 763 (1972): “We find relevant much of what was said by Judge Orth for the Court of Special Appeals in Nichols v. State, 5 Md.App. 340 , 247 A.2d 722 (1968), where he said: ‘The law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused. * * * ‘ * * * In considering the evidence the lower court was guided by established rules of law.

Proof of guilt beyond all doubt has never been required. Young v. State, 4 Md.App. 286 [ 242 A.2d 562 ]. To prove guilt beyond a reasonable doubt it is not necessary that every conceivable miraculous coincidence consistent ⁵³¹ with innocence be negatived. Hayette v. State, 199 Md. 140, 144 [ 85 A.2d 790 ].

The lower court could weigh the evidence and determine the credibility of the witnesses. Roeder v. State, 4 Md.App. 705 [ 244 A.2d 895 ]; Gibson v. State, 4 Md.App. 222 [ 242 A.2d 204 ]. It was under no obligation to believe the appellant’s denials or explanations. Eley v. State, 4 Md.App. 230 [ 242 A.2d 175 ]; Tillery v. State, 3 Md.App. 142 [ 238 A.2d 125 ].

It could weigh the alibi testimony and was not required to accept its truthfulness. Logan v. State, 1 Md.App. 213 [ 228 A.2d 837 ], And if we assume that the evidence against the appellant was solely circumstantial, such assumption would not change the result. The lower court could have properly found that the circumstances, taken together, were inconsistent with, or such as to exclude every reasonable hypothesis or theory of innocence. “[Circumstantial evidence need not be such that no possible theory other than guilt can stand * * *. It is not necessary that the circumstantial evidence exclude every possibility of the defendant’s innocence, or produce an absolute certainty in the minds of the jurors.

The rule does not require the jury to be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant’s guilt.” 3 Wharton’s Criminal Evidence (12th Ed. 1955) § 980, p. 477. While it must afford the basis for an inference of guilt beyond a reasonable doubt, it is not necessary that each circumstance, standing alone, be sufficient to establish guilt, but the circumstances are to be considered collectively. 1 Underhill’s Criminal Evidence (5th Ed.1956) § 17, p. 23 and p. 25.’ Id. at 350-51. (Emphasis in original.)” 263 Md. at 292-93 , 283 A.2d at 383-84 . We have made an independent review of the entire record.

On direct examination Judge Bennett was interrogated relative to the exception report. The record at that point is: ⁵³² “Q. When, if ever, did you get involved in a conversation further about the exception report? “A. Well, I don’t know if it was that day or the next day, but it wasn’t very long after, walking to my chambers past Judge Stepler’s chambers, she called me to her office and wanted to talk to me about the exception report. “Q. Now, up to this point, has anything been said by anybody about it having been found on the floor by a janitor? “A. It runs in mind, Mr.