In Re Formal Inquiry Concerning Judge Turney

McAuliffe, Judge. We here consider the report and recommendation of the Commission on Judicial Disabilities concerning Judge Jack ²⁴⁷ R. Turney, a judge of the District Court of Maryland. The Commission found that Judge Turney is a capable, intelligent, fair, and highly respected jurist in Garrett County, but that his failure in a particular case to avoid the appearance of impropriety warrants censure. We agree.

Judge Turney erred in his handling of a case involving a charge of possession of a fictitious motor vehicle license. 1 What might ordinarily have been a routine matter was in this instance complicated by the direct involvement of the stepson of Judge Turney’s former wife, the indirect involvement of the judge’s son, and an incorrect but understandable assumption made by the judge. In late June of 1986, a wallet was found in Swallow Falls State Park and turned over to Park Ranger Carl Christian-son. Ranger Christianson’s examination of the wallet disclosed that it belonged to Frederick Leary, and that it contained an apparently fictitious Maryland driver’s license. 2 When confronted with the fictitious license, Leary admitted to Ranger Christianson that he had possessed it, and further explained that he had obtained it from Kirk Turney, a longtime friend and the son of Judge Turney. Christianson issued a citation to Leary, charging him with possession of the fictitious license.

When Christianson filed the court copy of the citation, he informed the clerk of the District Court for Garrett County that Leary had identified Judge Turney’s son as the source of the license. The clerk promptly told Judge Turney of this conversation. Judge Turney knew Leary, a stepson of the judge’s former wife, and knew him to be a close friend of his son, Kirk. Additionally, Judge Turney knew that Kirk had in some manner been involved in the making of fictitious licenses, because he had discovered materials used for that ²⁴⁸ purpose during an impromptu visit to his son’s dormitory residence at the University of Maryland the previous year.

On that occasion, Judge Turney became very upset with his son and instructed him to immediately terminate any activity related to fictitious licenses. 3 Frederick Leary’s case came on for trial in the District Court of Maryland at Oakland on September 17, 1986. Judge Turney, who is the sole resident judge for the District Court in Garrett County, 4 was presiding. Judge Turney was not aware that Leary’s case was on the docket until he entered the courtroom. When the case was called, Judge Turney addressed Leary by his first name and inquired concerning the nature of the charge.

Leary responded, and indicated that he wished to plead guilty. Ranger Christianson then recounted the facts concerning the finding of the wallet, and with respect to Leary’s admission he stated, “I asked him about the fictitious license. And he said that one of his college friends had made the license for him, that it was used to purchase alcohol.” Leary agreed with the statement of facts, adding that although the license was given to him it was not made for him and it did not bear his name or picture. The State’s Attorney for Garrett County, James Sherbin, then indicated a desire for further information, and the following colloquy occurred: Prosecutor: I think before we get out of here we ought to find out just exactly who, the specific name and address of the person who did make it for him.

Leary: That person is out of town. ²⁴⁹ Prosecutor: I know. He is deceased or you don’t remember who he is. But I am just suggesting to the court that we find out exactly who the man’s name and address is, or impose the maximum sentence. There was no immediate response to the State’s attorney’s “suggestion,” but after a few moments Judge Turney asked the prosecutor for the “range of sanctions” for the offense.

The prosecutor did not know, so he and the judge began a search of the Transportation Article of the Code. They finally agreed that the maximum sentence was two months imprisonment and a $500 fine. Judge Turney next asked whether there was any evidence that Leary had used the fictitious license in the course of driving a motor vehicle. The State’s attorney responded that Leary had not, and that “he wasn’t using it for any purposes whatsoever.” The prosecutor then returned to his earlier suggestion, and the following occurred: Prosecutor: You don’t have to make a public display of it, judge.

But we ought to find out who this fellow is so that we can—I don’t know whether this is a wholesale thing. I don’t know what the deal is. It’s a pretty good job, though. That’s what bothers me.

Leary: (Unintelligible) it’s minus a seal. And the mat on the front of it is very shabby and faded. And I personally know that when the trooper here looked at it, he obviously knew it was fictitious automatically. So I don’t see it—I mean, personally, I honestly don’t ever remember using it.

I might have. I might not have. (Unintelligible) Maryland driver’s license, comparing the two of them side-by-side, obvious that this license is fictitious. Judge: All right, I would assume that the purpose for the license was to buy alcoholic beverages.

Leary: Correct. Judge: It wasn’t being used to operate a motor vehicle. Leary: No, sir. Judge: All right, the plea is warranted.

There is a finding of guilty____ ²⁵⁰ The prosecutor then argued for a “severe” penalty, pointing out that the use of a fictitious license to buy alcohol was a problem for businessmen who sold alcoholic beverages, and that there was strong public sentiment against selling alcohol to underage persons. Judge Turney recounted the circumstances under which the license had been found, the absence of any evidence indicating actual misuse or display, and the candor of Leary, and imposed a fine of $50 and costs. The State’s attorney later testified that this disposition was “completely proper” and appropriate for this type of case. Immediately after the hearing, the prosecutor confronted Leary in the hall outside the courtroom, where Leary and Christianson were talking, and asked him where he had gotten the license.

Leary said Kirk Turney had given it to him, and Christianson verified that Leary had told him the same thing when first confronted about the license. According to the prosecutor, he returned to the courtroom, requested a recess, and spoke to Judge Turney in chambers. He told the judge that Leary was “saying that your son is the author, provider, or counterfeiter of this license, or gave him the license, something to that effect,” and the judge replied “yeah, I know.” At this point, Judge Turney believed, as he had during the trial, that the State’s attorney had known from the outset that Leary was identifying Kirk Turney as the source of the license. In talking with the prosecutor in chambers, however, the judge became convinced that the prosecutor’s first knowledge of this fact was gained after the trial.

Judge Turney explained how he had learned of his son’s alleged involvement, and told the prosecutor of his observations at his son’s dormitory room the preceding year. The Commission on Judicial Disabilities found as fact the following: The Commission finds by clear and convincing evidence that Judge Turney knew that his son Kirk had been involved in manufacturing fictitious Maryland automobile ²⁵¹ licenses; that he knew the defendant Leary and that Leary had spent time in the judge’s home; that he knew that Leary was a friend of the judge’s son Kirk; that he knew that Leary was the stepson of the judge’s former wife; that he knew prior to trial that Leary had told the park ranger that Leary had obtained the fictitious license from the judge’s son; and that the judge prevented the defendant from answering questions as to where he got the license and that the judge did so for the purpose of protecting his son. We have reviewed the entire record and find the evidence sufficient to support these findings, which we accept. The Commission further found that Judge Turney had violated Canons IV, XV and XXXIII of the Canons of Judicial Ethics and Rules 2 and 15 of the Rules of Judicial Ethics. 5 Upon our independent review and evaluation of the record, we conclude that Judge Turney violated Canon IV.

That Canon provided: A judge’s official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach. Under the particular circumstances of this case, Judge Turney should have recused himself from Leary’s case, even though Leary intended to plead guilty. The judge knew his son was probably involved in the manufacturing of the fictitious license, and that his son’s culpability might well be greater than Leary’s. Fashioning a fair sentence for Leary had the potential for being almost as difficult as sentencing his own son, and in any event, the public percep ²⁵² tion would be that a judge would be disposed toward leniency in fixing a sentence that might later be used for comparison if the judge’s son were charged and convicted of the same or a related offense. 6 This is not a case of mandatory disqualification under the provisions of § 7 of Article IV of the Constitution of Maryland, which commands that: No Judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, by affinity or consanguinity, within such degrees as now are, or may hereafter be prescribed by Law, or where he shall have been of counsel in the case.

The “interest” of which this constitutional provision speaks is a pecuniary interest in the litigation or in the outcome of the litigation. Edwardsen v. State, 243 Md. 131, 137 , 220 A.2d 547 (1966); Ex parte Bowles, 164 Md. 318, 326 , 165 A. 169 (1933). Nor is this a case of automatic disqualification under former Rule 2 of the Rules of Judicial Ethics. Rule 2 provided: A judge shall not exercise his duties with respect to any matter in which a near relative by blood or marriage is a party, has an interest, or appears as a lawyer.

He shall not participate in any matter in which he has a significant financial interest or in which he previously acted as lawyer. For the purpose of this rule “near relative” shall mean connection by consanguinity or affinity within the third degree, counting down from a common ancestor to the more remote. Leary was not related to Judge Turney by blood or marriage. He was a stepson of the judge’s former wife.

Judge Turney’s son may have had an “interest” in the outcome of Leary’s case, but it was not the type of direct or substantial ²⁵³ interest contemplated by the automatic and mandatory language of Rule 2. The obligation of a judge with respect to recusal does not end with the mandatory provisions of a constitution, statute or rule. The judge must also consider whether it would otherwise be improper to preside in the case, or if not improper, whether participation would give the appearance of impropriety. Additionally, where there is any possibility of bias or prejudice, the judge must make the subjective judgment of whether he or she can fairly and impartially preside in the case.

Determining whether recusal is required to avoid the appearance of