In the Matter of Judge Nickerson

In the Matter of the Honorable Amy Leigh Nickerson, Judge of the Orphans’ Court of Maryland for Kent County, Second Judicial District, JD No. 1, September Term, 2020, Opinion by Booth, J. JUDICIAL DISCIPLINE — SANCTIONS — REMOVAL Judge Amy Leigh Nickerson violated Maryland Rules 18-101.1 (Compliance with the Law); 18-101.2 (Promoting Confidence in the Judiciary); 18-101.3 (Avoiding Lending the Prestige of Judicial Office); 18-102.16 (Cooperation with Disciplinary Authorities); and 18-103.1 (Extra-Official Activities in General). These violations arose after Judge Nickerson was charged with and convicted of impaired driving and other related offenses; sought to use her judicial office and personal connections to influence an officer’s decision to charge her with impaired driving and other related offenses; failed to cooperate with an officer during a traffic stop; failed to cooperate with disciplinary authorities; and failed to comply with the terms of a Conditional Diversion Agreement and private reprimand. Removal is the appropriate sanction in this case. Maryland Commission on Judicial Disabilities Case Nos.: CJD 2018-033 & CJD 2019-013 No argument/considered on the papers IN THE COURT OF APPEALS OF MARYLAND JD No. 1 September Term, 2020 IN THE MATTER OF THE HONORABLE AMY LEIGH NICKERSON, JUDGE OF THE ORPHANS’ COURT OF MARYLAND FOR KENT COUNTY, SECOND JUDICIAL CIRCUIT Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.

Opinion by Booth, J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-05-27 14:55-04:00 Filed: May 27, 2021 Suzanne C. Johnson, Clerk In Maryland, judges are expected to abide by certain ethical standards, set forth in the Maryland Code of Judicial Conduct (“MCJC”),1 to ensure they conduct themselves in a manner consistent with preserving the integrity of the judiciary. When a judge’s conduct appears to fall short of these ethical standards, the Maryland Constitution vests the Maryland Commission on Judicial Disabilities (the “Commission”) with the authority to investigate alleged instances of judicial misconduct and, where appropriate, recommend that this Court take appropriate disciplinary action, up to and including removal from office. Md. Const. art. IV, § 4B.

This case concerns Amy Leigh Nickerson, a judge of the Orphans’ Court for Kent County, who was elected to that position by the qualified voters of Kent County in November 2014 and reelected in November 2018.2 On October 18, 2018, at the directive 1 The Maryland Code of Judicial Conduct (“MCJC”) is codified in Maryland Rules 18-100, et seq. The substantive provisions and much of the structure of the rules is based in large part on the 2007 Model Code of Judicial Conduct proposed by the American Bar Association (“ABA Model Code”). See Md. Rule 18-100.1(a). The Maryland Rules are numbered to correspond to the parallel ABA Model Code Rules.

Thus, for example, ABA Rule 1.1 (Compliance with the Law) is Maryland Rule 18-101.1, which is also captioned “Compliance with the Law.” See id., Committee note. The provisions of the MCJC generally apply to incumbent judges of the orphans’ court, unless a specific rule provides to the contrary. See Md. Rule 18-100.2(b). 2 The Maryland Constitution provides for the election of three judges of the orphans’ court by the qualified voters of the respective county. Md. Const. art.

IV, § 40. In order to be qualified for the position of Judge of the Orphans’ Court for Kent County, the individual must be a citizen of the State and resident of the county for the twelve months preceding the election. Id. The term of office is four years.

By statute, orphans’ court judges are charged with various duties involving the administration of estates, including conducting judicial probate, directing the conduct of personal representatives, passing orders necessary for administering estates, and securing the rights of minors whose estate is being administered by a guardian. See Md. Code, Estates and Trusts Article (“ET”) §§ 2-102, 13-106. of the Commission, Investigative Counsel3 filed charges against Judge Nickerson, pursuant to Maryland Rule 18-431(a). The charges originated from allegations of sanctionable conduct arising from a March 2018 traffic stop of Judge Nickerson that resulted in her arrest. Additionally, in February 2019, the Commission directed Investigative Counsel to investigate an outstanding tax lien and judgment that had been entered in 2013 against Judge Nickerson in favor of the Maryland Comptroller.

The charges arising from the traffic stop were initially addressed through the entry of a Conditional Diversion Agreement (“CDA”) pursuant to Maryland Rule 18-426. The investigation into the outstanding tax lien was addressed by a reprimand pursuant to Maryland Rule 18-427. Judge Nickerson consented to the disposition of the investigations through the entry of the CDA and reprimand, both of which were contingent upon Judge Nickerson complying with certain terms and conditions. After Judge Nickerson failed to satisfy the conditions, the Commission revoked the CDA, proceeded with formal charges, and scheduled a hearing.

After the hearing, the Commission found that Judge Nickerson’s conduct violated several provisions of the MCJC, and it unanimously recommended that this Court issue an order removing Judge Nickerson from office. We agreed with the Commission’s recommendation and entered an order on March 26, 2021, which removed Judge Nickerson 3 The Maryland Constitution vests this Court with rule-making authority to establish the “means to implement and enforce the powers of the Commission,” as well as “the practice and procedure before the Commission.” See Md. Const. art. IV § 4B(a)(5). Pursuant to that authority, this Court has established the position of Investigative Counsel.

See Md. Rule 18-411(e). This Rule provides for the appointment by the Commission of an individual with substantial trial experience and familiarity with the MCJC, subject to approval by this Court. Id. 2 from the office of Judge of the Orphans’ Court for Kent County. We explain in this opinion the reasons for that action.

I Procedural History As noted above, this proceeding is the culmination of two separate disciplinary investigations into Judge Nickerson for sanctionable conduct4 under the MCJC. A. The 2018 Charges In March 2018, the Commission initiated an investigation, through Investigative Counsel, concerning Judge Nickerson’s extrajudicial conduct after she was charged with, among other things, impaired driving, speeding, and reckless driving. Following an investigation, the Commission determined there was probable cause to believe Judge Nickerson engaged in sanctionable conduct and directed Investigative Counsel to file charges against Judge Nickerson. Consistent with this directive, Investigative Counsel filed charges with the Commission on October 25, 2018, alleging that Judge Nickerson violated the MCJC.

Specifically, Investigative Counsel alleged that Judge Nickerson violated Maryland Rules 18-101.1 (Compliance with the Law); 18-101.2 (Promoting 4 “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. Md. Rule 18-402(m)(1). 3 Confidence in the Judiciary); 18-101.3 (Avoiding Lending the Prestige of Judicial Office); and 18-103.1 (Extra-Official Activities in General). After Judge Nickerson filed a response in which she admitted that she violated each rule for which she was charged and requested a reprimand, Judge Nickerson and the Commission entered into a CDA in November 2019.5 Thereafter, Judge Nickerson failed to comply with the material terms of the CDA, which resulted in the Commission revoking 5 The Commission’s authority to enter a conditional diversion agreement (“CDA”) is set forth in Maryland Rule 18-426, which provides: (a) When Appropriate.

The Commission and the judge may enter into a conditional diversion agreement if, after an investigation by Investigative Counsel: (1) the Commission concludes (A) that any alleged sanctionable conduct was not so serious, offensive, or repeated as to justify the filing of charges or, if charges already had been filed, the imposition of any immediate discipline, and (B) that the appropriate disposition is for the judge to undergo specific treatment, participate in one or more specified educational or therapeutic programs, issue an apology to the complainant, or take other specific corrective or remedial action; and (2) the judge, in the agreement, (A) agrees to the specified conditions, (B) waives the right to a hearing before the Commission and subsequent proceedings before the Court of Appeals, (C) agrees that the conditional diversion agreement may be revoked for noncompliance . . ., and (D) agrees that the agreement may be admitted in any subsequent disciplinary proceeding against the judge to the extent that it is relevant to the allegations at issue or the sanction that may be imposed. Although a CDA constitutes neither a form of discipline nor a finding that sanctionable conduct was committed, the Commission is authorized to revoke a CDA and proceed with disciplinary proceedings where a judge fails to satisfy a material condition of a CDA, as a disciplinary complaint remains open until all conditions of a CDA are satisfied. Md. Rule 18-426(b), (c), and (e). 4 it in April 2020, and instructing Investigative Counsel to proceed with the original charges, as well as an additional charge for violating Maryland Rule 18-102.16(a) (Cooperation with Disciplinary Authorities) (the “2018 Charges”). B. The 2019 Charge In February 2019, Investigative Counsel initiated an investigation into an outstanding Maryland tax lien and judgment entered against Judge Nickerson for unpaid taxes for the calendar year 2013.

Following the investigation, the Commission determined that the unpaid tax lien violated Maryland Rules 18.101.1 (Compliance with the Law) and 18.101.2 (Promoting Confidence in the Judiciary) and decided to issue a reprimand, which Judge Nickerson did not oppose, subject to the condition that she submit proof that she had filed “federal and state tax returns for tax years 2013 through 2018, including proof of payment of any tax obligations owed, including applicable penalties and interest.” Judge Nickerson agreed to the terms of the reprimand, which was issued in November 2019. The reprimand stated that Judge Nickerson would provide proof of the tax filings and payment of any tax obligations within six months of the date of the reprimand. The reprimand also stated that Judge Nickerson’s “[f]ailure to satisfy this condition could result in an investigation by Investigative Counsel and the filing of Charges.” Judge Nickerson did not submit the required documentation confirming her tax filings and payments as required by the reprimand. In July 2020, Investigative Counsel sent two letters to Judge Nickerson reminding her of the conditions.

Despite the follow up correspondence, Judge Nickerson failed to submit the required information. Upon direction of the Commission, Investigative Counsel filed charges on August 5, 2020, 5 alleging that Judge Nickerson’s failure to comply with the terms of the reprimand constituted a violation of Maryland Rule 18-102.16 (Cooperation with Disciplinary Authorities) (the “2019 Charge”). C. The Commission Proceedings on the 2018 Charges and the 2019 Charge The Commission held a hearing on December 8, 2020 concerning the 2018 Charges and the 2019 Charge.6 Prior to the hearing, pursuant to Maryland Rules 2-424 and 18-433(a), Investigative Counsel propounded multiple requests for admission of facts and genuineness of documents. Judge Nickerson failed to respond to these requests.

Accordingly, the substance of the requests was deemed admitted pursuant to Maryland Rule 2-424(b) and entered as substantive evidence at the hearing. At the hearing, Investigative Counsel admitted 76 exhibits into evidence, including the audiovisual recording of the March 2018 traffic stop. Judge Nickerson was advised of her right to counsel but elected to proceed pro se. She declined to make any opening or closing remarks, and only participated in the proceeding to answer a handful of Commission questions.7 The Commission issued a written decision on January 29, 2021 setting forth findings of fact, conclusions of law, and a recommended sanction.

With respect to the 2018 Charges, the Commission found by clear and convincing evidence that Judge Nickerson violated Maryland Rules 18-101.1, 18-101.2, 18-101.3, 18-103.1, and 18-102.16(a). With 6 The proceedings were held virtually via Zoom due to health restrictions related to the COVID-19 global pandemic. 7 Consistent with an order of the Commission entered prior to the hearing, Judge Nickerson was not permitted to present evidence as a result of her failure to respond to discovery requests propounded by Investigative Counsel. 6 respect to the 2019 Charge, the Commission found by clear and convincing evidence that Judge Nickerson violated Maryland Rule 18-102.16(a).8 The Commission further found that Judge Nickerson’s conduct met the definition of “sanctionable conduct” under Maryland Rule 18-402(m)(1). By unanimous vote, the Commission recommended her immediate removal as an Orphans’ Court Judge for Kent County. In accordance with Maryland Rule 18-435, the Commission referred the matter, including its recommendation, to this Court for final disposition.

Because Judge Nickerson did not file exceptions to the Commission’s findings, conclusions, or recommendation and failed to show cause, in writing, why oral argument should be held, we considered the matter on the papers. See Md. Rule 18-437(e) (“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.”). On March 26, 2021, we issued an order removing Judge Nickerson from the office of Judge of the Orphans’ Court for Kent County, Maryland. II The Commission’s Findings of Fact As previously noted, Judge Nickerson did not file any exceptions to the Commission’s findings of fact or conclusions of law.

In reviewing the Commission’s 8 The Commission also found that Judge Nickerson’s failure to cooperate with the Commission in connection with the tax lien investigation constituted a violation of Maryland Rule 18-101.1 (Compliance with the Law). However, in reviewing the formal charges filed in connection with the tax lien investigation, we determined that the Commission did not charge Judge Nickerson with a violation of this Rule. Accordingly, we have not considered the Commission’s conclusion concerning this rule violation in connection with the tax lien. 7 findings of facts, we accept the Commission’s findings as prima facie correct, and will only disturb the Commission’s factual findings to the extent that they are clearly erroneous. In re Russell, 464 Md. 390 , 413 (2019).

Having independently reviewed the record, we conclude that the Commission’s factual findings are well supported by the record and, therefore, not clearly erroneous. A. Findings of Fact Related to the Traffic Stop On March 9, 2018, Sergeant Harry A. Kettner of the Kent County Sheriff’s Office stopped Judge Nickerson on Route 320 in Rock Hall, Maryland after determining, based upon his in-camera radar unit, that she was speeding. As Sergeant Kettner approached Judge Nickerson’s vehicle, she stated that she had just left work.9 Sergeant Kettner observed that her eyes were glassy and bloodshot, and her actions were slow and delayed. Sergeant Kettner also smelled alcohol emanating from Judge Nickerson’s vehicle and observed a clear cup with clear liquid in the center console.

Sergeant Kettner then asked Judge Nickerson to exit her vehicle. After completing a phone call, and upon a second request from the officer, she complied. Judge Nickerson said to Sergeant Kettner, “[c]an I tell you something else? I’m a judge of the Orphans’ Court.

So please. I’m serious.” Judge Nickerson also advised Sergeant Kettner that she had telephoned an individual who she referred to as “Kirby,” and had told Kirby10 that she had been pulled over by Sergeant Kettner. 9 In addition to her position as an orphans’ court judge, Judge Nickerson also worked as a hostess at a local restaurant. Judge Nickerson was returning home from a shift at the restaurant when she was pulled over by Sergeant Kettner. 8 Sergeant Kettner asked Judge Nickerson to rate her level of intoxication on a scale of one to ten, with ten being the highest. Judge Nickerson stated that she was a “five” and told Sergeant Kettner that she had a couple drinks before leaving work.

At different points during the traffic stop, Judge Nickerson stated that she consumed three drinks and, in a conversation on the telephone with an unknown individual, she stated that she had consumed four drinks since 7:30 or 8:00 p.m. When Sergeant Kettner asked Judge Nickerson what was in the cup in the center console, she stated that it was club soda. Later in the stop, she admitted that the cup contained vodka. A subsequent test performed on the contents of the cup confirmed that it contained alcohol.

Sergeant Kettner administered multiple field sobriety tests to Judge Nickerson. After performing poorly on each, for the first time, Judge Nickerson raised a medical condition that she claimed to be the reason for her poor performance. Sergeant Kettner permitted Judge Nickerson to take measures to alleviate the effects of the medical condition, including drinking a beverage that was in her vehicle and contacting a family member to bring her another beverage. During this period, Judge Nickerson cited several different benchmarks for the alleviation of the effect of her condition, at which she felt that she would be able to complete the tests.

Before completing the field sobriety tests, Judge Nickerson told Sergeant Kettner that she lived a short distance away and asked if he would permit her to continue driving home while the officer followed her. After Sergeant Kettner advised Judge Nickerson that 10 The individual whom Judge Nickerson referred to as “Kirby” was Lieutenant Kirby, one of Sergeant Kettner’s supervisors. 9 this was not a possible outcome, she mentioned for a second time that she was a judge, to which Sergeant Kettner replied, “[o]kay . . . shouldn’t you know better then?” Once her symptoms were abated to what Judge Nickerson described as an appropriate level, Sergeant Kettner asked her to step out of her vehicle and perform the field sobriety tests again. After Judge Nickerson exhibited poor results on the tests, Sergeant Kettner placed her under arrest. During the transport, Judge Nickerson stated: “I’m serious, I’ll show you where I live” and asked to retake the field sobriety test.

Sergeant Kettner explained to Judge Nickerson that she was already placed under arrest. Judge Nickerson replied “[t]his is going to ruin my whole life” and that she was “losing my whole f---ing life.” Judge Nickerson then mentioned her upcoming election and asked Sergeant Kettner for advice, stating that she had “a lot hinging on . . . .” Thereafter, a lengthy exchange ensued between Sergeant Kettner and Judge Nickerson, during which Sergeant Kettner attempted to ascertain whether Judge Nickerson would agree to submit to a blood alcohol concentration test in Centreville. Sergeant Kettner asked Judge Nickerson thirteen times whether she would agree to take the test. In each instance, she refused to answer the question.

Instead of answering the officer’s question, she deflected by asking Sergeant Kettner several times for advice on what “he would do” if he were in her situation, “given her upcoming election.” In each instance, Sergeant Kettner demurred. During one such exchange, Judge Nickerson responded to Sergeant Kettner’s question by asking to call “Lieutenant Kirby.” Sergeant Kettner told Judge Nickerson that she could not call Lieutenant Kirby and reminded her that their conversation was being recorded. Judge Nickerson asked if she could call her lawyer and 10 brought up Lieutenant Kirby again. After Judge Nickerson called someone who did not answer the phone, Sergeant Kettner told her she could call someone else, at which time Judge Nickerson once again asked Sergeant Kettner what she should do and repeated that her life was gone.

Sergeant Kettner once again invited her to call someone else and read to Judge Nickerson the law regarding the breathalyzer test. Judge Nickerson called another unidentified individual and spoke to that person. The Commission found that Judge Nickerson sought to attenuate the traffic stop by asking Sergeant Kettner to repeat the various consequences for specific blood alcohol concentrations. The Commission found that Judge Nickerson created further delay in responding to the officer’s multiple requests for her answer to the question of whether she would agree to a blood alcohol concentration test by calling another individual.

Sergeant Kettner spoke with this individual, discussed Judge Nickerson’s blood sugar and whether the officer would need to drive her home. During this call, on two occasions, Sergeant Kettner advised the individual that Judge Nickerson needed to decide whether she was going to take the blood alcohol concentration test, explaining that, with the passage of time, her failure to make a decision would be considered a refusal. After the call ended, Judge Nickerson asked for Sergeant Kettner’s opinion “off the record.” Sergeant Kettner responded that he could not have an “off the record” conversation with her about this matter, to which Judge Nickerson responded, “[i]sn’t that some s--t.” Judge Nickerson continued, stating that “if I lose my job with the courts, I’ll lose my health insurance.” She again referenced her upcoming election and possibly having to withdraw. 11 Sergeant Kettner asked Judge Nickerson two more times whether she planned to submit to the blood alcohol concentration test and did not receive a response from Judge Nickerson other than “I don’t know.” Sergeant Kettner ultimately advised Judge Nickerson that, as the result of the passage of time, he would have to mark her as a “refusal[,]” to which Judge Nickerson responded, “[o]kay.” Sergeant Kettner charged Judge Nickerson with: two counts of exceeding the maximum speed; driving a vehicle while under the influence of alcohol; driving a vehicle while impaired by alcohol; negligent driving; reckless driving; and throwing, dumping, discharge, deposit of refuse on a highway. At a trial on the merits in the District Court sitting in Kent County, the court found Judge Nickerson guilty and entered a probation before judgment on all charges, with the exception of driving under the influence of alcohol, for which Judge Nickerson was acquitted.

Based upon the foregoing facts, the Commission found that Judge Nickerson was dishonest throughout the traffic stop. Specifically, the Commission noted Judge Nickerson exhibited a lack of candor when she initially claimed she had only consumed a “couple” drinks and later admitted that she had consumed three or four drinks. The Commission also determined that Judge Nickerson was not truthful when she initially told the police officer that the cup in her console only contained club soda, but later admitted that it contained vodka. We agree with the Commission’s findings concerning Judge Nickerson’s dishonest statements during the traffic stop.

In addition to her dishonesty, the Commission noted that Judge Nickerson sought to influence Sergeant Kettner’s decision to conduct an investigation or dissuade him from 12 filing charges by interjecting her position as a judge as soon as she was stopped by the officer, and then two additional times during the stop, and by invoking the name of Sergeant Kettner’s superior officer. We agree with these findings. The Commission also found Judge Nickerson refused to take responsibility for her conduct. At the Commission hearing, rather than admitting that she invoked her status as an orphans’ court judge in an attempt to improperly influence Sergeant Kettner, Judge Nickerson told the Commission that she was merely identifying herself as being an orphans’ court judge during the course of the traffic stop “in case he had seen me around or in the courthouse, because, you know, he could have run into me in the hallway or seen me, or recognized me and thought that I was there for District Court.” We are wholly