In the Matter of Judge Pamela J. White

Per Curiam Opinion In this case, we must decide—initially—whether there is any mechanism for this Court to review the fundamental fairness of a proceeding conducted by the Commission on Judicial Disabilities (“Commission”) when the Commission disciplines a judge in the sole manner in which the Constitution authorizes it to do without referring the matter to this Court. We hold that there is such a mechanism—the common law writ of mandamus. Our review in this particular case awaits the provision by the Commission of the record of its proceedings. I Background A. Discipline or Removal of Judges The State Constitution provides a special process for the discipline, removal, or involuntary retirement of a judge who commits misconduct or who is found to suffer from a disabili ⁶³⁵ ty.

Maryland Constitution, Article IV, §§ 4A-4B. 1 In particular, the Constitution creates the Commission and empowers it to undertake investigations and conduct hearings concerning complaints about judges. Id., § 4B(a)(l). At the conclusion of an investigation and any hearing, the Commission may “issue a reprimand” to a judge or “recommend to the Court of Appeals the removal, censure, or other appropriate disciplining of a judge or, in an appropriate case, retirement.” Id., § 4B(a)(2). 2 The General Assembly has codified and elaborated in statute some of the powers conferred on the Commission by the Constitution for its investigations and hearings. Maryland Code, Courts & Judicial Proceedings Article (“CJ”), § 13-401 et seq.

In particular, the statute provides for the issuance and enforcement of subpoenas, service of process, administration of oaths or affirmations by witnesses, and grants of immunity to witnesses. Id. The Constitution delegates to the Court of Appeals the task of prescribing the rules that govern the Commission’s investigations and proceedings. Maryland Constitution, Article IV, § 4B(a)(5).

The Constitution further directs that the proceedings before the Commission are confidential and privileged, except as provided by rule or order of the Court of Appeals. ⁶³⁶ Id., § 4B(a)(3). However, the record of Commission proceedings and any proceeding filed in the Court of Appeals loses its confidential character. Id. Pursuant to the Constitution, this Court has adopted rules governing the Commission’s investigations, hearings, and other proceedings.

Those rules are currently codified in Maryland Rule 18-401 et seq. 3 Pertinent to this case, those rules define “sanctionable conduct”—i.e., conduct for which a judge may be disciplined or removed. Maryland Rule 18—401(k). 4 Upon receiving a complaint alleging such misconduct by a judge, the Commission’s Investigative Counsel may conduct a preliminary investigation. Maryland Rule 18-404. The Judicial Inquiry Board, also created by the rules, monitors the investigation, receives a report from the Investigative Counsel, and makes a recommendation to the Commission about what, if any, further action to take on a complaint.

Maryland Rules 18-403, 18-404. If the matter is not resolved at an earlier stage of the investigation or during the Judicial Inquiry Board process, and if the Commission finds probable cause to believe that the ⁶³⁷ judge has committed sanctionable conduct, the Commission may direct the Investigative Counsel to file charges against the judge with the Commission. Maryland Rule 18-407(a). Those charges, and the judge’s response to them, become the subject of an evidentiary hearing before the Commission.

Id. The rules provide a judge accused of misconduct with various procedural rights in connection with the Commission’s hearing on the charges. Maryland Rule 18-407(b)-(i). Among other things, the rules provide for notice to the judge of the charges and allow the judge to submit a written response.

Maryland Rule 18-407(b)-(c). The judge has a right to be represented by counsel, to have subpoenas issued for testimony by witnesses and the production of evidence, to examine the Commission record, and to cross-examine adverse witnesses. Maryland Rule 18—407(f). The pre-hearing exchange of information between the judge and Investigative Counsel is governed by the discovery rules applicable to civil actions in the circuit courts; the Chair of the Commission is authorized to carry out the function of a circuit court judge in limiting discovery, issuing protective orders, and otherwise resolving discovery disputes.

Maryland Rule 18-407(g)(3). The hearing before the Commission on the charges is to be conducted in accordance with the rules of evidence and is to be stenographi-cally recorded. Maryland Rule 18-407(i). The Commission is to make findings of fact under a clear and convincing standard of proof and either dismiss the charges, reprimand the judge, or refer the matter to the Court of Appeals for other discipline.

Maryland Rule 18—407(j). If the matter is referred to this Court, the Commission is to create a record of its proceedings, including a transcript. Maryland Rule 18-407(k). B. Proceeding Before the Commission Concerning Judge White Although we have not yet been provided with the Commission’s record in this matter, we understand from the parties’ submissions and selected documents posted on the Commis ⁶³⁸ sion’s website 6 that the following description of prior proceedings is either undisputed or is set forth in materials that may be judicially noticed. 1.

Alleged Judicial Misconduct in Joyner v. Veolia Transportation Services This case traces its genesis to several hearings during 2014 in a civil action in the Circuit Court for Baltimore City over which Judge Pamela J. White presided. Louise V. Joyner v. Veolia Transportation Servs. Inc., et al. Case No. 24C14000589 (Baltimore City Circuit Court). Rickey Nelson Jones represented the plaintiff in that matter.

Although not pertinent to our disposition of the legal question before us, we summarize briefly the proceedings in that litigation that resulted in the complaint against Judge White, as found by the Commission in its order in the case before us. Hearing on Motion to Dismiss Punitive Damages Claim— May 5, 2011 The Joyner matter came before Judge White on May 5, 2014, for a hearing on the defendant’s motion to dismiss the plaintiffs claim for punitive damages. During Mr. Jones’ argument on behalf of the plaintiff, Judge White, in a raised voice, stated to Mr. Jones, “[a]re you telling me with a straight face, as an officer of the court, that the actions of an insurance adjuster from another company [, ie., a company that was not an insurer of the defendant] should be attributed to defendant Veolia?” Mr. Jones answered in the affirmative. Judge White then asked, “[d]o you have any legal authority that gives you the chutzpah 6 to claim punitive damages in a negligence case for actions by an adjuster not employed by Veolia that would have allowed me to attribute ill will to Veolia?” The Commission later found that, during this exchange, “Judge White ⁶³⁹ yelled and treated [Mr.] Jones in a rude, disrespectful, and unprofessional manner.” Pretrial Conference; Show Came Order for Plaintiffs Failure to Attend During 2014, Judge White was also in charge of the Circuit Court’s Civil Alternative Dispute Resolution (“ADR”) Program.

On September 17, 2014, a pretrial conference was held in the Joyner matter in accordance with the ADR Program. Jeff Trueman, Deputy Director of the ADR Program, and Senior Judge Paul Alpert conducted the pretrial conference. Counsel for defendant Veolia, a corporate representative of defendant Veolia, and Mr. Jones attended. Mr. Jones’ client, Ms. Joyner, did not attend the pretrial conference—a violation of the Circuit Court’s scheduling order.

On October 9, 2014, Judge White issued a show cause order in the Joyner matter. The order required that Ms. Joyner and Mr. Jones personally appear on October 31, 2014, and show cause as to why they should not be held in constructive civil contempt for failing to comply with the requirement of the Circuit Court’s scheduling order that Ms. Joyner attend the pretrial conference. 7 Trial Date and Postponement—October 15, 201k By coincidence, the Joyner matter was scheduled for trial, also before Judge White, on October 15, 2014. On that day, Mr. Jones asked for a postponement and also asked Judge White to recuse herself from the case. Judge White heard ⁶⁴⁰ argument from Mr. Jones regarding his motion.

The Commission later concluded that “[Mr.] Jones argued that Judge White had exhibited ‘harshness’ toward his client, had not shown his client consideration for her disabilities, and had ‘insulted’ him at the May 5, 2014 hearing.” Judge White ultimately decided to recuse herself from the trial of the Joyner case, but not from the show cause hearing related to the pretrial conference. In addressing Mr. Jones’ motion for her recusal, Judge White stated in part: ... [B]ecause I am incredulous, because I am in disbelief, because I find myself incapable of believing virtually anything that Mr. Jones has just told me, I’m in the unfamiliar territory of finding that I must recuse myself from any further proceedings in this case because I cannot believe anything that the Reverend Rickey Nelson Jones Esquire[ 8 ] —I’m reading off the letterhead—tells me. I think that 99% of what Mr. Jones has told me about his conduct on behalf of his client is pure bullshit[.] So I’m forced to recuse myself and I can’t get past the idea that I cannot believe a darn thing that Mr. Jones tells me now. So I am compelled under ...

Rule 2.11 [of the Maryland Code of Judicial Conduct][ 9 ] to disqualify myself in any further proceedings in this case, because I now believe based on Mr. Jones’ conduct and representations in this case, in his discussion and exploration of who struck John in recent days about his request for accommodation, all without following the precise instructions and procedures in the Scheduling Order and the website and resources available to him, I find that I cannot be impartial. I am personally biased or prejudiced concerning Mr. Jones and his conduct. So, I’m going to recuse myself. ⁶⁴¹ Judge White then addressed Mr. Jones’ motion for postponement. The Commission later found that “[w]hen [Mr.] Jones stated that he had appeared in postponement court the previous day, Judge White pointed toward and raised her voice at [Mr.] Jones for initiating another instance of ex parte communication.” 10 Judge White then stated to Mr. Jones: I am dumbfounded at your irresponsible behavior, Mr. Jones.

All the more reason I am compelled by your dumbfounding behavior to recuse myself because I cannot believe a single word you say. And what I am compelled to do now because the Rules of Professional Conduct and the Judicial Code compel me to do so is to reexamine what I just said and heard and reported on the record whether I must report you to the Attorney Grievance Commission. At the conclusion of the hearing, Judge White stated: As for you, Mr. Jones, I have no way of knowing whether my pique and my frustration as to your performance in recent days will warrant my recusal in any further and future cases pending before this court. I take each case as it comes ...

While I’m shocked, frustrated, appalled, and consequently don’t believe anything Mr. Jones has told me about the conduct of his office and himself in this case, and I don’t believe that he has honored the court’s orders in this case, I don’t understand or believe that necessarily will carry over to any future other cases. I will take each case as it comes. Notwithstanding her decision to recuse herself from the trial of the Joyner case, Judge White stated that she would preside over the October 31, 2014, hearing regarding the show cause order she had issued because, as she stated, it was her “responsibility to address it.” On October 15, 2014, Mr. Jones filed an Emergency Motion with Circuit Administrative Judge W. Michel Pierson for ⁶⁴² assignment of the October 31, 2014, show cause hearing to a judge other than Judge White. Judge White was not notified of the motion.

Judge Pierson denied that motion. Trial of the Joyner Case The Joyner case went to trial the following week, on October 20, 2014, before another judge of the Circuit Court and resulted in a defense verdict. Ms. Joyner pursued an appeal to the Court of Special Appeals, which remains pending. Show Cause Hearing—October SI, 2014- At the October 31, 2014, show cause hearing, Mr. Jones defended his attempt to excuse his client’s absence from the pretrial conference.

Mr. Jones contended that he had in fact complied with the rules because he had requested in his pretrial statement that Ms. Joyner be excused from the pretrial conference due to her health issues. When Mr, Jones cited case law purportedly in support of this contention, Judge White noted “[h]ow interesting that [the case is] captioned as an Attorney Grievance complaint.” The Commission later noted in its Findings of Fact: At the conclusion of the hearing, Judge White found [Mr.] Jones in contempt for his failure and refusal to comply with the Scheduling Order and pre-trial conference procedures. She stated that [Mr.] Jones’ argument that he complied with the Scheduling Order was “shocking” and was “soundly and roundly rejected.” During her oral ruling, and by written order dated November 12, 2014, Judge White ordered [Mr.] Jones to pay attorney’s fees to opposing counsel, related to his appearing at the pre-trial conference and the show cause hearing, and to write letters of apology to Mr. Trueman and to Judge Alpert for his “rude and uncivil behavior” at the pre-trial conference. Judge White made no mention at any time during the October 31, 2014 hearing, or within the written order, that she had previously recused herself from the Joyner case fled by [Mr.] Jones on behalf of Ms. Joyner.

We are advised that Mr. Jones appealed the contempt order in the Joyner case. ⁶⁴³ 2. Complaints to Commission, Investigation, and Charges Mr, Jones filed multiple complaints concerning Judge White with the Commission beginning on October 20, 2014. Following an investigation, and with the authorization of the Commission, Investigative Counsel filed charges dated March 31, 2016 against Judge White. Investigative Counsel alleged that Judge White had violated various provisions of the Maryland Code of Judicial Conduct. 11 All of the charges concerned Judge White’s conduct during the three hearings in the Joyner case during 2014. 3, Pre-Hearing Proceedings Concerning the Charges Judge White filed an Answer to the charges on May 2, 2016.

In her answer, Judge White offered a detailed recitation of the proceedings before her in the Joyner case and denied that her actions or statements during the hearings violated the Code of Judicial Conduct. Judge White also filed a motion to dismiss the charges. Among other things, Judge White argued that the pending appeal before the Court of Special Appeals in the Joyner case concerned related issues and that the Commission’s proceeding on Mr. Jones’ complaints against her had not complied with the procedural rules governing Commission proceedings. Judge White also directed discovery requests to Investigative Counsel pursuant to the civil discovery rules.

The Chair of the Commission struck requests for admission and interrogatories propounded by Judge White on the ground that Investigative Counsel was not a “party” for purposes of the discovery rules. Judge White appealed that ruling to the full Commission. After holding a hearing on the motion to dismiss on June 27, 2016, the Commission denied the motion, adopting the re ⁶⁴⁴ sponse of Investigative Counsel. The Commission also opined that, even if it believed Judge White’s arguments had merit, it had no authority to dismiss the charges prior to an evidentiary hearing.

The Commission also noted that the rules provided for its Chair to decide discovery disputes, that the Chair’s rulings had not deprived Judge White of a fair discovery process, and that, in any event, it lacked authority to review a ruling of its Chair denying discovery to Judge White. 4. Evidentiary Hearing and Commission Order On July 7 and 8, 2016, the Commission conducted an evidentiary hearing on the charges. On August 3, 2016, the Commission issued Findings of Fact, Conclusions of Law, and an Order of Public Reprimand. The Commission found by clear and convincing evidence that Judge White had committed sanctionable conduct.

In particular, the Commission found that Judge White’s treatment of Mr. Jones at the May 5, 2014 and October 15, 2014 hearings violated a provision of the Maryland Code of Judicial Conduct that requires judges to conduct themselves in a way that promotes public confidence in the impartiality of the judiciary. 12 The Commission also found that Judge White’s participation in the October 31, 2014 show cause hearing, after she had admitted to bias toward Mr. Jones, violated not only that provision, but several other provisions of the Code of Judicial Conduct that require a judge to act impartially and to disqualify himself or herself from proceedings in which the judge’s impartiality might reasonably be questioned. 13 The Commission determined that ⁶⁴⁵ a public reprimand was the appropriate disposition under the circumstances. C. Proceedings After the Commission’s Order On September 1, 2016, Judge White filed with this Court a pleading entitled “Appeal and, in the Alternative, Petition for Writ of Certiorari.” In this filing, Judge White sought to have us review two issues: (1) whether the Commission had denied her procedural due process; and (2) whether the Commission had erred in finding sanctionable conduct and reprimanding her. With respect to the claim of a denial of due process, Judge White asserted that she was not notified of Mr. Jones’ various complaints for many months, that she was not provided with a copy of the Judicial Inquiry Board’s report in a timely manner, that her written response to the charges may not have been provided to the Commission, that she was denied pre-hearing discovery to which she was entitled, and that her presentation of evidence at the hearing was unfairly restricted. With respect to the Commission’s finding of sanctionable conduct and imposition of a reprimand, Judge White challenged the Commission’s decision to the extent it was based on her decision not to recuse herself from the show cause hearing in the Joyner case after she had recused herself from the trial of that case. ⁶⁴⁶ On September 16, 2016, the Commission filed a motion to dismiss the appeal and for denial of the petition for writ of certiorari, arguing that Judge White had no right to appellate review in the matter, and that there were no grounds for the grant of a writ of certiorari.

Judge White filed an opposition to the Commission’s motion to dismiss on September 23, 2016. On September 28, 2016, this Court ordered that the matter be set for a show cause hearing for the limited purpose of addressing the following questions related to the first issue raised by Judge White: (1) Whether this Court has jurisdiction to decide whether [Judge White] was denied procedural due process during the Commission proceedings where the ultimate disposition of the Commission was a public reprimand? (2) Whether, if the Court has such jurisdiction, the Commission failed to comply with the Maryland Rules governing its proceedings such that [Judge White] was denied procedural due process during those proceedings? The Court held oral argument on November 4, 2016.

In this opinion we address the first question. Resolution of the second question awaits the filing of the Commission’s record with us and any further submissions by the parties. II Discussion The