In the Matter of Judge Russell

In the Matter of Judge Devy Patterson Russell, JD No. 1, September Term, 2018. Opinion by Greene, J. JUDGES – REMOVAL OR DISCIPLINE – SANCTION Having reviewed the record, the Court of Appeals held that, under the circumstances, the Maryland Commission on Judicial Disabilities’ conclusion that the Honorable Devy Patterson Russell committed sanctionable conduct was supported by clear and convincing evidence. From 2007-2015, Judge Russell failed to handle and process search warrant materials in a manner consistent with Maryland Rule 4-601 and internal courthouse procedures. Moreover, Judge Russell instructed a law clerk to destroy the warrant materials.

In addition, she repeatedly yelled at court clerks and judges. She subjected court clerks to lineups when clerical mistakes were made, and on one occasion physically pushed a clerk. Judge Russell also repeatedly attempted to undermine the authority of the administrative judge of her court and judges delegated administrative duties. Her conduct occurred in the courthouse and often in the public view.

Furthermore, her conduct had sweeping effects on the courthouse to which she was assigned, fostering an uncomfortable, unprofessional, and tense work environment. Her conduct exhibited a pattern of discourtesy and uncontrollable incivility that had pervasive effects on the administration of justice in the District Court of Maryland located in Baltimore City. As demonstrated herein, a judge may be disciplined if he or she engages in a pattern of inappropriate and discourteous behavior. Here, the appropriate sanction for Judge Russell’s misconduct is the Court’s imposition of no less than a consecutive six-month suspension without pay, with her reinstatement conditioned upon her completion of remedial measures set forth by this Court.

Maryland Commission on Judicial Disabilities IN THE COURT OF APPEALS Case No. CJD No. 2016-189 Argued: March 4, 2019 OF MARYLAND JD No. 1 September Term, 2018 ______________________________________ IN THE MATTER OF THE HONORABLE DEVY PATTERSON RUSSELL, JUDGE OF THE DISTRICT COURT OF MARYLAND FOR BALTIMORE CITY, DISTRICT ONE Greene, McDonald, Hotten, Getty, Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned), Eyler, Deborah S., (Senior Judge, Specially Assigned), Thieme, Raymond G., Jr., (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Greene, J. ______________________________________ Filed: June 28, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-10-08 14:53-04:00 Suzanne C. Johnson, Clerk The Maryland Judiciary serves the public by endeavoring to preserve the principles of justice. In furtherance of the judiciary’s task and role in society, it is critical that Maryland judges uphold the dignity of the office and aspire to maintain public confidence in the judiciary. As such, judges, at all times, are expected to conform their conduct to ethical standards, which are codified in the Maryland Code of Judicial Conduct. When a judge’s conduct falls short of that which is expected by the Rules, the judge may be subject to disciplinary proceedings and sanctions.

Maryland Rule 18-401(k)(1). The Maryland Constitution vests the duty of investigating and recommending disposition of instances involving alleged judicial misconduct in the Commission on Judicial Disabilities (“Commission”). See generally, Md. Const. Art. IV, §§ 4A, 4B.

The Commission is empowered to investigate judicial misconduct and, in certain instances, directly discipline judges. Md. Const. Art. IV, § 4B. In the most serious instances, it is this Court’s duty to take action.

See id. In the present case, the Commission found that Respondent, the Honorable Devy Patterson Russell (“Judge Russell” or “Respondent”), engaged in misconduct. The Commission explained that from 2007-2015, Judge Russell abdicated her duty to handle and process search warrant materials, as required by Maryland Rule 4-601 and internal courthouse policies. Furthermore, Respondent failed to treat fellow judges and courthouse staff with dignity and respect, and her misbehavior created an uncomfortable and unprofessional work environment.

The Commission recommended that Judge Russell be suspended for six months without pay and that she take remedial measures to assist her when she returns to her duties. The Commission referred the matter to this Court. See Md. Const. Art. IV, § 4B(b); see also Md. Rule 18-407(j).

As such, we are called upon to review whether Respondent committed sanctionable conduct and decide the appropriate sanction, if any. See Md. Const. Art. IV, § 4B(b). I. BACKGROUND At all relevant times, Judge Russell was an Associate Judge of the District Court of Maryland, sitting in Baltimore City, District One.1 She was appointed to the District Court in February 2006 and confirmed to serve an initial 10-year term.

In February 2016, Judge Russell was reappointed and again confirmed to sit on the District Court for a second term of 10 years. On January 16, 2018, Investigative Counsel, at the directive of the Commission on Judicial Disabilities, filed charges against Judge Russell pursuant to Md. Rule 18-407(a).2 The charges followed the Commission’s review of an investigation that was conducted by Investigative Counsel, which yielded probable cause for the Commission to believe that 1 The State of Maryland has one statewide District Court that is divided into 12 districts. Md. Code Ann., Courts and Judicial Proceedings, § 1-602. The District Court is composed of associate judges, who hold court in the 12 districts.

Id. at § 1-603. There is one Chief Judge for the District Court, who is the administrative head of the court. Id. at § 1-605. In each branch of the District Court, the Chief Judge must designate administrative judges who are “responsible for the administration, operation, and maintenance” of their particular geographical jurisdiction.

Id. at § 1-607. Hereinafter, references to the “District Court” mean the District Court located in Baltimore City, unless specified otherwise. 2 In this Opinion, we utilize the Maryland Rules of Judicial Conduct that were in place at the time of Respondent’s proceeding. The Rules were amended, effective July 1, 2019, but the modified Rules are not relevant to the present case. 2019 Md. Court Order 0001. 2 Judge Russell committed sanctionable conduct, as defined by Md. Rule 18-401(k).3 Judge Russell filed a “Response to Commission’s Charges” on March 14, 2018, consistent with Md. Rule 18-407(c). Therein, she denied the charges, raised objections to the investigation procedure and factual predicates, and requested a hearing.

Thereafter, in accord with Md. Rule 18-407, the Commission held a public hearing on the charges on October 15-19 and November 5, 2018. At the hearing, Judge Russell appeared with counsel and the Commission was represented by Investigative Counsel. In total, the Commission received 50 exhibits from Investigative Counsel and 17 exhibits from Judge Russell; heard testimony from 21 witnesses called by Investigative Counsel and 14 witnesses called by Judge Russell; reviewed Judge Russell’s prior record with the Commission; and considered more than four dozen letters supporting Judge Russell. On December 6, 2018 the Commission filed “Amended Findings of Fact, Conclusions of Law, Order and Recommendations” pursuant to Md. Rule 18-407(k)(1).4 3 Sanctionable conduct is defined as “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 18-401(k)(1). Here, Judge Russell was charged with violating several provisions of the Code of Judicial Conduct. Specifically, the Commission charged Judge Russell with violating Md. Rules 18-101.1 (Compliance with the Law), 18- 101.2 (Promoting Confidence in the Judiciary), 18-102.1 (Giving Precedence to the Duties of Judicial Office), 18-102.3 (Bias, Prejudice, and Harassment), 18-102.5 (Competence, Diligence, and Cooperation), 18-102.8 (Decorum, Demeanor, and Communication with Jurors), 18-102.12 (Supervisory Duties), and 18-102.16 (Cooperation with Disciplinary Authorities). 4 On November 30, 2018, the Commission rendered its initial “Findings of Fact, Conclusions of Law, Order and Recommendations.” 3 The Commission found that, from 2007-2015, Judge Russell failed to handle and process search warrant materials in a manner consistent with Md. Rule 4-601 and internal District Court procedures. According to the Commission findings, Judge Russell instructed a law clerk to destroy the warrant materials.

In addition, the Commission found that when clerical errors were made, Judge Russell yelled at court clerks, subjected them to lineups, and on one occasion physically pushed a clerk. Furthermore, Judge Russell repeatedly yelled at fellow judges and attempted to undermine the authority of judges delegated administrative duties. Her conduct occurred in public and in private, and it fostered an uncomfortable and tense work environment in the courthouse to which Judge Russell was assigned. The Commission unanimously found clear and convincing evidence that Judge Russell’s conduct violated Md. Rules 18-101.1 (Compliance with the Law), 18-101.2 (Promoting Confidence in the Judiciary), 18-102.5 (Competence, Diligence, and Cooperation), 18-102.8 (Decorum, Demeanor, and Communication with Jurors), and 18- 102.12 (Supervisory Duties).5 Having concluded that Judge Russell committed sanctionable conduct, the Commission recommended her immediate suspension for a period of six months without pay.

In addition, the Commission recommended that Judge Russell be required to undertake remedial measures to assist her as she returns to her duties. The Commission ordered that the matter be referred to this Court for review, in accordance 5 Although Respondent was charged with violating Md. Rules 18-102.1 (Giving Precedence to the Duties of Judicial Office), 18-102.3 (Bias, Prejudice, and Harassment), and 18-102.16 (Cooperation with Disciplinary Authorities), the Commission dismissed those charges for lack of proof. 4 with Md. Rule 18-407(j). On December 31, 2018, Judge Russell filed “Exceptions by Judge Russell to Amended Findings of Fact, Conclusions of Law, Order and Recommendation” with this Court. See Md. Rule 18-408(b) (Exceptions).

The Commission responded to Judge Russell’s Exceptions on January 16, 2019 in a “Response to Exceptions by Judge Russell to Amended Findings of Fact, Conclusions of Law, Order and Recommendation.” See Md. Rule 18-408(c) (Response). A hearing was conducted before this Court on March 4, 2019. See Md. Rule 18-408(d) (Hearing). In this opinion, we review which, if any, Maryland Rules Respondent violated.

See Md. Rule 18-408(e) (Disposition); see also Md. Rule 18- 408(f) (Decision). Upon our determination of the existence of sanctionable conduct, we impose the appropriate sanction. See Md. Rule 18-408(e) (Disposition).

II

ALLEGED LEGAL ERRORS As a preliminary matter, Respondent raises several legal challenges to the Commission’s disposition of her case. Respondent alleges that the Commission erred when it denied her Motion to Recuse and Motion to Suppress. Furthermore, Respondent claims that a host of legal doctrines support dismissing the charges against her. Finally, Respondent argues that several procedural defects occurred, which require that the charges be dismissed.

We review each allegation in turn. 1. Motion to Recuse On August 31, 2018, Respondent filed a “Motion to Recuse.” Therein, Respondent requested that the Honorable Susan H. Hazlett (“Judge Hazlett”), who is the Commission’s Vice Chair and the Administrative Judge for the District Court of Maryland, sitting in 5 Harford County, recuse herself from Respondent’s proceedings. On September 10, 2018, the Commission filed an Order and a supporting memorandum denying Respondent’s Motion. The Commission explained that it lacked information concerning any occurrence involving Respondent with which Judge Hazlett was personally familiar.

In addition, the Commission explained that Judge Hazlett was not predisposed to find any witness credible. Finally, the Commission determined that, even if Judge Hazlett’s recusal was warranted, the rule of necessity overrides the rule of recusal. Accordingly, Judge Hazlett participated in the disposition of Respondent’s case. Before this Court, Respondent argues that the Commission erred by denying her Motion to Recuse.

She emphasizes that the Honorable John P. Morrissey (“Chief Judge Morrissey”), Chief Judge of the District Court of Maryland, testified at the Commission hearing. Respondent argues that Chief Judge Morrissey is Judge Hazlett’s boss, so Judge Hazlett’s impartiality could reasonably be questioned. The Commission maintains that the Motion was properly denied because Judge Hazlett’s impartiality was not compromised, and the rule of necessity required her participation in any event. Discussion In the conduct of Commission business, the Commission’s members are bound by the rule of recusal.

Md. Rule 18-402(b). Commission members must recuse themselves when, inter alia, “the recusal of a judicial member would otherwise be required by the Maryland Code of Judicial Conduct.” Id. Generally speaking, a judge is required to recuse himself or herself from a proceeding when a reasonable person with knowledge and understanding of all the relevant facts would question the judge’s impartiality. Jefferson- 6 El v. State, 330 Md. 99, 106-07 , 622 A.2d 737, 741 (1993) (citations omitted).

We review a judge’s decision to recuse or not to recuse under an abuse of discretion standard. Id. at 107 , 622 A.2d at 741 . “[T]here is a strong presumption in Maryland . . . that judges are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified.” Id. For example, in In re Turney, we held that a judge should have recused himself from a hearing. 311 Md. 246, 246-47 , 533 A.2d 916 , 916-17 (1987). There, Frederick Leary was issued a citation and charged with possession of a fake license.

Id. at 247, 533 A.2d at 917 . Mr. Leary obtained the fake license from the son of the Honorable Jack R. Turney, a judge of the District Court of Maryland, sitting in Garrett County. Id. Mr. Leary was Judge Turney’s ex-wife’s stepson and a close friend of Judge Turney’s son.

Id. Mr. Leary’s case came before the District Court, and Judge Turney presided over the hearing. Id. at 248 , 533 A.2d at 917-18 . During the hearing, Judge Turney made efforts to prevent Mr. Leary from disclosing who he obtained the fake license from, and ultimately accepted Mr. Leary’s guilty plea and imposed a fine.

Id. at 248-50 , 533 A.2d at 918-19 . Judge Turney was sanctioned for his conduct. Id. at 257-58 , 533 A.2d at 922 . Here, Respondent’s Motion to Recuse was properly denied.

Judge Hazlett had no demonstrable personal ties to Respondent or the outcome of Respondent’s proceeding that would influence her review of the evidence. As Respondent points out, Judge Hazlett and Chief Judge Morrissey both preside narrowly or broadly, respectively, over the District Court of Maryland. There is no allegation that they have a particularly close friendship. Given that Judge Hazlett is the Administrative Judge for the District Court of Maryland, 7 sitting in Harford County, Chief Judge Morrissey is, perhaps in a colloquial sense, her boss.6 As Chief Judge of the District Court, Chief Judge Morrissey is the administrative head of the District Court.

He is entrusted with overseeing “the maintenance, administration, and operation of the [district] court in all its locations throughout the State.” Md. Code Ann., Cts. & Jud. Proc., § 1-605(a); Md. Rule 16-106(a). In that capacity, however, he does not have authority over Judge Hazlett’s independent decision making – in this or any other case. See id.

As such, there is no indication that Judge Hazlett formed an opinion in this case, or was otherwise influenced by, her professional affiliation with Chief Judge Morrissey.7 Furthermore, as one of three members of the judiciary serving on the Commission, our Constitution tasks Judge Hazlett, in collaboration with the Commission’s other judicial members, with reviewing the conduct of and, if appropriate, sanctioning her fellow judges. Md. Const. Art. IV, § 4B. By the very nature of her position as an Administrative Judge or Vice Chair of the Commission, Judge Hazlett may be required to assess the performance 6 The powers and duties of the Chief Judge of the District Court of Maryland are set forth in Md. Code Ann., Cts. & Jud.

Proc., § 1-605. For example, he or she is permitted to make administrative regulations for the District Court and temporarily assign a District Court judge to sit in a different county. Id. 7 Respondent’s allegation that Judge Hazlett was acquainted with other judges who testified as witnesses, and judges who she thought would testify at the hearing but did not testify, is equally unavailing. Furthermore, Respondent has not alleged a factual basis to support her allegation that Judge Hazlett had personal knowledge of facts in dispute.

As the Commission found, Respondent has not indicated facts concerning any occurrence involving Respondent with which Judge Hazlett was familiar. Likewise, Respondent asserts no such facts before this Court. Therefore, the Commission properly denied Respondent’s Motion to Recuse. 8 of individuals with whom she is professionally acquainted. Indeed, that is her duty.

In accordance with her duties, Judge Hazlett was one of seven Commission members who participated in the unanimous decision and recommendation in the present case. Under these circumstances, a reasonable person would not doubt Judge Hazlett’s independent and impartial judgment. Accordingly, Respondent’s Motion to Recuse Judge Hazlett was properly denied.8 2. Motion to Suppress A considerable portion of the hearing before the Commission concerned Respondent’s handling of search warrants.

The circumstances regarding the search warrant issues are more thoroughly explored later in this opinion. For now, we simply note that Respondent stored search warrant materials in boxes. The boxes were removed from the courthouse at the direction of the Honorable Barbara Waxman (“Judge Waxman”), Administrative Judge9 of the District Court, and delivered to Investigative Counsel on December 21, 2016. On September 13, 2018, Respondent filed a Motion to Suppress.

Respondent argued that the boxes of warrants were taken in violation of the Fourth and 8 As required by the Maryland Constitution, there were three judicial members of the Commission – Judge Hazlett, the Honorable Michael W. Reed (“Judge Reed”), Associate Judge of the Court of Special Appeals, and the Honorable Robert B. Kershaw (“Judge Kershaw”), Associate Judge of the Circuit Court for Baltimore City. Md. Const. Art. IV, § 4A. Judge Reed and Judge Kershaw recused themselves from Respondent’s proceeding.

Nonetheless, because we conclude that Judge Hazlett was not required to recuse herself, we need not decide whether the rule of necessity required Judge Hazlett’s participation as the only remaining judicial member in this case. See Md. Rule 18-102.11, Cmt. 3. 9 Administrative judges of the District Court are “responsible for the administration, operation, and maintenance of the District Court” in the district in which he or she sits and “for the conduct of the District Court’s business.” Md. Code, Cts. & Jud. Proc, § 1-607. 9 Fourteenth Amendments to the United States Constitution, Articles 22 and 24 of the Maryland Declaration of Rights, and Maryland Rule 4-601. On September 14, 2018, the Commission denied Respondent’s Motion to Suppress, concluding that the exclusionary rule does not apply to proceedings before the Commission.

At Respondent’s hearing before the Commission, the warrants were admitted into evidence. Respondent now contends that her Motion to Suppress was improperly denied. Discussion The Fourth Amendment to the United States Constitution and its Maryland counterpart protects citizens from unreasonable searches and seizures. Wilkes v. State, 364 Md. 554, 570-71 , 774 A.2d 420, 430 (2001).

For the Fourth Amendment to apply, an individual must demonstrate that a government actor infringed upon his or her “actual, subjective expectation of privacy in [an] item or place searched” and that “the expectation [of privacy] is one that society is prepared to recognize as reasonable.” Walker v. State, 432 Md. 587, 605 , 69 A.3d 1066, 1077 (2013) (citation omitted). In Walker v. State, this Court explained that public employees may have privacy expectations in their work spaces. Id. at 608 , 69 A.3d at 1079 . Such expectations, however, may be curtailed “by virtue of actual office practices and procedures[.]” Id.

There, we concluded that a teacher lacked a privacy interest in his desk at the elementary school where he worked. Id. at 612-13 , 69 A.3d at 1081-82 . The teacher’s desk was in an open room with a high volume of traffic. Id. at 612 , 69 A.3d at 1081 .

It had labels on its drawers indicating that work items, not personal items, were stored within it, and the teacher “fail[ed] to lock the desk when given the option to do so[.]” Id. 10 Here, according to Judge Waxman, Respondent’s search warrant materials were discovered in a courthouse where Respondent had not worked for approximately two months. The boxes were labeled “Russell” and “Civil,” and they were found in an unsecure location. Judge Waxman explained, and neither party disputes, that “[t]he boxes were found in the law clerks’ office . . . not in a judge’s chambers.” The office was “the judges’ clerks’ office where there’s a little portion of the clerks’ office that’s been set aside for the law clerks, but it’s all one big area.” In that location, the boxes were accessible by individuals working inside and outside of the judiciary. In sum, Respondent stored her boxes of warrants unsecure and in a high-traffic area that was outside of her personal workspace and immediate attention.

As a result, Respondent cannot claim a reasonable expectation of privacy in the boxes, as is necessary to prevail on her Motion to Suppress. Therefore, we conclude that Respondent’s Motion to Suppress was properly denied pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, Articles 22 and 24 of the Maryland Declaration of Rights, and Md. Rule 4-601.10 10 Even if Respondent had a legitimate privacy interest in her boxes, it is questionable as to whether the exclusionary rule applies to proceedings before the Commission. Where evidence is obtained in violation of an individual’s Fourth Amendment rights, the exclusionary rule provides that the evidence will be inadmissible at trial. United States v. Janis, 428 U.S. 433, 445-46 , 96 S.Ct. 3021, 3028 , 49 L.Ed.2d. 1046 (1976). “As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” Id. at 447 , 96 S.Ct. at 3028 (citations omitted); see Motor Vehicle Admin. v. Richards, 356 Md. 356, 373 , 739 A.2d 58, 68 (1999) (holding that the exclusionary rule does not apply to administrative license suspension proceedings, which serve “to protect the public from unscrupulous or unskilled operators who would otherwise engage in the licensed activity.”).

Proceedings before the Commission are neither civil nor criminal, and they do not fall within the ambit of the Administrative Procedure Act. In re Diener and Broccolino, 268 Md. 659, 670 , 304 A.2d (continued . . .) 11 3. Limitations, Laches, Res Judicata, Estoppel, Separation of Powers (Constitutional Reappointment), and Fundamental Fairness Respondent contends that allegations of her misconduct were not brought to the attention of Maryland Governor Lawrence J. Hogan, Jr. (“Governor Hogan”) or the Maryland Senate in February 2016 when she was reappointed and confirmed for her second term as a judge. Respondent notes that many of the Commission’s Findings of Fact and Conclusions of Law are predicated on events that took place before February 2016, and were known by and discussed with Respondent’s colleagues and supervisors.

Respondent explains that “[i]t is difficult to articulate a concise neat legal theory for the legal objections in this section[,]” but she maintains that it is unfair for her to be disciplined for conduct that occurred prior to her 2016 reappointment. Accordingly, Respondent invites us to dismiss the charges brought against her.11 The Commission contends that Respondent’s (. . . continued) 587, 594 (1973). “[T]hey 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.” Id. 11 Respondent posits that any one of the doctrines of limitations, laches, constitutional separation of powers, res judicata, estoppel, or fundamental fairness may warrant dismissal. By way of background, “a statute of limitations represents . . . a policy decision regarding what constitutes an adequate period of time for a person of ordinary diligence to pursue his claim.” Georgia-Pacific Corp. v. Benjamin, 394 Md. 59, 84 , 904 A.2d 511, 526 (2006). The limitations period constitutes the quantity of time that a plaintiff has to bring an action against another before he or she is deemed to have waived the right to sue and acquiesced to the defendant’s alleged wrongdoing.

Id. at 84-85 , 904 A.2d at 526 . Laches is a different but related doctrine. State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md. 451, 603 , 92 A.3d 400, 491 (2014). Laches “applies when there is an unreasonable delay in the assertion of one’s rights and that delay results in prejudice to the opposing party.” Id. at 586 , 438 A.3d at 480 (citations omitted).

Unlike limitations, laches is an equitable (continued . . .) 12 position is unsubstantiated, and that a judge may be sanctioned for his or her conduct so long as the judge remains in office. (. . . continued) doctrine which must be evaluated on a case by case basis. Schaeffer v. Anne Arundel County, 338 Md. 75, 83 , 656 A.2d 751, 755 (1995). Separation of powers is a constitutionally created doctrine, “integral to our tripartite system of government.” Meyer v. State, 445 Md. 648, 672 , 128 A.3d 147, 161 (2015).

Article 8 of the Maryland Declaration of Rights provides “[t]hat the Legislative, Executive, and Judicial powers of government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.” Id. at 672 n. 14, 128 A.3d at 161 n. 14. Though we have applied the doctrine with a “sensible degree of elasticity,” it ensures that the three branches of our State government possess equal and independent power to exercise the functions committed to them. See generally id. at 671-75 , 128 A.3d at 160-63 . The doctrine of res judicata is otherwise known as claim preclusion.

Anne Arundel County Bd. of Educ. v. Norville, 390 Md. 93, 106 , 887 A.2d 1029, 1036 (2005). It prohibits relitigating a claim if a final judgment was obtained in previous litigation, and “the parties, the subject matter and [the] causes of action are identical or substantially identical as to issues actually litigated and as to those which could have or should have been raised in the previous litigation.” Id. at 106-07 , 887 A.2d at 1037 . Equitable estoppel provides a defense to an individual who, in reliance on another’s voluntary conduct or representation, changed his or her position for the worse. Creveling v. Government Employees Ins.

Co., 376 Md. 72, 101-02 , 828 A.2d 229, 246 (2003). Under such circumstances, the party who relied on the representation may preclude the estopped party “at law and in equity, from asserting rights which might perhaps have otherwise existed[.]” Id. (citations omitted). Fundamental fairness is a broad concept with precepts extending to every proceeding before a tribunal.

In the present case, we understand Respondent’s assertion to be that an error was committed that was so prejudicial to her that the charges against her cannot stand. See Diggs v. State, 409 Md. 260, 286 , 973 A.2d 796, 811 (2009) (Under plain error analysis, reversal may be warranted if an error caused prejudice that is so “compelling, extraordinary, exceptional or fundamental” to the right to a fair trial) (internal quotations and citations omitted). 13 Discussion We are unpersuaded that the host of legal theories that Respondent asserts warrant dismissing the charges against her. The Maryland Rules do not set forth a statute of limitations for when the Commission must commence disciplinary proceedings against a judge. Rather, the Rules afford the Commission broad discretion to discipline “sanctionable conduct,” defined as “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.” Md. Rule 18-401(k)(1).

In addition, the allegations of judicial misconduct brought against Respondent have not been the subject of a prior action before any tribunal which resulted in a final judgment. Furthermore, we cannot fathom, and Respondent does not articulate, how it is prejudicial or unfair to Respondent for the Commission to hold her accountable for conduct that she committed while serving as a judge, albeit before her reappointment in 2016. Given that Respondent is serving as a Maryland judge, she is subject to the authority of the Commission and this Court for disciplinary matters. See Md. Rule 18-407 (affording the Commission discretion to review and discipline “sanctionable conduct,” as defined in Md. Rule 18-401(k)).

Moreover, the Commission was not presented with an isolated instance of Respondent’s conduct that occurred before 2016. The Commission reviewed instances of conduct that reflect a larger pattern of uncooperative and unseemly behavior. Absent any discernible prejudice to Respondent, to limit the Commission’s authority to act on judicial misconduct based off of what the Governor and the General Assembly may or may not have known at the time of Respondent’s reappointment would be speculative, arbitrary, 14 and repulsive to the administration of justice. Therefore, we decline to dismiss the charges against Respondent based upon limitations, laches, res judicata, estoppel, constitutional separation of powers, or fundamental fairness. 4.

Motion to Dismiss Finally, Respondent filed a number of pleadings in this case, raising alleged procedural defects. On March 14, 2018, Respondent filed a “Response to the Commission’s Charges” that asserted procedural defects. In addition, Respondent filed a Petition for a Writ of Mandamus with this Court on March 14, 2018, which we denied on March 22, 2018. Finally, on October 12, 2018, Respondent filed a Motion to Dismiss with the Commission.

The Commission denied the Motion to Dismiss on November 7, 2018. Before this Court, Respondent maintains that procedural defects occurred before charges were brought against her. Specifically, she contends that the procedural requirements in Md. Rules 18-404 and 18-405 were not followed to her detriment. Respondent claims that she was not given a reasonable opportunity to present information to the Judicial Inquiry Board12 (“Board”) or object to the Board’s report and recommendation.

Finally, Respondent claims that she was not given notice of her “disrespectful, combative, and unprofessional interactions with fellow judges and other courthouse staff” before the charges were filed. The Commission insists that Respondent’s allegations are unfounded. 12 The Judicial Inquiry Board is a body separate from the Commission. See Md. Rule 18- 403(a). Its members consist of two judges, two attorneys, and three members of the public who are not attorneys or judges, all of whom are appointed by the Commission.

Id. 15 Discussion Respondent was afforded and utilized the procedural mechanisms available to her under the Rules. Investigative Counsel issued her report to the Judicial Inquiry Board on September 25, 2017. Included within that report were 13 responses from Respondent, thus indicating that Respondent was permitted to supply information with regard to the investigation before it concluded. See Md. Rule 18-404(e)(5).

Less than 45 days later, on October 16, 2017, the Board sent the Commission its report and recommendation. See Md. Rule 18-404(j)(3). The Board recommended that the Commission find probable cause to believe that Respondent committed sanctionable conduct. To reach its disposition, the Board reviewed the 13 items submitted by Respondent, in addition to exhibits, statements, and other items that were submitted by Investigative Counsel.

On October 26, 2017, the Board released its report to Respondent and Investigative Counsel. Thereafter, Respondent requested and was granted an extension of time to respond to the Board’s report. On December 7, 2017, Respondent filed objections to the report, challenging the Board’s recommendation. We fail to see how the procedural requirements for the preliminary investigation and Board review under Md. Rules 18-404 and 18-504 were violated.

Under the unambiguous language of Md. Rule 18-404(e), Respondent was not, as she contends, entitled to present information to the Judicial Inquiry Board. Md. Rule 18-404(e) does not apply to the Board. It provides that “Investigative Counsel shall afford the judge a reasonable opportunity to present, in person or in writing, such information as the judge chooses” during the preliminary investigation. Md. Rule 18-404(e)(5).

The record 16 indicates that Respondent presented 13 items to Investigative Counsel. Furthermore, contrary to Respondent’s contention, she was permitted to and did in fact object to the Board’s report and recommendations. She was even extended extra time to do so. Finally, the Rules do not require the Commission or this Court to dismiss an action when procedural requirements are not met with strict compliance.

At best, when certain time requirements regarding the preliminary investigation into the conduct of a judge are not met, the Commission may – but is not required to – terminate the proceeding. Md. Rule 18-404(e)(6). Respondent was given ample notice of the charges brought against her, and a full and fair opportunity to defend herself against them. Accordingly, the charges brought against Respondent should not be dismissed based on the alleged procedural defects.

III

RESPONDENT’S EXCEPTIONS TO THE COMMISSION’S FINDINGS OF FACT AND CONCLUSIONS OF LAW We now direct our attention to Respondent’s Exceptions to the Commission’s Findings of Fact and Conclusions of Law. The Commission issued findings of fact and conclusions of law, in which it found by clear and convincing evidence that Respondent’s conduct violated Md. Rules 18-101.1 (Compliance with the Law), 18-101.2 (Promoting Confidence in the Judiciary), 18-102.5 (Competence, Diligence, and Cooperation), 18- 102.8 (Decorum, Demeanor, and Communication with Jurors), and 18-102.12 (Supervisory Duties), and that her violations amounted to sanctionable conduct.13 13 Md. Rule 18-101.1. Compliance with the Law A judge shall comply with the law, including this Code of Judicial Conduct. (continued . . .) 17 “Upon our independent review, this Court must determine whether the charges against the [R]espondent are supported by clear and convincing evidence and which, if any, [Rules] have been violated.” In re Lamdin, 404 Md. 631, 637 , 948 A.2d 54, 57 (2008) (citing In re Diener and Broccolino, 268 Md. 659, 670 , 304 A.2d 587, 594 (1973)). “[A]lthough the [Commission’s] report is only advisory, [we] should give full consideration to it, particularly with respect to the credibility of witnesses, where the testimony is conflicting.” See In re Bennett, 301 Md. 517, 530 , 483 A.2d 1242, 1248 (1984) (quoting Bar Ass’n v. Marshall, 269 Md. 510 , 307 A.2d 677 (1973)).

Accordingly, the Commission’s “findings of fact from the evidence are prima facie correct and they will (. . . continued) Md. Rule 18-101.2. Promoting Confidence in the Judiciary (a) A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary. Md. Rule 18-102.5. Competence, Diligence, and Cooperation (a) A judge shall perform judicial and administrative duties competently, diligently, promptly, and without favoritism or nepotism.

(b) A judge shall cooperate with other judges and court officials in the administration of court business. (c) A judge shall not willfully fail to comply with administrative rules or reasonable directives of a judge with supervisory authority. Md. Rule 18-102.8. Decorum, Demeanor, and Communication with Jurors (b) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, attorneys, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of attorneys, court staff, court officials, and others subject to the judge’s direction and control.

Md. Rule 18-102.12. Supervisory Duties (a) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code. 18 not be disturbed unless determined to be clearly erroneous.” Id. If this Court concludes that sanctionable conduct has occurred, we “must then determine what discipline, if any, is appropriate under the circumstances.” Lamdin, 404 Md. at 637 , 948 A.2d at 57 . Our decision “shall be evidenced by an Order of the Court, certified under seal and shall be accompanied by a written opinion.” Id.

(citation omitted); see Md. Rule 18-408(f). In her Exceptions, Respondent objected to nearly all of the Commission’s findings of fact and conclusions of law. For purposes of organization, we have divided the Commission’s findings of fact and conclusions of law, and Respondent’s objections thereto, into two categories: (1) Search Warrant Issues; and (2) Interpersonal Issues. We review each category in turn. 1.

Search Warrant Issues By way of background, the Maryland Rules set forth procedures for judges to follow when, inter alia, granting search warrants, handling search warrant materials, and processing search warrant materials. See generally Md. Rule 4-601. When a judge issues a search warrant, he or she must sign it and deliver the warrant and a copy of the application and its supporting affidavit to the applicant. Md. Rule 4-601(c).

In addition, the judge must retain a copy of the application, affidavit, and warrant. Md. Rule 4-601(d)(2). Additionally, “[a] search warrant shall be issued with all practicable secrecy.” Md. Rule 4-601(d)(1). Thereafter, the warrant may or may not be executed.

If the warrant is executed, the 19 executing officer must prepare a search warrant return14 and deliver the warrant, warrant return, and a verified list of inventory that was seized to, preferably, the judge who issued the warrant. Md. Rule 4-601(f). Then, according to testimony on the record, a judge who receives warrant materials from an officer will generally have the officer affirm the property that was recovered, and the judge will sign the warrant return. Subsequently, the judge must compile the warrant, warrant return, verified inventory, “and all other papers in connection with the issuance, execution, and return, including the copies retained by the issuing judge, and shall file them with the clerk of the court for the county from which the warrant was issued.” Md. Rule 4-601(g).

If the warrant is not executed, the executing officer must return the warrant to the issuing judge who, upon receiving the unexecuted warrant, “may destroy the warrant and related papers or make any other disposition the judge deems proper.” Md. Rule 4-601(h)(2). The Commission’s Findings of Fact and Conclusions of Law The Commission found that over the course of several years, Respondent failed to process her search warrants in a timely manner. Specifically, Respondent failed to keep the warrants in her possession confidential and secure pending possible return and processing. Additionally, Respondent did not promptly match warrants with warrant returns and transmit them to the clerk for filing.

Based on testimony at the hearing, the Commission found that Respondent had boxes containing at least 135 warrants that should have been, but were not, matched with a return and sent to the clerk for filing. “By the 14 A search warrant return is a document that specifies the date and time that a warrant was executed and an inventory of property that was seized. Md. Rule 4-601(f). 20 Commission’s own count, however, there were [23] more warrants that were either processable or potentially processable.” The Commission concluded that Respondent’s failure to process search warrants in a timely manner and related conduct violated Md. Rules 4-601(g), 18-101.1 (Compliance with the Law), and 18-102.5(a) (performing judicial and administrative duties competently, diligently, and promptly). The Commission found that in 2016, Respondent tasked Ama Asare, a law clerk, with taking boxes in which Respondent accumulated warrant-related materials and matching warrants with warrant returns. The Commission found that Respondent ultimately told Ms. Asare, “Just get rid of them,” referring to the search warrants that she was tasked with matching up.

The Commission concluded that Respondent’s direction to Ms. Asare violated Md. Rules 18-101.1 (Compliance with the Code of Judicial Conduct) and 18-102.12(a) (Supervisory Duties). The Commission also found that Respondent violated existing internal policies, followed by judges serving on the District Court, relating to search warrants. One of the policies was implemented by Administrative Judge Waxman and “direct[ed] District Court judges not to review and sign warrants while sitting at the Civil Courthouse except under exigent circumstances.” The Commission found that Respondent continued to review and sign search warrants while assigned to work at the Civil Courthouse. Respondent admitted to her conduct when she testified, and two of her witnesses confirmed her testimony.

Additionally, the Commission found that the District Court had a policy that prohibited a judge from signing a search warrant return for another judge unless the two judges were assigned to the same court location. The policy served to ensure that search 21 warrants were handled confidentially and securely, as search warrants contain sensitive information and may be evidence. The Commission found that “[i]n November 2017, [R]espondent signed a search warrant for Judge Joan Bossman Gordon while Judge Gordon was assigned to a different court location.” Moreover, “[t]he return was transmitted to Judge Gordon through interoffice mail, also violating the policy.” The Commission found that Respondent’s conduct violated Md. Rules 18-101.1 (Compliance with the Law, including the Code of Judicial Conduct), 18-102.5(b) (Cooperation with other judges and court officials), and 18-102.5(c) (Compliance with administrative rules or reasonable directives of supervisors). Respondent’s Exceptions to the Commission’s Findings of Fact and Conclusions of Law Respondent denies violating Md. Rule 4-601.

She contends that she properly processed and securely maintained her search warrant materials. Respondent explains that, since becoming a judge, she has never destroyed any of her search warrant materials, but she treated her “non-processable” and “processable” warrants differently. She opted to keep “non-processable” warrants, even though Md. Rule 4-601 permitted her to destroy them. The “non-processable” warrants were the documents that she kept in boxes, which she referred to as her “nomad boxes.” By contrast, Respondent maintains that for warrants that she deemed “processable” she would, immediately or periodically, match up the various documents and file them.

With these methods in practice, when she transferred to a different courthouse, she would not have to carry her “processable” warrants with her. She would simply carry her nomad boxes, containing her accumulation of warrants that she deemed “non-processable.” 22 Ultimately, Respondent’s nomad boxes were collected by Judge Waxman, the Administrative Judge, and the Honorable Mark F. Scurti (“Judge Scurti”), the Judge in Charge15 of the Civil Docket for the District Court. Judge Waxman examined and collated the documents in the nomad boxes, and she discovered 135 warrants that should have been filed with the clerk’s office. According to Respondent, however, the documents that Judge Waxman found were “non-processable” warrants because there was no “judicial” copy of them.

In addition, Respondent argues that the Commission misunderstood the scenario involving Ms. Asare. Respondent explains that in September 2016, she was transferred to a new courthouse, so she emptied a drawer that had accumulated search warrants. She assigned Ms. Asare the task of matching up the warrants with warrant returns. Then, she instructed Ms. Asare to “get rid” of warrants that Ms. Asare could not match up, which Respondent alleges was permitted by the Rules.

According to Respondent, however, the warrants “would not be ‘gotten rid of[,]’ they would be kept in the nomad boxes.” She argues that Ms. Asare, a “brand-new inexperienced law clerk[,]” misinterpreted her instructions. Lastly, Respondent argues that the Commission misstated the policy change implemented by Judge Waxman. Furthermore, Respondent posits that her handling of 15 Judge Scurti testified that each building that represents part of the District Court has a judge in charge. The judge in charge “is responsible for scheduling, building issues, any problems that arise by the clerks, just primarily handling any issues that c[ome] up day to day at the courthouse.” In addition, the judge in charge “can recommend changes in policies and procedure and implement them . . . with [the] administrative judge’s approval,” and ensures that existing policies and procedures are carried out. 23 Judge Gordon’s warrant return, albeit improper, did not cause any harm.

Accordingly, Respondent asserts that her conduct was not sanctionable. Discussion We agree with Respondent that, as to the Commission’s factual finding regarding Judge Waxman’s internal search warrant policy, the Commission’s conclusion that Respondent violated the policy is not supported by the record. Judge Waxman’s testimony indicates that her policy initiative was discretionary.16 As such, Respondent’s election to continue signing non-emergency warrants while assigned to work at the Civil Courthouse did not violate Judge Waxman’s policy, and Respondent’s corresponding exception is sustained. Otherwise, the Commission’s factual findings regarding Respondent’s handling of search warrant materials are supported by clear and convincing evidence in the record and, thus, are adopted by this Court.

See In re Bennett, 301 Md. 517, 536 , 483 A.2d 1242, 1251 (1984). When Judge Waxman testified before the Commission, she described the unsecure location where Respondent’s boxes of warrants were located. Judge Waxman explained that “[t]he boxes were found in the law clerks’ office; so [it wa]s not a secure area. It’s not in a judge’s chambers.

It was on the floor. It could have been even mistaken as trash.” 16 The policy, according to Judge Waxman, provided that in exigent circumstances, an officer could come to the Civil Division at any time to have a warrant reviewed and signed. Warrants that were routine or non-exigent, however, would have to be reviewed and signed at another courthouse location. Judge Waxman explained that if a judge at Civil wanted to review warrants, he or she could do so. “But if there was a judge who looked at the warrant and said[,] ‘This really isn’t an emergency, please go to another court building,’ he or she could.” 24 The boxes were accessible by members of “[o]ther agencies in the building [that] use the copier, Legal Aid, Public Justice, mediators, everybody.” Judge Waxman further testified that Respondent had not been working in the courthouse where the warrants were located and had been transferred nearly two months before they were found.

Furthermore, Judge Waxman attested to her personal examination of Respondent’s nomad boxes. Judge Waxman explained that she sorted the documents in the boxes by year. Then she separated the warrants that had been executed and returned by a police officer – “the ones that should have been [processed]” with the clerk’s office. In total, Judge Waxman identified and set aside “approximately 135” warrants dating from 2007- 2015 that should have been “sent to the clerk’s office” for filing.

Indeed, the warrants that Judge Waxman set aside were admitted into evidence at the disciplinary proceeding. Judge Waxman went through several of the exhibits, and she described their contents. Based on her testimony, the warrants had been executed; they were signed by an officer and detailed any inventory that was seized. As such, they “need[ed] to be filed with the” clerk.

Md. Rule 4-601(g) (providing that executed warrants must be filed with the clerk of the court). Although Judge Waxman did not detail every warrant and its related documents, she affirmed that the exhibits that she described were representative of approximately 135 warrants from the nomad boxes that she had set aside. Moreover, Ms. Asare testified that after Respondent instructed her to match up the warrants in her boxes, Respondent told Ms. Asare, “Just get rid of it.” Ms. Asare interpreted Respondent’s instruction as “asking [Ms. Asare] to destroy the warrants” in the nomad boxes – at least 135 of which needed to be filed with the clerk’s office. Though 25 Respondent claims that Ms. Asare misunderstood her instruction, the Commission found Ms. Asare’s testimony credible, and chose not to credit Respondent’s testimony.

The Commission, like the hearing judge in the analogous setting of Attorney Grievance Commission proceedings, must “pick and choose what evidence to believe.” Attorney Grievance Comm’n v. Woolery, 462 Md. 209, 230 , 198 A.3d 835, 847 (2018) (citation and internal quotation omitted). “The Commission was in the best position to evaluate [R]espondent’s demeanor and we do not find [its] observations to be clearly erroneous.” See In re Lamdin, 404 Md. 631, 655 , 948 A.2d 54, 68 (2008). Therefore, we overrule Respondent’s exceptions to the Commission’s findings of fact with regard to Respondent’s handling of warrants. We now turn our attention to the Commission’s conclusions of law. The Maryland Rules require judges to “perform judicial and administrative duties competently, diligently, and promptly[.]” Md. Rule 18-102.5(a).

There is not a “rigid and finite formula” for determining whether a judge has competently, diligently, and promptly performed his or her duties. See Matter of Reese, 461 Md. 421, 441 , 193 A.3d 187, 199 (2018) (holding that a judge did not violate Md. Rule 18-102.5 when she performed her judicial duties by appreciating the facts presented, understanding the applicable law, and drawing a reasonable conclusion). Here, however, Respondent utterly failed to fulfill her duty under Md. Rule 4-601 to file executed warrants with the clerk’s office. She also admittedly failed to comply with the internal policy that prohibited a judge from signing a search warrant return for another judge unless the two judges were assigned to the same court when she handled a search warrant return for