Due Process For Judges — How much?

On Friday, June 15, 2018 at the 2018 MSBA Legal Summit and Annual Meeting from 8:00 a.m. to 10:30 a.m., the Solo Small Firm Practice Section of The Maryland State Bar Association will present a Program entitled “A View of the Bench: Judging The Judges.” Notice the title is “A View of the Bench”, not the usual “A View from the Bench” where judges comment on the behavior of lawyers and litigants thereby arguably proving yet again the validity of the ancient legal maxim – “Turnabout is fair play.”

This Program will present a Panel of Judges and Lawyers who will discuss the merits of previous and newly revived proposals, including my own, for the implementation of a system of rigorous, but fair, judicial performance evaluations in the State of Maryland. The Panel may also focus on the need for a review and revision of the overall system of “holding Maryland Judges accountable” including the structure, mission, and operations of The Maryland Commission on Judicial Disabilities, as well as the underlying constitutional and statutory provisions, as well as, The Rules of Procedure which govern the proceedings and protocols of that Commission.

The societal trends which provide the background for this program are evolving and at times, almost appear to be transformative, despite noticeable resistance from parts of the judiciary and the legal profession. These trends were recognized by the noted sociologist, Theodore Caplow as early as the mid-1990’s when he observed that “every form of personal authority by which social control has in the past been exercised has been weakened and replaced at least in part by a form of bureaucratic regulation in the Twenty-First Century.”

This observation is demonstrably true. Among the relationships Caplow recognizes as clearly altered for better or worse, depending on your perspective, are those between managers and workers, men and women, parents and children, teachers and students, clergy and parishioners, as well as politicians and electorates. Even what Caplow considers the most authoritarian relationships that can still be found amongst which he includes physicians and patients, and notably judges and litigants are increasingly regulated by third parties, e.g., the Judicial Disabilities Commission, and constrained by bureaucratic regulations.

We have lately witnessed the acceleration of these trends as exemplified by the increased willingness of lawyers and litigants to utilize the bureaucracy established, the Judicial Disabilities Commission to air their legitimate, as well as their illegitimate grievances.

The Commission, coupled with multiple and random “judicial evaluation” sites set up on the Web, social media and even the “mainstream media” provide forums for the airing and processing of both legitimate complaints and frivolous, even petty and vindictive actions by disgruntled litigants and, albeit rarely, their lawyers.

This means as Theodore Caplow says that the regulation of institutions such as the judiciary, whose independence must be protected and preserved for it to perform its constitutional function of checking and balancing the other two popularly elected and appointed branches of government as well as the private sector must be more skillfully, carefully, and sensitively managed than was previously the case. This in turn begs three most pressing questions:

  1. To what extent should judges be regulated?
  2. What or who should regulate the behavior of judges?
  3. Perhaps most important of all, who should regulate the regulators

Currently these questions are being answered in different ways by different individuals and institutions. As the judiciary, particularly trial judges, who are the primary targets of complaints filed with the Judicial Disabilities Commission focus on their concerns and derivative complaints that allegations against them are not addressed with “fundamental fairness” by The Judicial Disabilities Commission, a contemporaneous headline in The Baltimore Sun, coming from a completely opposite perspective, suggested “Judges Protected From Scrutiny By 15 Year Terms and Judicial Disability Commission.”

In the meantime, some self-selected rival candidates and their campaigns running for election against sitting Circuit Court Judges file complaints against some sitting Judges with the Judicial Disabilities Commission as a political tactic and electoral strategy, knowing that the judge cannot ethically respond to those complaints in the media. This is also the case when advocacy groups supporting particular parties and/or results in certain cases attempt to utilize the complaint process to punish or even remove judges whose decisions do not conform to the organization’s or individual’s ideological agenda.

Addressing these questions and the issues which they encompass will require substantive, in lieu of superficial deliberations and hopefully collaboration among all of the diverse stakeholders in our judicial system. It will require thoughtful answers to questions such as:

  1. What is a fair and workable definition of “Judicial Misconduct?”
  2. How is “judicial misconduct” distinguished from “legal error?”
  3. What should the standard of care for judicial conduct be and should it be the subject of expert testimony and authority before the Commission?
  4. What should the standard of review, i.e., degree of scrutiny of the Commissions decisions by an Appellate Court be and should that standard be based solely on the sanction imposed or recommended by the Commission?

In other words, how much process is due to a judge accused of “misconduct”, and to the individuals who feel aggrieved thereby? Time will tell. Stay tuned!!!