IN RE DIENER AND BROCCOLINO

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — Maryland Constitution, Article IV, §§ 4A And 4B, As Amended, Created An Alternative To Removal Or Impeachment Of A Judge Guilty Of Misconduct By Creating A Commission On Judicial Disabilities And Empowering Court Of Appeals Upon Recommendation Of The Commission To Retire, Remove Or Censure A Judge. pp. 663-666

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — Under Maryland Rule 1227 Adopted By Court Of Appeals Pursuant To Direction Contained In Maryland Code, Article 40, § 45, Commission On Judicial Disabilities Was Authorized After Hearing To Recommend To Court Of Appeals Censure, Removal Or Retirement Of A Judge By The Affirmative Vote Of A Majority Of Its Members. p. 667

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — Commission On Judicial Disabilities Is Not Within Ambit Of The Administrative Procedure Act And Proceedings Before It Are Neither Civil Nor Criminal In Nature But Merely Inquiry Into Conduct Of A Judicial Officer, 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, But Because Of The Severity Of The Impact Of Its Findings Upon The Individual, Its Findings And Conclusions Must Be Supported By Clear And Convincing Evidence — In The Instant Case, Findings Of The Commission That Two Judges In Disposing Of Parking Ticket Cases Either Reached Verdicts Of Not Guilty Or Suspended And/Or Reduced Fines For Reasons Of Friendship, Political Favoritism Or The Importuning Of Court Clerks And Its Conclusion That This Was Conduct Prejudicial To The Proper Administration Of Justice Were Supported By Clear And Convincing Evidence. pp. 667-670

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — Although Comprehensive And Universally Applicable Definition Of Conduct Prejudicial To The Proper Administration Of Justice May Never Evolve, Disposition Of Cases For Reasons Other Than An Honest Appraisal Of The Facts And The Law, As Disclosed By The Evidence Presented, Will Amount To Such Conduct Whenever And However It May Be Defined Or Whoever Does The Defining; The Fact That Judges Found To Have Engaged In Such Conduct Derived No Financial Benefit Therefrom Is Wholly Irrelevant Nor Does Their Conduct Become Blameless Because Other Judges May Have Pursued The Same Course And There Is No Alternative To Entry Of An Order Removing Them. pp. 670-671

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — The Formal Notice Issued By The Commission In The Instant Case Was Clearly Sufficient To Comply With The Requirements Of Maryland Rule 1227(g)(1). pp. 671-673

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — Grant Of Power To Commission On Judicial Disabilities In Maryland Rule 1227 (f)(2) To Initiate Preliminary Investigation Concerning Complaint Against A Judge On Its Own Motion Was Not In Excess Of That Authorized By Maryland Constitution, Article IV, § 4B. pp. 673-675

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — Jurisdiction Of Commission On Judicial Disabilities To Investigate Complaints Against Judges Of The District Court Of Maryland Was Not Limited To Their Acts, Commissions Or Omissions Occurring Subsequent To Effective Date Of Legislation Creating That Court Nor Did Commission Lack Jurisdiction To Inquire Into Acts Alleged To Have Occurred Prior To Effective Date Of Provisions Of Maryland Constitution, Article IV, § 4B. pp. 675-677

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — There Is No Such Combination Of Investigative, Prosecutive And Adjudicative Powers In The Commission On Judicial Disabilities As To Constitute A Denial Of Due Process Of Law Under The Fourteenth Amendment To The United States Constitution. pp. 677-679

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — The 1970 Amendment To Maryland Constitution, Article IV, §§ 4A And 4B Was Validly Enacted. pp. 679-680

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — The Commission On Judicial Disabilities, Functioning As A Fact-Finding Body, Is Not Bound By Strict Rules Of Evidence But Only By The Fundamental Rules Of Fairness, No Transgression Of Which Was Found In The Record. p. 682

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — Grant Of Power To The Commission On Judicial Disabilities In Maryland Rule 1227 n To Recommend Censure Did Not Exceed Limits Of Maryland Constitution, Article IV, § 4B (b), Since The Power There Granted To The Commission To Recommend Retirement Or Removal Impliedly Included The Lesser Power To Recommend Censure. pp. 682-683

CONSTITUTIONAL LAW — Commission On Judicial Disabilities — The Court Of Appeals Is Not Bound By Recommendation Of The Commission On Judicial Disabilities But May Either Reject The Recommendation And Dismiss The Case Or Disregard The Recommendation And Impose Some Other Sanction, Either More Or Less Onerous. pp. 683-689

R.H.

Motion for reconsideration and clarification filed by A. Jerome Diener May 25, 1973; amended order filed June 6, 1973.

Motion for rehearing filed by Joseph L. Broccolino June 6, 1973; denied June 11, 1973.

Findings, Conclusions and Recommendations of the Commission on Judicial Disabilities.

Smith, J., dissenting:

Were this matter properly before us, I would concur in the removal of the judges. The fact that there has been a practice of "ticket fixing," as alleged, and that others have been involved, as alleged, is no defense in my opinion. The action here is conduct prejudicial to the administration of justice. Courts, be they high or low, should and must be like Caesar's wife, above suspicion. Any other standard is one which undermines the trust and confidence of the average citizen in his government.

I concur in the view of the majority that the test to be applied to the evidence adduced before the Commission on Judicial Disabilities (the Commission) upon which they may make their recommendation is whether it is supported by clear and convincing evidence.

When I say I would concur if this matter were properly before us I mean that I would fully concur in the removal of these judges if the case were before us either with a recommendation for removal or under a constitutional provision that did not make a recommendation for removal a condition precedent to action by us but permitted us to determine the sanction to be imposed when the Commission found, and we concurred in its finding, that a judge was guilty of conduct prejudicial to the administration of justice. In the view I take of this case it is not necessary to address myself to the question of whether the Court may escalate the Commission's recommendation for censure into removal.

Where I part company with the majority is that in my view the matter is not properly before us. The framers of the Constitution of 1867 saw fit to place in Art. 33 of the Declaration of Rights a provision intended to protect the independence of the judiciary. It says that "[j]udges shall not be removed, except in the manner, and for the causes provided in [that] Constitution." Our power to remove a judge from office under § 4B (b) of Art. IV of the Constitution is limited by the condition precedent in that section of a prior "recommendation of the Commission [on Judicial Disabilities] that a judge be removed from office . . . ." (Emphasis added.) Let me point out at the very beginning of this opinion that when the General Assembly proposed and the people ratified the constitutional amendment by which § 4B was added to Art. IV of the Constitution they must be presumed to have done so with full knowledge of the language of Art. 33 of the Declaration of Rights.

The 1864 and 1851 Constitutions specified that judges should "not be removed, except for misbehavior, on conviction in a court of law, or by the Governor upon the address of the General Assembly . . . ." The 1776 Constitution said they "ought to hold commissions during good behavior, and [they should] be removed for misbehaviour on conviction in a court of law, and [might] be removed by the governor upon the address of the general assembly . . . ." See Constitutional Revision Study Documents — Maryland 614-17 (1968).

As I read the majority opinion, it primarily rests upon the theory "that the grant [to the Commission by the Constitution] of the greater power [(the power to recommend to us that a judge be removed from office or that he be retired)] impliedly includes the lesser [(the power to recommend to us censure of a judge as provided in Maryland Rule 1227n)]" and that we may then remove the judge if we find him guilty of conduct prejudicial to the administration of justice. That reasoning, of course, overlooks the language of the Constitution itself which I have just quoted and to which I shall later allude. The opinion fails to come to grips with that. Although the majority does not say they rely on inherent power in this Court to take the action here taken, for some unexplained reason they refer to that doctrine with citation given to that theory as developed in Massachusetts and New Hampshire. Lest there become misapprehension as a result of this, I think it clear this Court has no such power.

INHERENT POWER

In In re DeSaulnier, 1971 Mass. A.S. 1345, 274 N.E.2d 454 (1971); 1971 Mass. A.S. 1689, 276 N.E.2d 278 (1971); 1972 Mass. A.S. 65, 279 N.E.2d 296 (1972), Judge DeSaulnier was disbarred and suspended from the exercise of his judicial duties. The constitutional provision there may be considered by some to be similar to that of our Constitution, as the majority says, but certainly no one can say it is the same. The Massachusetts constitution provides for judges to hold office "during good behavior" and for their removal by the Governor "with consent of the council . . . upon the address of both houses of the legislature. . . ." Our provision is more restrictive. It provides a positive prohibition against removal "except in the manner, and for the causes provided in [the] Constitution."

It should be made clear that the Supreme Judicial Court of Massachusetts did not remove Judge DeSaulnier from office. He resigned after the disbarment order was passed. Citing From the State Capitals, February 21, 1972, at 3, 1971-72 Annual Survey of American Law in the chapter on judicial administration by Professor Klein and others states:

"Governor Sargent submitted to the Massachusetts legislature a broad judicial reform package including proposals to set up a commission to hear complaints concerning judges, and to allow the State Supreme Judicial Court to remove judges. The proposal grew out of dissatisfaction with Massachusetts removal procedures in the wake of a scandal involving two Superior Court Judges. One of the two judges was disbarred by the Supreme Judicial Court and later resigned. The other judge is under investigation by a legislative committee." Id. at 731.

These proposals were not passed by the legislature. In DeSaulnier, the Massachusetts court said:

"Our powers of supervision outlined above we propose to exercise with deference to the provisions in the Constitution of the Commonwealth which impose upon the Governor and the General Court primary responsibility for removal of judges. These provisions include Part II, c. 3, art. 1, governing removal by address, and Part II, c. 1, § 3, art. 6, and Part II, c. 1, § 2, art. 8, dealing with impeachment." 279 N.E.2d at 308.

It concluded by stating:

"4. The entire record of the proceedings, together with the transcript of testimony, is to be transmitted to the Governor and the General Court for such action as may be deemed appropriate." Id. at 311.

It did not remove, but left that to the governor and the legislature. A joint special committee was then appointed by the Massachusetts legislature on January 24, 1972. It reported on April 10, 1972, that Judge DeSaulnier "[h]aving resigned, he [could] not be the subject of an address" and that "[p]robably, his withdrawal from office also terminate[d] jurisdiction to impeach. . . ."

In the case of In re Mussman, N.H. 289 A.2d 403 (1972), the New Hampshire court spoke of "the power of the Supreme Court to exercise general superintendence of courts in [that] state system," characterized by the majority as "power to take any disciplinary action against a judge short of removal." The holding in that case was simply that the "court ha[d] the power, upon a proper showing of abuse or misconduct, to order a suspension of a judge from sitting in his court or to assign some other judge in his place" while disciplinary proceedings were in process, a far different matter than that of removing a judge from office. Moreover, a constitutional provision such as ours does not exist in New Hampshire. In fact, a survey of indices to state constitutions leads to the conclusion that our provision probably is unique.

If any one could possibly consider that this Court has inherent power to discipline or remove the judges of this State, it is strikingly strange that the thought has not surfaced until now and that in all of the controversy surrounding the problem of Judge George M. Berry, then an Associate Judge of the Third Judicial Circuit, who failed to perform any of the duties of his office during much of the years 1959-1964, the great legal minds of this State who wrestled with the problem did not come up with the theory that this Court could and should exercise its inherent power and remove him from office. As I shall point out in the development of the history of the commission concept in Maryland, the Berry incident was contemporaneous with the initial consideration of the commission concept, yet the members of the Judicial Ethics Committee of the Maryland State Bar Association (M.S.B.A.) at the time not only made no reference to any inherent power theory, but seemed firmly of the opinion that the removal powers were only such as were then in the Constitution.

At the annual meeting of M.S.B.A. held July 8-11, 1964, the Executive Council reported that it:

"Took cognizance of the charges made against Judge George M. Berry and authorized the appointment of a special committee to investigate, study and report its findings and conclusions concerning such charges to the Executive Council."

See 69 Transactions Maryland State Bar Association 488 (1964). President H. Vernon Eney was recorded as saying at that meeting:

"The third item is the Committee on Investigation of Charges Against Judge Berry. . . . We had a special meeting of the Executive Council at which the report was very carefully considered, and then at the direction of the Executive Council the report was submitted to Chief Judge Brune [of the Court of Appeals of Maryland] and to Governor Tawes. The Executive Council approved the conclusions set forth in that report which were four in number. It approved in part the recommendations of the report.

"The recommendations of the report were that Judge Berry be retired, and that the Governor call a special session of the Legislature to take the necessary action to retire him. The Executive Council recommended that Judge Berry be removed or retired, and decided not to ask the Governor to call a special session of the Legislature to consider this matter, but instead determined on behalf of the association to present to the Legislature at its next regular or special session a petition to either remove or retire Judge Berry as soon as possible.

"At the direction of the Executive Council I presented the report in person to Chief Judge Brune and to Governor Tawes and discussed the situation fully with them. In due course the report will be forwarded to the proper officers of the Legislature, together with the petition of the State Bar Association to take the action indicated." Id. at 122-23.

Mr. Eney is generally recognized as one of the most distinguished members of the legal profession in this State. He was Chairman of the Constitutional Convention Commission, to which I shall later make reference, and served as President of the Constitutional Convention of 1967. If the thought entered his mind or the minds of the members of the Executive Council that the Court of Appeals had some inherent power to remove Judge Berry, that thought may not be gleaned from what has been above quoted. It is interesting in that regard to note that the Executive Council at that time in addition to Mr. Eney consisted of J. DeWeese Carter, Hal C.B. Clagett, S. Vannort Chapman, Daniel T. Prettyman, Lawrence E. Ensor, Vincent L. Gingerich, J. Gilbert Prendergast, and Kenneth C. Proctor. Four of those individuals are now judges while Mr. Gingerich is now Chairman of the Maryland State Board of Law Examiners.

The Berry incident was again cause for comment in the report of the Executive Council of M.S.B.A. at the mid-winter meeting held January 14-16, 1965. It was stated that the council had "[a]pproved of appropriate legislative action for the removal or retirement of Judge George M. Berry." See 70 Transactions Maryland State Bar Association 428 (1965). The Executive Council then consisted of Judge J. DeWeese Carter as President, and Messrs. William L. Marbury, Hal C.B. Clagett, S. Vannort Chapman, Clayton C. Carter, Ridgely P. Melvin, Jr., J. Louis Boublitz, David P. Gordon, H. Vernon Eney, and Norman P. Ramsey, four of whom are now judges while Mr. Marbury is a member of the Commission which made the recommendation in this case. Judge Berry ultimately resigned February 10, 1965.

The special committee of M.S.B.A. on the matter of Judge Berry was composed of T. Hughlett Henry, Jr., as Chairman, and Messrs. Franklin G. Allen, David W. Byron, William M. Loker, Jr., and David R. Owen. Their entire report is published in The Daily Record of July 10, 1964. It indicates that Judges Barrett, Menchine, Raine, Turnbull, and Lindsay (all of the circuit judges who then resided in Baltimore County other than Judge Berry) had signed a letter "to Governor Tawes dated April 16, 1964, petitioning the Governor to request Judge Berry's resignation, or in the alternative, to call a Special Session of the Legislature to `consider appropriate legislation under the provisions of Article IV, Section 3 of the Constitution of Maryland.'" It states in part:

"Chief Judge Frederick Brune, of the Court of Appeals, made available to the Committee his file of correspondence with Judge Berry in May, 1962, after Judge Berry had been absent from Court for approximately eleven months. Judge Brune pointed out to Judge Berry the necessity of his returning to work and was informed by Judge Berry that due to a `recent and protracted virus infection,' it had been impossible for him to return to his duties. At that time, Judge Brune informed Judge Berry that there was a movement to have introduced in a Special Session of the Legislature, a resolution retiring Judge Berry for disability. Judge Berry agreed that if such a resolution was not introduced, he would return to work by June 30th, or would resign, if unable to do so. Although it was understood that Judge Berry would put this agreement in writing, he failed to do so. The legislative action was dropped, but Judge Berry did not return to work by June 30th, nor did he resign. In fact, he did not return until the 19th of November of that year.

"The evidence shows also that early in 1963, when another period of absence of approximately two months had occurred, Judge Berry was visited by Kenneth C. Proctor, Esquire, then President of the Maryland State Bar Association, and W. Mitchell Jenifer, Esquire, then President of the Baltimore County Bar Association, and importuned by these gentlemen to return to work. After that visit, his attendance was reasonably regular for more than two months."

Not one word is to be found in that report reflecting upon any inherent power of this Court to remove or retire judges. It certainly can thus be inferred that the committee, Chief Judge Brune of this Court, and Messrs. Proctor and Jenifer, now judges of the Third Judicial Circuit, had no thought of any inherent power of removal in this Court. If one had any lingering doubt upon this subject it would be dispelled when it is noted that in The Daily Record of July 10, 1964, as a preamble to publication of the Henry Committee report, Mr. Eney is quoted in a letter to that publication as follows:

"Under date of May 9, 1964, the Hon. Frederick W. Brune wrote to me suggesting that the Maryland State Bar Association appoint a Special Committee to investigate the charges which had been made publicly that Judge George M. Berry of the Circuit Court for Baltimore County was either unable or unwilling to perform the duties required of a judge of that Court. A copy of this letter was sent to the Governor and under date of May 12, 1964, the Governor wrote to me stating that he would lend his unqualified support and endorsement to Judge Brune's request."

It is inconceivable that Chief Judge Brune would have taken this action if he had thought this Court had power to resolve the problem; inconceivable that he would have failed to discuss this problem with the then members of this Court, Judges William L. Henderson, Hall Hammond, Stedman Prescott, William R. Horney, Charles C. Marbury and C. Ferdinand Sybert; and inconceivable that the then members of this Court would have failed to act had they been of the opinion that the Court possessed the power to remove Judge Berry.

I acknowledge the existence of a doctrine that courts of last resort have certain supervisory powers. See 20 Am.Jur.2d Courts §§ 111-117 (1965), Annot., Superintending Control 112 A.L.R. 1351-1399 (1938), and R. Martineau, The Authority of a State Supreme Court to Regulate Judicial Ethics, 15 St. L.L.J. 237 (1970), but this Court has no constitutional grant of such power. Even Massachusetts with a statutory grant of supervisory power to its court of last resort saw fit in DeSaulnier to proceed to disbar, but not to remove. On the subject of disbarment, see Annot., Attorney-Discipline-Conduct as Judge 53 A.L.R.2d 305 (1957). The manner of exercising supervisory control has included issuance of writs of certiorari, mandamus and prohibition ( see 112 A.L.R. at 1370-72), but this Court has consistently held (prior to the adoption of the constitutional amendment under which this case arises and the recent amendment under which we are concerned with legislative districts as a matter of original jurisdiction) that it has only appellate jurisdiction. See Board v. Attorney General, 246 Md. 417, 427, 229 A.2d 388 (1967). We have said that the issuance of a writ of mandamus to a lower court not in aid of our appellate jurisdiction was not within our power. Henson v. State, 227 Md. 659, 660, 180 A.2d 300 (1962). In State v. Rutherford, 145 Md. 363, 125 A. 725 (1922), Judge W. Mitchell Digges considered and rejected for the Court a suggestion that the writ of certiorari be issued to the Baltimore City Court in a zoning matter then pending, saying:

"It being beyond the power of the Legislature to confer upon this Court original jurisdiction, or jurisdiction not appellate, it necessarily follows that it has no original jurisdiction upon petition of parties litigant, and has no power to issue original writs of certiorari, habeas corpus, mandamus or any other subject matter of original jurisdiction." Id. at 369.

In Hendrick v. State, 115 Md. 552, 81 A. 18 (1911), a person convicted by a Prince George's County justice of the peace of a violation of the motor vehicle registration law sought the writ of certiorari contending the statute was unconstitutional and that the circuit court for that county which affirmed the conviction on appeal was, therefore, without jurisdiction. Chief Judge Boyd said for the Court:

"It would certainly be contrary to all precedents, and not in accordance with the purposes for which this Court was constituted, to issue the writ of certiorari in such a case as this. In many of the States there are constitutional or statutory provisions authorizing their highest appellate Courts to issue this writ, as will be seen by a reference to 4 Ency of Pl. and Pr. 15, etc. But this Court is one of appellate jurisdiction only. In Sevinskey v. Wagus, 76 Md. 335, we held that a statute which provided that `the Court of Appeals, and the Chief Judge thereof, shall have the power to grant the writ of habeas corpus, and to exercise jurisdiction in all matters relating thereto throughout the State' was unconstitutional and void, as the Legislature had no power to confer upon the appellate Court such original jurisdiction. In passing on the question Chief Judge Alvey said: "The Constitution, Article 4, § 14, in defining the jurisdiction of this Court, declares, that "The jurisdiction of said Court of Appeals shall be coextensive with the limits of the State, and such as now is or may hereafter be prescribed by law;" that is to say, such appellate jurisdiction as the Court then had or might thereafter have conferred upon it. The Court at the time of the adoption of the present Constitution had, under former Constitutions, appellate jurisdiction only; and the terms by which the jurisdiction is defined in the present Constitution are substantially the same in meaning as those employed in the Constitutions of 1851 and 1864. It would therefore seem to be clear that the jurisdiction of this Court is appellate only; for if not so, and the Legislature could confer original jurisdiction upon it in cases of habeas corpus, it could also confer such jurisdiction in cases of mandamus, or in cases of any other subject-matter of original jurisdiction. This manifestly was never contemplated by the framers of the Constitution, and therefore the attempt by the Legislature to confer such jurisdiction is simply nugatory and void. Ex parte O'Neill, 8 Md. 227; State v. Shields, 49 Md. 301; State v. Glenn, 54 Md. 594.' It will be observed that the Legislature had attempted to confer the power sought to be enforced in that case." Id. at 558-59.

The Supreme Court of the United States has taken a similar position. See Chandler v. Judicial Council of Tenth Circuit of U.S., 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970), where Chief Justice Burger said for the Court:

"The authority of this Court to issue a writ of prohibition or mandamus `can be constitutionally exercised only insofar as such writs are in aid of its appellate jurisdiction. Marbury v. Madison, 1 Cranch (U.S.) 137, 173-180.' Ex parte Peru, 318 U.S. 578, 582 (1943)." Id. at 86.

In Iowa supervisory power is vested in the court of last resort by the constitution. See Re Judges of Cedar Rapids Municipal Court, 256 Iowa 1135, 1136, 130 N.W.2d 553 (1964). In that case, pursuant to the above grant of power, the court said:

"We conclude that opportunity to correct the objectionable and disapproved practices pointed out above should be given with continued surveillance by this court." Id. at 1140.

after earlier having said relative to the conduct of the judges there under consideration, "Our investigation discloses a need for correction." However, it later said specifically that it had no power of removal, although it did proceed to censure one of the judges mentioned in the earlier proceeding. See In Re Municipal Court of Cedar Rapids, Iowa, 188 N.W.2d 354 (1971). On the subject of removal it said:

"While it is true that Article V, section 4, of the Constitution of Iowa, provides the `Supreme Court shall * * * exercise a supervisory and administrative control over all inferior Judicial tribunals throughout the State,' this supervisory and administrative control has limitations. We have no power to suspend or remove any judge of any inferior judicial tribunal. The power to remove a judge of a municipal court is either in the hands of the electorate at the polls, or must be accomplished by resort to the removal facilities provided for by statute. Chapter 66, Code of Iowa, 1971 provides any appointive or elective officer, except such as may be removed only by impeachment, holding any public office in the state, may be removed from office by the District Court for willful or habitual neglect or refusal to perform the duties of his office, for willful misconduct or maladministration, or for intoxication. The process for removal may be instituted by the Attorney General in any case, or by five qualified electors of the municipality where the duties of the office are to be performed.

"A constitutional amendment has now been passed by both houses of the legislature at two successive sessions to be presented to the people of this state at the next general election. This amendment, if adopted, will afford additional disciplinary powers to a proper agency, but it is not yet the law of the state." 188 N.W.2d at 358.

Relative to the Supreme Court of the United States and exercise of inherent power, R. Martineau in Enforcement of the Code of Judicial Conduct, 1972 Utah L.R. 410 (1973), states:

"The problem of regulating the conduct of federal judges is simpler and yet more complicated than the problem in the state courts. It is simpler because there is only one jurisdiction rather than fifty. But it is more complicated because of the different traditions of separation of powers, independence of judges, and greater legislative involvement in the administration of justice that exist under the Federal Constitution as opposed to the state constitutions. Whatever the reasons for and the validity of these different traditions, the result is that the United States Supreme Court has never exercised or claimed any specific or inherent constitutional authority over the administration of justice in the federal courts similar to that exercised by many state supreme courts." Id. 415-16.

In a pamphlet of the American Bar Association Section of Judicial Administration, The Improvement of the Administration of Justice (5th ed. 1971), Chapter 6 is entitled "Judicial Conduct, Discipline and Removal and Involuntary Retirement." It is written by Jack E. Frankel, the Executive Secretary of the California Commission on Judicial Qualifications, to whom I shall refer again. He considers five methods of dealing with the problem judge, internal management, bar association disciplinary and grievance committees, the appellate court, the Court on the Judiciary used in New York, and the commission plan. We have seen that the commission plan requires a constitutional amendment. The New York Court on the Judiciary was likewise authorized by constitutional amendment. On the subject of the appellate court he states:

"Another technique is to assign ethics and fitness problems to an appellate court, e.g., the state supreme court. This has the advantage of starting from a position of strength and permanence and it is logical for such power to rest at the apex of a judicial pyramid. There will often be some court administrative and staff arrangement already functioning which can be utilized.

"This method although incorporated in the first model judicial article for state constitutions many years ago has scarcely been used." Id. at 56.

It thus will be seen that he apparently regards this method as requiring constitutional authorization. In the matter of internal management he does not speak of removal and on the subject of grievance committee activity he states that "it is doubtful whether judges do or should come within the formal bar association framework for purposes of discipline." It is noteworthy that not once does he mention any belief in an inherent power on the part of courts of last resort without constitutional authorization to remove judges from office.

An independent look at the Maryland judicial system was undertaken by the Institute of Judicial Administration. Its report, Survey of the Judicial System of Maryland (1967), states:

"Even in the courts where good retirement programs are in effect, difficulties sometimes arise with respect to judges who are physically or mentally unfit but who fail to recognize that fact, and with respect to judges who are guilty of neglect of duty, discourtesy, habitual intemperance, favoritism, corruption or other misconduct. Such judges are few, but they create difficulties entirely disproportionate to their number. Until 1966, there were three methods available to deal with such situations, all of which were cumbersome and none of which was effective. These were impeachment (involving accusation by the lower house of the legislature and trial by the upper house), address by the General Assembly (involving a two-thirds vote in each house and approval by the Governor, after the accused is notified and given an opportunity to defend), and removal by the Governor after conviction of the judge in a court of law. In 1966 a fourth and hopefully more effective method was added in the form of a Commission on Judicial Disabilities. It consists of five persons, all appointed by the Governor: three judges (one each from the Court of Appeals, the Circuit Court and the Supreme Bench of Baltimore City), one lawyer and one layman. The Commission may investigate any alleged case of disability or misconduct, and, if it deems proper, may order a hearing at which the judge in question is entitled to be heard. Thereafter, by majority vote, the Commission may recommend retirement or removal. The Commission's function is purely advisory. The actual power of removal is vested in the legislature, which may again hold hearings, and upon a two-thirds vote of the members of each house, may order the removal or retirement of the judge in question, or reject the Commission's recommendation. If a judge is retired for reasons of health, he receives the pension provided by law; but if he is removed for misconduct, all pension rights and death benefits which would otherwise accrue to him or his widow are forfeited." Id. at 32-33.

It thus will be seen that those compiling that report were not of the belief that we had some inherent power in this regard.

The late Carroll T. Bond, a member of the Supreme Bench of Baltimore City from 1911 to 1924 and Chief Judge of this Court from 1924 to 1943, addressed the Maryland State Bar Association in 1924 on "The Growth of Judicial Ethics." See 29 Transactions Maryland State Bar Association 100 (1924). I regard it as of more than passing significance that although in the course of that address he spoke of improprieties in England in an earlier day, methods taken to overcome those improprieties, and what today would be regarded as lapses of judicial ethics in this country, he never once spoke of any inherent power in this Court to remedy any such lapses.

One of the most distinguished Maryland jurists of this century was the late Morris A. Soper, Chief Judge of the Supreme Bench of Baltimore City from 1914 to 1921, Judge of the United States District Court for the District of Maryland from 1923 to 1931, and Judge of the United States Court of Appeals for the Fourth Circuit from 1931 until 1963. It is apparent that Judge Soper did not think in terms of this Court's having any supervisory power over the judiciary of the State for in his address "Judicial Administration in Maryland" as President of the Maryland State Bar Association in 1920 he said:

"Under the Maryland Constitution no well organized system exists or is possible in this State, either as to the judicial administration or the business administration of the Courts. There is no Court, or Judge or set of Judges in control of all the Courts of Maryland. No executive official has control of them. There is but one State-wide Court, the Court of Appeals, and this is limited to appellate business and the government of itself. Outside of its power to prescribe rules for appeals and for pleading and practice in equity, it has no general control. The Chief Judge of the Court is not the head of the judicial system of Maryland. He is Chief Judge of the Court of Appeals and Chief of the Judges of his Circuit, but these are the limits of his executive authority. Indeed, there is no head to the judicial system of Maryland."

See 25 Transactions Maryland State Bar Association 7-8 (1920). It is true that under the constitutional amendment adopted by the people on November 7, 1944, what is now Constitution Art. IV, § 18A, declares the Chief Judge of this Court to "be the administrative head of the Judicial system of the State." That amendment, however, does not vest this Court with the type of supervisory power calculated to be a basis for removal of a sitting judge. Thus the trauma of the Berry situation could not be solved by this means.

Relying as our Court did so often in earlier days, and even now in some instances, upon British precedent and bearing in mind that Article 5 of the Declaration of Rights states "[t]hat the Inhabitants of Maryland are entitled to the Common Law of England . . . and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six," I find of interest the comment of Mr. Martineau relative to inherent power in discussing "whether judges can be regulated and disciplined as a result of their status as lawyers," pointing out "several deficiencies in relying on this approach to the regulation of judicial ethics." He states:

"Third, it is the use of what has been characterized as an inherent power of a court, which finds its basis in the control of the English courts over admission to the bar, to regulate the conduct of judicial officers, a power which the English courts did not exercise after the Act of Settlement in 1701." Op. cit. 15 St. L.L.J. at 250.

citing M. Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 The Supreme Court Review 135, 137-38 (1969).

In short, whether I examine the Berry incident, his conduct prejudicial to the administration of justice by refusing to sit, and the apparent belief of Chief Judge Brune, the then members of this Court, and the leaders of the legal profession of the State at the time that this Court had no power to act to remedy the situation; the prior holdings of this Court on the subject of jurisdiction in contrast to holdings elsewhere relative to supervisory control; the comment of such an eminent authority as Judge Soper; or the writings of an eminent authority in the field of judicial disability such as Mr. Frankel, I can find no support for any possible intimation that we have an inherent power to remove these judges from office.

MARYLAND HISTORY OF THE COMMISSION CONCEPT

One may suspect that the difficulty relative to Judge Berry was the spark which produced the Commission on Judicial Disabilities. The report of the Committee on Judicial Ethics of M.S.B.A. at the mid-winter meeting of the Association held January 17-18, 1964 ( see 69 Transactions Maryland State Bar Association 401-407 (1964)) states that in the spring of the previous year the Honorable William S. James, then and now President of the Senate of Maryland, and Rignal W. Baldwin, Esq., later President of M.S.B.A., had each separately called the attention of then President Kenneth C. Proctor to an article appearing in the February, 1963, issue of American Bar Association Journal on the problem of removal of judges and "how the matter is handled in various states short of impeachment or legislative address." It was Frankel, Removal of Judges: California Tackles an Old Problem, 49 A.B.A.J. 166-171 (1963). The committee report states, "[t]he power of removal set forth in the Constitution is quite limited." It then refers to Art. IV, § 4 of our Constitution providing that a "judge shall be removed from office by the Governor, on conviction in a Court of Law, of incompetency, of willful neglect of duty, misbehavior in office, or any other crime, or on impeachment, according to this Constitution, or the Laws of the State; or on the address of the General Assembly, two-thirds of each House concurring in such address, and the accused having been notified of the charges against him, and having had opportunity of making his defence." It also refers to Art. 33 of the Declaration of Rights which we have previously mentioned. The committee report concludes:

"After consideration and discussion we have reached the conclusion that there is a need for a legally constituted body with power to investigate and take or initiate action to remove or retire a judge for cause. This will necessitate the passage and adoption of an amendment to the constitution which will require careful thought and investigation in its preparation.

"The rather full reference to the California system of handling the subject is only illustrative of a method which in a very short period has proved very effective. We are not suggesting it or any other method. We recommend that a committee be appointed to prepare an appropriate amendment to the constitution of the State for removal or retirement of a judge for cause." Id. at 402. (Emphasis added.)

In the light of our discussion of the doctrine of inherent power to effect removal of a judge for disciplinary purposes, the membership of that committee is interesting. Its chairman was Judge S. Ralph Warnken. Its members were Messrs. John T. Tucker, Ralph G. Shure, Reuben Oppenheimer, Cornelius P. Mundy, James Macgill, Thomas J. Keating, Jr., George T. Burroughs and Lester L. Barrett. Each member of that committee other than Mr. Burroughs was then either a former or an active trial judge in this State. Judge Oppenheimer, of course, ultimately became a member of this Court. It is significant that the thought that this Court had inherent power of removal apparently never crossed their minds.

At the M.S.B.A. annual meeting in July Judge Warnken's committee suggested adoption of a constitutional amendment. See 69 Transactions Maryland State Bar Association 402-407 (1964). It was there proposed that there be created a commission which "[i]f, after hearing, [it found] good cause . . . [was to] recommend to the Court of Appeals the removal or retirement . . . of [a] judge." The Court was to "review the record of the proceedings on the law and facts and in its discretion [might] permit the introduction of additional evidence. . . ." It could order removal or retirement, as it found "just and proper, or wholly reject the recommendation." In the debate at that annual meeting Judge James H. Pugh made reference to the fact that under existing constitutional provisions judges had been retired for disability. ( See Const. Art. IV, § 3, 69 Transactions Maryland State Bar Association 147 (1964), and Chapter 854, Acts of 1943.)

The committee's recommendation was altered materially after it reached the General Assembly in the form of a Legislative Council proposal. It was that altered proposal which entered the Constitution by amendment in 1966 to which reference has been made in the majority opinion as well as previously in this opinion and which provided for a commission appointed by the Governor. If it found good cause ("misconduct in office, persistent failure to perform the duties of his office or conduct which [might] prejudice the proper administration of justice, or . . . disability seriously interferring with the performance of his duties, which [was], or [was] likely to become, of a permanent character"), it was to recommend to the General Assembly the removal or retirement of the judge.

The matter of judicial disabilities was studied by the Constitutional Convention Commission. In the "bare bones" draft constitution proposed by it § 5.25 of the judicial article called for removal by "[t]he Supreme Court" of any judge "upon a finding of misconduct in office or persistent failure to perform the duties of his office. . . ." The report and its comments indicate that it was based upon the 1964 recommendation of M.S.B.A. No provision was made for a judicial disabilities commission. That Commission said, however, that it contemplated "that the Supreme Court [would] by rule establish a commission of some sort for the purpose of receiving and reviewing preliminary complaints against judges and with the responsibility for recommending formal removal proceedings should the evidence justify such a recommendation." (Emphasis added.) See Report of the Constitutional Convention Commission at 205. No mention was made of censure.

The highest court was there referred to as the "Supreme Court."

Then came the Constitutional Convention of 1967. The fact that the constitution proposed by that Convention was rejected by the voters on May 14, 1968, does not detract from the provision relative to judicial disability in that proposed constitution since that was not a subject of attack and it is one of a number of provisions which have since been lifted into our present Constitution. In § 5.26 of the proposed constitution a commission on judicial disability was created. The concluding sentence of § 5.27 relative to powers of that commission was:

"The Court of Appeals shall prescribe by rule the means to implement and enforce the powers of the Commission."

The only difference between that and the last sentence of § 4B. (a) of Art. IV of our present Constitution is inclusion of a power by rule also to prescribe the practice and procedure before the Commission. That sentence reads:

"The Court of Appeals shall prescribe by rule the means to implement and enforce the powers of the Commission and the practice and procedure before the Commission."

Unlike our present constitutional provision, removal and retirement were dealt with in separate sections. The similarity between § 5.29 in that proposed constitution and the provision of our present Constitution relative to removal becomes readily apparent when the two are placed side by side with the provision in the latter relative to disability removed. They read: "Section 5.29. Removal by Court "Section 4B. Power of Commission of Appeals. on judicial disabilities; procedure; removal or retirement of judge by Court of Appeals. "(a) * * * "Upon recommendation of the "(b) Upon recommendation Commission on Judicial of the Commission that a judge be Disabilities that a judge be removed from office . . . the Court removed from office, the Court of Appeals, after a hearing and upon of Appeals, after a hearing and a finding of misconduct while in upon a finding of misconduct office, or of persistent failure to while in office, or of persistent the duties of his office, or of perform failure to perform the conduct prejudicial to the proper duties of his office, or of administration of justice, may remove conduct prejudicial to the proper the judge from office or may administration of justice, may censure him. . . . A judge removed remove the judge from office or under this section, and his surviving may censure him. A judge removed spouse, shall have the rights and under this section, and his privileges accruing from his judicial surviving spouse, shall have the service only to the extent prescribed rights and privileges accruing by the order of removal. . . . No from his judicial service only to judge shall sit in judgment in any the extent prescribed by the order hearing involving his own removal. of removal. No judge shall sit in . . ." judgment in any hearing involving his own removal." Note that in each instance we are permitted to remove a judge or censure him, but there are two conditions precedent to such removal or censure, first there must be a recommendation of the Commission that a judge be removed, and then there must be a finding by us of "misconduct while in office, or of persistent failure to perform the duties of his office, or of conduct prejudicial to the proper administration of justice. . . ."

The provisions relative to retirement for disability are likewise virtually identical. For the sake of simplicity I have here concerned myself only with the provisions for removal.

I was a member of the Committee on the Judicial Branch of the 1967 Constitutional Convention. The minutes of William H. Adkins, II, Esq., the staff advisor to that committee, show that the original action of that committee called for this Court to "have power to remove any judge from office upon a finding, after hearing, of misconduct in office. . . ." Under that provision this Court was "by rule or order [to] implement and enforce [that] section by establishing a commission of mixed lay, lawyer and judicial composition" to conduct hearings and make recommendations to this Court for "removal or retirement if justified by the evidence." What emerged from the committee and went to the floor of the convention in the form of Committee Recommendation No. JB-1 was a proposal that gave this Court power to remove or censure "upon recommendation of the Commission . . . that the judge be removed and upon a finding, after hearing, of misconduct while in office, persistent failure to perform the duties of his office, or conduct prejudicial to the proper administration of justice." (Emphasis added.) Although substantial changes were made in the judicial article by the Committee of the Whole, no changes appear to have been made in that particular proposal. The Committee on Style, Drafting and Arrangement did make changes in the wording for stylistic purposes and there was some renumbering of sections. No change was made in the actual meaning, however.

The report of the majority of the Committee on the Judicial Branch accompanying Committee Recommendation JB-1 is significant. It states in pertinent part:

"Although there was some difference of opinion in the Committee, the highest court is given the right to censure, in addition to the right to remove or retire, but the draft provides that only cases warranting removal or retirement are referable to the Court. The proceedings before the Commission are confidential, but there is not, and could not properly be, a requirement that they be kept confidential, in the event of referral for trial." (Emphasis added.)

In the progression of things we come next to Chapters 789 and 791 of the Acts of 1969. These proposed constitutional amendments each included in identical terms language creating a commission on judicial disabilities. Chapter 789 was ratified by the people on November 3, 1970, and is the source of our present Commission. Chapter 791 was rejected.

At that same 1969 session Delegate Orlinsky introduced House Bill No. 1126. It called for a constitutional amendment repealing the provisions relative to the Commission on Judicial Disabilities and providing in lieu thereof a "Commission on Judicial Qualifications to investigate complaints against any judge and to recommend decisions as to the retirement or removal of judges." Under that provision the General Assembly was to "provide by law further duties and responsibilities for the Commission." House Bill 1125, a companion bill, proposed adding a new section to Art. 26 of the Code providing for a "Commission on Judicial Qualifications" with power "to conduct hearings concerning the censure, removal or retirement of a judge," in addition to the right to administer oaths, etc. It was to have the power to recommend to the Court of Appeals the censure, removal or retirement of a judge. Under that proposed act this Court would have had the power upon the recommendation of the Commission or upon our own motion "after hearing and upon a finding of misconduct while in office, or of persistent failure to perform the duties of his office, or of conduct prejudicial to the proper administration of justice, [to] remove the judge from office or censure him."

Next in the order of things came a proposal from the Legislative Council, Item 164(6), to the 1970 session of the General Assembly to withdraw Chapter 791 of the Acts of 1969 and to submit in lieu thereof a constitutional amendment dealing solely with judicial disabilities. The Commission was to have power "to make recommendations to [us] concerning the removal, retirement, or censure of a judge." (Emphasis added.) We were to have power "[u]pon a recommendation of the Commission that a judge be removed from office, that he be retired, or that he be censured . . . after a hearing and upon a finding of misconduct while in office, or of persistent failure to perform the duties of his office, or of conduct prejudicial to the proper administration of justice, [to] remove the judge from office or [to] censure him. . . ." That too failed of passage.

In short, from this recital it may be said that the legislative history of our present constitutional provision does not show an intention that the Commission should have the power to recommend censure. In fact, bearing in mind that the present provision, as I have demonstrated, is almost word for word from the constitution proposed by the Constitutional Convention in 1968, the report of the Committee on the Judicial Branch is rather conclusive evidence that the Constitutional Convention, at least, intended that there reach us "only cases [which in the opinion of the Commission] warrant[ed] removal or retirement." If, however, we thought after due consideration that the ultimate sanction of removal or retirement was too harsh, then we were to have the right to censure. I point out that under the existing constitutional provision we have no power to initiate before us an action leading to removal or retirement.

THIS CASE

It is unfortunate that we passed Maryland Rule 1227 in the language that we did authorizing the Commission to make a recommendation of censure. It should be noted that the rule making power relative to this Commission granted to us by the Constitution is to "prescribe by rule the means to implement and enforce the powers of the Commission and the practice and procedure before the Commission." In other words, we were granted by the Constitution power to embody in rules procedural matters such as, for instance, preliminary investigation, formal proceedings, service of complaint, time for filing an answer, procedural rights of a judge, etc. We were granted no power to enlarge or to reduce the fundamental jurisdiction of the Commission or of this Court. Cf. Bullock v. State, 230 Md. 280, 284-85, 186 A.2d 888 (1962).

I observe the statement of the majority "that so limiting the Commission's authority to recommend retirement or removal only would create a void into which minor infractions would fall, unnoticed and uncorrected." Mr. Frankel, Executive Secretary of the California Committee on Judicial Qualifications, in the article in the American Bar Association Journal to which we previously referred, spoke of such minor matters. He said, "The inquiry by the Commission usually resulted in a change." Frankel, op. cit. at 170. I have no doubt such inquiry would have a like salutary effect in Maryland. It must be remembered that there is good reason for the Commission to bring to us only those cases (insofar as misconduct is concerned as distinguished from disability) which in its opinion justify removal, since the cloak of secrecy or confidentiality is removed once the report is filed with us. The matter of censure has come under attack in the article Judicial Removal in 54 Va. L. Rev. 554 (1968), where it is said:

"A public expression of censure, for instance, would be intolerable for any public official in a position of trust, and would probably compel a judge to resign." Id. at 563.

The matter of public reprimand in an opinion was discussed in a note entitled Remedies for Judicial Misconduct and Disability: Removal and Discipline of Judges, 41 N.Y.U.L. Rev. 149 (1966), where it was said:

"Reprimands in appellate opinions, however, also may be directed against misconduct within the courtroom. Although effective in the immediate case, the difficulty with public reprimand is that it weakens public confidence in the judiciary and the respect of attorneys for the particular judge. Thus, such reprimands are used only when the device of informal contacts between judges has been exhausted." Id. at 173. (Emphasis added.)

Obviously, the mere recommendation of censure would hamper, if not destroy, the effectiveness of any sitting judge. In my judgment we were guilty of a serious oversight in adopting Rule 1227.

The long time and very efficient Chief Deputy Clerk of the Circuit Court for Caroline County was known from time to time to jokingly claim to some of his friends that he never made an error, although he was willing to confess to being guilty of an occasional oversight.

It is disheartening that although the majority finds "no impediment in Declaration of Rights Art. 33" to removal of these judges when no recommendation for such removal has been submitted to us, at no point in their opinion have they addressed themselves to a discussion of that article and its applicability here, confining themselves to the observation at one point "that the grant of the greater power includes the lesser," without citation of any authority for that proposition. This statement is limited in no way. If this proposition is thought by the majority to be the law of this State, many long established and well settled concepts are put in jeopardy. For instance, can it be thought to justify a finding of guilty of petty larceny under an indictment charging only grand larceny if the jurisdictional amount is not proved? Or, on an indictment charging only robbery, can a defendant be found guilty of assault and battery? I cannot accept this proposition.

The real question before us then is whether we would be able to hear this case if the provisions of Rule 1227 granting the Commission power to recommend to us censure of a judge did not exist. If the rule is necessary to give us jurisdiction, then we do not have jurisdiction. I am convinced that without the rule we would have no jurisdiction. Therefore, the rule is unconstitutional and we should say so. Sec. 4 B (b) gives us the power to remove a judge upon a finding of misconduct, etc., but such right of removal, as I read the Constitution, is "[u]pon recommendation of the Commission that a judge be removed from office. . . ." (Emphasis added.) That recommendation is a condition precedent to our action. When that is coupled with the legislative history behind our present constitutional provision which I have pointed out and the language of Art. 33 of the Declaration of Rights, I conclude that, no matter how much we might believe these judges should not be in office, at this time we are without power to remove them.

It should never be forgotten that there is reason — good reason — for a provision such as Art. 33 of our Declaration of Rights. This was so well summarized by Mr. Justice Black, referring to the Constitution of the United States, in his dissent in Chandler v. Judicial Council of Tenth Circuit of U.S., 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970), when he said:

"The wise authors of our Constitution provided for judicial independence because they were familiar with history; they knew that judges of the past — good, patriotic judges — had occasionally lost not only their offices but had also sometimes lost their freedom and their heads because of the actions and decrees of other judges. They were determined that no such things should happen here." Id. at 143.

In the recent case of City of Hagerstown v. Blenard, 268 Md. 382, 302 A.2d 53 (1973), Judge McWilliams said for the Court in construing a provision of the charter of the City of Hagerstown:

"We think `all cases' means all cases, whether the policeman is a 15 year veteran or a rookie who has had the misfortune to be permanently disabled in line of duty."

Here I think the constitutional provision that a judge "shall not be removed, except in the manner, and for the causes provided in this Constitution," means just that: a judge shall not be removed except in the manner and for the causes provided in our Constitution. That manner requires first a recommendation by the Commission that he be removed. Then, but only then, must follow a finding by us that he has been guilty "of misconduct while in office," has "persistent[ly] fail[ed] to perform the duties of his office," or that he is guilty "of conduct prejudicial to the proper administration of justice." Since the Commission made no recommendation to us for removal, I am of the opinion that under the Constitution we are without power to remove. Accordingly, the cases should be remanded to the Commission for further consideration and we should declare our rule unconstitutional.

I am authorized to state that Judge Digges concurs fully in this opinion and that Judge Barnes concurs in all of the opinion except that if the matter were properly before us he would adopt the recommendation of the Commission for censure rather than to impose this sanction of removal.

Barnes, J., dissenting:

I agree with my Brother Smith that the provisions of Maryland Rule 1227 purporting to give the Commission on Judicial Disabilities the power to censure are unconstitutional for the reasons so well reasoned and articulated in his dissenting opinion. I also fully concur with his dissent in regard to the "inherent power to remove" which the majority seems to think this Court probably has, notwithstanding a specific limitation on the power to remove judges in Article 33 of the Declaration of Rights of the Maryland Constitution.

As Judge Smith has indicated, if this matter were properly before us, I would not (as he would) vote to remove Judges Diener and Broccolino. In my opinion, (1) we have no power to escalate the sanction recommended to us by the Commission under the applicable constitutional provisions and also in the absence of any Rule purporting to enlarge or redefine our powers under Subsection (b) of Section 4B and (2) assuming, arguendo, that we had such power, I am of the opinion that the facts found by the Commission, and adopted by the majority, do not justify the removal of the two judges by this Court, but, at the most, will only support a censure by us of the two judges as recommended by the Commission.

Apart from our obvious obligation to give great weight to the recommendation of the Commission on Judicial Disabilities (the Commission), it should be observed that we and the people of Maryland are fortunate in the backgrounds and special abilities of the members of the Commission who rendered the public service imposed upon them in hearing the present case. The Chairman of the Commission, the Honorable William J. O'Donnell, a judge of the Supreme Bench of Baltimore City, is not only an excellent and well-regarded trial judge, but, prior to his appointment to that Bench, was State's Attorney of Baltimore City. He is obviously well equipped to make careful findings of fact and to render a proper recommendation to us. Judge Richard P. Gilbert of the Court of Special Appeals, Judge James H. Taylor of the Circuit Court for Prince George's County and Judge Charles E. Edmondson of the District Court are also careful, well-qualified judges. The lawyer members of the Commission who sat in the instant case, William L. Marbury, Esquire, and Carroll W. Royston, Esquire, are eminent practitioners of the law. Their analysis of the facts in the present case and their recommendation to us, based upon their analysis of the facts found by them, are also entitled to great weight. The findings of fact, the conclusions drawn from those facts, and the recommendation of the Commission were unanimous. These distinguished members of the Commission saw the witnesses in the case, observed their demeanor, carefully evaluated their testimony, as well as the documentary evidence in the case, as their 21-page opinion clearly indicates. The majority properly adopts the findings of fact by the Commission but, in my opinion, is in error in declining to adopt the conclusions drawn by the Commission from those facts and its recommendation of censure as the maximum sanction in this case.

The conclusions of the Commission were stated on pages 20 and 21 of its opinion, as follows:

" In great measure these two (2) judges were the victims of a system and the continuity of a practice which had continued for many years. Respectively upon appointment and election to the Municipal Court they were given no formal procedures to follow, but left largely to fend for themselves and they followed what had been acceptable `precedent'. They were indoctrinated in whatever procedures they followed and became dependent upon the very clerks who curried favors with them. Most of these clerks were inherited from the former Traffic Court — with its shortcomings — and became `blanketed' into the system and continued to serve as clerks in the Traffic Division of the Municipal Court under the provisions of Art. 26, § 126(c) (1966 Repl. Vol.).

" We heard no evidence of any continuation of the practices herein set forth since the inception of the District Court in July 1971. All civil, criminal and traffic trials before judges of the District Court, since the inception of the Court, are recorded verbatim, under the provisions of Maryland District Rule 4a. Although a person other than the registered owner of the vehicle — such as an operator or a bailee — may appear at the Court to stand trial on a parking ticket, it is necessary, before a `court slip' can be prepared and the case `added-on' to the printed docket, to obtain the approval of the Administrative Judge of that Court.

"While we must do our part to condemn, and to prevent a revival of the practices which we found to exist during the period 1967 to 1970, an overly harsh retribution is not called for in the case of these two (2) judges. Neither Judge Diener nor Judge Broccolino were shown to have personally benefited from any of their actions, either financially or otherwise.

"If we had the power to issue a reprimand to each of the judges we would do so; since we do not have such power within the dispositions available to us, we recommend to the Court of Appeals that each of them be censured." (Emphasis supplied)

It will be seen from the last sentence, supra, that the only doubt the Commission had was in regard to whether it should even recommend censure of the two judges, stating that if it had the power to reprimand, rather than to censure, it would have done so. It takes much doing indeed to find — as the majority has — that the facts found by the Commission and accepted by it warrant the removal of the two judges, the highest and most injurious sanction of all.

(1)

The first question to be considered on this aspect of the case is: Does this Court have the power to escalate the sanction recommended to us by the Commission? I think the answer to that question is "No" for two reasons: (a) such power is not given to us by the applicable constitutional provisions and (b) we have not attempted to "implement" the constitutional provisions by any Rule which even purports to enlarge or redefine our powers.

(a)

It will be observed that Subsection (b) of Section 4B of Art. IV of the Maryland Constitution in specific terms limits our power to act at all only upon a recommendation by the Commission of removal or retirement. Such a recommendation by the Commission is a condition precedent to our action, as Judge Smith has so ably pointed out in his dissenting opinion. This mandatory requirement was deliberate and not inadvertent as the legislative history referred to by Judge Smith clearly indicates. The adoption by this Court of Maryland Rule 1227, seeking to give the Commission the power to censure, is not only unconstitutional, as Judge Smith observes, but it also does not purport to expand or redefine the powers of this Court so far as its action is concerned after a recommendation by the Commission of censure only.

(b)

Assuming for the argument only that this Court has the constitutional authority to confer upon the Commission the power to recommend censure, in addition to the Commission's specifically granted powers to recommend removal or retirement, even then, Rule 1227 should have stated — but did not — that, upon such a recommendation of censure, this Court may then proceed as provided in Subsection (b). In short, there is a serious omission in Rule 1227 so that, in my opinion, the mandatory language of Subsection (b) stands unchallenged and unmodified or "implemented." The two judges are, as I see it, entitled to the benefit of this omission as well as the rather clear provisions that this Court may diminish or mitigate any recommendation of the Commission of removal by imposing the lesser sanction of censure. There simply is no provision in Subsection (b) which purports to give this Court the power to escalate the sanction recommended by the Commission. The language and the intent of the constitutional provisions are to the contrary. In sum, in the posture of the present case, we have two alternatives, (1) to adopt the recommended censure or (2) to dismiss the case. We should not assume the power to escalate the sanction recommended by the Commission in the teeth of the language of Subsection (b) and the intent of the constitutional provisions.

(2)

Assuming, arguendo, that the matter is properly before us and that we have the power to escalate the sanction, do the facts found by the Commission and adopted by the majority justify the sanction of removal? I think not.

I have much difficulty in understanding the two paragraphs of the majority opinion stating:

"The Commission seems to be saying that the phrase `conduct prejudicial to the proper administration of justice' is a concept which is relative. Whether this concept is correct makes little difference here. That neither Judge Diener nor Judge Broccolino derived any financial benefit from his actions seems to us wholly irrelevant. Nor do we see any merit in the notion that because some other judges may have pursued the same course the conduct of Judges Diener and Broccolino somehow becomes blameless. Precisely what `conduct prejudicial to the proper administration of justice' is or may be, in any or all circumstances, we shall not undertake to say. Indeed, a comprehensive, universally applicable definition may never evolve but it is unlikely we shall ever have much trouble recognizing and identifying such conduct whenever the constituent facts are presented.

"We have not the smallest doubt, however, that the disposition of cases for reasons other than an honest appraisal of the facts and the law, as disclosed by the evidence presented, will amount to conduct prejudicial to the proper administration of justice whenever and however it may be defined or whoever does the defining. Viewed in this light we must agree with the Commission that Judge Diener and Judge Broccolino engaged in conduct prejudicial to the proper administration of justice and we see no alternative to the entry of an order removing them."

With respect, these statements are confusing to me, seem to beg the question involved and are strikingly reminiscent of the criteria advanced by Mr. Justice Stewart in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793, 804 (1964), for discovering when pornography is "hard core," i.e., that although he could not define it, "I know it when I see it." If these statements mean that the facts in the present case and their interpretation and conclusions by the Commission require removal, I most certainly disagree, having not the "smallest doubt" that they do not justify removal but only justify censure at the most. I think that every consideration of public policy in this sensitive area of such vital importance, not only to Judges Diener and Broccolino, but to the entire judiciary of this State, should lead the majority to define in an understandable manner what the phrase "conduct prejudicial to the proper administration of justice" means with more precision and not to leave its meaning dangling, as the majority appears to me to do. In my opinion the majority would have done well to state clearly that the concept of the Commission that the phrase is relative is correct and that the ultimate decision depends on the facts in each case.

The conclusion of the Commission that "By whatever standard one may apply, we believe, and we do hold, that Judge Broccolino and Judge Diener have engaged in conduct which was prejudicial to the proper administration of justice." must be evaluated and interpreted in the light of the conclusions of the Commission which immediately follow that statement, i.e., that the two judges were victims of the system, had no formal procedures to follow, were dependent upon the system, upon the clerks who curried favors with them; the practices complained of were discontinued with the inception of the District Court in July 1971 and under the new system the practices most likely cannot reoccur and neither judge "personally benefited from any of their actions, either financially or otherwise." The Commission concluded that "overly harsh retribution" was not called for and, if the Commission had the power to issue a reprimand, it would have done so. Obviously, the Commission did not understand that when it used the language "conduct prejudicial to the proper administration of justice," it was using language requiring removal. Indeed, it stated just the opposite as we have seen. We should take the findings and conclusions of the Commission as a whole. When this is done, it is clear to me that however the conduct of the two judges may be characterized, it was not of such a character as to justify a recommendation of removal. The "good cause" found by the Commission as provided in Rule 1227 (n) should be determined from the whole opinion of the Commission and in light of its recommendation to this Court.

Then, too, it is apparent to me that the provisions of Subsection (b) foreclose the idea that any of the grounds for action by us, i.e., "misconduct while in office, or of persistent failure to perform the duties of his office, or of conduct prejudicial to the administration of justice" are otherwise than "relative." Our action is permissive not mandatory — "may remove" or "may censure." This applies to all three findings or any of them and the grant of the power to censure as a lesser sanction than removal indicates to me that our final action under any of the three findings is relative. "Conduct prejudicial to the proper administration of justice" has many possible applications — some serious, some rather trivial. Accepting a bribe by a judge would be most serious and would certainly justify his removal. Being one-half hour late for Court or nodding on the Bench during the less interesting arguments of counsel, seem trivial as isolated instances at least, and I doubt that such conduct — although "prejudicial to the proper administration of justice" — would be thought to justify removal of a judge. It is apparent to me that the phrase in question is "relative." The ultimate decision, as I have indicated, should turn upon the facts and conclusions of fact in each case.

In its reliance upon the decision of the Supreme Court of Alaska in In re Robson, 500 P.2d 657, decided August 25, 1972, the majority, in my opinion, leans on a broken reed in so far as the present case is concerned. Indeed, the reed is broken in three places, i.e., (a) Robson is readily distinguishable from the instant case upon the substantial differences between the applicable provisions of the Alaska Constitution in Robson and the applicable Maryland constitutional provisions in the case at bar; (b) Robson merely involved a change from an unpublicized censure to a publicized censure and not an increase in sanction from recommended censure to removal; and (c) on the "merits," as it were, of the sanction applied by the majority in the case before us.

(a)

In the Alaska Constitution, there is no provision in its Declaration of Rights comparable to Art. 33 prohibiting the removal of judges except as provided in the Maryland Constitution. Section 12 of Art. IV of the Alaska Constitution provides for impeachment of judges for malfeasance or misfeasance in office by the procedure prescribed for civil officers and Section 10 of Art. IV was completely rewritten by an amendment approved August 27, 1968, creating a Commission on Judicial Qualifications of nine members. This amendment provides that, in addition to impeachment under Section 12, a judge "may be disqualified from acting as such and may be suspended, removed from office, retired or censured by the Supreme Court upon the recommendation of the Commission. The powers and duties of the Commission and the bases for judicial disqualification shall be established by law."

Section 22.30.070 of the Alaska Statutes, implementing the Alaska constitutional provisions, provides in Subsection (c):

"(c) On recommendation of the commission, the supreme court may (1) retire a judge for disability that seriously interferes with the performance of his duties and is or is likely to become permanent, and (2) censure or remove a judge for action occurring not more than six years before the commencement of his current term which constitutes wilful misconduct in the office, wilful and persistent failure to perform his duties, habitual intemperance, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute."

It will be observed that the bases for disqualification in Alaska rest upon statutory provisions and not upon constitutional provisions and there is no provision comparable to Subsection (b) of Art. IV of the Maryland Constitution defining the action which the Commission must take to justify further action by this Court.

The Supreme Court of Alaska interpreted AS 22.30.070(c), together with Article IV, Section 10 of the Alaska Constitution to:

"clearly establish that the Supreme Court of Alaska is to exercise its independent judgment in determining an appropriate sanction, if any, as to any recommendation made by the commission. It would be tantamount to an abdication of our constitutional and statutory obligations if we were to automatically adopt the commission's sanction recommendations." 500 P.2d at 660.

(3)

When we come to the "merits" of the sanction to be imposed — assuming, arguendo, that we have the power to remove when only censure was recommended by the Commission — Robson indicates to me that the sanction of removal applied by the majority is too severe and is unjustified by the findings of fact of the Commission, accepted by the majority, in the instant case.

In considering the "FINDINGS OF FACT AND CONCLUSIONS OF LAW" of the Alaska Commission on Judicial Qualifications, filed as an Appendix, with In re Robson, supra, the Supreme Court of Alaska accepted that Commission's findings of fact as supported by substantial evidence in light of the whole record and concluded, as already indicated, that the unpublished censure recommended by the Commission should be a published censure. There was no suggestion that Judge Robson should be removed. The findings of fact in the Alaska case, however, indicate to me that the judicial misconduct by Judge Robson by comparison with the findings of fact by our Commission on Judicial Disabilities in regard to the conduct of Judges Diener and Broccolino — and accepted by the majority as supported by clear and convincing evidence — places their alleged "misconduct" in a minor rather than in a major category.

In Robson, the findings of fact in regard to Count I indicated that Judge Robson, knowing that the driver's license of one Clark had been suspended by the Department of Public Safety for failure to establish financial responsibility for an accident which occurred on January 20, 1969, involving Lydia R. Lockerman as the other party, and after a plea of nolo contendere, suspended the imposition of sentence for 30 days on condition that Clark "is to continue to work or straighten out accident." The judge then caused a form to be executed which limited Clark's license for 30 days to the extent that Clark "is not to drive motorcycles." Thereafter, the judge wrote to the Commissioner of Public Safety in regard to the Clark matter, attempted to get in touch with Lydia Lockerman to obtain a civil release of damages on behalf of Clark, communicated with Clark's insurance company in regard to alleged mistakes in insurance coverage, communicated on behalf of Clark with the insurer of Lydia Lockerman to verify whether suit would be brought, entered an order setting aside Clark's conviction and an order of "Closure and Discharge." The Alaska Commission concluded from these findings that the judge's actions were not appropriate in a case pending before him in that they "gave an impression approximately equivalent to that of attorney representation of Clark" by the judge and that the judge had "so intertwined the roles of advocate for Clark and judge of Clark's case as to call into question the impartiality of the respondent as a judge of the District Court."

In Count II, the Alaska Commission found that Judge Robson, who had apparently represented Oliver Lemon prior to his appointment as judge, received a telephone call from Lemon the day after Lemon had escaped from the Fairbanks State Jail where he was a prisoner pursuant to a valid judgment and commitment. Lemon requested and was granted an interview with the judge at his home. Lemon outlined three principal concerns after which the judge telephoned an officer in the office of Public Defender at Fairbanks and outlined to him Lemon's three principal concerns. Later, the Public Defender official called the judge, stating the State's position in regard to one of the "principal concerns" and Lemon's escape. The judge advised Lemon of the terms of the discussion and Lemon stated to him that "this would be agreeable." The judge then advised the Public Defender official that he would arrange for Lemon's return and thereafter called the Fairbanks Jail and advised that he was en route with Lemon. The judge and Lemon headed for the jail but the trip was diverted to the home of the Public Defender official at which there was a telephone call to the District Attorney and further discussion of Lemon's surrender. Still later, Lemon "indicated a reluctance" to surrender himself and left the home of the Public Defender official. The judge then called the State Police, notifying them that Lemon had escaped from the home of the Public Defender official, thereafter leaving that home himself. The Alaska Commission concluded that the conversations of the judge with the Public Defender official "could have been interpreted as in the nature of representation or partisan effort by respondent on behalf of said Lemon" and that the judge had "demonstrated extremely poor judgment, not meeting the standards of a judicial officer."

In Count VI, Judge Robson sent a memorandum in regard to alleged double charges under city and state laws to the Fairbanks District Attorney which the judge acknowledged "was initiated without sufficient investigation," it later appearing that the alleged double charges resulted solely from secretarial errors or erroneous instructions to secretaries. The Commission concluded that "this action demonstrates a lack of judicial temperament."

The final "CONCLUSIONS OF LAW" by the Alaska Commission were based on the findings in Counts I, II, IV, V and VI that the total effect of Judge Robson's conduct "has been prejudicial to the administration of justice and has brought the judicial office into disrepute." It recommended that the Supreme Court of Alaska censure the judge and by way of a "non-public reprimand inasmuch as it is felt that this will carry out the objectives creating the Commission on Judicial Qualifications."

The Supreme Court of Alaska was of the opinion that the facts found by the Alaska Commission indicated that Judge Robson's actions "were serious enough infractions to justify following the Commission's censure recommendation," but also concluded that the censure should be made of record rather than on the basis of a non-public reprimand.

In the findings of fact by the Maryland Commission in the present case — adopted by the majority, as has been pointed out — it appears that Judge Diener was presented with an undetermined number of traffic tickets from Mr. and Mrs. Rubin Baverman, from two employees for an appliance distributor servicing the Baverman store, and from Officer Miller for tickets of police cadets, by Hyman David Klein, then an auditor of the Municipal Court, who prepared court slips, and after the judge finished his docket, would inquire if he could give him a "little consideration" on these cases. He used the same procedure with Judge Broccolino. He used the same procedure in regard to "three or four dozen tickets over a six-year period." There was no finding in regard to the final disposition of these traffic tickets.

Isadore ("Pinkey") Terl, an employee of the Board of Supervisors of Elections of Baltimore City for 19 years, accepted parking tickets for disposition in the old Traffic Court and later in the Municipal Court. During some periods, he was in the parking court "three or four days a week with three or four tickets at most." Thirty-nine specific tickets were identified from William Bailey Henry and his wife during 1968-69. Henry was a fellow employee of Terl from June 1967 until March 1968, when he became Youth Coordinator in the Mayor's Office with offices in the City Hall. Henry gave the 39 tickets to Terl in one batch with between $150 and $200. From this money Terl retained approximately $50 for his personal use for his services. A court slip was prepared by the window-clerk at the front desk of the court and, when the defendant's name was called, Terl would step forward and explain that the defendant was a friend of his and asked Judge Diener to "see what he can do for him." The "face amount" of the tickets was computed at $371, including costs, and were disposed of by Judge Diener for $124 — fines of $50 and costs of $74. There were allegedly a number of other judges who would follow a similar procedure. The Commission specifically found that "No judge was ever made aware of the fact that Terl was receiving a `fee' or any commission for his `services,' or that he was pocketing the difference between the total `prices' fixed for the payment of the tickets and the amount his `client' may have given him."

Judge Broccolino, when first assigned to preside in the Traffic Court, "sought the advice of veteran court clerks and of other judges . . . as to the procedures to be followed." He thought the policies similar to those used by him were being used by other judges. "His policy was to suspend any fine and impose only court costs when the person who appeared before him entered a plea of `guilty.' He adopted this policy because of the unique situation in the trial of parking ticket cases where the defendant normally is not confronted with his accuser and because of his avowed belief that the person so appearing was already being sufficiently punished by the inconvenience of being required to attend court and to take time off from his employment to appear in court. In those cases where a person appeared before him with more than one such parking ticket Judge Broccolino would customarily also impose a fine."

Earlier in this dissenting opinion, the conclusions of the Commission finally recommending censure, but indicating that if it had the power to issue a reprimand to each judge it would do it, are quoted. In short, Judges Diener and Broccolino were to a great measure "victims of a system and the continuity of a practice which had continued for many years" but since has been discontinued. They had no established formal procedures and became dependent upon the court clerks who requested favors. There was a specific finding that "there was absolutely no evidence presented or suggested that indicates that either judge ever received any financial benefit whatsoever for rendering such verdicts and dispositions."

The Commission also found that the old practice in the Traffic Court of which the two judges were "victims" appears "to be an `American syndrome', since the inception of Traffic Courts, on the part of the public to be able to `fix' or to be able to `cut rate' a traffic ticket."

The conduct of Judges Diener and Broccolino, as found by the Commission and as adopted by the majority can, in my opinion, not begin to equal that of Judge Robson as found by the Alaska Commission and adopted by the Supreme Court of Alaska. Yet, Judge Robson is merely censured and apparently still enjoys his judicial office while Judges Diener and Broccolino, by the decision of the majority, are removed from their judicial offices, contrary to the reluctant recommendation of censure by the Maryland Commission! As I see it, In re Robson is rather persuasive authority for censure of Judges Diener and Broccolino at the most and, on this aspect of the case, should have been followed by the majority.