Bennett, In re

• Decision Date: 01 September 1984
• Docket Number: No. 1,1
• Citation: 301 Md. 517,483 A.2d 1242
• Parties: In re Formal Inquiry Concerning Judge Stanley Y. BENNETT. Misc. Judicial Disabilities,
• Court: Maryland Court of Appeals

Page 517

301 Md. 517

483 A.2d 1242

In re Formal Inquiry Concerning Judge Stanley Y. BENNETT.

Misc. Judicial Disabilities No. 1, Sept. Term, 1984.

Court of Appeals of Maryland.

Nov. 26, 1984.

John Wheeler Glenn, Baltimore (Leroy W. Preston and O'Connor, Preston, Glenn & Smith, P.A., Baltimore, on "Arguments of Fact and Law"), for respondent.

Charles O. Fisher, Westminster, for petitioner.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

SMITH, Judge.

For the second time in Maryland history we shall be obliged to remove a judge from office. See In Re Diener and Broccolino, 268 Md. 659, 304 A.2d 587 (1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974), for the earlier such instance and the background for our current constitutional provision.

Acting pursuant to Md. Const. art. IV, § 4B and Maryland Rule 1227, the Commission on Judicial Disabilities formally notified Judge Stanley Y. Bennett of the District Court of Maryland, District II, sitting in Frederick County that he was charged with a number of violations of the Canons of Judicial Ethics and the Rules of Judicial Ethics. The following facts pertinent to this opinion were alleged:

"1. That ... [Judge Bennett] made promises or statements to Mr. Marion Rice and/or members of his family indicating that ... [the judge] would assist in or attempt to obtain a revised disposition of a guilty verdict which had been entered against Randy Marion Demaris by Judge Mary Ann Stepler on April 6, 1982 with respect to Citation No. 7540135 in the District Court of Maryland.

"2. Knowing that Randy Marion Demaris had been found guilty of a traffic offense by another judge, ... [Judge Bennett] advised a supporter of ... [his] campaign for election to the Circuit Court that ... [the judge] would 'look into' the matter, or words to that effect.

"3. That in June, 1982 ... [the judge] prepared or caused to be prepared an Exception Report with respect to Citation No. 7540135 and did forge or caused to be forged or aided and assisted in the forgery of the signature of Judge Stepler thereto."

The Commission held extensive hearings. It filed an opinion, the pertinent parts of which not otherwise set forth in this opinion are reproduced in an appendix to this opinion. It concluded that Judge Bennett violated Canons IV, XIII, XXIX, and XXXIII of the Canons of Judicial Ethics as well as Rules 1 and 15 of the Rules of Judicial Ethics as promulgated in Rule 1231. ¹ The opinion said "Findings of Fact

"The Commission, based on clear and convincing evidence, finds as fact that:

"a. There was no attempt to 'frame' Judge Bennett so as to cause him to lose the judicial contest for a seat on the Frederick County Circuit Court.

"b. Marion 'Pus' Rice approached Judge Bennett and asked him to see what he could do to remove the traffic violation from Randy M. Demaris' driving record "c. The matter of Demaris' driving record was of singular importance tO rice.

"d. Being elected to the Circuit Court was of prime importance to Judge Bennett, and he sought the favor and political support of 'Pus' Rice.

"e. As a result of Rice's importuning, Judge Bennett did make promises to Rice and or members of Rice's family indicating that he would assist in an attempt to obtain a revised disposition of the guilty verdict entered by Judge Stepler against Randy M. Demaris on April 6, 1982, on traffic citation No. 7540135.

"f. Judge Bennett, knowing that Randy M. Demaris had been found guilty of a traffic offense, advised Rice, a campaign supporter, that he, Judge Bennett, would 'look into' the matter, thus implying to Rice and his family that the judge would use his office in an effort to delete the violation from the records of Randy M. Demaris so that Demaris could obtain a driver's license from the Motor Vehicle Administration.

"g. Judge Bennett did, sometime during the period June 17, 1982, to June 23, 1982, trace forge the signature of Judge Mary Ann Stepler to the Exception Report (Commission Exhibit No. 17), or he did cause her signature to be trace forged on the Exception Report (Commission Exhibit No. 17).

"We make clear that as to the findings of fact in paragraphs 'a' and 'g' that the Commission so decided by a vote of 6 to 1. The Commission was unanimous with respect to all other factfindings."

It was the unanimous recommendation of the Commission that Judge Bennett be removed from office.

Judge Bennett filed the following exceptions:

"1. The Commission erred in having failed to grant the Motion to Dismiss filed by Respondent prior to the evidentiary hearing, on the issue of collateral estoppel/double jeopardy/res judicata on the basis of a Grand Jury having refused to indict the Respondent herein on the same evidence which was to have been presented to the Commission.

"2. The Commission erred in having failed to properly rule that there was 'sufficient cause to warrant further proceedings', i.e., formal hearing, pursuant to Rule 1227, [f], 4, upon determination that the statement or complaint which generated this inquiry was not 'verified'.

"3. Upon a review of the evidence presented, the evidence does not support, by clear and convincing weight, a conclusion that the Respondent forged or aided in the forgery of the Exception Report.

"4. The conclusion of the Commission that the Respondent forged or aided in the forgery was against the weight or [sic] the evidence.

"5. The Commission Chairman erred in having permitted, over objection, Corporal Irvin Lambdin, to return to the witness stand, two days after his original testimony, and change his testimony.

"6. The Commission Chairman erred in permitting testimony from Barbara Day, the last witness called by the Commission, when she was not identified as a witness who would be called by the Commission."

We shall discuss each exception but not in the order in which they appear.

1. The Collateral Estoppel/Double Jeopardy/Res Judicata Issue

The grand jury of Frederick County was called into special session after the allegations here arose. Evidence pertaining to this matter was presented to it. It appears that it received evidence similar to that placed before the Commission. It failed to return any indictments. This failure generates the argument in the first exception.

Before there can be double jeopardy there must be jeopardy. Bennett was not placed in jeopardy when a grand jury considered whether it should return an indictment. There is nothing to prevent a subsequent grand jury from indicting him. It is generally held with respect to a jury trial that a defendant is placed in jeopardy when the jury is selected and sworn and as to a non-jury trial when the judge begins to hear or receive evidence. Blondes v. State, 273 Md. 435, 444, 330 A.2d 169, 173-74 (1975). Hence, there can be no double jeopardy here. Moreover, in the analogous situation of an attorney grievance proceeding we said in Maryland St. Bar Ass'n v. Sugarman, 273 Md. 306, 318, 329 A.2d 1, 7 (1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1397, 43 L.Ed.2d 654 (1975), "[W]e hold that this proceeding is not a 'criminal case' within the purview of ... the Fifth Amendment to the Constitution of the United States." This proceeding is not a criminal case.

Res judicata and collateral estoppel were discussed in Cook v. State, 281 Md. 665, 381 A.2d 671, cert. denied, 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978). There Judge Levine said for the Court:

"It is beyond question that the closely related doctrines of res judicata and collateral estoppel apply to criminal as well as civil causes. Rouse v. State, 202 Md. 481, 486, 97 A.2d 285, cert. denied, 346 U.S. 865 [74 S.Ct. 104, 98 L.Ed. 376] (1953); State v. Coblentz, 169 Md. 159, 164-66, 180 A. 266 (1935); see also United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68 , 61 L.Ed. 161 (1916). See generally Annot. 9 A.L.R.3d 203 (1966). Suffice it to say that under the doctrine of res judicata, sometimes known as direct estoppel, a final and valid judgment rendered in one proceeding between two parties operates as a bar in a second proceeding between them on all matters that have been or could have been decided in the original litigation, where the second proceeding involves the same subject matter as the first cause of action. MPC, Inc. v. Kenny, 279 Md. 29, 32, 367 A.2d 486 (1977); Sterling v. Local 438, 207 Md. 132, 140-41, 113 A.2d 389 cert. denied, 350 U.S. 875 [76 S.Ct. 119, 100 L.Ed. 773] (1955). On the other hand, where a prior judgment is relied upon to preclude a second adjudication of some previously determined factual or legal issue in subsequent litigation between the same parties concerning a different cause of action, courts apply the doctrine of collateral estoppel. MPC, Inc. v. Kenny, 279 Md. at 32-33 . See also Wash. Sub. San. Comm'n v. TKU Associates, 281 Md. 1, 18-19, 376 A.2d 505 (1977). Under this latter doctrine, once an issue of ultimate fact has been determined by a final and valid judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189 [1194], 25 L.Ed.2d 469 (1970); Cousins v. State, 277 Md. 383, 398, 354 A.2d 825, cert. denied, 429 U.S. 1027 [97 S.Ct. 652, 50 L.Ed.2d 631] (1976)." 281 Md. at 668-69, 381 A.2d at 673 (footnote omitted).

As Judge Davidson pointed out for the Court in Powers v. State, 285 Md. 269, 283-84, 401 A.2d 1031, cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979), in a criminal context, "[T]he primary purpose of the doctrine of collateral estoppel is to protect an accused from the unfairness of being required to relitigate an issue which has once been determined in his favor by a verdict of acquittal." The doctrine is not applicable here. The failure of the grand jury to indict is not a binding final...