Diener, In re

Citation268 Md. 659,304 A.2d 587
Decision Date11 May 1973
Docket NumberNo. 1,1
PartiesIn re Formal Inquiry Concerning Judge A. Jerome DIENER and Judge Joseph L. Broccolino, Jr. Misc. (Judicial Disabilities)
CourtMaryland Court of Appeals

McWILLIAMS, Judge.

Here, for the first time, we must review a report and recommendation from the Commission on Judicial Disabilities, which found as a fact that Judge A. Jerome Diener and Judge Joseph L. Broccolino, Jr., now judges of the District Court of Maryland, engaged in conduct prejudicial to the proper administration of justice while serving as judges of the Traffic Division of the Municipal Court of Baltimore City. The Commission recommended that each of them be censured.

From the adoption of our Constitution in 1867 and continuing until 1966, the only sanction which could be imposed against an incompetent judge or a judge guilty of misconduct was removal as provided for by Constitution Art. IV, § 4. 1 Warfield v. Vandiver, 101 Md. 78, 111, 60 A. 538 (1905) is authority for the proposition that three alternatives were provided by Art. IV, § 4: removal by the Governor; impeachment under Constitution Art. III, § 26; or by two-thirds vote of the General Assembly. 2

By 1960, it had become apparent throughout the country that impeachment, the traditional method of dealing with judicial misconduct in 46 states, and address, available in a smaller number, were too tedious, too cumbersome, and too expensive for frequent use and the neither any longer offered a viable mechanism for judicial discipline. In the decade between 1960 and 1970, 19 states, led by California, turned to the establishment of a special commission to deal with the problem, Braithwaite Chapter 773 of the Laws of 1965 proposed the submission of a constitutional amendment, patterned to some extent on the California plan, to the voters at the 1966 general election. The amendment was ratified on 8 November 1966.

Who Judges the Judges? at 12-13 (Am. Bar Found. 1970); Gasperini, Anderson and McGinley, Judicial Removal in New York; A New Look, 40 Fordham L.Rev. 1, 27-28 (1971); this number had increased to 24 by 1972, Winters and Lowe, Judicial Disability and Removal Commissions, Courts and Procedures (Am.Jud.Soc.1972 at i).

The amendment provided the addition of new § 4A and § 4B to Article IV of the Constitution, creating a five-member Commission on Judicial Disabilities (three judges, one lawyer, one non-lawyer) empowered to recommend to the General Assembly that a judge be removed for misconduct or retired for permanent disability. 3

(b) The General Assembly shall review the record of the proceedings on the law and facts and in its discretion may permit the introduction of additional evidence and by a joint resolution passed by a two-thirds vote of the members elected in each house thereof, shall order removal or retirement, as it finds just and proper, or wholly reject the recommendation. Upon an order for retirement, the judge shall thereby be retired with the rights and privileges provided by law. Upon an order of removal, the judge shall thereby be removed from office, his salary sall cease from the date of such order, and neither he nor his widow, upon his death, shall receive any benefits, pension, or retirement allowance accruing from judicial service.

From a practical standpoint, there was created for the On 3 November 1970, the ratification of a second amendment of § 4A and § 4B of Article IV raised the membership of the Commission from five to seven, by adding an additional judge and an additional lawyer, and empowering the Court of Appeals, rather than the General Assembly, to retire, remove, or censure a judge. 4 The powers of the Commission had been implemented by Ch. 506 of the Laws of 1967, now Code (1957, 1971 Repl.Vol.) Art. 40, § 45, which gave to the Commission the power to administer oaths, to subpoena witnesses, to require the production of evidence, and to grant immunity. It also empowered us, in the exercise of our rule-making power, to establish procedures to be followed by the Commission. 5 Pursuant to the direction contained in Code (1971 Repl.Vol.), Art. 40, § 45, we adopted Maryland Rule 1227, dealing largely with procedure before the Commission. The portion of the rule which will be of particular significance here is 1227 n, as amended 28 June 1971, effective 1 September 1971:

first time an alternative to [304 A.2d 591] removal under Constitution Art. IV, § 4 and impeachment under Art. III, § 26, i. e., the retirement or removal of the judge by a new mechanism upon the recommendation of the Judicial Disabilities Commission, by joint resolution adopted by a two-thirds vote of the Senate and House of Delegates.

'If, after hearing, the Commission finds good cause, it shall recommend to the Court of Appeals, the censure, removal or retirement of the judge. The affirmative vote of a majority of the members of the Commission who were present at the hearing shall be necessary for a recommendation of censure, removal or retirement of a judge.' (Emphasis supplied)

The following excerpt from the Commission's Report 'In June 1971, the Executive Committee of the Bar Association of Baltimore City referred to the Commission on Judicial Disabilities the results of a lengthy investigation conducted by a Special Grand July of Baltimore City empanelled to inquire into alleged improprieties in the operations of the Traffic Division of the Municipal Court of Baltimore City. The Commission employed special counsel who, together with the Commission's Executive Secretary, reviewed, digested and summarized all the evidence presented to the Grand Jury and reported their findings to the Commission. As a result the Commission decided to proceed with a 'preliminary investigation' of Judges A. Jerome Diener and Joseph L. Broccolino. On October 26, 1971, pursuant to Md. Rule 1227, notice was given to each of the two (2) Judges. Although other judges were mentioned in the referred evidence, the 'preliminary investigation' was directed at Judges Diener and Broccolino because of the availability of certain documentary evidence pertaining to the allegations against these two (2) judges.

Findings of Fact, Conclusions of Law and Recommendation describes the background of the proceeding:

'Special counsel and the Commission's Executive Secretary undertook an independent examination and analysis of the Municipal Court records reviewing, for the years 1967 to 1970, literally hundreds of traffic tickets, court slips and docket entries. At the request of the Commission the State Auditor ran a full examination of the traffic court records for six (6) selected months. Counsel and the Executive Secretary interviewed a number of persons who had given testimony before the Grand Jury and some persons who had not been called; formal depositions were taken of witnesses and of the 'In the preliminary investigation there was no direct or inferential evidence of any bribery or the receipt of any gratuities or emoluments by these two judges in connection with any dispositions made by them of parking tickets.

two (2) judges, who, accompanied by their counsel, were present at all the depositions and were given the opportunity to note any objections upon the record and to cross-examine the deponents. They were each also given the opportunity to present any written statements, but elected not to do so.

'At the conclusion of the preliminary investigation a Report of Preliminary Investigation was presented to the Commission along with copies of the depositions taken and the exhibits thereto. After a review of all this evidence the Commission determined to institute formal proceedings and pursuant to Md. Rule 1227(g) formal notice was served on each judge by letter under date of October 5, 1972. The notice included a copy of the Report of Preliminary Investigation. The judges, through their counsel, in due course filed answers and a formal hearing was conducted, commencing on November 20, 1972.'

The Commission's findings of fact are set out in full in an appendix to this opinion.

On its findings the Commission concluded that Judge Diener and Judge Broccolino, although 'there was absolutely no evidence presented or suggested that indicates that either judge ever received any financial benefit whatsoever, . . . did in fact, in disposing of parking ticket cases, reach verdicts of either 'not guilty,' or did suspend and/or reduce fines for reasons that can only be described as friendship, or political favoritism, or the importuning of court clerks.' The Commission determined that Judge Diener and Judge Broccolino had We have made an independent review of the entire record, and we think its conclusion is supported by clear and convincing evidence, which, in our judgment, is the proper test to be applied in these circumstances. See In re Farris, 229 Or. 209, 367 P.2d 387, 392 (1961). It is clear, we think, that the Commission is not within the ambit of the Administrative Procedure Act, Code (1971 Repl.Vol.), Art. 41, § 244(a), and that proceedings before it are neither civil nor criminal in nature; they are merely an inquiry into the conduct of a judicial officer the aim of which is the maintenance of the honor and dignity of the judiciary and the proper administration of justice rather than the punishment of the individual. In re Kelly, 238 So.2d 565, 569 (Fla.1973); Memphis & Shelby County Bar Association v. Vick, 40 Tenn.App. 206, 290 S.W.2d 871, 875 (1955). Nevertheless, we are fully...

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