In the Matter of the Honorable DEVY PATTERSON RUSSELL, JUDGE OF THE DISTRICT COURT OF MARYLAND FOR BALTIMORE CITY, DISTRICT ONE
JD No. 1
IN THE COURT OF APPEALS OF MARYLAND
June 28, 2019
September Term, 2018; Maryland Commission on Judicial Disabilities Case No. CJD No. 2016-189; Argued: March 4, 2019
Greene, J.
JUDGES – REMOVAL OR DISCIPLINE – SANCTION
Having reviewed the record, the Court of Appeals held that, under the circumstances, the Maryland Commission on Judicial Disabilities’ conclusion that the Honorable Devy Patterson Russell committed sanctionable conduct was supported by clear and convincing evidence. From 2007-2015, Judge Russell failed to handle and process search warrant materials in a manner consistent with
Her conduct occurred in the courthouse and often in the public view. Furthermore, her conduct had sweeping effects on the courthouse to which she was assigned, fostering an uncomfortable, unprofessional, and tense work environment. Her conduct exhibited a pattern of discourtesy and uncontrollable incivility that had pervasive effects on the administration of justice in the District Court of Maryland located in Baltimore City. As demonstrated herein, a judge may be disciplined if he or she engages in a pattern of inappropriate and discourteous behavior. Here, the appropriate sanction for Judge Russell’s misconduct is the Court’s imposition of no less than a consecutive six-month suspension without pay, with her reinstatement conditioned upon her completion of remedial measures set forth by this Court.
McDonald,
Hotten,
Getty,
Harrell, Glenn T., Jr.,
(Senior Judge, Specially Assigned),
Eyler, Deborah S.,
(Senior Judge, Specially Assigned),
Thieme, Raymond G., Jr.,
(Senior Judge, Specially Assigned),
JJ.
Opinion by Greene, J.
Filed: June 28, 2019
In the present case, the Commission found that Respondent, the Honorable Devy Patterson Russell (“Judge Russell” or “Respondent”), engaged in misconduct. The Commission explained that from 2007-2015, Judge Russell abdicated her duty to handle and process search warrant materials, as required by
I. BACKGROUND
At all relevant times, Judge Russell was an Associate Judge of the District Court of Maryland, sitting in Baltimore City, District One.1 She was appointed to the District Court in February 2006 and confirmed to serve an initial 10-year term. In February 2016, Judge Russell was reappointed and again confirmed to sit on the District Court for a second term of 10 years.
On January 16, 2018, Investigative Counsel, at the directive of the Commission on Judicial Disabilities, filed charges against Judge Russell pursuant to
Thereafter, in accord with
On December 6, 2018 the Commission filed “Amended Findings of Fact, Conclusions of Law, Order and Recommendations” pursuant to
The Commission unanimously found clear and convincing evidence that Judge Russell’s conduct violated
On December 31, 2018, Judge Russell filed “Exceptions by Judge Russell to Amended Findings of Fact, Conclusions of Law, Order and Recommendation” with this Court. See
II. ALLEGED LEGAL ERRORS
As a preliminary matter, Respondent raises several legal challenges to the Commission’s disposition of her case. Respondent alleges that the Commission erred when it denied her Motion to Recuse and Motion to Suppress. Furthermore, Respondent claims that a host of legal doctrines support dismissing the charges against her. Finally, Respondent argues that several procedural defects occurred, which require that the charges be dismissed. We review each allegation in turn.
1. Motion to Recuse
On August 31, 2018, Respondent filed a “Motion to Recuse.” Therein, Respondent requested that the Honorable Susan H. Hazlett (“Judge Hazlett”), who is the Commission’s Vice Chair and the Administrative Judge for the District Court of Maryland, sitting in
Before this Court, Respondent argues that the Commission erred by denying her Motion to Recuse. She emphasizes that the Honorable John P. Morrissey (“Chief Judge Morrissey”), Chief Judge of the District Court of Maryland, testified at the Commission hearing. Respondent argues that Chief Judge Morrissey is Judge Hazlett’s boss, so Judge Hazlett’s impartiality could reasonably be questioned. The Commission maintains that the Motion was properly denied because Judge Hazlett’s impartiality was not compromised, and the rule of necessity required her participation in any event.
Discussion
In the conduct of Commission business, the Commission’s members are bound by the rule of recusal.
For example, in In re Turney, we held that a judge should have recused himself from a hearing. 311 Md. 246, 246-47, 533 A.2d 916, 916-17 (1987). There, Frederick Leary was issued a citation and charged with possession of a fake license. Id. at 247, 533 A.2d at 917. Mr. Leary obtained the fake license from the son of the Honorable Jack R. Turney, a judge of the District Court of Maryland, sitting in Garrett County. Id. Mr. Leary was Judge Turney’s ex-wife’s stepson and a close friend of Judge Turney’s son. Id. Mr. Leary’s case came before the District Court, and Judge Turney presided over the hearing. Id. at 248, 533 A.2d at 917-18. During the hearing, Judge Turney made efforts to prevent Mr. Leary from disclosing who he obtained the fake license from, and ultimately accepted Mr. Leary’s guilty plea and imposed a fine. Id. at 248-50, 533 A.2d at 918-19. Judge Turney was sanctioned for his conduct. Id. at 257-58, 533 A.2d at 922.
Here, Respondent’s Motion to Recuse was properly denied. Judge Hazlett had no demonstrable personal ties to Respondent or the outcome of Respondent’s proceeding that would influence her review of the evidence. As Respondent points out, Judge Hazlett and Chief Judge Morrissey both preside narrowly or broadly, respectively, over the District Court of Maryland. There is no allegation that they have a particularly close friendship. Given that Judge Hazlett is the Administrative Judge for the District Court of Maryland,
Furthermore, as one of three members of the judiciary serving on the Commission, our Constitution tasks Judge Hazlett, in collaboration with the Commission’s other judicial members, with reviewing the conduct of and, if appropriate, sanctioning her fellow judges.
2. Motion to Suppress
A considerable portion of the hearing before the Commission concerned Respondent’s handling of search warrants. The circumstances regarding the search warrant issues are more thoroughly explored later in this opinion. For now, we simply note that Respondent stored search warrant materials in boxes. The boxes were removed from the courthouse at the direction of the Honorable Barbara Waxman (“Judge Waxman”), Administrative Judge9 of the District Court, and delivered to Investigative Counsel on December 21, 2016. On September 13, 2018, Respondent filed a Motion to Suppress. Respondent argued that the boxes of warrants were taken in violation of the Fourth and
Discussion
The Fourth Amendment to the United States Constitution and its Maryland counterpart protects citizens from unreasonable searches and seizures. Wilkes v. State, 364 Md. 554, 570-71, 774 A.2d 420, 430 (2001). For the Fourth Amendment to apply, an individual must demonstrate that a government actor infringed upon his or her “actual, subjective expectation of privacy in [an] item or place searched” and that “the expectation [of privacy] is one that society is prepared to recognize as reasonable.” Walker v. State, 432 Md. 587, 605, 69 A.3d 1066, 1077 (2013) (citation omitted).
In Walker v. State, this Court explained that public employees may have privacy expectations in their work spaces. Id. at 608, 69 A.3d at 1079. Such expectations, however, may be curtailed “by virtue of actual office practices and procedures[.]” Id. There, we concluded that a teacher lacked a privacy interest in his desk at the elementary school where he worked. Id. at 612-13, 69 A.3d at 1081-82. The teacher’s desk was in an open room with a high volume of traffic. Id. at 612, 69 A.3d at 1081. It had labels on its drawers indicating that work items, not personal items, were stored within it, and the teacher “fail[ed] to lock the desk when given the option to do so[.]” Id.
Respondent contends that allegations of her misconduct were not brought to the attention of Maryland Governor Lawrence J. Hogan, Jr. (“Governor Hogan”) or the Maryland Senate in February 2016 when she was reappointed and confirmed for her second term as a judge. Respondent notes that many of the Commission’s Findings of Fact and Conclusions of Law are predicated on events that took place before February 2016, and were known by and discussed with Respondent’s colleagues and supervisors. Respondent explains that “[i]t is difficult to articulate a concise neat legal theory for the legal objections in this section[,]” but she maintains that it is unfair for her to be disciplined for conduct that occurred prior to her 2016 reappointment. Accordingly, Respondent invites us to dismiss the charges brought against her.11 The Commission contends that Respondent’s
Discussion
We are unpersuaded that the host of legal theories that Respondent asserts warrant dismissing the charges against her. The Maryland Rules do not set forth a statute of limitations for when the Commission must commence disciplinary proceedings against a judge. Rather, the Rules afford the Commission broad discretion to discipline “sanctionable conduct,” defined as “misconduct while in office, the persistent failure by a judge to perform the duties of the judge’s office, or conduct prejudicial to the proper administration of justice.”
Furthermore, we cannot fathom, and Respondent does not articulate, how it is prejudicial or unfair to Respondent for the Commission to hold her accountable for conduct that she committed while serving as a judge, albeit before her reappointment in 2016. Given that Respondent is serving as a Maryland judge, she is subject to the authority of the Commission and this Court for disciplinary matters. See
4. Motion to Dismiss
Finally, Respondent filed a number of pleadings in this case, raising alleged procedural defects. On March 14, 2018, Respondent filed a “Response to the Commission’s Charges” that asserted procedural defects. In addition, Respondent filed a Petition for a Writ of Mandamus with this Court on March 14, 2018, which we denied on March 22, 2018. Finally, on October 12, 2018, Respondent filed a Motion to Dismiss with the Commission. The Commission denied the Motion to Dismiss on November 7, 2018.
Before this Court, Respondent maintains that procedural defects occurred before charges were brought against her. Specifically, she contends that the procedural requirements in
Respondent was afforded and utilized the procedural mechanisms available to her under the Rules. Investigative Counsel issued her report to the Judicial Inquiry Board on September 25, 2017. Included within that report were 13 responses from Respondent, thus indicating that Respondent was permitted to supply information with regard to the investigation before it concluded. See
We fail to see how the procedural requirements for the preliminary investigation and Board review under
Finally, the Rules do not require the Commission or this Court to dismiss an action when procedural requirements are not met with strict compliance. At best, when certain time requirements regarding the preliminary investigation into the conduct of a judge are not met, the Commission may – but is not required to – terminate the proceeding.
III. RESPONDENT’S EXCEPTIONS TO THE COMMISSION’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
We now direct our attention to Respondent’s Exceptions to the Commission’s Findings of Fact and Conclusions of Law. The Commission issued findings of fact and conclusions of law, in which it found by clear and convincing evidence that Respondent’s conduct violated
In her Exceptions, Respondent objected to nearly all of the Commission‘s findings of fact and conclusions of law. For purposes of organization, we have divided the Commission‘s findings of fact and conclusions of law, and Respondent‘s objections thereto, into two categories: (1) Search Warrant Issues; and (2) Interpersonal Issues. We review each category in turn.
1. Search Warrant Issues
By way of background, the Maryland Rules set forth procedures for judges to follow when, inter alia, granting search warrants, handling search warrant materials, and processing search warrant materials. See generally
Thereafter, the warrant may or may not be executed. If the warrant is executed, the
The Commission‘s Findings of Fact and Conclusions of Law
The Commission found that over the course of several years, Respondent failed to process her search warrants in a timely manner. Specifically, Respondent failed to keep the warrants in her possession confidential and secure pending possible return and processing. Additionally, Respondent did not promptly match warrants with warrant returns and transmit them to the clerk for filing. Based on testimony at the hearing, the Commission found that Respondent had boxes containing at least 135 warrants that should have been, but were not, matched with a return and sent to the clerk for filing. “By the
The Commission found that in 2016, Respondent tasked Ama Asare, a law clerk, with taking boxes in which Respondent accumulated warrant-related materials and matching warrants with warrant returns. The Commission found that Respondent ultimately told Ms. Asare, “Just get rid of them,” referring to the search warrants that she was tasked with matching up. The Commission concluded that Respondent‘s direction to Ms. Asare violated
The Commission also found that Respondent violated existing internal policies, followed by judges serving on the District Court, relating to search warrants. One of the policies was implemented by Administrative Judge Waxman and “direct[ed] District Court judges not to review and sign warrants while sitting at the Civil Courthouse except under exigent circumstances.” The Commission found that Respondent continued to review and sign search warrants while assigned to work at the Civil Courthouse. Respondent admitted to her conduct when she testified, and two of her witnesses confirmed her testimony.
Additionally, the Commission found that the District Court had a policy that prohibited a judge from signing a search warrant return for another judge unless the two judges were assigned to the same court location. The policy served to ensure that search
Respondent‘s Exceptions to the Commission‘s Findings of Fact and Conclusions of Law
Respondent denies violating
In addition, Respondent argues that the Commission misunderstood the scenario involving Ms. Asare. Respondent explains that in September 2016, she was transferred to a new courthouse, so she emptied a drawer that had accumulated search warrants. She assigned Ms. Asare the task of matching up the warrants with warrant returns. Then, she instructed Ms. Asare to “get rid” of warrants that Ms. Asare could not match up, which Respondent alleges was permitted by the Rules. According to Respondent, however, the warrants “would not be ‘gotten rid of[,]’ they would be kept in the nomad boxes.” She argues that Ms. Asare, a “brand-new inexperienced law clerk[,]” misinterpreted her instructions.
Lastly, Respondent argues that the Commission misstated the policy change implemented by Judge Waxman. Furthermore, Respondent posits that her handling of
Discussion
We agree with Respondent that, as to the Commission‘s factual finding regarding Judge Waxman‘s internal search warrant policy, the Commission‘s conclusion that Respondent violated the policy is not supported by the record. Judge Waxman‘s testimony indicates that her policy initiative was discretionary.16 As such, Respondent‘s election to continue signing non-emergency warrants while assigned to work at the Civil Courthouse did not violate Judge Waxman‘s policy, and Respondent‘s corresponding exception is sustained.
Otherwise, the Commission‘s factual findings regarding Respondent‘s handling of search warrant materials are supported by clear and convincing evidence in the record and, thus, are adopted by this Court. See In re Bennett, 301 Md. 517, 536, 483 A.2d 1242, 1251 (1984). When Judge Waxman testified before the Commission, she described the unsecure location where Respondent‘s boxes of warrants were located. Judge Waxman explained that “[t]he boxes were found in the law clerks’ office; so [it wa]s not a secure area. It‘s not in a judge‘s chambers. It was on the floor. It could have been even mistaken as trash.”
Furthermore, Judge Waxman attested to her personal examination of Respondent‘s nomad boxes. Judge Waxman explained that she sorted the documents in the boxes by year. Then she separated the warrants that had been executed and returned by a police officer – “the ones that should have been [processed]” with the clerk‘s office. In total, Judge Waxman identified and set aside “approximately 135” warrants dating from 2007-2015 that should have been “sent to the clerk‘s office” for filing.
Indeed, the warrants that Judge Waxman set aside were admitted into evidence at the disciplinary proceeding. Judge Waxman went through several of the exhibits, and she described their contents. Based on her testimony, the warrants had been executed; they were signed by an officer and detailed any inventory that was seized. As such, they “need[ed] to be filed with the” clerk.
Moreover, Ms. Asare testified that after Respondent instructed her to match up the warrants in her boxes, Respondent told Ms. Asare, “Just get rid of it.” Ms. Asare interpreted Respondent‘s instruction as “asking [Ms. Asare] to destroy the warrants” in the nomad boxes – at least 135 of which needed to be filed with the clerk‘s office. Though
We now turn our attention to the Commission‘s conclusions of law. The Maryland Rules require judges to “perform judicial and administrative duties competently, diligently, and promptly[.]”
To be sure, as Respondent contends,
Finally, members of the judiciary who have supervisory control over other court employees must “require court staff . . . to act in a manner consistent with the judge‘s obligations[.]”
2. Interpersonal Issues
The Commission‘s Findings of Fact and Conclusions of Law
The Commission made several findings that related to instances where Respondent disciplined court staff. The Commission found that, in 2012, Respondent summoned Kim Brown (“Ms. Brown“), the Division Chief of the District Court, and Faye Walker (“Ms. Walker“), the Supervising Clerk for the District Court, to her courtroom at the Eastside Courthouse before the docket began, concerning a scheduling issue. “Respondent took Ms. Brown and Ms. Walker to a hallway outside of the courtroom and began to yell at them.” She was yelling loudly enough that litigants and lawyers in the courtroom could hear the interaction, and the courtroom became silent as the incident occurred. The
In addition, the Commission found that, in 2012, Respondent summoned Ms. Walker to her courtroom concerning a petitioner in a domestic violence case whose file was missing. “Respondent instructed Ms. Walker to escort the petitioner to the clerk‘s office to have a ‘lineup’ in an effort to determine which clerk had assisted the litigant and made the error regarding the missing file.” The interaction was loud, in open court and in front of the litigant and members of the public. During the interaction, Respondent said, “So did you do it? Are you going to own up to it? No one is owning up to it? Somebody . . . did it. People aren‘t telling the truth.” The Commission found that Respondent‘s conduct violated
Next, the Commission found that, in 2013, Respondent was discussing the clerical error in the domestic violence case with Ms. Brown and Ms. Walker. They were in the chambers of the Honorable Shannon E. Avery (“Judge Avery“), then-Associate Judge on the District Court and Judge in Charge of the Eastside Courthouse.17 “Respondent was angry and all three [] raised their voices. Respondent said to both Ms. Brown and Ms.
Finally, the Commission found that, in 2013, “Respondent intentionally pushed [Ms.] Brown while Ms. Brown was standing at the mail table at the Eastside District Court location.” The Commission found that Respondent‘s conduct violated
In addition, the Commission made several factual findings regarding Respondent‘s interpersonal issues with other judges. In 2014, Judge Waxman, acting through the Honorable Halee F. Weinstein (“Judge Weinstein“) who was the Judge in Charge of the Eastside District Court and Associate Judge on the District Court, asked Respondent not to call clerks into her courtroom to conduct lineups.18 In response to Judge Weinstein‘s request, Respondent said, “You can‘t tell me what to do.” The Commission found that Respondent‘s conduct violated
In 2015, Respondent began copying the Honorable Mary Ellen Barbera (“Chief Judge Barbera“), Chief Judge of the Court of Appeals of Maryland, “on emails concerning ongoing docket[s], chambers, [and] duty and leave assignments in [Respondent‘s] court.” Chief Judge Morrissey of the District Court instructed Respondent to stop involving Chief Judge Barbera in the day-to-day internal management issues of the District Court because Chief Judge Morrissey is the administrative head of the District Court of Maryland. The Commission found that Respondent failed to comply with Chief Judge Morrissey‘s directive by continuing to copy Chief Judge Barbera on emails, even though she was instructed to stop. The Commission determined that Respondent‘s conduct violated
In April 2015, Respondent had a meeting with Chief Judge Morrissey. Chief Judge Morrissey had requested the meeting in order to ask Respondent to work to get along better with her colleagues. “Shortly after the meeting started, Respondent stood up and yelled, ‘You threatened me[.]‘” The accusation occurred within earshot of several employees and Respondent‘s husband, who were outside of the Chief Judge‘s office. The Commission found that there was, in fact, no threat to Respondent. Furthermore, the Commission concluded that Respondent‘s conduct violated
In 2016, Respondent was assigned to assist in the orientation of the Honorable Katie M. O‘Hara (“Judge O‘Hara“), a newly appointed Associate Judge of the District Court. The Commission found that, while Respondent and Judge O‘Hara were eating lunch together, Respondent said to Judge O‘Hara, “[Judge Scurti, the [J]udge in [C]harge of the civil docket,] is not in charge of anything. Don‘t listen to him.” Respondent also said “Judge Waxman (the Administrative Judge) is not your boss. You don‘t need to listen to her. You don‘t need to listen to Judge Morrissey (Chief Judge of the District Court).” The Commission concluded that Respondent‘s conduct violated
In June 2017, Respondent entered the courtroom of Judge O‘Hara through the public entrance, while a trial was underway, and “interrupted Judge O‘Hara‘s ongoing court proceeding.” She asked two attorneys, who were sitting at trial counsel tables, to get their calendars so they could schedule a specially set case. In addition to the lawyers, there were numerous litigants and witnesses present in the courtroom at the time. The interruption was recorded, and the exchange ran contrary to the process that has been established for
One day in 2017, the Honorable William M. Dunn (“Judge Dunn“), Associate Judge for the District Court, was temporarily designated as duty judge.20 Judge Dunn left the courthouse to get lunch before a noon meeting and when he returned, “Respondent was waiting for Judge Dunn as he came through the front door of the courthouse” in order to publicly chastise him. Respondent “raised her voice, yelling and screaming at [Judge Dunn] in front of lawyers, bailiffs, and other judges about his departure from the courthouse [while] duty judge.” The Commission found that Respondent‘s conduct violated
In addition “in 2017[,] Respondent commented to several subordinate court employees including clerks and bailiffs, that ‘Judge Waxman is a complete and utter incompetent vicious coward.‘” The comment was made in the hallway, and it was heard
On another occasion, Respondent went to Judge Scurti‘s office with a bailiff and a court clerk. Judge Scurti‘s office door was closed, yet Respondent entered unannounced and uninvited and “proceeded to yell and scream at Judge Scurti.” At the time, the Honorable David B. Aldouby (“Judge Aldouby“), Associate Judge of the District Court, was in Judge Scurti‘s office, and witnessed the interaction. Neither Judge Scurti nor Judge Aldouby could remember about what Respondent was upset. The Commission concluded that Respondent‘s conduct violated
Finally, the Commission found that “Respondent yell[ed] at Judge Weinstein[,]” the Judge in Charge of the Eastside Courthouse, while discussing Respondent‘s docket. The yelling occurred “in front of court staff, as well as Judge Aldouby,” who was in Judge Weinstein‘s chambers at the time. The Commission concluded that Respondent‘s conduct violated
In essence, the Exceptions reflect that Respondent views herself as the victim and a problem solver. She asserts that members of the District Court‘s administrative staff, including Ms. Brown and Ms. Walker, simply do not like her. Respondent characterizes her conduct as solving problems, ensuring competent, efficient service to the public, and engaging in “lively discussion.” Respondent maintains that her actions did not constitute sanctionable conduct.
Respondent denies the allegation that she failed to comply with a reasonable directive of a judicial supervisor. Respondent contends that there are interpersonal relationship issues among the judges of the District Court, and her colleagues have rebuffed her efforts to work through their differences. She argues that “hurt feelings, the silent treatment, the ending of friendships, being hard to get along with, and other interpersonal interactions between judges is not sanctionable conduct for which discipline should be imposed.”
Discussion
Having reviewed the record, we conclude that the Commission‘s factual determinations are supported by clear and convincing evidence. See In re Bennett, 301 Md. 517, 528-29, 483 A.2d 1242, 1247-48 (1984). Notably, although Respondent views her conduct as appropriate under the Maryland Rules, she does not provide a basis for concluding that the Commission‘s factual findings are erroneous. As such, we sustain the Commission‘s factual findings, and overrule Respondent‘s exceptions thereto.
When handling clerical errors, Respondent failed to maintain an equanimous demeanor. Lacking a modicum of civility, Respondent was eruptive, disrespectful, and demeaning toward courthouse staff. Respondent yelled at, accused, and humiliated staff members. She physically shoved an employee of the judiciary, Ms. Brown. Respondent‘s erratic behavior occurred in front of litigants and lawyers. Likewise, Respondent repeatedly yelled at her colleagues, and did so in front of other judges, court staff, and members of the public. She interrupted an ongoing trial presided over by another judge to
Respondent exhibited a pattern of divisive, combative, and volatile interpersonal issues. Her conduct is unbecoming of a member of the judiciary, and it fails to maintain the demeanor that our Rules require of judges. See Lamdin, 404 Md. at 648-52, 948 A.2d at 64-66 (speaking inappropriately toward and criticizing colleagues while performing judicial duties violates the Rules). This Court agrees that Respondent‘s conduct violated
Sanction
Under our State Constitution, we may impose a sanction against a judge for his or her conduct “upon a finding of misconduct while in office, or of persistent failure to perform the duties of the office, or of conduct prejudicial to the proper administration of justice.”
We adopt the Commission‘s conclusion that Respondent committed sanctionable conduct. Respondent‘s pattern of misbehavior was prejudicial to the administration of justice and therefore warrants sanction. Id. The record reflects that commencing in 2007, Respondent failed to properly handle and process search warrants and related materials in accordance with her judicial duties prescribed by
In addition, Respondent argues that the matter before this Court presents mere personality disputes, which are not sanctionable. We disagree with Respondent‘s characterization of this case.21 “We recognize that judges differ in both style and personality and that these qualities, in and of themselves, are not matters for discipline.”
The supervisors who serve on Respondent‘s court have attempted to remedy administratively the situation. Chief Judge Morrissey met with Respondent in April 2015 and asked her to work to get along with her colleagues. Respondent failed to adjust her behavior. Chief Judge Morrissey also sought recourse with the human resources department, and eventually he arranged for mediation to be held between Respondent and one of her colleagues. Again, Respondent failed to adjust her behavior. Despite his efforts,
Turning our attention to the Commission‘s sanction recommendation, the Commission recommended that Respondent be suspended from her position as an associate judge for six months. At oral argument, the Commission made clear its intention that the suspension be served without pay. In addition, the Commission recommended that Respondent “undertake such remedial measures as this Court recommends to assist her, and the District Court . . . as [Respondent] returns to her duties.” In addition to its findings of fact and conclusions of law, the Commission provided the Court with a detailed list of factors that informed its recommendation as to the appropriate sanction. The list is attached hereto in an Appendix.
The Commission‘s recommendation is entitled to great weight. Lamdin, 404 Md. at 652, 948 A.2d at 66. This Court, however, is not bound by the Commission‘s recommendation. See id.; see also
We are also mindful of the purpose of disciplining judges for judicial misconduct. The purpose is not to punish. Lamdin, 404 Md. at 653, 948 A.2d at 66. “It is the constitutional responsibility of this Court to fashion judicial discipline in a manner that preserves the integrity and independence of the Judiciary and reaffirms, maintains and restores public confidence in the administration of justice.” Id.. In this opinion, we strive to further the judiciary‘s goal of preserving the principles of justice and impress upon the public and the judiciary that judicial misconduct will not be condoned. In addition, we seek to deter the sanctioned judge and other members of the judiciary from engaging in similar conduct.
In many respects, the present case may be likened to In re Lamdin. 404 Md. 631, 948 A.2d 54. There, the Honorable Bruce S. Lamdin used vulgar language and criticized colleagues while presiding over cases. Id. at 637-50, 948 A.3d at 57-65. We explained that Judge Lamdin‘s use of inappropriate language was prejudicial to the administration of justice. Id. at 650, 948 A.2d at 65. Judge Lamdin sought to mitigate his misbehavior by “s[eeking] guidance from his colleagues and under[going] voluntary monitoring when the Judicial Disabilities Commission charges were brought to his attention.” Id. at 654, 948 A.2d at 67-68. Even so, he made excuses for his misbehavior in a way that was defensive
Not unlike Lamdin, Respondent exhibited a broader pattern of misbehavior. See id. She neglected her responsibilities concerning search warrants from, at least, 2007-2015. Likewise, the Commission‘s findings encompassed interpersonal disputes that spanned from 2014-2017. Although, Respondent‘s misconduct did not occur while she was presiding over cases on the bench, distinguishing this case from Lamdin, every instance of her irate misbehavior occurred at the courthouse and many outbursts occurred in the presence of the public. Above and beyond the behavior that we reviewed in Lamdin, her misconduct had sweeping effects on the morale and working relationships between judges and courthouse staff. She rejected the authority of her supervisors and often attempted to undermine their authority and directions.
We also take under consideration, as mitigating factors, that Respondent apparently has changed prospectively the way that she processes, handles, and stores search warrants and has assisted her colleagues by “pulling cases” from them to assist with the flow of the dockets. Respondent also called witnesses who testified to her skills as an appellate lawyer, and she produced letters of support written on her behalf when she sought higher judicial office in 2016. Notwithstanding the mitigating factors, Respondent‘s misconduct created, over a long period of time, a pervasive, unyielding and serious pattern of disrespectful and blatant disregard for the dignity of Maryland jurists. Indeed, the Commission was not relieved by Respondent‘s attempts at mitigation. As the Commission found, even Respondent‘s witnesses acknowledged the tense and unpleasant work environment among
The Commission asked this Court to impose a sanction that will aid Respondent and the District Court as she returns to her duties. The Commission‘s recommendation and the testimony of Respondent‘s colleagues begs for assurances that Respondent will meaningfully change her behavior. In determining how to best effectuate the change, we, like the Commission, are confounded as to whether Respondent is unable or merely unwilling to change her behavior. The Commission found it significant that one of Respondent‘s supervisors expressed concern for Respondent‘s mental wellbeing.
We look to the many outbursts and unprovoked intemperate actions of Respondent as evidence of a potential behavioral cause for her misconduct that would be best addressed by health care professionals. See O‘Neill, 103 Ohio St. 3d at 216 (In determining the appropriate sanction, the court considered, among many factors, the judge‘s “repeated volatile outbursts and unprovoked intemperate actions evidence a potential behavioral cause for her misconduct” that persuaded the court to obtain the evaluation of a mental health professional as a condition precedent to reinstatement and to help explain the reason
After a careful, independent review of the record, we conclude that the Commission‘s recommended sanction is appropriate for Respondent‘s misconduct. See
IT IS SO ORDERED; BEGINNING ON JULY 1, 2019, JUDGE DEVY PATTERSON RUSSELL IS HEREBY SUSPENDED WITHOUT PAY AS A JUDGE OF THE DISTRICT COURT OF MARYLAND FOR
III. [THE COMMISSION‘S] CONSIDERATIONS REGARDING THE IMPOSITION OF DISCIPLINE.
A. As to the appropriate discipline in a judicial conduct case, the Commission is guided by the General Provisions of the Maryland Code of Judicial Conduct,
Whether discipline should be imposed should be determined through a reasonable and reasoned application of the Rules and should depend upon factors such as the seriousness of the transgression, the facts and circumstances at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others.
Additionally, the Commission finds significant the following behaviors and comments which, while not sanctionable conduct by the clear and convincing standard, helped inform the Commission‘s recommendation as to the appropriate sanction.
- Interrupting Judge Waxman during a social event while Judge Waxman was talking with a colleague as Respondent “put her arm in between us, and she literally pushed me back two steps in order to interrupt a conversation I was having with a colleague, almost knocked me [Judge Waxman] over” (Transcript pp. 464-65);
- Continually arriving late to court without informing anyone that she will not be on time;
- Respondent saying “Which broom Closet is she putting me in today?” (Transcript p. 464), “Where am I today? In a closet? In the lockup?” to various judicial assistants upon arrival at different court locations for her daily assignments (Transcript p. 744);
- Saying “I didn‘t know you were such a good writer“, to Judge Rachel Skolnik, after learning that Judge Skolnik authored a response signed by fourteen colleagues to Respondent‘s “open letter” to the District Court bench (Transcript p. 697);
- “You better be careful because warrants might end up getting shredded or put in the trash“, Respondent, to a police officer, in the presence of Judge Skolnik (Transcript p. 699);
- Advising Judge Waxman that she would not comply with the deadline to request annual leave;
- “I drive past the other judge‘s house at 11 o‘clock at night to look and see whose vehicle is in the driveway“, stated by Respondent to Judge Gordon, in detailing a rumor concerning a colleague‘s alleged infidelity (Transcript p. 822);
- “I‘m shredding, I‘m shredding. Look, I‘m shredding“, Respondent‘s comments to
court staff after the charges in the current matter became public (Transcript p. 464); - Respondent, while in her vehicle, hit Judge Gordon‘s car in March 2015, causing damage, minutes after a conversation in which Judge Gordon asked Respondent to stop some of her behaviors. Respondent provided insurance claim information to Judge Gordon and indicated the impact was not intentional;
- “Are you going to get dressed up (in a Halloween costume)?” to Judge Scurti during a bench meeting in October 2018, after the first week of this proceeding had taken place (Transcript p. 1236);
- Judge Weinstein sitting in the clerk‘s office at Eastside Courthouse to prevent any confrontation between clerks and Respondent;
- Judges hastily moving their cars to accommodate Respondent when she is expected at a court location.
The Commission took note of the atmosphere described by nearly every judge — even Respondent‘s own witnesses — in each court location that exists when Respondent is assigned to sit at said location.
Those comments include:
Judge Aldouby: “If I were blindfolded and brought to a building, I could tell you . . . whether Judge Russell was assigned to that courthouse that day. There is a certain chill that is there.” (Transcript pp. 764-65) “It‘s gotten worse in recent years . . . it‘s walking on eggshells and you‘re just praying that it‘s a good day and that there is no conflict (with Respondent)” (Transcript p. 765); “There‘s situations where it has just been openly hostile (Respondent‘s conduct), like what I saw in Judge Scurti‘s Chambers” (Transcript p. 778);
Judge Scurti: “Judge Russell has created such a division and divide among our bench” (Transcript p. 163); “Everybody is walking on eggshells, from bailiffs to clerks to other judges. And it is just not a pleasant situation.” (Transcript p. 163);
Judge Waxman: “I would describe (Respondent) as seeming to enjoy hurting other people on the bench, openly hostile at times, rude, intimidating, taking joy when other judges would have negative things said about them in the press, disrespectful.” (Transcript p. 467);
Judge Skolnik: “I shut my door 90% of the time (when Respondent is in that courthouse) . . . I don‘t want to hear the comments, and I don‘t want to respond.” (Transcript p. 701); She is “mean spirited, argumentative, and unprofessional“; (Transcript p. 702);
Judge Avery: “I repeatedly asked Judge Waxman to essentially take Judge Russell off of the dockets at Eastside District Court.” (Transcript p. 723);
Judge Weinstein: “Judge Russell creates a hostile work environment.” (Transcript p. 743); and “She yells at me in front of staff” (Transcript p. 743);
Judge Kevin Wilson: “Uncomfortable, the comments that she makes under her breath . . . it just makes it for a very intense, uncomfortable situation“, in describing bench meetings with Respondent present (Transcript p. 794);
Judge Jennifer Etheridge: “(She goes from) zero to sixty immediately” (Transcript p. 889);
Judge Kathleen Sweeney: “People are always concerned about what she might do next . . . She was constantly egging people on. She was trying to get reactions out of people” (Transcript p. 812);
Judge Gordon: “The interactions are never pleasant between the two of them (Respondent and Judge Scurti). The unpleasantness is always one-sided, and it just makes everyone tense. She will frequently sit directly across from him at bench meetings and just stare at him” (Transcript p. 843); and “People tend to just walk away (from Respondent) and stop congregating or talking to each other and go into their rooms. Some judges have started to keep their doors closed because they just don‘t want to hear the acrimony” (Transcript p. 844); and “She turns petty things into major things, and private issues into court issues“;
Judge James Green: “(Judge Russell‘s conduct) has created an atmosphere that is nothing short of dysfunctional . . . It has created open hostility, open challenge of authority, open challenge of rules, and it is very difficult conduct to deal with. I look at the calendar every day . . . to see where my colleague Judge Russell is assigned, because I have to prepare my day” (Transcript pp. 931-32); and in describing why he wrote a letter to Chief Judge Morrissey concerning Judge Russell‘s conduct: “I have an obligation under the rule, as a judge, to report what . . . I perceive to be misconduct if it has gotten to a point where it potentially doesn‘t show a fitness . . . my letter was drawn from that” (Transcript p. 931);
Judge O‘Hara: “On days that Judge Russell is at the Eastside Courthouse, there is kind of a cloud of concern or cloud of angst. . . Several of my colleagues and particularly the staff, administrative staff, are concerned about the day” (Transcript pp. 1026-27);
Chief Judge Morrissey: “I was concerned that someone would write an open letter actively antagonizing the entire rest of her court, and I thought maybe something was mentally wrong” (Transcript p. 1008);
Comments of significance from clerical witnesses include:
Kim Brown: “(Respondent) had continued to do little things that I just chalked it up as her just being very immature and unprofessional. The whole time everything was unprofessional” (Transcript p. 612); “I had had enough of Judge Russell . . . She was out of control” (Transcript p. 613); “I felt very stressed” (Transcript p. 617);
Faye Walker: “I have to avoid walking down a hall just in case (Respondent) is coming through with the bailiffs to go to her courtroom . . . she would have this strange laughter when she encounters me” (Transcript p. 662); “I just avoided her when she was in the building . . . we did not want to be singled out in a courtroom and embarrassed in front of the citizens or our coworkers“; “Never (had similar interactions with any other judge of the bench)” (Transcript pp. 662-65);
Tracey Whye: “I can tell you that there are individuals who may not come through chambers when they know (Respondent) is on the roster for the day.” (Transcript p. 230).
And Respondent‘s own witnesses:
Judge Cooper: “With some staff. . . she has a good reputation. With other staff, it‘s not so good” (Transcript pp. 1046-47);
Judge Boles: “People watch what they do and say.” (Transcript p. 1238); and “It made it very unpleasant” describing a comment made by Respondent to Judge Scurti, during a bench meeting in October 2018 (Transcript p. 1236);
Judge Baylor Thompson; “There was one letter [open letter to all her colleagues, IC Exhibit 11] that was written to all of the judges, and I thought it was a little insulting to one of my colleagues” (Transcript p. 1256);
Judge Dorsey: “The atmosphere is tense (when Respondent is present) . . . Colleagues tend to keep to themselves . . . they tend to close their doors” (Transcript p. 1267);
Judge Jack Lesser: “I am always thinking is this the day something is going to happen” (Transcript not available as Judge Lesser testified via a video deposition).
The Commission has no doubt that this difficult, uncomfortable, tense and unprofessional work environment is created by Respondent and her behavior. The Commission finds it significant that these above behaviors have resulted in the loss of very close friendships between Respondent and Judge Avery, Judge Gordon and Judge Weinstein, respectively, and ended the “warm, cordial friendship” Respondent had previously enjoyed with Judge Waxman.
The Commission also finds informative the comments expressed by Chief Judge Morrissey in that he is “concerned for Judge Russell‘s mental well-being” and that he is “out of options” in describing his ability to address the situation in Baltimore City. The Commission is also not able to determine whether Respondent is unable or merely unwilling to change her behavior, but has no doubt that her behavior greatly impacts the daily court operations in Baltimore City.
The Commission has found that the comments and behaviors of Judge Russell were undignified, uncooperative, discourteous, demeaning, and clearly demonstrate a pattern of serious violations of the Maryland Code of Judicial Conduct that strike at the very heart of the integrity of the judiciary and the public‘s confidence in such integrity.
B. The Commission considered the testimony of Chief Judge Joseph F. Murphy, Retired, the character witness offered by Judge Russell, who described the Respondent as “an excellent appellate lawyer, both as a member of the Public Defender‘s office and the Attorney General‘s office“.
Judge Murphy seemed unfamiliar with some of the behavior of Respondent as described by her colleagues during the hearing. When questioned, Judge Murphy suggested that some of the information, if true, would give him pause, and perhaps change his opinion. “Yes (my opinion of Respondent‘s character would be changed if I knew she intentionally damaged another judge‘s car).” (Transcript p. 1292); (See also Transcript pp. 1290-94).
C. The Commission carefully considered the evidence, witnesses and testimony of Respondent, which included her explanations for the numerous incidents detailed before the Commission by her colleagues, subordinates and superiors, and her stated belief that the issues of concern in the Baltimore City District Court began in 2015. Respondent was unable to identify anything she would change or do differently concerning nearly every one of the incidents described herein. Respondent acknowledged engaging in various of these behaviors, but expressed no regret. (Transcript pp. 1661-1684) She fails to see herself as the common denominator in these incidents; she blames others and takes no responsibility for her actions. The Commission has no doubt that Respondent is volatile, unpredictable, and responsible for the enormously difficult work environment in the Baltimore City District Court.
Additionally, the Commission reviewed letters of support written on behalf of Judge Russell from her 2016 quest for higher judicial office, and Judge Russell‘s prior contacts with the Commission on Judicial Disabilities once the Commission determined sanctionable conduct occurred
Subsequent to the Hearing, the Commission reviewed proposed Findings of Fact and Conclusions of Law submitted by Judge Russell and Investigative Counsel. Judge
The Commission hereby refers this matter to the Court of Appeals with a recommendation to impose the discipline set forth in Paragraph IV, B.2, m. In the Commission‘s view, the imposition of a public reprimand is not commensurate with the serious violation of misconduct in office committed by Judge Russell and does not reassure the public, her colleagues and co-workers that Judge Russell will be deterred from engaging in similar behavior in the future. The Commission concludes that the gravity of the Code violations require the imposition of a significant sanction.
The Commission did, however, consider several mitigating factors presented by Judge Russell, through counsel, at the Hearing in determining its recommendation as to the appropriate discipline. The Commission found it persuasive that Respondent has changed the way she processes, handles and stores warrants. (Transcript p. 1680) The Commission also notes that Respondent has become more helpful to her colleagues in terms of “pulling cases“, even if such helpfulness is self-serving. The Commission concludes that its recommendation of a lengthy suspension is commensurate with the gravity and pervasive nature of Judge Russell‘s misconduct and the extent to which it jeopardizes the integrity and dignity of the judiciary and the public‘s confidence in such integrity and dignity. The Commission strongly considered recommending various courses of instruction or remediation for Respondent during this period of suspension, but will not make such recommendation given this Court‘s opinion in Matter of Reese for Howard Ctv., Tenth Judicial Circuit, 461 Md. 421 (2018), reconsideration denied (Oct. 15, 2018).