In Re Formal Inquiry Concerning Judge Diener

304 A.2d 587, 268 Md. 659

• Court: Court of Appeals of Maryland
• Decided: June 6, 1973
• Docket: [Misc. (Judicial Disabilities) No. 1, September Term, 1972.]
• Status: Published

Opinions

McWilliams, J.,

delivered the opinion of the Court. Barnes, Smith and Digges, JJ., dissent and Smith, J., filed a dissenting opinion in which DlGGES, J., concurs and Barnes, J., concurs in part at page 697 infra. Barnes, J., filed a dissenting opinion at page 727 infra.

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. Ill, § 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 that 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, Who Judges the Judges? at 12-13 (Am. Bar Found. 1970); Gasperini, Anderson and McGinley, Judicial Removal in New York; A New Look, 40 Ford-ham 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).

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.

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

From a practical standpoint, there was created for the first time an alternative to removal under Constitution Art. IV, § 4 and impeachment under Art. Ill, § 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.

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:

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

“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 Jury 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.

“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 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.

“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.

“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 engaged in conduct prejudicial to the proper administration of justice.

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, 367 P. 2d 387, 392 (Ore. 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. 1970); Memphis & Shelby County Bar Association v. Vick, 290 S.W.2d 871, 875, 40 Tenn. App. 206 (1955). Nevertheless, we are fully persuaded that the severity of the impact of the Commission’s findings upon the individual compels the application of the clear and convincing test.

Despite its findings and its conclusions, the Commission recommended that Judge Diener and Judge Broccolino be censured only, a recommendation grounded generally on conditions endemic in the Traffic Division of the Municipal Court, conditions which had been inherited from the Traffic Court (its predecessor) with the consequence that Municipal Court judges accepted Traffic Court practices as precedent, and continued to depend on clerks who curried favor.

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 Broecolino 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 Broecolino 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.

Preliminary to the hearing each of the judges moved to dismiss on procedural grounds. The Commission, quite rightly we think, denied the motions. We shall adopt the ruling of the Commission in each instance. In the interest of emphasis we have done some editing.

(i)

“[T]hey asserted that the formal notice issued by the Commission failed to conform to the requirements of Md. Rule 1227 (g) (1) in that it did not spell out with sufficient specificity a formal recitation of the allegations made against them, but was too general.

“Md. Rule 1227(g)(1) in pertinent part provides:

‘After the preliminary investigation has been completed, if the Commission decides that formal proceedings shall be instituted, the Commission shall without delay issue a written notice to the judge advising him of the institution of formal proceedings to inquire into the complaint against him.

* * *

‘The notice shall specify in ordinary and concise language the complaint against the judge and the alleged facts upon which such complaint is based, and shall advise the judge of his right to file a written answer to the complaint against him within fifteen (15) days after service of the notice upon him.’

“The Commission’s notice to each of the judges explicitly recited the right of each judge to file an answer. It set forth the complaint against each judge as follows:

‘Specifically, the complaint against you is that, during the years 1967-70, you engaged in the practice of dismissing traffic tickets or suspending or reducing fines on traffic tickets in situations where: (1) the ticket was presented to you by a person whom you knew was not the actual defendant or an attorney representing the actual defendant, (2) no defense to the merits of the charge was presented to you, and (3) the sole or principal reason for your verdict was to do a personal or political favor for the person presenting the ticket; or in situations where you accepted tickets from other persons and caused them to be disposed of in irregular manners for reasons of personal and political favoritism.’

“Because the judges and their counsel were already in possession of all the deposition testimony and the exhibits thereto and because they had received a summary of all such data as contained in the Report of Preliminary Investigation, the notice stated that, ‘The alleged facts upon which the complaint are based are contained in the testimony of the witnesses deposed during the preliminary investigation and exhibits thereto, of which you have copies, as well as the report of the Commission’s special counsel of the preliminary investigation, a copy of which is enclosed.’

“By virtue of such references and in light of the content of the Report and the judges’ prior possession of the depositions and the data upon which it was based, the notice clearly was sufficient to apprise them and to ‘specify in ordinary and concise language the complaint against the judge.’ The notice was clearly sufficient to comply with the requirements of Md. Rule 1227(g) (1).”

(ii)

“[They] next contended that the Commission lacked the power to initiate on its own motion the Preliminary Investigation. The short answer to this contention is that the Commission simply followed Md. Rule 1227 which explicitly authorized such action and confers such authority upon the Commission. Counsel for the judges urge, however, that Md. Rule 1227(f)-(2) is a grant of power unto the Commission in excess of that authorized by the Maryland Constitution. Article IV, Section 4B of the Maryland Constitution provides that the Commission :

‘* * * shall have the power to investigate complaints against any judge of the Court of Appeals, any intermediate courts of appeal, the Circuit Courts, the Supreme Bench of Baltimore City, the Orphans’ Court and all other judges appointed or elected if the full term of the office is not less than four years (including a judge holding office on the date of adoption of this amendment); and to conduct hearings concerning the removal or retirement of a judge, administer oaths and affirmations, issue process to compel the attendance of witnesses and the production of evidence, and requite persons to testify and produce evidence by granting them immunity from prosecution or from penalty or forfeiture. * * * 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. ([Emphasis] supplied) ’

“From the above Section it is clear that the Constitution does not set forth the procedure to be used by the Commission in conducting any investigation, but confers upon it ‘the power to investigate complaints against any judge’ and provides that the practice and procedure before the Commission shall be by rule promulgated by the Court of Appeals. Md. Rule 1227 (f) (2) expressly confers such power on the Commission.

“Nowhere within the constitutional provisions pertaining to the Commission is there any prohibition against the Commission conducting a preliminary investigation, or proceeding upon its own motion. Section 4B confers the general power of investigating complaints against the judiciary and leaves the implementation of that power to the Court of Appeals by rule.

“In addition, [Code (1957, 1971 Repl. Vol.) Art. 40, § 45] pertaining to the powers of the Commission and the rules of procedure provides, inter alia, in Sub-Section (5), that ‘The Court of Appeals, using its powers to make rules and regulations as authorized in § 18 of Article IV of the Constitution of Maryland, shall provide for procedures to be followed by the Commission in proceedings filed in or pending before it.’

“We find no merit to the contention that the Commission does not have the power, on its own motion, to conduct a preliminary investigation concerning a complaint against a judge which has been brought to its attention.”

(iii)

“[They then challenged] the Commission’s jurisdiction and allege that as to them, it is limited to their acts, commissions or omissions, occurring subsequent to July 1, 1971, the effective date of the legislation creating the District Court, the court on which they now serve, and that in no event does the Commission have jurisdiction to inquire into acts alleged to have occurred prior to November 1970, the effective date of the current provision in Article IV, Section 4B, supra, of the Maryland Constitution, as adopted by the electorate on November 3, 1970. We reject both contentions pertaining to a want of jurisdiction in the Commission.

“The District Court of Maryland was created by. the Amendments to the Constitution of Maryland (Article IV, Sections 41A through 41-1, inc.) after the enactment by the General Assembly of Chapter 789 of the Acts of 1969 as ratified by the electorate on November 3, 1970.

“Section 41-1 (g) provides:

s* * * Each full-time judge of the People’s Court of Baltimore City, the Municipal Court of Baltimore City, and of the People’s Courts of Anne Arundel, Montgomery, Prince George’s, Wicomico Counties and Baltimore County who is in office on the effective date of these amendments shall continue in office as a judge of the District Court in his district and county of residence (or in Baltimore City) for the remainder of the term for which he was elected or appointed * * * ([Emphasis] supplied).’

“By virtue of this provision (Section 41-I (g)) Judges Diener and Broccolino, who were full-time judges of the Municipal Court of Baltimore City, were continued in office for the remainder of their ten-year term. The provisions of Article IV, Section 4B of the Maryland Constitution, supra, confers upon the Commission the power to investigate complaints against judges of the Appellate and Circuit Courts ‘and all other judges appointed or elected if their full term of office is not less than four years (including a judge holding office on the date of the adoption of this Amendment)’. This quoted portion is identical in language with that contained in former Section 4B of the Constitution with respect to the Commission as originally created by the Constitutional Amendment ratified by the electorate in November 1966. Since both Judges Diener and Broccolino were in office on November 3, 1970, each for a term exceeding four years, the Commission’s jurisdiction clearly extended to each of them.

“The Commission on Judicial Disabilities was originally created, pursuant to the Amendment to the Maryland Constitution, Article IV, Section 4A, as enacted by the General Assembly by Chapter 773 of the Acts of 1965 and as ratified in the general election of November 8, 1966. The current makeup of the Commission resulted from the Constitutional Amendments to both Sections 4A and 4B of Article IV ratified on November 3, 1970. The 1970 revision of the Constitutional provisions expanded the membership of the Commission and provided that the Court of Appeals shall be the body to act upon its recommendations, rather than the General Assembly as was previously provided, but neither the grounds as a basis for the censure, removal or retirement of a judge, nor the essential powers of the Commission were changed. In essence, the present provisions of Article IV, Sections 4A and 4B merely establish a new tribunal to deal with allegations of improprieties against judges.

“These conclusions are further supported by the holdings in Keiser v. Bell, 332 F. Supp. 608 (E.D. Pa., 1971) and In re Greenberg, 442 Pa. 411, 280 A. 2d 370 (1971).”

(iv)

“[They further contended] that their rights to ‘due process of law’ guaranteed them under the Fourteenth Amendment to the United States Constitution have been denied and that they have not received a fair and impartial hearing because the Commission acted as investigator, prosecutor, judge and jury in this proceeding. The Commission did in fact insulate itself from the investigation by employing special counsel and assigning as well its Executive Secretary to conduct the investigation. Prior to the formal hearing the Commission made but two (2) decisions: (a) whether the evidence submitted to it required the making of a ‘Preliminary Investigation’ against these two (2) designated judges, and (b) based upon the results of that ‘Preliminary Investigation’ whether to institute formal hearings. In each case the question presented to the Commission was whether or not the Commission was confronted with allegations of fact and evidence which merited the making of a ‘Preliminary Investigation’ and, after that had been made, whether or not that investigation presented to the Commission a prima facie case.

“It must be noted that the Commission’s power is limited in making recommendations to the Court of Appeals. In this regard the holdings in Keiser v. Bell, supra, as follows, are here appropriate:

‘The proceedings of the Judicial Board are investigatory and advisory and are not binding on the Supreme Court. No determination of criminal guilt is made, but merely a determination of the Judicial Board’s view of the conformity of the subject of investigation to the state constitutional standards for judicial office. Similarly, the resulting Order of the Supreme Court does not operate as a sanction for criminal guilt but as a judgment on judicial fitness. At most, the proceedings of the Judicial Board could be characterized as quasi-judicial administrative hearings, and the Order of the Supreme Court as a judicial disciplinary order.’

“In Reiser the alleged denial of procedural due process was even more pronounced since there the Board’s Executive Secretary was not only the investigator (a role which was here committed to the Commission’s special counsel), but he was also a voting member of the Board; in fact, it was his sworn affidavit which formed the basis of the proceedings. Notwithstanding this involvement in those proceedings, the court, in the light of the Board’s limited role—as pointed out above—found no unconstitutionality in the proceedings the Board conducted.

“See also In re Judge Edward A. Haggerty, Jr., 241 So. 2d 469 (La., 1970), where a similar contention on the same basis was also rejected. The Louisiana Court in its opinion stated:

‘The gravamen of defendant’s first contention is that the combination of investigative, prosecutive, and adjudicative powers in the Judiciary Commission offends due process. He contends there should be a separation of such functions. However, “It is well settled that a combination of investigative and judicial functions within an agency does not violate due process.” Pangburn v. C.A.B., 311 F. 2d 349, 356 (CA 1, 1962), citing and discussing many authorities. See, also: Federal Trade Commission v. Cement Institute, 333 U. S. 683, 68 S. Ct. 793, 92 L. Ed. 1010 (1948); 2 Davis, Administrative Law Treatise, Sec. 13.02 (1958).’

“See also In re Inquiry Concerning a Judge No. 1, 238 So. 2d 565 (Fla., 1970), cert. denied 401 U. S. 962, rehearing denied 403 U. S. 940, where the Florida Court rejected the same argument.

“After careful consideration of this contention we conclude that the Commission possesses the power to investigate the acts and omissions of Judges Diener and Broccolino during the years 1967 to 1970 as set forth in the formal notice served upon the judges, and this Motion, predicated on a lack of jurisdiction in the Commission, must be denied.”

(v)

“[Finally, their counsel] on the date of the commencement of the formal proceedings, filed Motions to Quash which allege that the Constitutional Amendments creating the present Sections 4A and 4B of Article IV were improperly enacted and that such Constitutional Amendments are a nullity. Special counsel for the Commission, before the formal proceedings were concluded, filed affidavits and exhibits in contradiction of the respondents’ Motion.

“We heard oral argument on the Motion and have accepted the documentary and affidavit evidence presented. While we have doubt as to our own powei to rule upon the validity of the constitutionality of an Amendment to the State Constitution, we are satisfied upon the facts presented by the exhibits and affidavits that the legislation was properly enacted and validly submitted to the electorate in the general election of November 8, 1970. Accordingly, we deny the Motions to Quash.”

Some further comment in respect of the last point is appropriate. The thrust of the argument is that the 1970 amendment of Constitution Art. IV, § 4A and § 4B was invalidly enacted by the General Assembly because it was introduced as Senate Bill 524, that it was amended by the time it reached its third reading, but that the first reading copy, sent to the House of Delegates without the amendments, was in fact the measure enacted by the House.

We think it is clear that this contention finds no support in the facts. It seems to have been the practice to send the first reading copy of a Senate bill to the clerk of the House simply to alert him to the fact that such a bill was pending. The third reading copy of the Senate bill would ultimately be clipped to the first reading copy which would serve as a cover sheet or title page only. It was the third reading copy of the Senate bill on which the House acted. We agree that the motion to quash was without merit, and that it should have been denied. We do not reach the question whether the Commission had power to pass on a constitutional issue.

Before us Judge Diener moved to dismiss on the grounds previously made in the hearing before the Commission, but more particularly on the ground that Constitution Art. IV, § 4B (a) empowered the Commission to recommend only the removal or retirement of a judge, and he amplified this motion at argument to the effect that Rule 1227 n, authorizing the Commission to recommend censure, is beyond the constitutional grant of authority.

Judge Diener also excepted to so much of the Commission’s findings of fact and conclusions of law as dealt with the conclusion that verdicts of not guilty, or suspensions or reductions of fines were granted for reasons of political favoritism or that the facts supported the conclusion that it was in an inferior court, such as the Parking Court, where the average citizen has his first contact with our judicial system and forms Ms first and lasting opinion of it.

Judge Broecolino’s motion to dismiss, triune in nature, is compounded of the contentions: (i) that the Commission’s counsel “breached the rule of confidentiality by having a witness, Jean A. Stecher, discuss on three separate occasions with three different persons, matters concerning Judge Broccolino and Judge Diener then before the Commission”; (ii) that the Commission "w sponte by its chairman repeatedly asked impermissibly leading questions that amounted to statements of fact, leaving the witnesses no alternative but to adopt them as their testimony”; and (iii) that he “is unable to receive an impartial, fair and just determination and decision in this cause because of the inflammatory, exaggerated, slanted, biased, inaccurate, voluminous and shocking publicity reported on the Report, Findings of Fact, Conclusions of Law and Recommendation filed by the Commission on Judicial Disabilities and the transcript of record in this cause by the news media, i.e. television stations, newspapers and radio stations. Said publicity [discussed] matters in the transcript of record that the Commission had excluded from its consideration.”

Judge Broccolino’s exceptions reiterated the five motions made at the hearing before the Commission, heretofore dealt with at some length, and then challenged (i) the sufficiency of the evidence; (ii) the credibility of the evidence; (iii) the inferences which could reasonably be drawn from the evidence, and (iv) the sufficiency of the documentary evidence against him.

Of all the contentions raised by Judge Diener we regard as troublesome only the first, i.e., whether Rule 1227 n authorizing the Commission to recommend censure transcends the grant of authority contained in Constitution Art. IV, § 4B (a).

We have already concluded, from our independent review of the entire record, that the Commission’s finding that Judge Diener and Judge Broccolino were guilty of conduct prejudicial to the proper administration of justice was supported by clear and convincing evidence.

We should be closing our eyes to reality were we to fail or refuse to take judicial notice of the fact that the Traffic Division of the Municipal Court, even the Parking Court, was the place where the average citizen was likely to have, if not his first, certainly his most frequent contact with our judicial system.

The Commission itself recognized this when it said:

“It is precisely in the inferior courts, such as the parking court, where the average citizen is most likely to have his first contact with any of the judicial system of the State and to form his or her lasting opinion of it. If we give credence to the notion that because an individual parking ticket is of minor importance and that it is somehow permissible for a judge hearing a parking ticket case to engage in personal or political favoritism, then we condemn the whole judicial system to suspected corruption.”

In respect of Judge Broccolino’s motion to dismiss, it suffices to say that the Commission, functioning as a fact-finding body, was not bound by strict rules of evidence, but only by the fundamental rules of fairness, Hyson v. Montgomery County Council, 242 Md. 55, 217 A. 2d 578 (1966); Dal Maso v. Board of County Comm’rs of Prince George’s County, 238 Md. 333, 209 A. 2d 62 (1965). We have found no transgression of these rules in our examination of the record.

Returning now to what we regard as the only substantial question, i.e., whether the power to censure granted the Commission by Rule 1227 n exceeded the limits of Constitution, Art. IV, § 4B (b), we cannot escape concluding that the grant of the greater power impliedly includes the lesser. If we have the power to retire, remove or censure, certainly the Commission can recommend identical sanctions. To hold otherwise would mean that so limiting the Commission’s authority to a recommendation of retirement or removal only would create a void into which minor infractions would fall, unnoticed and uncorrected. Such a result can hardly be regarded as consonant with the intent of the amendment, and, to be sure, it would frustrate one of the very purposes the 1970 amendment was intended to achieve, i.e., the effective disposition of cases which warranted neither retirement nor removal, by adding a power to censure to the previously existing power to remove or retire which had been vested in the General Assembly by the 1966 amendment.

One final question remains; at argument it was discussed at some length. That is whether we are bound by the Commission’s recommendation, or whether we may ameliorate it by, on the one hand, rejecting the recommendation and dismissing the case or, on the other hand, by disregarding the recommendation and imposing some other sanction, either more or less onerous.

Of the propriety of the first alternative, should there be insufficient evidence to support the recommendation, there can be no doubt. It seems to us that the second alternative is equally valid; if the Commission’s findings of fact support a sanction more onerous than that recommended, not only is it within our power to impose it, we think it is our duty to do so. Conversely, if the facts justify a sanction less onerous than that recommended, it is our duty to ameliorate it.

The California scheme, as amended in 1966, on which Maryland’s generally is based, provides for a Commission on Judicial Qualifications of nine members: five judges, two lawyers and two non-lawyers. On recommendation of the Commission, the California Supreme Court may suspend a judge convicted of a felony or of a crime involving moral turpitude; it may retire a judge for disability; it may censure or remove a judge for misconduct, failure to perform his duties, intemperance or conduct prejudicial to the administration of justice, 2 West’s Anno. Cal. Const. (1954, 1972 Cum. Supp.) Art. VI, § 8, § 18.

In Stevens v. Commission on Judicial Qualifications, 61 Cal. 2d 886, 39 Cal. Reptr. 397, 393 P. 2d 709 (1964), the Supreme Court rejected a Commission recommendation that a judge be removed. It was believed that this result was reached because the Court felt removal to be too harsh a penalty and under the Constitution as it stood at that time, the Court could not censure. An apprehension arose that Stevens might result in a deterioration of the Commission’s effectiveness and this led to the 1966 California amendment which specifically gave the Commission the power to recommend censure, Braithwaite, supra, at 90-91.

It, is interesting to note that the amendment to the California Constitution is so structured that § 8 deals only with the creation of the Commission, and not with its duties and powers. However, § 18 (c) provides that “On recommendation of the Commission . . . the Supreme Court may (1) retire a judge . . . and (2) censure or remove a judge . . . .” with the consequence that the grant of power to the Commission and the grant to the Supreme Court are encompassed in the same language.

In In re Robson, 500 P. 2d at 659-60, the Supreme Court of Alaska, interpreting a constitutional provision somewhat like California’s, and much like our own, observed :

“Normally considerable weight will be accorded to a given recommendation from the commission, if supported by an actual factual basis. Nevertheless, both Article IV, section 10 of the constitution [“a justice or 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”] and A S 22.30-070 (c) (2) [“On recommendation of the commission, the supreme court may .... (2) censure or remove a judge . . . .”] 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. In every case of this character we must insure that procedural due process has been accorded the judicial officer proceeded against and that requisite findings of fact have been made and are supported by substantial evidence. We are further obligated to decide whether the commission’s recommended sanction is justified by the record and is in accord with the objectives of the commission as reflected in the relevant constitutional and statutory provisions.”

Having said that, the Alaska court elevated the Commission’s recommendation, of private reprimand to public censure.

The right so to act in disciplinary matters has been held to be inherent in the powers of any court of last resort, even in the absence of a constitutional grant. In the circumstances and at this time, however, we do not reach the question whether we have such an inherent power. Cf. Maryland State Bar Ass’n v. Boone, 255 Md. 420, 429-32, 258 A. 2d 438 (1969), where we discussed our inherent and fundamental judicial power to act in proceedings involving the discipline and the reinstatement of members of the bar, relying on In re Keenan, 313 Mass. 186, 47 N.E.2d 12, 25-27 (1943).

In re De Saulnier, 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), involving the misconduct of a judge, was considered by the Supreme Judicial Court of Massachusetts on three occasions; the ultimate result was Judge De Saulnier’s disbarment and suspension from the exercise of his judicial duties.

Massachusetts has a constitutional provision guaranteeing tenure in judicial office much like that contained in Article 33 of our Declaration of Rights. Massachusetts Constitution, Pt. 2, Ch. 3, Art. I provides, in part:

. . All judicial officers, duly appointed, commissioned and sworn, shall hold their offices during good behavior, excepting such concerning whom there is different provision made in this constitution: provided nevertheless, the governor, with consent of the council, may remove them upon the address of both houses of the legislature; . . . .”

In re Opinion of the Justices, 271 Mass. 575, 171 N. E. 237, 240 (1930) held that a bill providing for mandatory retirement at age 70 would be unconstitutional, because,

“The tenure of office of judges as thus settled by the Constitution is imperative and final. It cannot be enlarged, limited, modified, altered or in any way affected by the General Court.”

In the first De Saulnier case, 274 N.E.2d 454, when the jurisdiction of the Massachusetts court was challenged, the court said, at 456:

“The power, authority, and jurisdiction of this court to make the inquiry and to hold hearings rest on at least the following grounds, among others: (a) the inherent common law and constitutional powers of this court, as the highest constitutional court of the Commonwealth, to protect and preserve the integrity of the judicial system and to supervise the administration of justice .... (c) the power of this court to maintain and impose discipline with respect to the conduct of all members of the bar, either as lawyers engaged in practice or as judicial officers; and (d) the power of this court to establish and enforce rules of court for the orderly conduct (1) of officers and judges of the courts and (2) of judicial business and administration.”

* * *

“We now rule that this court has jurisdiction to impose appropriate discipline upon a member of the bar, who is also a judge, for misconduct or acts of impropriety, whether such acts involve his judicial conduct or other conduct. This, we hold, even though, because he is a judge, he is not permitted to engage in the practice of law [citations omitted].”

In the third De Saulnier case, 279 N.E.2d 296, the court restated the bases of its power to act and said, at 308:

“We now hold that these same sources give us the power and duty as a matter of judicial administration to prevent a judge of an inferior court who has been guilty of serious judicial misconduct from exercising the powers and duties of his office.”

* * *

“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.”

It is interesting to note that the Supreme Judicial Court, while recognizing that there was vested in the executive and legislative branches primary responsibility for removal, nevertheless achieved an equivalent result by the entry of the orders of suspension and disbarment, nor did it regard its power to enter such orders as being attenuated by the constitutional guaranty of judicial tenure.⁶

The Supreme Court of New Hampshire, in In re Mack M. Mussman, N. H. 289 A. 2d 403 (1972), while recognizing that the judiciary has no power of impeachment, this being a prerogative of the legislature, relied on De Saulnier in asserting that the court’s power to exercise general superintendence over the judicial system gave it power to take any disciplinary action against a judge short of removal, see Ransford v. Graham, 374 Mich. 104, 108, 131 N.W.2d 201, 203 (1964) and Reporter’s Note to In re Graham, 366 Mich. 268, 280-81, 114 N.W.2d 333 (1962), where a judge enjoined by the Supreme Court of Michigan from performing his duties continued to receive his salary.

It should be borne in mind, however, that when De Saulnier, Mack M. Mussman and Graham were decided neither Massachusetts, New Hampshire nor Michigan had a mechanism for the removal of judges except by way of impeachment. The result reached in Massachusetts seems to have been effected by the employment of the technique utilized prior to 1970 in New Jersey, where disciplinary action was taken by the Supreme Court against members of the judiciary in their capacity as members of the bar, In re Gurnik, 45 N. J. 115, 211 A. 2d 777 (1965); In re Orsini, 37 N. J. 500, 181 A. 2d 771 (1962); In re Mattera, 34 N. J. 259, 168 A. 2d 38 (1961).⁷

When our Constitution, Art. IV, § 4A and 4B was amended in 1970, it became possible to censure, remove or retire judges in a proceeding which supplemented the retirement and removal provided for by Art. IV, § 3 and § 4, and impeachment initiated under Art. Ill, § 26. As we said early on we do not regard ourselves as bound by the recommendation of the Commission. We have the power to disregard its recommendation entirely, or to ameliorate or increase the recommended sanction, all to the end that the interests of justice may be served.

In sum, we find no impediment in Declaration of Rights Art. 33, since removal can be accomplished in the manner sanctioned by Constitution, Art. IV, § 4B and only by the exercise of such power can the orderly and evenhanded administration of justice, which we are sworn to maintain, be assured. To fail to discharge this trust would place our whole judicial system at hazard, a possibility we are not disposed to consider, much less countenance.

We are, to be sure, acutely aware of the certainty that our decision will be deemed unduly harsh by some but, in the circumstances, ws see no reasonable alternative.

Order entered that Judge A. Jerome Diemr and Judge Joseph Lo Broccolim, Jn, be, and they are hereby, removed m Judges of the District Court of Maryland*

APPENDIX: THE FINDINGS OF FACT OF THE JUDICIAL DISABILITIES COMMISSION

The formal proceedings spanned eight (8) days, commencing November 20, 1972, during which time the Commission heard testimony from eighteen (18) witnesses, including the two respondents, concerning transactions and dispositions in the Traffic Division of the Municipal Court during the period from 1967 through 1970. While much of such evidence related to the procedures, technical operations and documents in use in what was then the Traffic Division of the Municipal Court during that period, the essence is much more basic and constitutes our findings.

Rubin Baverman, part-owner of a furniture and appliance store, accepted parking tickets from a number of his customers who were ticketed while conducting business in his store. Without explanation, he gave these tickets, along with one his wife had received for a personal violation, to one Ronald Flitt, a salesman for an appliance distributor who serviced his store. Neither Baverman nor his wife ever appeared or stood trial on these tickets. Elmer Huppert and Raymond Schmier, co-employees of Flitt at the distributorship, also turned over their parking tickets to Flitt. Flitt in turn gave the tickets to Hyman David Klein who was then án auditor at the Municipal Court. Klein similarly accepted tickets from Officer James Oliver Miller, Jr., then a member of the Baltimore City Police Department detailed on duty at the Department of Motor Vehicles. The tickets submitted by Officer Miller had been received by police cadets then under Miller’s command at the Department of Motor Vehicles, but had not been issued to them while on any official business. These tickets were forwarded to Klein with $2 or $3 attached to each of them without explanation of any extenuating circumstances concerning their issuance. Klein, as auditor for the Court, was responsible for controlling all revenues, disbursements and ledgers of the Court and for reconciling the Court’s records—fines collected with Court disposition slips, etc. While his duties did require him from time to time to officially present to the judges: of the Traffic Division certain kinds of tickets for adjustments, etc., his duties did not include presenting the tickets given to him by Flitt, Officer Miller, or others. The procedure he followed with the tickets given him by Flitt and Miller typified the manner in which he disposed of between three and four dozen tickets over a six-year period. First, he would prepare a “court slip”, an official Court document on which was typed the name of the purported defendant and the offense charged; the plea entered and the verdict and disposition were thereafter written by the judge. A case could not be tried without such a “court slip”, but such slips in blank form were readily available and accessible to just about all court employees and were not successively numbered or accounted for. Klein, having prepared the necessary “court slip”, would take the parking ticket and the attached “court slip” to the courtroom and, as he testified: “I would wait until the judge finished his docket, then I would approach the Bench and ask the judge if he can give me a little consideration on the case”. When having such tickets disposed of in this fashion the person to whom such ticket had been issued, or the registered owner of the vehicle, was not in attendance in the courtroom and no other explanation was given relating to any circumstances under which the tickets had been received. Using this procedure, and being known as the Court auditor, he presented a number of such tickets and “court slips” to Judges Broccolino and Diener who “Helped me”. Klein further testified that he used the same procedure “before just about all of the other judges, except Judges Arabian and Blum”, and “received similar consideration” from the other judges.

Isadore (“Pinkey”) Terl had been an employee of the Board of Supervisors of Elections of Baltimore City for nineteen years; during 1968 and 1969 he served as an Assistant Registrar. While not part of his official duties, early in his career with the Election Board he began to accept parking tickets from others who visited the Board’s offices and would present them, at first to the magistrates in the old Traffic Court and subsequently to the judges of the successor Municipal Court assigned for duty in its Traffic Division. During some periods, he was in the parking court “about three or four days a week with three or four tickets at most”, at a time.

William Bailey Henry was a fellow employee of Mr. Terl at the Board of Election Supervisors from June 1967 until March 1968 and was acquainted with Terl. After March 1968 Henry obtained employment as a Youth Coordinator in the Mayor’s Office with offices in City Hall. During 1968-1969 Henry, as well as his wife, received a large number of parking tickets—many issued to him for parking in prohibited areas in the vicinity of City Hall. Thirty-nine (39) of such parking tickets, which were readily identifiable, were introduced in evidence. All of them Henry had given to Terl in one batch accompanied with a sum of money estimated to total between $150 and $200. A number of these parking citations had reached the “warrant stage”, meaning that at least two (2) notices of trial dates had been given and the defendant had neither paid off the ticket at its face value nor had appeared to stand trial. The effect of having a traffic ticket advance to the “warrant stage” was that the defendant was then subject to arrest and to an additional five dollar ($5) fine. Henry offered no explanation to Terl detailing any circumstances of mitigation or extenuation in connection with any of such tickets. Neither Henry nor his wife ever appeared in court to answer or defend the charges. From the sum of money ($150 to $200) which Terl received from Henry, Terl retained approximately $50 for his personal use—for his services. The procedure used by Terl in disposing of the Henry tickets was typical of his modus operand!.

Terl would take the traffic tickets which had been delivered to him and upon his request to a window-clerk at the front desk of the Court, have “court slips” prepared for each of the tickets; he would then go into a courtroom and when the defendants’ names were called (or the name placed on the “court slip” was called), Terl, in answer, would stand and approach the Bench. Sometimes he would be appearing for a number of different individuals before the same judge at the same Court session. There was no deception used or attempted since the judges knew Terl and were aware that he—in responding to the name called—was not the person in whose name the “court slip” had been typed. At the Bench Terl would explain to the judge that the named defendant was “a friend of mine” or that the named defendant was a “co-employee”, and requested the judge “to see what he can do” for him. Terl would not describe the circumstances under which the particular ticket was issued; in most instances he was unaware of them. 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.

Using this typical procedure Terl presented the thirty-nine (39) tickets turned over to him by Henry to Judge Diener. Two (2) such tickets were disposed of by “not guilty” verdicts, three (3) were marked “fine suspended upon payment of costs” (including one such ticket with an outstanding warrant), twenty-seven (27) such were disposed of by the imposition of a $1.00 fine, plus court costs (including fourteen (14) such tickets with warrants outstanding), another, which had gone to the “warrant stage”, was marked with a $5 fine and costs; of the remaining six (6), two (2) were each marked respectively with fines of $2 and costs, two (2) with fines of $3 and costs, and two (2) with fines of $4 and costs. The “face value” of the thirty-nine (39) tickets is computed at $371, including costs and fees for those which had gone to the “warrant stage”; they were disposed of by Judge Diener by fines totalling $50 and costs amounting to $74. It would appear that the costs—assessed on each of the tickets—was payable to the Municipal Court Special Fund under the provisions of Art. 26, § 127, Ann. Code (1966 Repl. Vol.), for the operation of the Court. The fines for violation of the parking ordinances of the Mayor and City Council of Baltimore were payable to the City of Baltimore. See Art. 26, § 128 (b), Ann. Code (1966 Repl. Vol.).

Terl testified to using the same procedure with tickets he received from other individuals. In no case did he relate to any judge presiding in the Traffic Division any circumstances of alleviation, extenuation or mitigation surrounding the issuance of the tickets. A number of these tickets, with accompanying “court slips”, which were introduced in evidence disclosed that such proceedings were conducted before Judge Diener and in many, the disposition marked on the “court slip” was for less than the “face value” of the ticket.

Terl testified that in addition to so appearing before Judge Diener and using the above described procedure, he also appeared before Judge Broccolino and a number of other judges, although he testified he did not appear with such tickets before Judges Arabian, Blum or Stichel.

Edward Cohee has served as a court clerk in thé Traffic Division for thirty-four (34) years; during the period 1968-1970 he served in the Traffic Division of the Municipal Court. He accepted parking tickets from relatives, friends and acquaintances and presented them to Judge Diener for disposition. Sometimes he was accompanied by the defendant to whom the ticket had been issued, sometimes he appeared alone in their behalf. On occasions he presented a full explanation to the judge concerning the issuance of the tickets, if he was sp aware; on other occasions he did not, merely explaining to the judge that the named defendant was “a friend” and would ask the judge: “Would you mind if I asked you, Your Honor, if you could help this person—could you give him consideration”. He was always successful in at least getting the fine suspended. He presented a few such tickets to Judge Broccolino, but could not recall whether in such instances he had presented to the judge a full explanation or not. While he similarly presented such parking tickets to other judges presiding in the Court, he was afraid to present such requests to Judges Arabian, Blum and Thomas because he believed “they would frown” on the practice.

Edward S. Starkloff served as Chief Clerk of the Municipal Court during 1968 and 1969. He also accepted tickets from friends and acquaintances and in his capacity as such clerk would appear before Judge Diener without the named defendant being present. When he knew any extenuating circumstances under which the ticket might have been issued he would explain them to the judge, but there were occasions when he did not know the circumstances and any explanation from him was virtually non-existent.

Mrs. Jean Stecher worked as a secretary in the Probation Department of the Municipal Court during 1968 and 1969. She testified that a number of the judges, including Judges Broccolino and Diener as well as others, regularly visited the office occupied by her and John McWilliams, her supervisor, and gave parking tickets to McWilliams for processing. Mrs. Stecher testified that her instructions from McWilliams, which she followed, were to type up “court slips” naming as defendants fictitious and imaginary persons. Mr. McWilliams contradicted Mrs. Stecher’s testimony and both Judges Diener and Broccolino specifically denied that they had ever handled parking tickets in such a fashion.

In view of the other testimony presented to us and the documentary evidence in corroboration thereof we deem it here unnecessary to resolve this particular evidentiary conflict in arriving at our conclusions in this matter.

Judge Diener was initially sworn in to serve as a Judge on the Municipal Court on July 15, 1961, and was elected to a full ten-year term in 1962. During the years 1968 and 1969 from time to time, as assigned, he did preside in the parking court of the Traffic Division of the Municipal Court. By that time he knew who Terl was and he knew that when Terl appeared before him that he was appearing on behalf of another person. He believed that the thirty-nine (39) “Henry tickets” had all been presented to him at one session of the court. Judge Diener had no specific policy as to who could appear before him to answer such parking charges, and in some cases the persons appearing before him may not have been either the owner of the vehicle or the person to whom the citation had been issued. There were never any formally adopted policies or procedures by the court for the trial and disposition of parking ticket cases. The judges of the court met infrequently and never adopted a uniform practice or procedure and no rules of court were ever adopted or promulgated concerning the procedure for the trial and disposition of such parking ticket cases.

Judge Joseph Broccolino was elected to the Municipal Court in 1962 after running as an independent; prior to that he had served as a Trial Magistrate trying, however, only criminal cases. When he assumed his duties as a Municipal Court Judge and when assigned to preside in the parking court he sought the advice of veteran court clerks and of other judges, some of whom were ex-Magistrates, who had served in the old Traffic Court, as to the procedures to be followed. He believed that policies similar to those used by him were being used by other judges. He admitted he made no inquiry to determine whether the person who appeared and entered the plea before him was either the owner or operator of the car which had been ticketed; even in those cases where he may have known that the person appearing before him was not the owner or operator of the vehicle, he would treat the case on the same basis as others and such fact would make no difference in the disposition of the charge. He received no formal instruction, nor was he ever apprised of an established procedure, but over the course of time he evolved his own system and his own policies for the trial and disposition of such cases. 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.

In re: Formal Inquiry Concerning Judge A. Jerome Diener and In The Court of Appeals of Maryland Miscellaneous Docket (Judicial Disabilities)

Judge Joseph L. Broccolino, Jr. No. 1

September Term, 1972

AMENDED ORDER

For the reasons set forth in the majority opinion of this Court filed May 11, 1973, it is this 6th day of June, 1973

ORDERED by the Court of Appeals of Maryland that, effective May 11, 1973, Judge A. Jerome Diener and Judge Joseph L. Broccolino, Jr. be, and they are hereby, removed as Judges of the District Court of Maryland, without prejudice to their respective entitlement to whatever pension and other employment benefits accrued to each of them as of May 11,1973.

/s/ William J. McWilliams William J. McWilliams, Associate Judge

/s/ Frederick J. Singley, Jr. Frederick J. Singley, Jr., [SEAL] Associate Judge

/s/ Irving A. Levine Irving Á. Levine, Associate Judge

/s/ Charles E. Orth, Jr. Charles E. Orth, Jr^ Judge, specially assigned

1 . “Any Judge shall be removed from office by the Governor, on conviction in a Court of Law, of ineompeteney, of wilful neglect of duty, misbehaviour 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.”

2 . Declaration of Rights, Art. 33 provides: “Judges shall not be removed, except in the manner, and for the causes provided in this Constitution.”

3 . “4A (a) There is created a Commission on Judicial Disabilities, composed of five persons appointed by the Governor of Maryland. The members of the Commission shall be citizens and residents of this State. Three members of the Commission shall be appointed from among the judges of the Court of Appeals, the Circuit Court for the counties and of the Supreme Bench of Baltimore City; one member shall be appointed from among those persons who are admitted to the practice of law in the State, who have been so engaged for at least fifteen years, and who is not a judge of any court; and one member shall represent the public, who shall not be a judge, active or retired, and who is not admitted to the practice of law in this State. The term of office of each member shall be for four years commencing on January 1, except that of those persons first appointed to the Commission one shall be appointed for a term of one year, one for two years, one for three years, and two for four years and thereafter all terms shall be for four years. Whenever any member of the Commission appointed from among judges in the State ceases to be a judge, when any member appointed from among those admitted to the practice of law becomes a judge, when any member representing the public becomes a judge or is admitted to the practice of law in this State, or when any member ceases to be a resident of the State, in such case the membership of this member shall forthwith terminate. Any vacancies on the Commission shall be filled for the unexpired_ term by the Governor in the same manner as for making of appointments to the Commission and subject to the same qualifications which were applicable to the person causing the vacancy. No< member of the Commission shall receive any compensation for his services as such but shall be allowed any expenses necessarily incurred in the performance of his duties as such member.

(b) The concurrence of a majority of the appointed members shall be sufficient for the validity of any act of the Commission. The Commission shall select one of its members to serve as Chairman.

4B (a) A judge of the Court of Appeals, of the Circuit Courts for the Counties, of the Supreme Bench of Baltimore City, of the Orphans’ Courts and all other judges elected or subject to election, and those appointed if the full term of the particular office is for not less than four years, (including a judge holding office on the date of adoption of this Amendment) may, in accordance with the procedure described in this section, be removed for misconduct in office, persistent failure to perform the duties of his office or conduct which shall prejudice the proper administration of justice, or may be retired for' disability seriously interfering with the performance of his duties, which is, or is likely to become, of a permanent character. The Commission may, after such investigation as it deems necessary, order a hearing to be held before it concerning the removal or retirement of a judge. If, after hearing, the Commission finds good cause therefor as aforesaid, it shall recommend to the General Assembly the removal or retirement, as the case may be, of the judge.

(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 shall 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.

(c) All papers filed with and proceedings before the Commission on Judicial Disabilities, pursuant to this section shall be confidential, and the filing of papers with and the giving of testimony before the Commission shall be privileged. No other publication of such papers or proceedings shall be privileged in any action for defamation except that (a) the record filed by the Commission in the General Assembly continues to be privileged and upon such filing loses its confidential character and (b) a writing which was privileged prior to its filing with the Commission does not lose such privilege by such filing. The Commission and the General Assembly shall have the power to issue and enforce process to compel the attendance of witnesses and the production of evidence. The General Assembly shall by statute provide for procedure under this section before the Commission on Judicial Disabilities and by rule shall provide for procedure under this section in the General Assembly. A judge who is a member of the Commission shall not participate in any proceedings involving his own removal or retirement, and the Governor shall appoint a substitute member of the Commission for the purpose of said particular proceedings.

(d) This section is alternative to, and cumulative with, the methods of retirement and removal provided in Sections 3 and 4 of this Article, and in Section 26 of Article III of this Constitution.”

4 ._ Ҥ 4A (a) There is created a Commission on Judicial Disabilities composed of seven persons appointed by the Governor of Maryland. The members of the Commission shall be citizens and residents of this State. Four members of the Commission shall be appointed from among the judges of the appellate courts, the Circuit Courts^for the Counties, the Supreme Bench of Baltimore City and the District Court; two members shall be appointed from among those persons who are admitted to practice law in the State, who have been so engaged for at least fifteen years, and who are not judges of any court; and one member shall represent the public, who shall not be a judge, active or retired, and who is not admitted to practice law in this State. The term of office of each member shall be for four years commencing on January 1, except that of those persons first appointed to the Commission one shall be appointed for a term of one year, one for two years, one for three years, and two for four years and provided further that the additional lawyer member added by these amendments shall take office January 1, of the year next following adoption of these amendments by the voters and the additional judicial member on January 1, of the year after the additional lawyer member is to take office and thereafter all terms shall be for four years. Whenever any member of the Commission appointed from among judges in the State ceases to_ be a judge, _ when any member appointed from among those admitted to practice law becomes a judge, when any member representing the public becomes a judge or is admitted to the practice of law in this State, or when any member ceases to be a resident of the State, in such case the membership of this member shall forthwith terminate. Any vacancies on the Commission shall be filled for the unexpired term by the Governor in the same manner as for making of appointments to the Commission and subject to the same qualifications which were applicable to the person causing the vacancy. No member of the Commission shall receive any compensation for his services as such but shall be allowed any expenses necessarily incurred in the performance of his duties as such member.

§ 4B (a) The Commission on Judicial Disabilities shall have the power to investigate complaints against any judge of the Court of Appeals, any intermediate courts of appeal, the Circuit Courts, the Supreme Bench of Baltimore City, the Orphans’ Court and all other judges appointed or elected if the full term of the office is not less than four years (including a judge holding office on_ the date of adoption of this amendment); and to conduct hearings concerning the removal or retirement of a judge, administer oaths and affirmations, issue process to compel the attendance of witnesses and the production of evidence, and require persons to testify and produce evidence by granting them immunity from prosecution or from penalty or forfeiture. The Commission shall have the power to recommend to the Court of Appeals the removal or retirement of a judge. All proceedings, testimony, and evidence before the Commission shall be confidential and privileged, except that the record and any proceeding filed with the Court of Appeals shall lose its confidential character. No judge shall participate in any proceedings involving his own removal or retirement, and the Governor shall appoint another judge as a substitute member of the Commission for those proceedings. 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.

(b) Upon recommendation of the Commission that a judge be removed from office, or that he be retired, the Court of Appeals, 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, may remove the judge from office or may censure him, or the Court of Appeals, after hearing and upon a finding of disability which is or is likely to become permanent and which seriously interferes with the performance of his duties, may retire the judge from office. A judge removed under this section, and his surviving spouse, shall have the rights and privileges accruing from his judicial service only to the extent prescribed by the order of removal. A judge retiring under this section shall have the rights and privileges prescribed by law for other retired judges. No judge shall sit in judgment in any hearing involving his own removal or retirement.

(e) This section is alternative to, and cumulative with, the methods of retirement and removal provided in Sections 3 and 4 of this Article, and in Section 26 of Article III of this Constitution.”

5 . “For the purpose of any investigation or any proceeding under § 4B of Article IV of the Constitution of this State:

(1) Generally.—The Commission on Judicial Disabilities and the General Assembly are empowered to administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence and require the production of any books, papers, correspondence, memoranda, contracts, agreements, other records or tangible things which the Commission or the General Assembly finds relevant or material to the inquiry or proceedings. Oaths and affirmations may be administered by, and subpoena may be issued by, any member of the Commission or any officer of the General Assembly.

(2) Refusal to obey subpoena issued by Commission.—In case of contumacy by, or refusal to obey a subpoena issued to, any person, by the Commission, the Commission may invoke the aid of the circuit court for the county (or of the Superior Court of Baltimore City) where such person resides or carried on business or is found, in requiring the attendance of witnesses and the production of records. Such court may issue an order requiring such person to appear before the Commission, and there to produce records, if so ordered. Any failure to obey such order of the court may be punished by such court as a contempt thereof. All process in any such case may be served wherever such person is found.

(3) Refusal to obey subpoena issued by General Assembly.— Contumacy by, or refusal to obey a subpoena issued to, any person, by the General Assembly, may be punishable by the circuit court for a county (or by the Superior Court of Baltimore City), upon a complaint of the General Assembly invoked in the same manner as in subsection (2) of this section.

(4) Immunity from prosecution.—The Commission and the General Assembly shall have power to grant immunity to any person from prosecution, or from any penalty or forfeiture, for or on account of any transaction, matter or thing concerning which said person testifies or produces evidence, documentary or otherwise.

(5) Court of Appeals to provide for procedures.—The Court of Appeals, using its powers to make rules and regulations as authorized in § 18 of Article TV of the Constitution of Maryland, shall provide for procedures to he followed by the Commission in proceedings filed in or pending before it.”

6 . Before the matter was fully resolved by the Massachusetts Legislature, Judge DeSaulnier resigned.

7 . See generally Braithwaite, Judicial Misconduct and How Four States Deal With It, 35 Law. & Contemp. Prob. 151 (1970).