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Judges oppose bid to change discipline

While Maryland's highest court pushes ahead with plans to revamp the state's much-criticized judicial discipline commission before legislators do it themselves, many trial judges are crying, "Objection!"

Whatever the outcome of the three-way tug-of-war, complaints against judges are likely to be handled more quickly and openly than they have in the past.

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Leaders of both houses have signed on as sponsors of a constitutional amendment that would put a majority of lay persons on the Commission on Judicial Disabilities, in response to criticism that it's too secretive, slow and unwilling to punish judicial misconduct.

Senate President Thomas V. Mike Miller Jr. predicted passage this session. "I expect we'll have a constitutional amendment," the Prince George's Democrat said yesterday. "You have to kill a snake while you have a hoe in your hand."

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Gov. Parris N. Glendening is also "concerned" about the commission and may get involved in the proceedings, possibly by proposing a panel to study the issue, spokeswoman Dianna Rosborough said.

Tuesday, the Senate Judicial Proceedings Committee heard testimony on the leadership amendment and a competing measure that would add lay members to the panel but leave a majority of judges and lawyers. The committee also considered a bill backed by the women's caucus to make other changes in the commission if a constitutional amendment passes.

The testimony came four days after the court system's Committee on Rules of Practice and Procedure sent to the Court of Appeals a proposal for administrative changes in the commission, which do not require amending the constitution.

The most important of those changes would lift a corner of the veil of secrecy by making the commission's proceedings public when a formal misconduct charge is pursued. Now, complaints may become public if referred to the Court of Appeals -- which has rarely happened.

Still secret under the court system's rules would be less serious actions, such as private reprimands or a new type of sanction called a "deferred discipline agreement." This could include having a judge write an apology or take sensitivity training.

The court system's proposal also calls for an investigator to pursue all nonfrivolous complaints and sets time limits for an investigation.

Some judges were unhappy with elements of the constitutional amendment or the court system's proposed rules.

Chief Judge Robert F. Sweeney of the Maryland District Court testified that he opposes a commission with a majority of lay members. Although he has publicly criticized the commission in the past, he said, "I think that's inviting chaos to have a majority with the sole qualification that they are untutored and unlettered in the law."

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Meanwhile, Baltimore County Circuit Judge James T. Smith Jr., who heads the Maryland Circuit Judges' Association, complained that the court system's proposed changes were rushed through without giving judges time to comment.

"This commission," he wrote, "should not be turned into a public relations medium to respond when there is public outcry against one or more judges."

Backers of the constitutional amendment and other reforms said it was time for a change. While many lawyers have long regarded the commission as ineffective, the public became interested after a pair of controversial cases in Baltimore County Circuit Court aroused the ire of women's groups.

In the first case, in 1993, a judge made sympathetic comments in sentencing a 45-year-old man for raping an intoxicated 18-year-old employee. In the second case, last October, another judge expressed sympathy for a trucker who fatally shot his wife after he found her in bed with another man.

The Commission on Judicial Disabilities considered the first case for 18 months before issuing a private reprimand to Judge Thomas J. Bollinger. Complaints are pending in the second case against Judge Robert E. Cahill Sr.

Critics said the commission takes too long and does too little.

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"Complaints fell into what we can only call the black hole," said Sen. Paula C. Hollinger, a Pikesville Democrat who began pushing for a constitutional amendment early in the 1995 legislative session. "That's not acceptable to the public -- certainly not the loss of confidence in the judicial branch."

The amendment would change the balance of power on the commission, which currently is composed of four judges, two lawyers and a lay person. The revised panel would have 11

members with a majority of six lay persons.

Other provisions would take disciplinary authority away from the Court of Appeals and allow the commission itself to censure or remove a judge. Part of the current secrecy provision would be eliminated, making complaints public when formal charges are pursued.

The issue has raised enough interest to prompt House leaders to lift an unofficial ban on consideration of constitutional amendments during nonelection years. If the amendment is approved with the necessary three-fifths vote this year, it would go before the voters in 1996.

Chief Judge Alan M. Wilner of the Court of Special Appeals said the court system's proposed rules "were not rushed to head off legislation." As chairman of the rules committee that oversees the discipline commission, the judge said proposals to change the commission were under way before the Bollinger uproar.

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He told the Senate committee Tuesday that if a mistake is made in defining the commission's powers, it is easier to change administrative rules than to pass another constitutional amendment.

While the legislature deliberates, the Court of Appeals will take comments on the proposed rules for 30 days, then hold a hearing.

The judges' association also is compiling members' views, Judge Smith said. "I don't think judges generally have any problems with streamlining and making the commission more effective. The issue is, let's do this in a reasonable fashion."



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