May a recalled Maryland judge serve on a county task force reviewing government oversight mechanisms?

Plain-English summary

A recalled judge asked about joining a county task force that would review oversight mechanisms, research practices, and recommend changes to the county executive. The task force would have no role in adopting or implementing its recommendations.

The Committee concluded that this purely advisory work satisfied the then-cited Rule 3.4’s law-related governmental-appointment requirement. It also said the judge could appear at public hearings or consult with government bodies about task-force work under Rule 3.2.

The opinion reserved possible Rule 2.11 disqualification in cases involving the county or its officials and cited Rule 3.1’s limits on interference with judicial duties and frequent disqualification. It left questions about dual or incompatible public offices to other authorities.

In practice

The holding depends on the task force’s advisory role and absence of implementation power. It does not resolve the judge’s recusal in a particular county-related case.

Common questions

Q: Could the task force implement its recommendations?

A: The described task force had no adoption or implementation role; the Committee relied on that limitation.

Q: Could the judge speak at a hearing about its work?

A: Yes, the Committee said Rule 3.2 permitted occasional appearances or consultations on the task-force work.

Q: Could county litigation require recusal?

A: Yes. The opinion cautioned that service might call impartiality into question in a case involving the county or its officials.

Background and rules framework

The opinion applies the then-cited Maryland Code of Judicial Conduct, Maryland Rule 16-813, A-109 and Rules 2.11, 3.1, 3.2, and 3.4. It identifies Maryland Constitution Article IV, § 3A as the recall provision.

Citations and references

Maryland Code of Judicial Conduct:

• Maryland Rule 16-813, A-109; Rules 2.11, 3.1, 3.2, and 3.4.

Constitutional provision:

• Maryland Constitution, Article IV, § 3A.

See also

• MD Judicial Ethics Op. 2013-11: Juvenile court task force

Source

• Landing page: Maryland Judicial Ethics Committee opinion index
• Original PDF: Opinion 2010-26

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Maryland Judicial Ethics Committee

Opinion Request Number: 2010-26

Date of Issue: January 6, 2011

Published Opinion 9 Unpublished Opinion 9 Unpublished Letter of Advice

Recalled Judge May Serve on County Governmental Task Force

Issue: A former judge approved for recall under Maryland Constitution, Article IV, § 3A has requested advice as to whether the judge may serve on a county governmental task force.

Answer: Yes.

Facts: As understood by the Committee, the task force is charged with reviewing county oversight mechanisms, researching best practices, and providing specific recommendations to the County Executive of that county. In addressing that charge, the task force will consider the establishment of an inspector general or similar “watchdog” position; review existing oversight mechanisms such as the county ethics board; research best practices utilized in other state and federal jurisdictions; and evaluate compliance of current practices with county policies and applicable law. The Committee further understands that the task force is responsible only for recommendations and will have no role in the adoption or implementation of those recommendations.

Discussion: A recalled judge is subject to the Maryland Code of Judicial Conduct, Maryland Rule 16-813, A-109, subject to certain exceptions not relevant to this request.

Rule 3.4 expressly provides that “[a] judge shall not accept appointment to a governmental committee, board, commission or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice.” (Emphasis added). The comments to the Rules “implicitly acknowledge[] the value of judges accepting appointment” to bodies “that concern the law, the legal system, or the administration of justice” because of their “special expertise in [such] matters.” As a member of an advisory body concerned with “the law, the legal system, or the administration of justice” the requesting judge is permitted, from time to time, to appear at a public hearing or consult with an executive or legislative body regarding the work of the task force, pursuant to Rule 3.2. We are thus persuaded that task force’s charge and its responsibilities satisfies the requisite criteria for the judge’s participation.

But, as to any extrajudicial activities, Rule 3.1 provides that the judge must not “participate in activities that will interfere with the proper performance of the judge’s judicial duties;” or “participate in activities that will lead to frequent disqualification[.]” The comment to Rule 3.4 points out “[a] judge may not accept a governmental appointment that could interfere Maryland Judicial Ethics Committee Opinion Request Number: 2010-26 Date of Issue: January 6, 2011

Published Opinion 9 Unpublished Opinion 9 Unpublished Letter of Advice

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with the effectiveness and independence of the judiciary, assume or discharge an executive or legislative power, or hold another ‘office’ under the Constitution or laws of the United States or the State of Maryland.” (Emphasis added). It is the Committee’s opinion that a purely advisory task force does not involve the exercise of either legislative or executive power. On the other hand, opinions requiring dual or incompatible offices traditionally have been rendered by the Attorney General and not the Committee. The judge is cautioned to consider whether, because of service on the task force, the judge’s “impartiality might reasonably be questioned” in cases arising involving that county or its officials and thus, under Rule 2.11, require disqualification or recusal.

Application: The Judicial Ethics Committee cautions that this opinion is applicable only prospectively and only to the conduct of the requestor described in this opinion, to the extent of the requestor’s compliance with this opinion. Omission or misstatement of a material fact in the written request for opinion negates reliance on this opinion.

Additionally, this opinion should not be considered to be binding indefinitely. The passage of time may result in amendment to the applicable law and/or developments in the area of judicial ethics generally or in changes of facts that could affect the conclusion of the Committee. If you engage in a continuing course of conduct, you should keep abreast of developments in the area of judicial ethics and, in the event of a change in that area or a change in facts, submit an updated request to the Committee.