“A Pattern Of Discourtesy And Uncontrollable Incivility”
The Maryland Court of Appeals has suspended a judge for misconduct described in the court’s headnote
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 Maryland Rule 4-601 and internal courthouse procedures. Moreover, Judge Russell instructed a law clerk to destroy the warrant materials. In addition, she repeatedly yelled at court clerks and judges. She subjected court clerks to lineups when clerical mistakes were made, and on one occasion physically pushed a clerk. Judge Russell also repeatedly attempted to undermine the authority of the administrative judge of her court and judges delegated administrative duties.
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 a consecutive six-month suspension without pay, with her reinstatement conditioned upon her completion of remedial measures set forth by this Court.
The judge sought to suppress evidence seized in the courthouse
Here, according to Judge Waxman, Respondent’s search warrant materials were discovered in a courthouse where Respondent had not worked for approximately two months. The boxes were labeled “Russell” and “Civil,” and they were found in an unsecure location. Judge Waxman explained, and neither party disputes, that “[t]he boxes were found in the law clerks’ office . . . not in a judge’s chambers.” The office was “the judges’ clerks’ office where there’s a little portion of the clerks’ office that’s been set aside for the law clerks, but it’s all one big area.” In that location, the boxes were accessible by individuals working inside and outside of the judiciary. In sum, Respondent stored her boxes of warrants unsecure and in a high-traffic area that was outside of her personal workspace and immediate attention. As a result, Respondent cannot claim a reasonable expectation of privacy in the boxes, as is necessary to prevail on her Motion to Suppress. Therefore, we conclude that Respondent’s Motion to Suppress was properly denied pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, Articles 22 and 24 of the Maryland Declaration of Rights, and Md. Rule 4-601.
In a footnote, the court questioned whether the exclusionary rule would be available in judicial misconduct proceedings.
No basis to dismiss
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.” Md. Rule 18-401(k)(1). In addition, the allegations of judicial misconduct brought against Respondent have not been the subject of a prior action before any tribunal which resulted in a final judgment.
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.
Before the court on the merits
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.
A misconduct finding was warranted as to the warrants
Here, however, Respondent utterly failed to fulfill her duty under Md. Rule 4-601 to file executed warrants with the clerk’s office. She also admittedly failed to comply with the internal policy that prohibited a judge from signing a search warrant return for another judge unless the two judges were assigned to the same court when she handled a search warrant return for Judge Gordon. Moreover, her nomad boxes were kept in a public area, accessible to numerous individuals inside and outside of the judiciary. Her inattention demonstrates a disregard for the critical nature of search warrants and her duties under Md. Rule 4-601.
The court recites the evidence of discourteous interactions with staff and other judges
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.
Concluding
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 address a scheduling matter, which not only violated internal operating procedures, but disturbed the ongoing proceedings in that court. On multiple occasions, Respondent defied the directives of administrators and supervisors, and even attempted to undermine their authority. On one occasion, Respondent accused her Chief Judge of threatening her without cause.
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…
We, therefore, uphold the Commission’s conclusions of law and overrule Respondent’s exceptions thereto.
More than a personality clash
Respondent, indeed, has exhibited a pattern of incivility that has had demonstrated adverse effects on the District Court where she sits. The Commission has pointed to 15 judges and several members of the courthouse staff who came forth to testify in this proceeding about Respondent’s behavior from 2007-2015. Her colleagues identified no less than 13 instances in three years (2014-2017) where Respondent exhibited disrespectful and demeaning behavior, many instances of which were in public. Her conduct resulted in a toxic environment. Collectively, her colleagues described that, when working in the same courthouse as Respondent, the atmosphere was hostile, tense, dysfunctional, stressful, and unpleasant. They explained that when Respondent is in the vicinity, judges tend to keep to themselves, close their doors, and “[e]verybody is walking on eggshells.” Her conduct, according to her District Court colleagues, “has created . . . a division and divide among [their] bench.”
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, Chief Judge Morrissey received information from more than a dozen District Court judges who indicated that they were in contentious relationships with Respondent. Respondent has demonstrated a pattern of violating the Maryland Rules. Her misconduct has fostered an uncomfortable work environment in the District Court, yet Respondent has maintained an unwillingness to alter her conduct. The widespread effects that her misbehavior has had on the administration of justice warrants this Court’s sanction…
We set as conditions precedent to Respondent’s reinstatement of her duties as a judge that Respondent shall: (1) submit to a health care evaluation, to be performed by a qualified health care professional or professionals who are acceptable to the Commission and, ultimately, this Court, for a complete emotional and behavioral assessment; (2) fully cooperate in the health care evaluation and comply with the recommended course of treatment, including counselling, if any; and (3) if and when Respondent applies for reinstatement, she shall provide, to the Commission and ultimately this Court, a written report from the evaluating health care professional or professionals as to her current medical condition, including any reason for which she should not be reinstated as a judge of the District Court. In addition, Respondent’s reinstatement is conditioned upon her satisfactory completion of an approved course on judicial ethics as recommended by the Commission.
Oral argument video linked here.
The Baltimore Sun recently reported on new allegations against the judge.
District Court Judge Devy Patterson Russell is accused of violating the state’s rules of judicial conduct. The commission’s investigative attorneys allege she used her influence as a judge to try to embarrass a colleague, Judge Catherine “Katie” Curran O’Malley.
Russell, a district judge since 2006, has long disliked O’Malley, two other judges testified on Monday.
Russell faces a six-month suspension from an earlier case, in which the commission found she yelled at other judges and staffers, pushed a courthouse employee and neglected search-warrant paperwork.
The commission recommended the suspension in November, finding that her behavior and comments “were undignified, uncooperative, discourteous, demeaning, and clearly demonstrate a pattern of serious violations of the Maryland Code.” But it’s up to the Maryland Court of Appeals to decide whether to impose the suspension — and the court has not yet ruled.
At issue this time is an incident that happened in O’Malley’s courtroom in January 2015.
Investigative attorneys say Russell spread a rumor that that O’Malley had used profanity toward a citizen in the courtroom, telling others at the courthouse that O’Malley used “the F-bomb.” They alleged that Russell tried to influence bailiffs to change a report about the incident.
Russell’s alleged conduct, investigative attorney Tanya C. Bernstein said at the hearing, “demonstrates a lack of respect for the office she holds.” Russell is accused of breaking rules about promoting confidence in the judiciary, cooperating with other judges and avoiding using the prestige of office for personal interest.
Russell’s attorney, William C. Brennan, Jr., emphasized she never leaked any information to the news media about the incident and said there would be no testimony that Russell instructed a bailiff what to write in the report.
(Mike Frisch)