Rule 18-422 - Investigation by Investigative Counsel(a)Conduct of Investigation.(1)Duty to Conduct; Notice to Board and Commission. If a complaint is not dismissed in accordance with Rule 18-421, Investigative Counsel shall conduct an investigation to determine whether there are reasonable grounds to believe that the judge may have a disability or impairment or may have committed sanctionable conduct. Investigative Counsel shall inform the Board and the Commission promptly that the investigation is being undertaken.(2)Investigative Subpoena. The issuance of an investigative subpoena is governed by Rule 18-409.1(a).(3)Grant of Immunity. Upon application by Investigative Counsel and for good cause, the Commission may 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 that person testifies or produces evidence, documentary or otherwise. Cross reference: See Md. Const., Art. IV § 4B(a)(1)(ii) and Code, Courts Article, § 13-403.
Committee note: The need for a grant of immunity in order to compel the production of evidence may arise at any stage. Placing a reference to it here is not intended to preclude an application to the Commission in a later stage of the proceeding.
(4)Notice to Judge.(A) Upon Opening of File. Judges may request the Commission to inform them in writing promptly upon the opening of a file pertaining to them pursuant to Rule 18-421(e) or (f). The request shall be in writing. If such a request is received, Investigative Counsel shall comply with that request unless the Board authorizes a delay in providing the notice upon a finding that there is a reasonable possibility that immediate notice may jeopardize an investigation by Investigative Counsel or cause harm to any person. The notice shall be accompanied by a copy of the complaint.(B) Upon Service of Investigative Subpoena. Upon service of an investigative subpoena pursuant to Rule 18-409.1, Investigative Counsel shall (i) serve a copy of the subpoena upon the judge under investigation as required under Rule 18-409.1(a)(3) and (ii) unless notice was given to the judge pursuant to subsection (a)(4)(A) of this Rule, include that notice with a copy of the subpoena.(C) Prior to Conclusion of the Investigation. Subject to subsection (a)(4)(F) of this Rule, unless notice has been given to the judge pursuant to subsection (a)(4)(A) or (B) of this Rule, it shall be given before conclusion of the investigation.(D) Content. Investigative Counsel's notification to the judge shall be in writing and shall state: (i) that Investigative Counsel has undertaken an investigation into whether the judge has a disability or impairment or has committed sanctionable conduct; (ii) whether the investigation was undertaken on Investigative Counsel's initiative or on a complaint; (iii) if the investigation was undertaken on a complaint, the name of the person who filed the complaint and the contents of the complaint; (iv) the nature of the alleged disability, impairment, or sanctionable conduct under investigation; and (v) the judge's rights under subsection (a)(5) of this Rule.(E) Service. The notice shall be given by first class mail and by certified mail requesting "Restricted Delivery--show to whom, date, address of delivery and shall be addressed to the judge at the judge's address of record. Service shall be complete upon mailing in accordance with Rule 1-321.(F) Exception. Notice shall not be given under this Rule if Investigative Counsel determines, prior to the conclusion of the investigation, that the recommendation of Investigative Counsel will be dismissal of the complaint without a letter of cautionary advice and the judge had not been given notice of the opening of the file pursuant to subsection (a)(4)(A) or (B) of this Rule. Committee note: If, pursuant to subsection (a)(4)(A) or (B) of this Rule, the judge had received notice of the opening of a file, the judge also must be given notice that the complaint was dismissed or that any inquiry by Investigative Counsel pursuant to Rule 18-421(f) was terminated.
(5)Opportunity of Judge to Respond. Upon the issuance of notice pursuant to subsection (a)(4) of this Rule, Investigative Counsel shall afford the judge a reasonable opportunity prior to concluding the investigation to present such information as the judge chooses and shall give due consideration to the judge's response before concluding the investigation.(6)Time for Completion. Investigative Counsel shall complete an investigation within 90 days after the investigation is commenced. Upon application by Investigative Counsel within the 90-day period and for good cause, the Board, with the approval of the Chair of the Commission, may extend the time for completing the investigation for a reasonable period. An order extending the time for good cause shall be in writing and shall articulate the basis of the good cause. The Commission may dismiss any complaint and terminate the investigation for failure to comply with the time requirements of this section.(b)Report and Recommendation by Investigative Counsel.(1)Duty to Make. Upon completion of an investigation, Investigative Counsel shall make a report of the results of the investigation in the form that the Commission requires.(2)Contents.(A) The report shall be in three distinct parts.(B) Part 1 shall contain a statement of relevant factual information obtained by Investigative Counsel and shall include, in the body of the report or as attachments to it, (i) recorded witness statements and summaries of unrecorded witness statements, and (ii) any response or other information provided by the judge pursuant to subsection (a)(5) of this Rule.(C) Part 2 shall contain Investigative Counsel's analysis or evaluation of the material in Part 1 and legal conclusions drawn therefrom, which are in the nature of Investigative Counsel's work product.(D) Part 3 shall contain Investigative Counsel's recommendations, including a statement that the investigation indicates probable sanctionable conduct, probable impairment, probable disability, any of them, or none of them, together with one of the following recommendations, as appropriate: (i) dismissal of any complaint, without a letter of cautionary advice;(ii) dismissal of any complaint, with a letter of cautionary advice;(iii) a conditional diversion agreement;(v) the filing of charges; or(vi) retirement of the judge based upon a finding of disability.(3)Recipients of Report.(A) In addition to complying with subsection (b)(3)(B) or (C) of this Rule, Investigative Counsel shall serve a copy of Parts 1 and 3 of the report on the judge if the subject judge is a judge to whom notification of the investigation is required under subsection (a)(4)(A), (B), or (C) of this Rule.(B) If the recommendation is dismissal of the complaint without a letter of cautionary advice, Parts 1 and 3 of the report and recommendation shall be made to the Commission. Upon receipt of the recommendation, the Commission shall proceed in accordance with Rule 18-425.(C) Otherwise, the report and recommendation shall be made to the Board. Committee note: A complaint may be dismissed outright and without a letter of cautionary advice for various reasons, at different stages, and by different entities. Investigative Counsel may dismiss a claim on Investigative Counsel's own initiative, without opening a file, pursuant to Rule 18-421(b). In that instance, no notice need be given to the judge. If Investigative Counsel opens a file pursuant to Rule 18-421(e) or (f) and performs an investigation under this Rule, Investigative Counsel may recommend dismissal without a letter of cautionary advice because, as a factual matter, there is insufficient evidence of a disability, impairment, or sanctionable conduct or because the complaint is stale. In that situation, if the Commission, or, in the case of a stale complaint, the Board adopts the recommendation, there is no need for notice to the judge unless the judge has requested such notice. If a matter other than a stale complaint proceeds to the Board, the judge must receive notice, even if the ultimate decision is to dismiss the complaint.
(c) Records. Subject to a retention schedule approved by the Chief Judge of the Court of Appeals, Investigative Counsel shall keep a record of the investigation.Md. R. Jud. & Judi. Appts. 18-422
This Rule is in part derived from former Rule 18-404(e) and (f) (2018) and is in part new.
Adopted May 15, 2019, eff. 7/1/2019; amended Nov. 28, 2023, eff. 1/1/2024.