dissenting:
As I see it, the issue before the Court is not whether any of us would or would not have engaged in the activity in Carroll County in which Judge Foster engaged, but whether there is a constitutional basis for censuring him for his acts and, if there is such a constitutional basis, whether his acts amount to conduct prejudicial to the administration of justice.
I call attention, as I did in my dissenting opinion in In re Diener and Broccolino, 268 Md. 659, 304 A. 2d 587 (1973), to the statement in the note Remedies for Judicial Misconduct and Disability: Removal and Discipline of Judges, 41 N.Y.U.L. Rev. 149 (1966):
“[T]he difficulty with public reprimand is that it weakens public confidence in the judiciary and the respect of attorneys for the particular judge.” Id. at 173.
*479For that reason, we should be as slow to censure as to remove.
The starting point for this inquiry must be the Constitution of Maryland, Art. IV, § 4B (b) which provides:
“Upon recommendation of the Commission . . . 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 . . . .” (Emphasis added.)
The key word, it seems to me, is conduct. In drafting the constitutional provision it must have been realized that this standard is rather vague. As a practical effort to provide fundamental fairness for those members of the judiciary charged by the Commission on Judicial Disabilities (the Commission), the drafters required that as a minimum there must be conduct which is prejudicial to the proper administration of justice, not a reasonable suspicion of conduct prejudicial to the administration of justice or even conduct which creates a reasonable suspicion. It must be the conduct itself which is prejudicial. Clearly this calls for an affirmative finding that the judge actually did something improper. This is highlighted by what the Commission cites as the definition of reasonable suspicion — “imagination or conjecture of the existence of something evil or wrong without proof; apprehension of guilt or fault on slight grounds or without clear evidence.” Surely the drafters must have realized that to condemn someone “without proof” or on “conjecture” would shock the conscience and run afoul of our system of justice. The minimal requirement for wrongdoing is that a reasonable judge in his position would know that what he did, although not wrong in and of itself, would be prejudicial to the administration of justice because of the aura of misconduct created.
The Commission and the majority find that acts of Judge Foster which took place prior to July 1, 1971, the effective *480date of Canon XXIV of the Maryland Canons of Judicial Ethics and Rule 8 (Rule 9 since February 15, 1974) of the Maryland Rules of Judicial Ethics, were proscribed by that canon and rule.
To put this matter in proper perspective, I set forth the pertinent portions of the canon and rule here in question. Canon XXIV states:
“A judge should avoid giving ground for any reasonable suspicion that he is utilizing the power or prestige of his office to persuade or coerce others to patronize or contribute ... to the success of private business ventures .... He should, therefore, not enter into such private business, or pursue such a course of conduct, as would justify such suspicion, nor use the power of his office or the influence of his name to promote the business interests of others . . . .”
Rule 9 states:
“A judge shall not, directly or indirectly, lend the influence of his name or the prestige of his office to aid or advance the welfare of any private business or permit others to do so.. . .”
To censure Judge Foster under a canon and under a rule which did not become effective under the order of this Court until July 1, 1971,1 find repugnant to traditional concepts of Anglo-American jurisprudence and elementary fairness. It was precisely such conduct that led our forefathers to provide in Art. 15 of the Declaration of Rights in the Maryland Constitution of 1776:
“That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law ought to be made.”
A similar statement is found in Art. 17 of our present Declaration of Rights, with the addition that no *481“retrospective . . . restriction [should] be imposed, or required.” See Constitutional Revision Study Documents of the Constitutional Convention Commission of Maryland, 608-09 (1968). Thus, our Maryland provision was adopted 11 years before the similar prohibition in the Constitution of the United States, Art. 1, § 9.
It is true, as the majority states, that since November, 1966, it has been possible to discipline a Maryland judge for “misconduct while in office” or “conduct prejudicial to the proper administration of justice.” Were there an allegation here that prior to July 1, 1971, Judge Foster had decided a case or cases by reason of the importunings of his friends or if there were allegations that prior to that date he had decided a case or cases in which he was personally involved, one would not have the slightest difficulty in concluding that such acts would constitute misconduct in office or would be prejudicial to the administration of justice, because such acts on the part of any jurist traditionally have been regarded as improper. As I shall point out in my discussion of vagueness, however, just what conduct Canon XXIV and the present Rule 9 attempt to proscribe has not been completely and readily understood by the legal profession or the public generally.
The majority opinion refers to In re Troy, Mass., 300 N.E.2d 159 (1973), and the comment there that “[t]he conduct of Judge Troy [was] fairly to be assessed by reference to the [A.B.A.] Canons of Judicial Ethics which, in the period in which he served as a judge, stood as a generally accepted guide.” The activities there involved were such as might generally be recognized as forbidden. Judge Troy was found, among other things, to have made bail determinations improperly; to have “wilfully and for a prolonged period of time participated in filling a tidewater area in an illegal manner”; to have frequently and wrongfully worked during regular court hours at a project in which he had a personal financial interest; to have used court officers to do substantial work at that project during regular court hours at the expense of the public and for the personal financial benefit of himself and his family; to have *482given false testimony under oath, including testimony before the Supreme Judicial Court of Massachusetts which it characterized as “a deliberate, calculated, persistently repeated lie;” and to have failed “to give full time to the performance of his duties as a judge,” his “usual working hours at court [being] about 10 A.M. to 1 P.M. while the other full-time judge at the Dorchester court consistently worked a full day at the court house until the late afternoon.” Such conduct is a far cry from that with which we are here concerned. If the pre-July 1, 1971, conduct of Judge Foster were in this category, I would see no problem. The conduct of Judge Troy fell into categories traditionally understood to be improper and the case was decided on that basis.
Nowhere has the majority attempted to come to grips with a definition of the term “reasonable suspicion” as used in Canon XXIV, that canon which Judge Foster stands accused of violating, which is the crux of this case. No cases defining this term have been cited. In fact, I strongly doubt that there are any involving an interpretation of this term as used in the canon. I could find none.
We are familiar with the term “probable cause” in its civil context, as in malicious prosecution. In Banks v. Montgomery Ward & Co., 212 Md. 31, 128 A. 2d 600 (1957), a malicious prosecution case, Judge Hammond said for the Court on that subject:
“Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty. Johns v. Marsh, 52 Md. 323, 335; Nance v. Gall, 187 Md. 656, 669. Mere belief, however sincere, is not sufficient. There must be such grounds of belief founded upon actual knowledge of facts as would influence the mind of a reasonable person. Pessagno v. Keyes, 143 Md. 437.”
Id. at 39.
On the same subject Judge Delaplaine said for the Court in Kennedy v. Crouch, 191 Md. 580, 62 A. 2d 582 (1948):
*483“Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offense with which he is charged. Nance v. Gall, 187 Md. 656, 669, 50 A. 2d 120, 126. What facts are sufficient to show want of probable cause in any case is, of course, a question of law for the court; but whether such facts are proved by the evidence is a question for the jury. Cooper v. Utterbach, 37 Md. 282, 317; Campbell v. Baltimore & Ohio R. Co., 97 Md. 341, 344, 55 A. 532; Stansbury v. Luttrell, 152 Md. 553, 556, 137 A. 339; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116, 119.” Id. at 590.
If we search for a definition of the term “reasonable suspicion” and thereby equate that term, as used in the canon, with probable cause in the sense of a malicious prosecution case, I would be of the opinion that the evidence here does not provide “circumstances sufficiently strong in themselves to warrant a cautious man in believing that [Judge Foster] is guilty” of “utilizing the power or prestige of his office to persuade or coerce others to patronize or contribute ... to the success of [his] private business ventures.” His neighbor across the road by the name of Jones, conceded to be without special influence in the community, obtained rezoning for his tract before Judge Foster was ever approached to buy the one here in controversy. Carroll Dell, the Director of Planning and Public Works for the City of Westminster, testified that after the Foster application the local planning commission “deliberately put off [action] to see what the consultant would recommend in the way of zoning of this parcel of property.” The planner had been hired in February of 1969. His work was already in progress when Judge Foster appeared in January of 1970. The final recommendation of the planner was received in early 1971. The completed comprehensive plan for Westminster called for this land to be zoned R-10,000. The Director of Planning explained that there was no difference in density per acre in a planned unit *484development under the zoning ordinance between an R-7500 zone and an R-10,000 zone. The rezoning was not accomplished until after that planner’s report was received.
Relative to the change in the minimum width of townhouses from 25 feet, Mr. Dell testified that the engineers, who were doing the work for Monumental Properties Acquisitions, Inc. (Monumental), and another development in the area by another corporation, “picked this point up about the 25 feet and they came to us right away, came to me and called, ‘What is this requirement about 25 feet on a townhouse?’ They said, ‘We are doing the Meyerberg development and we are doing The Greens,’ which is what this is referred to now. ‘We can’t possibly live with that kind of a requirement as an engineer.’ ” Dell and his staff “check[ed] around with other areas [and] found that most townhouse widths were 16 feet, 18 feet, 20 feet, some 22.” He then explained:
“We finally came to a conclusion that we felt that a fair width would be 20 feet in view of the fact that we had other townhouses built in the City within five years of only 12 feet. So we felt that we were really upgrading our townhouse width and standard. Mr. Meyerberg wasn’t very happy about this because he wanted 18, 16, and 18 ft. widths. But we felt that we had to pick a standard.”
As of the time of his testimony Dell said that Myerberg, the promoter of the other development, had 150 dwellings under construction, while'Monumental, the promoter of the area with which Judge Foster was connected, had not yet broken ground. The amendment provided, that interior units might be 20 feet wide with a limit of six to a group, with the requirement for the end units remaining at 25 feet.
Dell also explained the matter of sewer and water connection charges. He said the former practice had been to connect without charge. Then a charge of $325 for water connection was adopted. In January, 1972, the $325 charge for both water and sewer (total of $650) was put into effect. He further explained:
*485“This, of course, was ample, at that time, to cover costs. The only thing we were trying to do with a connection charge is cover the costs of installing it. You don’t try to make money on connection charges. You make your money on benefit assessment charges or front foot assessment. That is the normal way of doing it. In fact, some counties only charge $150 for hook up charges. It is to offset actual construction costs. Monumental complained that this wras an unfair policy. That we were charging $325 for something that only cost them or their contractor $140 to $160 to put in at the time they laid the mains. Well, this made a lot of sense. Our ordinance was, you know, was adopted without taking into account with the fact that a developer would be coming in some day laying their own mains, which we do require. We won’t lay any mains for any developers. We make them extend all their own lines and pay for them and give them to us, lock, stock and barrel with no buy back agreements or anything. So this point did not seem like it was too far out of line. And there was meetings, several meetings held. The Council discussed it and we did some further research on it and we found that, probably, our $325 was unfair to a developer that was going to pay the cost of everything to put it in. So we reconsidered this point and agreed that we would go to $225 connection fee, if the service lines were installed at the time the mains were put in for a developer, if he was paying for the mains. A revision to our water and sewer ordinance was both drafted and both adopted by the Council to change this one item.”
He made plain that the developer who pays only $225 for the connection is obliged to extend the mains and give them to Westminster.
While it is admitted that this is not a criminal proceeding and there is a strong State interest in maintaining the judiciary’s reputation for integrity, nevertheless, a man’s *486reputation and livelihood are at stake. Surely, his interest in preventing the attachment of the stigma of censure is significant. For this reason, there is justification for a certain degree of comparison with the criminal justice system. The State’s interest in preventing murder and rape is strong. However, this interest does not permit conviction on a reasonable suspicion. In fact, we do not even permit an arrest or a search on a reasonable suspicion; there must be probable cause. All that is allowed is a limited stop and frisk to protect a police officer. Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968). Admittedly, reasonable suspicion is some form of standard, but would the Constitution permit our censure or removal of a judge on the basis of the same standard which excuses stop and frisk? I think not. I think if we use any definition of reasonable suspicion other than probable cause, as previously mentioned, then questions arise as to whether the term is so vague as to be unconstitutional.
Vagueness was discussed for this Court by Judge Prescott in State v. Cherry, 224 Md. 144, 167 A. 2d 328 (1961), where he said:
“The rule as to whether a penal statute is so vague and indefinite as to run afoul of the Due Process Clause of the Fourteenth Amendment (and Article 23 of the Maryland Declaration of Rights) has been stated many times by many courts. Perhaps, one of the most lucid expositions thereof is that of Mr. Justice Sutherland in Connally v. General Construction Company, 269 U. S. 385, 391, wherein it is said:
‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.. And a statute which either forbids or requires the doing of an *487act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law
‘The question whether given legislative enactments have been thus wanting in certainty has frequently been before this court. In some of the cases the statutes involved were upheld; in others, declared invalid. The precise point of differentiation in some instances is not easy of statement. But it will be enough for present purposes to say generally that the decisions of the court upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them, * * * or a well-settled common law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, * * * or, as broadly stated by Mr. Chief Justice White in United States v. Cohen Grocery Co., 255 U. S. 81, 92, “that, for reasons found to result either from the text of the statutes involved or the subject with which they dealt, a standard of some sort was afforded.” ’ (Emphasis added.)
This statement was repeated by Mr. Chief Justice Taft in Cline v. Frink Dairy Co., 274 U. S. 445, 459-460. See also Lanzetta v. New Jersey, 306 U. S. 451, 453; Musser v. Utah, 333 U. S. 95, 97; Winters v. New York, 333 U. S. 507, 515. And there are a long line of Maryland cases in accord therewith. Among them, see State v. Magaha, 182 Md. 122, 125, 32 A. 2d 477; Glickfield v. State, 203 Md. 400, 404, 101 A. 2d 229; Blake v. State, 210 Md. 459, 462, *488124 A. 2d 273; Miedzinski v. Landman, 218 Md. 3, 11, 145 A. 2d 220.” Id. at. 149-50.
Similar observations were made by Mr. Justice Marshall in Grayned v. City of Rockford, 408 U. S. 104, 92 S. Ct. 2294, 33 L.Ed.2d 222 (1972):
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘ “steer far wider of the unlawful zone” . . . than if the boundaries of the forbidden areas were clearly marked.’ ” Id. at 108-09. (Footnotes omitted.)
In Whitehill v. Elkins, 389 U. S. 54, 88 S. Ct. 184, 19 L.Ed.2d 228 (1967), Whitehill objected to being required, when taking a teaching position at the University of Maryland, to swear that he was “not engaged in one way or another in the attempt to overthrow the Government of the United States, or the State of Maryland, or any political subdivision of either of them, by force or violence.”. The oath, under the penalties of perjury, was one required pursuant to the authority of Maryland Code (1957) Art. 85A, § 11. The *489language used was an adaptation of § 13 into the words of the representation made by the Attorney General of Maryland to the Supreme Court at the time of argument of Gerende v. Board of Supervisors of Elections of Baltimore City, 341 U. S. 56, 71 S. Ct. 565, 95 L.Ed. 745 (1951). In the process of reversing a three-judge panel in the United States District Court for the District of Maryland which had dismissed a challenge to that oath, Mr. Justice Douglas said for the Court:
“The prescribed oath requires, under threat of perjury, a statement that the applicant is not engaged ‘in one way or another’ in an attempt to overthrow the Government by force or violence. Though we assume arguendo that the Attorney General and the Board of Regents were authorized so to construe the Act as to prescribe a narrow oath (1) that excluded ‘alteration’ of the Government by peaceful ‘revolution’ and (2) that excluded all specific reference to membership in subversive groups, we still are beset with difficulties. Would a member of a group that was out to overthrow the Government by force or violence be engaged in that attempt ‘in one way or another’ within the meaning of the oath, even though he was ignorant of the real aims of the group and wholly innocent of any illicit purpose? We do not know; nor could a prospective employee know, save as he risked a prosecution for perjury.” Id. at 59.
Probably the most recent pronouncement of the Supreme Court in the field of vagueness is found in Smith v. Goguen, 415 U. S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). There, Mr. Goguen had been prosecuted because he “wore a small cloth version of the United States flag sewn to the seat of his trousers.” He was prosecuted under a Massachusetts statute which then read in relevant part:
“Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States . . . , whether such flag is public or *490private property . . . , shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both.. . .”
Mr. Justice Powell there said for the Court:
“The statutory language under which Goguen was charged, however, fails to draw reasonably clear lines between the kinds of noneeremonial treatment that are criminal and those that are not. Due process requires that all ‘be informed as to what the State commands or forbids . . . / Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939), and that ‘men of common intelligence’ not be forced to guess at the meaning of the criminal law. Connally v. General Construction Co., 269 U.S. 385, 391 (1932). Given today’s tendencies to treat the flag unceremoniously, those notice standards are not satisfied here.
“We recognize that in a noncommercial context behavior as a general rule is not mapped out in advance on the basis of statutory language. In such cases, perhaps the most meaningful aspect of the vagueness doctrine is not actual notice but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement. It is in this regard that the statutory language under scrutiny has its most notable deficiencies.
“In its terms, the language at issue is sufficiently unbounded to prohibit, as the District Court noted, ‘any public deviation from formal flag etiquette. . . .’ 343 F. Supp., at 167. Unchanged throughout its 70-year history, the ‘treats contemptuously’ phrase was also devoid of a narrowing state court interpretation at the relevant time in this case. We are without authority to cure that defect. Statutory language of such a standardless sweep allows policemen, prosecutors, *491and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 165-169 (1972). In Gregory v. City of Chicago, 394 U.S. 111, 120 (1969), Mr. Justice Black voiced a concern that we share against entrusting lawmaking ‘to the moment-to-moment judgment of the policeman on his beat.’ The aptness of his admonition is evident from appellant’s candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:
‘. . . [A]s counsel [for appellant] admitted, a war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an “America — Love It or Leave It” rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.’ 471 F.2d, at 102 (emphasis in original).
Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.” Id. 94 S. Ct. at 1248. (Footnotes omitted.)
I regard it as of more than passing significance that Professor E. Wayne Thode, reporter for the Committee of the American Bar Association which revised the Code of Judicial Conduct of that association (the “Traynor Committee”), stated:
“When I was considering the substantive issues *492presented by Canon 25, and how they should be dealt with in the new Code, at no time did I consider recommending to the Traynor Committee that it consider using the standard of ‘reasonable suspicion.’ In my judgment the phrase was too nebulous and therefore too difficult to apply as a standard. I cannot recall that the phrase was ever discussed at a committee meeting, and I am substantially certain that no member of the committee ever suggested that we continue to use the standard of ‘reasonable suspicion.’ ”
It was under that “reasonable suspicion” interpretation of ABA Canon 25 (Maryland Canon XXIV) that it had been said that a judge should not act as an officer or director of a bank or other private business corporation. The Commission and the majority would have us understand that at the time of our adoption of the canons the interpretations thereof were fully understood by bench and bar, yet Professor Thode, in his Reporter’s Notes to Code of Judicial Conduct 81 (1973), is authority for the fact that a poll conducted by the Traynor Committee of appellate and trial judges across the length and breadth of this country showed over 14 percent of the appellate judges and over 13 percent of the trial judges answering the questionnaire to be directors of such corporations.
The fact that the nuances of this rule, with its vagueness, have not been fully comprehended by all is well illustrated by the oral comments of the Honorable S. Ralph Warnken, a retired judge of the Supreme Bench of Baltimore City, at the annual meeting of the Maryland State Bar Association in July, 1965. Judge Warnken was Chairman of the Committee on Judicial Ethics. He reported to the association that an individual who had been appointed to fill a vacancy in one of the circuit courts was a director of a building association at the time of his appointment. The new judge made inquiry of the committee as to “whether he could continue as such in an advisory capacity but still as a director after he qualified.” The comments of Judge Warnken are recorded in 70 Transactions of Md. St. B. Ass’n (1965):
*493“We took the position that there was no substantial difference between a bank and a building association these days because both of them advertise greatly, and they do list of course the persons who are the directors, and therefore our answer to the question was in our opinion it would be improper for a judge to be a director of a building association.
“I might add this. There is one very excellent judge in Maryland who had for many years been a director of a bank. I think he was also an officer, but it is the directorship I am undertaking to put the emphasis on, and this was called to his attention. He said he didn’t know it, he wasn’t entirely sympathetic with the view, but nevertheless that he was a stickler for exactness, and in view of the fact our Committee had so ruled in effect following the American Bar Association Committee he was resigning the position he had with the bank and which he had had for a long period of time.
“The importance of mentioning this matter at this time is that I understand that perhaps there are other situations like that of the one judge who did decide to resign after he learned what the A.B.A. Committee had decided. Also in case any new judges come along they will then have the benefit of how the Ethics Committee of this Association feels about it, and perhaps they will guide themselves accordingly.
“THE PRESIDENT: Judge Warnken, just an inquiry. I know the case of which you speak and I know it involved a very scrupulously ethical member of the Bench. I am just wondering if it would not be a fair proposition if this ruling in some manner were made known to all of the judiciary in the State. It seems to me that possibly there are members who are not aware of it, and if it is to be applied in one instance it seems to me it should be uniformly applied.
*494“JUDGE WARNKEN: Certainly I gave some thought to that, and there are two answers, Mr. Chairman. One is that I spoke to Mr. Invernizzi about it and he said in the bulletin of this Association, which I think he has something to do with preparing, which is sent to all the members, he thought it would be advisable to mention that particular phase of it. Then of course when we file our next report at the January meeting I would expect to mention that specifically.” Id. at 106-07.
I, too, know the very distinguished (now retired) judge to whom Judge Warnken made reference. He is the very soul of integrity. It obviously had not occurred to him prior to consideration of the matter by the committee of which he was a member that he should not serve on the board of a bank, yet we are told that such activity is proscribed by the very canon which we here have under consideration. I regard it as significant that in the adoption of the Canons of Judicial Ethics and the Rules of Judicial Ethics we apparently did not believe that Canon XXIV would sufficiently place judges on notice of the fact that they were forbidden to serve as a director of a bank because we adopted Rule 6 specifically stating that fact.
The argument is made in the majority opinion that the phrase “reasonable suspicion” is not “any more nebulous or less objective than the reasonable and prudent man test which has been a part of our negligence law for centuries.” What is overlooked, however, is that the latter test has been refined by judicial opinions during that period. For instance, this Court considered “reasonable care” in State v. Magaha, 182 Md. 122, 32 A. 2d 477 (1943). There, after observing that a statute which either commands or forbids the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application violates the constitutional guarantee of due process of law, Judge Delaplaine said for the Court:
“The prohibited act may be characterized by a general term without definition, if the term has a settled common-law meaning and a commonly *495understood meaning which does not leave a person of ordinary intelligence in doubt as to its purport, even though there may be in the definition of the term an element of degree as to which estimates of reasonable men might differ. State v. Andrews, 108 Conn. 209, 142 A. 840; Pacific Coast Dairy v. Police Court, 214 Cal. 668, 8 P. 2d 140, 80 A.L.R. 1217, 1223. An illustration of this principle is found in the decision that a statute forbidding any person to drive an automobile when intoxicated is not too indefinite to be enforceable merely because the statute fails to set up definite criteria of intoxication, because the condition of intoxication and its common accompaniments are so much a matter of general knowledge that definite and sensible effect may be given to the words of the statute. Maryland & Pennsylvania R. Co. v. Tucker, 115 Md. 43, 80 A. 688; Cumberland & Westernport Transit Co. v. Metz, 158 Md. 424, 149 A. 4, 565. Similarly the section now before us is as definite in its description as the subject matter will permit. The lack of reasonable care forbidden by the section is of such a nature that it would be impossible to describe the infinite variety of circumstances that may surround such cases. People v. McMurchy, 249 Mich. 147, 228 N. W. 723, 728. The term ‘reasonable care’ is a familiar expression in common speech and in the terminology of the law. Its accepted meaning is that degree of care which a person of ordinary prudence would exercise under similar circumstances. It is recognized, for example, that while an automobile is not such an inherently dangerous machine as to make the rule requiring extraordinary care in the use of dangerous instrumentalities applicable to such a means of conveyance, it may soon become dangerous in the hands of a reckless driver, and it is accordingly an established rule that every automobile driver is required to exercise that degree of care toward other travelers which a person of ordinary *496prudence would exercise under similar circumstances. Winner v. Linton, 120 Md. 276, 281, 87 A. 674; Whitelock v. Dennis, 139 Md. 557, 561, 116 A. 68; Spawn v. Goldberg, 94 N.J.L. 335, 110 A. 656; 36 Words and Phrases, Permanent Edition, 265-278.” Id. at 130-31.
In Director v. Daniels, 243 Md. 16, 221 A. 2d 397 (1966), this Court had before it a multi-pronged attack on the validity of Code (1957) Art. 31B, known as the Defective Delinquent Act. This included a determination as to whether the statutory definition of defective delinquent as defined in that article and as applied by the Maryland courts was “sufficiently definitive to permit its practical application within constitutional limitations.” In Sas v. State of Maryland, 334 F. 2d 506 (4th Cir. 1964), Judge Bell had posed a question as to whether this Court in its reference in Palmer v. State, 215 Md. 142, 137 A. 2d 119 (1957), to the term “emotional unbalance” as meaning a “psychopath” or a person with a “psychopathic personality” had rendered the definition so vague and meaningless that it failed to meet the test for definiteness required by the Fourteenth Amendment. This Court adopted the opinion of Chief Judge Digges and Judge Powers in the Circuit Court for Prince George’s County. That opinion, which became the opinion of this Court, said in part:
“We reach the conclusion from the testimony that if, in fact, the Maryland Court of Appeals had placed the word ‘psychopath’ without further explanation of the use of the term into the statutory definition that it then would be too indefinite to meet the constitutional test. We conclude, however, that careful reading of the Palmer case does not dictate this result....
“It seems clear to us, therefore, that the Court of Appeals was merely saying that the persons described by Guttmacher and Weihofen [, in their book Psychiatry and the Law,] as above quoted are ‘unbalanced people’ as that term is used in the Defective Delinquent Act. The term ‘psychopath’ as *497thus defined does have a definite meaning and describes a medically recognizable group of individuals. We conclude, therefore, that if the legislative enactment as interpreted by the Court of Appeals had defined an emotionally unbalanced person as being a psychopath with no further amplification of the meaning of the word ‘psychopath’, that its use in that manner would destroy its present acceptability as meeting the requirements of the Fourteenth Amendment. It seems clear to us that a reading of the Palmer case, in light of the testimony before us in this case, justifies the conclusion that the Court of Appeals was not in fact importing the term ‘psychopath’ into the statutory definition but that they were merely incidentally seeking another way of describing some emotionally unbalanced persons.”
Id. at 35-36.
Thus, it will be seen that that which might have been indefinite can be made definite by judicial interpretation and refinement. Unfortunately, however, there have been no interpretations or refinements here, just as the Supreme Court found in Smith v. Goguen, supra, that there had been no Massachusetts decisions refining the term which the Supreme Court found unconstitutionally vague in that case.
The judiciary — and the public — are entitled to have a standard to which they may look to determine what is or is not permissible. This canon provides no such standard. It is true, as the majority opinion indicates, that Judge Foster could have applied to the Committee on Judicial Ethics for a determination as to whether his proposed activity was permitted and then he would have been fully protected had he acted upon the basis of that committee’s ruling. But is a judge to be condemned because he did not have the foresight to apply for such a ruling? Heretofore, one probably would not have asked the advice of that committee unless a question existed in one’s mind relative to contemplated conduct. Attitudes brought out by this case may cause an increase in the work for that committee in the future, *498however. Take, for example, the problem posed by Judge Digges at the oral argument in this matter. Professor Laurence M. Katz, a member of the faculty of the University of Maryland School of Law and executive secretary to the Commission, appeared on behalf of the Commission. The record at oral argument at one point is as follows:
“Judge Digges: Well, take a perfectly simple thing. Suppose I want to build a room onto my house. I have to get a permit, so I apply for it. Someone could say, because I got it the next day, that it gave the appearance that they moved it up, quick, because I was a judge. Maybe I just wrote in for it.
“Professor Katz: Well, if indeed, the history was that everyone else who does the same thing that you do, it takes six months and you did it and it takes one week, so quick —
“Judge Digges: What should I do then, send it back and say, ‘Don’t give it to me yet’?
“Professor Katz: If, indeed, the fact that you as a Judge of the Court of Appeals get such service, and you are fearful that you will get such service and that will put you in a bad light, I think the answer is that you should not permit your name to be used to —
“Judge Smith: Not build the room?
“Professor Katz: No, I think you should not permit your name to he used in connection with the application.
“Judge Eldridge: How are you going to do that, use a fictitious name?
“Professor Katz: Judge Foster — Well, I think it has been suggested in some of the articles — not a fictitious name. Now let me, if I may, suggest that Judge Foster —
“Judge Digges: That might be fraud.
“Professor Katz: Judge Foster used Wheeler Holding Company. It would have been perfectly *499appropriate — perfectly appropriate for him to act as an anonymous participant in an investment in this particular case. We agree that he, as Judge Foster, using a lawyer would have assisted him not at all. But had Judge Foster used the Wheeler Holding Company as he started out, and a lawyer to represent the Wheeler Holding Company, then Mr. Dell would not have said we were impressed with him because he was Judge Foster.” (Emphasis added.)
Here was cited a perfectly innocent proposition, an application for a building permit for an addition to one’s home. Yet the executive secretary of the Commission is under the impression that if such a permit were quickly approved and came back by return mail when it normally takes six months to obtain such a permit that a reasonable suspicion would arise that the judge had improperly used the prestige of his office. The building permit ordinances with which I have been familiar have required applications for building permits to be in the name of the record owner of the property. Here the suggestion is made that the judge desiring a building permit “should not permit [his] name to be used in connection with the application.”
It seems to me that the definition of reasonable suspicion here is “in the psyche of the beholder,” strikingly reminiscent of the criteria advanced by Mr. Justice Stewart in Jacobellis v. Ohio, 378 U. S. 184, 197, 84 S. Ct. 1676, 12 L.Ed.2d 793 (1964), for discovering when pornography is “hard core,” i.e., that although he could not define it, “I know it when I see it.”
Just what conduct on the part of the judiciary is now forbidden by this canon? Are judges forbidden under pain of censure or removal to appear before a committee of the General Assembly in support of legislation which will improve their lot financially or make easier the administration of the courts in which they sit? If so, should we now proceed to censure all of the judges of this State who have engaged in such practice prior to July 1,1971, as well as since that date?
*500It may be, as is suggested, that reasonable suspicion is a readily understandable term. Consider, however, the record at the last oral argument when I attempted to obtain a definition of the term from Professor Katz. The record is:
“Judge Smith: Well now, tell me again how you define reasonable suspicion.
“Professor Katz: Reasonable suspicion is to be determined by the facts of the particular case by a fact finder who is to apply the standard of the reasonable man. I think both of our briefs agree to that.
“Judge Smith: Well, in other words, is what you are saying to me that — what you are saying to us — that Judge Foster is susceptible of censure if a reasonable man would have concluded that from that which took place that he had used the prestige of his office to advance his position? Is that what you are saying, sir?
“Professor Katz: Yes, or gave him a reasonable suspicion to.
“Judge Smith: Well, what is a reasonable suspicion? This is what I want to know. This is the problem.
“Professor Katz: Reasonable suspicion is whether the reasonable man would believe that, not thát he would necessarily conclude that the impropriety had occurred, but that there was smoke and hence there may very well be fire and when the smoke is caused by the judge’s putting himself into that position, the canon prohibits that and admonishes judges not to, I believe, get into a situation where by their activities they create the smoke whether or not there is fire.”
I believe thát the term “reasonable suspicion” is just as vague as the statement that one is not engaged “in one way or another” in an attempt to overthrow the Government by force or violence and just as vague as the prohibition against *501treating the flag of the United States “contemptuously.” As previously noted, the Supreme Court of the United States, in Whitehill v. Elkins, supra, and Smith v. Goguen, supra, respectively, has determined those two terms to be unconstitutionally vague. Surely, no judge, or any other person, should be placed in jeopardy on the basis of concepts as vague as those demonstrated in the colloquy between Judge Digges and Professor Katz or the smoke and fire definition advanced in the colloquy with me. In the example used by Judge Digges, the judge was absolutely innocent of any intent to use the prestige of his office for the advancement of his own personal ends, yet Professor Katz, as counsel for the Commission, concluded that a reasonable suspicion would exist that he had improperly used the prestige of his office.
As I see it, the test for disciplinary action is as stated in the Constitution and not as stated in the Canons of Judicial Ethics. No canon which fails to meet the standard of the Maryland Constitution, Art. IV, § 4B (b) is acceptable. While this Court clearly has the constitutional authority to promulgate procedural rules, it is highly questionable as to whether we can formulate a standard which differs from that in the Constitution. Clearly, we can interpret that provision and we can utilize provisions in the canons as an aid to our interpretation. However, an ad hoc incorporation seems unjustified, especially when the canon with which we are here involved appears not to meet the constitutional standards which speak of conduct.
This case is completely unlike Diener and Broccolino. There, evidence was presented indicating that pending criminal cases in the nature of charges of violations of the motor vehicle laws were disposed of without trial on a basis favorable to the accused. Such action obviously involved the administration of justice. The facts, if true, clearly amounted to conduct prejudicial to the administration of justice. Here, the charges in no way involve the actual administration of the courts. In effect, the allegation is that Judge Foster made a profit. The Commission has found that his acts gave an appearance of impropriety, although it has *502further found no actual improper conduct. I do not think we have yet come to the point in America where it is improper to make an honest dollar. The facts in this case clearly indicate, as pointed out earlier, that Mr. David Jones, a person of no particular prominence in the community, obtained similar zoning for his land before Judge Foster was ever approached relative to purchase of the tract with which he ultimately became involved.
We could afford to pay heed to the statement of the Supreme Court of California in In re Fahey, 505 P. 2d 1369 (Cal. 1973). It said in a disciplinary action against a lawyer:
“Offenses that do not involve moral turpitude or affect professional performance should not be a basis for professional discipline simply because they fall short of the highest standards of professional ethics or may in some way impair the public image of the profession. Otherwise the imposition of discipline may tend to be influenced by the degree to which the offense has become known to the public. (See Weckstein, Maintaining the Integrity and Competence of the Legal Profession, 48 Texas L.Rev. 267, 279). Our standard of moral turpitude depends not on popular impressions but on the violator’s own motivation as it relates to his moral fitness to practice law. (Hallinan v. Committee of Bar Examiners, supra, 65 Cal.2d 447, 461-462, 55 Cal. Rptr. 228, 421 P.2d 76; see Yakov v. Board of Medical Examiners, supra, 68 Cal.2d 67, 73-74, 64 Cal. Rptr. 785, 435 P.2d 553.)” Id. at 1376. (Footnote omitted.)
In the law review article to which reference was made, D. Weckstein, Maintaining the Integrity and Competence of the Legal Profession, 48 Texas L. Rev. 267 (1970), the author states:
“The reported cases seem to reflect an attitude that attorneys guilty of this conduct [(crimes involving moral turpitude)] will only be disciplined when their misbehavior becomes a matter of public *503notoriety. While the respect for lawyers, and consequently the law, would seem to suffer the most harm in those cases, it is questionable whether the offender is deserving of any greater penalty because of such happenstance. Discipline in these cases ‘seems more vindictively punitive than it does selectively preventive.’ ” Id. at 279. (Footnotes omitted.)
One may suspect, however well intentioned the original investigation by the media might have been, that without the hue and cry of certain elements of the media against Judge Foster no reasonable suspicion of his misconduct would have been perceived by anyone anywhere. Be that as it may, and regardless of what reasonable suspicion means or whether it is constitutional, everyone admits Judge Foster did nothing wrong. That was the finding of the Commission. Conduct which is not wrongful does not become wrongful conduct merely because it creates a suspicion in some others that it might be. Conduct which is not prejudicial to the administration of justice does not become conduct which is prejudicial because it creates a suspicion in some others that it might be. When there is an affirmative finding of no evil or wrong, there is little that the imagination can conjure up. The Commission argues that acts innocent in and of themselves, when taken together, can create a picture which might lead a reasonable man to suspect foul play. However, this is no standard at all. The number of possible situations in which an individual who does not know all the facts, when confronted with a few select ones, might “reasonably suspect” wrongdoing is limitless.
The majority holds that a judge cannot enter a business venture for the purpose of making money and pursue it with full vigor but within the bounds of propriety if the public might suspect that there was something improper. Not even a judge should be asked to go through life in constant fear that something he does or says, though proper, may be misinterpreted, thereby causing him to be censured or removed.
*504I am of the opinion that the conduct of Judge Foster here was not conduct prejudicial to the proper administration of justice. I am further of the opinion that the standard applied is unconstitutionally vague and is improperly applied to acts occurring prior to July 1,1971.
I am authorized to state that Judge Digges concurs in this opinion.