dissenting:
I agree with my Brother Smith that the provisions of Maryland Rule 1227 purporting to give the Commission on Judicial Disabilities the power to censure are unconstitutional for the reasons so well reasoned and articulated in his dissenting opinion. I also fully concur with his dissent in regard to the “inherent power to remove” which the majority seems to think this Court probably has, notwithstanding a specific limitation on the power to remove judges in Article 33 of the Declaration of Rights of the Maryland Constitution.
As Judge Smith has indicated, if this matter were properly before us, I would not (as he would) vote to remove Judges Diener and Broccolino. In my opinion, (1) we have no power to escalate the sanction recommended to us by the Commission under the applicable constitutional provisions and also in the absence of any Rule purporting to enlarge or redefine our powers under Subsection (b) of Section 4B and (2) assuming, argu~ *728endo, that we had such power, I am of the opinion that the facts found by the Commission, and adopted by the majority, do not justify the removal of the two judges by this Court, but, at the most, will only support a censure by us of the two judges as recommended by the Commission.
Apart from our obvious obligation to give great weight to the recommendation of the Commission on Judicial Disabilities (the Commission), it should be observed that we and the people of Maryland are fortunate in the backgrounds and special abilities of the members of the Commission who rendered the public service imposed upon them in hearing the present case. The Chairman of the Commission, the Honorable William J. O’Donnell, a judge of the Supreme Bench of Baltimore City, is not only an excellent and well-regarded trial judge, but, prior to his appointment to that Bench, was State’s Attorney of Baltimore City. He is obviously well equipped to make careful findings of fact and to render a proper recommendation to us. Judge Richard P. Gilbert of the Court of Special Appeals, Judge James H. Taylor of the Circuit Court for Prince George’s County and Judge Charles E. Edmondson of the District Court are also careful, well-qualified judges. The lawyer members of the Commission who sat in the instant case, William L. Marbury, Esquire, and Carroll W. Royston, Esquire, are eminent practitioners of the law. Their analysis of the facts in the present case and their recommendation to us, based upon their analysis of the facts found by them, are also entitled to great weight. The findings of fact, the conclusions drawn from those facts, and the recommendation of the Commission were unanimous. These distinguished members of the Commission saw the witnesses in the ease, observed their demeanor, carefully evaluated their testimony, as well as the documentary evidence in the case, as their 21-page opinion clearly indicates. The majority properly adopts the findings of fact by the Commission but, in my opinion, is in error in declining to adopt the conclusions drawn by the Commission from *729those facts and its recommendation of censure as the maximum sanction in this case.
The conclusions of the Commission were stated on pages 20 and 21 of its opinion, as follows:
“In great measure these two (2) judges were the victims of a system and the continuity of a practice which had continued for many years. Respectively upon appointment and election to the Municipal Court they were given no formal procedures to follow, but left largely to fend for themselves and they followed what had been acceptable ‘precedent’. They were indoctrinated in whatever procedures they followed and became dependent upon the very clerks who curried favors with them. Most of these clerks were inherited from the former Traffic Court— with its shortcomings—and became ‘blanketed’ into the system and continued to serve as clerks in the Traffic Division of the Municipal Court under the provisions of Art. 26, § 126 (c) (1966 Repl. Vol.).
“We heard no evidence of any continuation of the practices herein set forth since the inception of the District Court in July 1971. All civil, criminal and traffic trials before judges of the District Court, since the inception of the Court, are recorded verbatim, under the provisions of Maryland District Rule 4a. Although a person other than the registered owner of the vehicle— such as an operator or a bailee—may appear at the Court to stand trial on a parking ticket, it is necessary, before a ‘court slip’ can be prepared and the case ‘added-on’ to the printed docket, to obtain the approval of the Administrative Judge of that Court.
“While we must do our part to condemn, and to prevent a revival of the practices which we found to exist during the period 1967 to 1970, *730an overly harsh retribution is not called for in the case of these two (2) judges. Neither Judge Diener nor Judge Broccolino were shown to have personally benefited from any of their actions, either financially or otherwise.
“If we had the power to issue a reprimand to each of the judges we would do so; since we do not have such power within the dispositions available to us, we recommend to the Court of Appeals that euch of them be censured.”
(Emphasis supplied)
It will be seen from the last sentence, supra, that the only doubt the Commission had was in regard to whether it should even recommend censure of the two judges, stating that if it had the power to reprimand, rather than to censure, it would have done so. It takes much doing indeed to find—as the majority has—that the facts found by the Commission and accepted by it warrant the removal of the two judges, the highest and most injurious sanction of all.
(1)
The first question to be considered on this aspect of the case is: Does this Court have the power to escalate the sanction recommended to us by the Commission? I think the answer to that question is “No” for two reasons: (a) such power is not given to us by thé applicable constitutional provisions and (b) we have not attempted to “implement” the constitutional provisions by any Rule which even purports to enlarge or redefine our powers.
(a)
It will be observed that Subsection (b) of Section 4B of Art. IV of the Maryland Constitution in specific terms limits our power to act at all only upon a recommendation by the Commission of removal or retirement. Such a recommendation by the Commission is a condition precedent to our action, as Judge Smith has so ably pointed out in his dissenting opinion. This mandatory require*731ment was deliberate and not inadvertent as the legislative history referred to by Judge Smith clearly indicates. The adoption by this Court of Maryland Rule 1227, seeking to give the Commission the power to censure, is not only unconstitutional, as Judge Smith observes, but it also does not purport to expand or redefine the powers of this Court so far as its action is concerned after a recommendation by the Commission of censure only.
(b)
Assuming for the argument only that this Court has the constitutional authority to confer upon the Commission the power to recommend censure, in addition to the Commission’s specifically granted powers to recommend removal or retirement, even then, Rule 1227 should have stated—but did not—that, upon such a recommendation of censure, this Court may then proceed as provided in Subsection (b). In short, there is a serious omission in Rule 1227 so that, in my opinion, the mandatory language of Subsection (b) stands unchallenged and unmodified or “implemented.” The two judges are, as I see it, entitled to the benefit of this omission as well as the rather clear provisions that this Court may diminish or mitigate any recommendation of the Commission of removal by imposing the lesser sanction of censure. There simply is no provision in Subsection (b) which purports to give this Court the power to escalate the sanction recommended by the Commission. The language and the intent of the constitutional provisions are to the contrary. In sum, in the posture of the present case, we have two alternatives, (1) to adopt the recommended censure or (2) to dismiss the case. We should not assume the power to escalate the sanction recommended by the Commission in the teeth of the language of Subsection (b) and the intent of the constitutional provisions.
(2)
Assuming, arguendo, that the matter is properly before us and that we have the power to escalate the sanction, do the facts found by the Commission and adopted *732by the majority justify the sanction of removal? I think not.
I have much difficulty in understanding the two paragraphs of the majority opinion stating:
“The Commission seems to be saying that the phrase ‘conduct prejudicial to the proper administration of justice’ is a concept which is relative. Whether this concept is correct makes little difference here. That neither Judge Diener nor Judge Broccolino derived any financial benefit from his actions seems to us wholly irrelevant. Nor do we see any merit in the notion that because some other judges may have pursued the same course the conduct of Judges Diener and Broccolino somehow becomes blameless. Precisely what ‘conduct prejudicial to the proper administration of justice’ is or may be, in any or all circumstances, we shall not undertake to say. Indeed, a comprehensive, universally applicable definition may never evolve but it is unlikely we shall ever have much trouble recognizing and identifying such conduct whenever the constituent facts are presented.
“We have not the smallest doubt, however, that the disposition of cases for reasons other than an honest appraisal of the facts and the law, as disclosed by the evidence presented, will amount to conduct prejudicial to the proper administration of justice whenever and however it may be defined or whoever does the defining. Viewed in this light we must agree with the Commission that Judge Diener and Judge Broccolino engaged in conduct prejudicial to the proper administration of justice and we see no alternative to the entry of an order removing them.”
With respect, these statements are confusing to me, seem to beg the question involved and are strikingly *733reminiscent of the criteria advanced by Mr. Justice Stewart in Jacobellis v. Ohio, 378 U. S. 184, 197, 84 S. Ct. 1676, 1683, 12 L.Ed.2d 793, 804 (1964), for discovering when pornography is “hard core,” i.e., that although he could not define it, “I know it when I see it.” If these statements mean that the facts in the present case and their interpretation and conclusions by the Commission require removal, I most certainly disagree, having not the “smallest doubt” that they do not justify removal but only justify censure at the most. I think that every consideration of public policy in this sensitive area of such vital importance, not only to Judges Diener and Broccolino, but to the entire judiciary of this State, should lead the majority to define in an understandable manner what the phrase “conduct prejudicial to the proper administration of justice” means with more precision and not to leave its meaning dangling, as the majority appears to me to do. In my opinion the majority would have done well to state clearly that the concept of the Commission that the phrase is relative is correct and that the ultimate decision depends on the facts in each case.
The conclusion of the Commission that “By whatever standard one may apply, we believe, and we do hold, that Judge Broccolino and Judge Diener have engaged in conduct which was prejudicial to the proper administration of justice.” must be evaluated and interpreted in the light of the conclusions of the Commission which immediately follow that statement, i.e,, that the two judges were victims of the system, had no formal procedures to follow, were dependent upon the system, upon the clerks who curried favors with them; the practices complained of were discontinued with the inception of the District Court in July 1971 and under the new system the practices most likely cannot reoccur and neither judge “personally benefited from any of their actions, either financially or otherwise.” The Commission concluded that “overly harsh retribution” was not called for and, if the Commission had the power to issue a reprimand, it would *734have done so. Obviously, the Commission did not understand that when it used the language “conduct prejudicial to the proper administration of justice,” it was using language requiring removal. Indeed, it stated just the opposite as we have seen. We should take the findings and conclusions of the Commission as a whole. When this is done, it is clear to me that however the conduct of the two judges may be characterized, it was not of such a character as to justify a recommendation of removal. The “good cause” found by the Commission as provided in Rule 1227 (n) should be determined from the whole opinion of the Commission and in light of its recommendation to this Court.
Then, too, it is apparent to me that the provisions of Subsection (b) foreclose the idea that any of the grounds for action by us, i.e., “misconduct while in office, or of persistent failure to perform the duties of his office, or of conduct prejudicial to the administration of justice” are otherwise than “relative.” Our action is permissive not mandatory—“may remove” or “may censure.” This applies to all three findings or any of them and the grapt of the power to censure as a lesser sanction than removal indicates to me that our final action under any of the three findings is relative. “Conduct prejudicial to the proper administration of justice” has many possible applications—some serious, some rather trivial. Accepting a bribe by a judge would be most serious and would certainly justify his removal. Being one-half hour late for Court or nodding on the Bench during the less interesting arguments of counsel, seem trivial as isolated instances at least, and I doubt that such conduct—although “prejudicial to the proper administration of justice”—would be thought to justify removal of a judge. It is apparent to me that the phrase in question is “relative.” The ultimate decision, as I have indicated, should turn upon the facts and conclusions of fact in each case.
In its reliance upon the decision of the Supreme Court of Alaska in In re Robson, 500 P. 2d 657, decided August *73525, 1972, the majority, in my opinion, leans on a broken reed in so far as the present case is concerned. Indeed, the reed is broken in three places, i.e., (a) Robson is readily distinguishable from the instant case upon the substantial differences between the applicable provisions of the Alaska Constitution in Robson and the applicable Maryland constitutional provisions in the case at bar; (b) Robson merely involved a change from an unpublicized censure to a publicized censure and not an increase in sanction from recommended censure to removal; and (c) on the “merits,” as it were, of the sanction applied by the majority in the case before us.
(a)
In the Alaska Constitution, there is no provision in its Declaration of Rights comparable to Art. 33 prohibiting the removal of judges except as provided in the Maryland Constitution. Section 12 of Art. IV of the Alaska Constitution provides for impeachment of judges for malfeasance or misfeasance in office by the procedure prescribed for civil officers and Section 10 of Art. IV was completely rewritten by an amendment approved August 27, 1968, creating a Commission on Judicial Qualifications of nine members. This amendment provides that, in addition to impeachment under Section 12, a judge “may be disqualified from acting as such and may be suspended, removed from office, retiréd or censured by the Supreme Court upon the recommendation of the Commission. The powers and duties of the Commission and the bases for judicial disqualification shall be established by law.”
Section 22.30.070 of the Alaska Statutes, implementing the Alaska constitutional provisions, provides in Subsection (c):
“(c) On recommendation of the commission, the supreme court may (1) retire a judge for disability that seriously interferes with the performance of his duties and is or is likely to become permanent, and (2) censure or remove a judge for action occurring not more than six *736years before the commencement of his current term which constitutes wilful misconduct in the office, wilful and persistent failure to perform his duties, habitual intemperance, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute.”
It will be observed that the bases for disqualification in Alaska rest upon statutory provisions and not upon constitutional provisions and there is no provision comparable to Subsection (b) of Art. IV of the Maryland Constitution defining the action which the Commission must take to justify further action by this Court.
The Supreme Court of Alaska interpreted AS 22.30.-070(c), together with Article IV, Section 10 of the Alaska Constitution to:
“clearly establish that the Supreme Court of Alaska is to exercise its independent judgment in determining an appropriate sanction, if any, as to any recommendation made by the commission. It would be tantamount to an abdication of our constitutional and statutory obligations if we were to automatically adopt the commission’s sanction recommendations.”
500 P. 2d at 660.
(3)
When we come to the “merits” of the sanction to be imposed—assuming, arguendo, that we have the power to remove when only censure was recommended by the Commission—Robson indicates to me that the sanction of removal applied by the majority is too severe and is unjustified by the findings of fact of the Commission, accepted by the majority, in the instant case.
In considering the “FINDINGS OF FACT AND CONCLUSIONS OF LAW” of the Alaska Commission on Judicial Qualifications, filed as an Appendix, with In re Robson, supra, the Supreme Court of Alaska accepted that Commission’s findings of fact as supported by sub*737stantial evidence in light of the whole record and concluded, as already indicated, that the unpublished censure recommended by the Commission should be a published censure. There was no suggestion that Judge Robson should be removed. The findings of fact in the Alaska case, however, indicate to me that the judicial misconduct by Judge Robson by comparison with the findings of fact by our Commission on Judicial Disabilities in regard to the conduct of Judges Diener and Broccolino—and accepted by the majority as supported by clear and convincing evidence—places their alleged “misconduct” in a minor rather than in a major category.
In Robson, the findings of fact in regard to Count I indicated that Judge Robson, knowing that the driver’s license of one Clark had been suspended by the Department of Public Safety for failure to establish financial responsibility for an accident which occurred on January 20, 1969, involving Lydia R. Lockerman as the other party, and after a plea of nolo contendere, suspended the imposition of sentence for 30 days on condition that Clark “is to continue to work or straighten out accident.” The judge then caused a form to be executed which limited Clark’s license for 30 days to the extent that Clark “is not to drive motorcycles.” Thereafter, the judge wrote to the Commissioner of Public Safety in regard to the Clark matter, attempted to get in touch with Lydia Lockerman to obtain a civil release of damages on behalf of Clark, communicated with Clark’s insurance company in regard to alleged mistakes in insurance coverage, communicated on behalf of Clark with the insurer of Lydia Locker-man to verify whether suit would be brought, entered an order setting aside Clark’s conviction and an order of “Closure and Discharge.” The Alaska Commission concluded from these findings that the judge’s actions were not appropriate in a case pending before him in that they “gave an impression approximately equivalent to that of attorney representation of Clark” by the judge and that the judge had “so intertwined the roles of advocate for Clark and judge of Clark’s case as to call into *738question the impartiality of the respondent as a judge of the District Court.”
In Count II, the Alaska Commission found that Judge Robson, who had apparently represented Oliver Lemon prior to his appointment as judge, received a telephone call from Lemon the day after Lemon had escaped from the Fairbanks State Jail where he was a prisoner pursuant to a valid judgment and commitment. Lemon requested and was granted an interview with the judge at his home. Lemon outlined three principal concerns after which the judge telephoned an officer in the office of Public Defender at Fairbanks and outlined to him Lemon’s three principal concerns. Later, the Public Defender official called the judge, stating the State’s position in regard to one of the “principal concerns” and Lemon’s escape. The judge advised Lemon of the terms of the discussion and Lemon stated to him that “this would be agreeable.” The judge then advised the Public Defender official that he would arrange for Lemon’s return and thereafter called the Fairbanks Jail and advised that he was en route with Lemon. The judge and Lemon headed for the jail but the trip was diverted to the home of the Public Defender official at which there was a telephone call to the District Attorney and further discussion of Lemon’s surrender. Still later, Lemon “indicated a reluctance” to surrender himself and left the home of the Public Defender official. The judge then called the State Police, notifying them that Lemon had escaped from the home of the Public Defender official, thereafter leaving that home himself. The Alaska Commission concluded that the conversations of the judge with the Public Defender official “could have been interpreted as in the nature of representation or partisan effort by respondent on behalf of said Lemon” and that the judge had “demonstrated extremely poor judgment, not meeting the standards of a judicial officer.”
In Count VI, Judge Robson sent a memorandum in regard to alleged double charges under city and state laws to the Fairbanks District Attorney which the judge *739acknowledged “was initiated without sufficient investigation,” it later appearing that the alleged double charges resulted solely from secretarial errors or erroneous instructions to secretaries. The Commission concluded that “this action demonstrates a lack of judicial temperament.”
The final “CONCLUSIONS OF LAW” by the Alaska Commission were based on the findings in Counts I, II, IV, V and VI that the total effect of Judge Robson’s conduct “has been prejudicial to the administration of justice and has brought the judicial office into disrepute.” It recommended that the Supreme Court of Alaska censure the judge and by way of a “non-public reprimand inasmuch as it is felt that this will carry out the objectives creating the Commission on Judicial Qualifications.”
The Supreme Court of Alaska was of the opinion that the facts found by the Alaska Commission indicated that Judge Robson’s actions “were serious enough infractions to justify following the Commission’s censure recommendation,” but also concluded that the censure should be made of record rather than on the basis of a nonpublic reprimand.
In the findings of fact by the Maryland Commission in the present case-adopted by the majority, as has been pointed out-—it appears that Judge Diener was presented with an undetermined number of traffic tickets from Mr. and Mrs. Rubin Baverman, from two employees for an appliance distributor servicing the Baverman store, and from Officer Miller for tickets of police cadets, by Hyman David Klein, then an auditor of the Municipal Court, who prepared court slips, and after the judge finished his docket, would inquire if he could give him a “little consideration” on these cases. He used the same procedure with Judge Broccolino. He used the same procedure in regard to “three or four dozen tickets over a six-year period.” There was no finding in regard to the final disposition of these traffic tickets.
Isadore (“Pinkey”) Terl, an employee of the Board of Supervisors of Elections of Baltimore City for 19 years, *740accepted parking tickets for disposition in the old Traffic Court and later in the Municipal Court. During some periods, he was in the parking court “three or four days a week with three or four tickets at most.” Thirty-nine specific tickets were identified from William Bailey Henry, and his wife during 1968-69. Henry was a fellow employee of Terl from June 1967 until March 1968, when he became Youth Coordinator in the Mayor’s Office with offices in the City Hall. Henry gave the 39 tickets to Terl in one batch with between $150 and $200. From this money Terl retained approximately $50 for his personal use for his services. A court slip was prepared by the window-clerk at the front desk of the court and, when the defendant’s name was called, Terl would step forward and explain that the defendant was a friend of his and asked Judge Diener to “see what he can do for him.” The “face amount” of the tickets was computed at $371, including costs, and were disposed of by Judge Diener for $124—fines of $50 and costs of $74. There were allegedly a number of other judges who would follow a similar procedure. The Commission specifically found that “No judge was ever made aware of the fact that Terl was receiving a ‘fee’ or any commission for his ‘services,’ or that he was pocketing the difference between the total ‘prices’ fixed for the payment of the tickets and the amount his ‘client’ may have given him.”
Judge Broccolino, when first assigned to preside in the Traffic Court, “sought the advice of veteran court clerks and of other judges ... as to the procedures to be followed.” He thought the policies similar to those used by him were being used by other judges. “His policy was to suspend any fine and impose only court costs when the person who appeared before him entered a plea of ‘guilty.’ He adopted this policy because of the unique situation in the trial of parking ticket cases where the defendant normally is not confronted with his accuser and because of his avowed belief that the person so appearing was already being sufficiently punished by the inconvenience of being required to attend court and to take time off *741from his employment to appear in court. In those cases where a person appeared before him with more than one such parking ticket Judge Broccolino would customarily also impose a fine.”
Earlier in this dissenting opinion, the conclusions of the Commission finally recommending censure, but indicating that if it had the power to issue a reprimand to each judge it would do it, are quoted. In short, Judges Diener and Broccolino were to a great measure “victims of a system and the continuity of a practice which had continued for many years” but since has been discontinued. They had no established formal procedures and became dependent upon the court clerks who requested favors. There was a specific finding that “there was absolutely no evidence presented or suggested that indicates that either judge -ever received any financial benefit whatsoever for rendering such verdicts and dispositions.”
The Commission also found that the old practice in the Traffic Court of which the two judges were “victims” appears “to be an ‘American syndrome’, since the inception of Traffic Courts, on the part of the public to be able to ‘fix’ or to be able to ‘cut rate’ a traffic ticket.”
The conduct of Judges Diener and Broccolino, as found by the Commission and as adopted by the majority can, in my opinion, not begin to equal that of Judge Robson as found by the Alaska Commission and adopted by the Supreme Court of Alaska. Yet, Judge Robson is merely censured and apparently still enjoys his judicial office while Judges Diener and Broccolino, by the decision of the majority, are removed from their judicial offices, contrary to the reluctant recommendation of censure by the Maryland Commission! As I see it, In re Robson is rather persuasive authority for censure of Judges Diener and Broccolino at the most and, on this aspect of the case, should have been followed by the majority.