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Josh Kurtz: Cash in the Courtroom

A panel of current and former judges, led by Mary Ellen Barbera (right), chief judge of the Maryland Court of Appeals, testifies before the House Judiciary Committee Wednesday. Photo courtesy of Del. Jon S. Cardin

One of the nice things about the General Assembly session is that the frenetic pace of political fundraising almost entirely comes to a halt — even with primary elections in Maryland scheduled for April 28. State law forbids Maryland’s statewide officeholders and the 188 state legislators from raising money during the 90-day session.

But that doesn’t mean fundraising disappears altogether. Consider an email solicitation that Annapolis lobbyist Bruce C. Bereano circulated a few days ago.

In it, he asks his friends to contribute to something called the Prince George’s Committee to Elect Sitting Judges. This is a campaign committee for five Circuit Court judges — four of whom were recently appointed by Gov. Lawrence J. Hogan Jr. (R) — seeking 15-year terms to the bench in the 2020 election. One of them happens to be his son, Judge Bryon Bereano, appointed first by Hogan to the District Court, then late last year, to the Circuit Court.

“Respectfully, I will be very involved in the election of these 5 sitting Prince George’s County Circuit Court judges in the upcoming primary election,” Bereano writes. “Not only is this very personal to me, as you can understand, but I also very strongly believe in supporting the sitting judges who were thoroughly vetted and interview [sic] before a Governor makes an appointment.

“Very unfortunately, 2 individuals who did not go through the judicial nominating process and were not vetted have filed to challenge the 5 sitting judges and they will be on the ballot for election along with the 5 judges already mentioned. 7 candidates for 5 elected positions. I do not take anything for granted.”

Yes, its fundraising season for the state’s Circuit Court judges, many of whom were appointed recently by Hogan.

The way things work in Maryland, newly installed Circuit Court judges must stand for full 15-year terms in the next election cycle. Traditionally, the incumbent judges run together as a slate. But that doesn’t prevent a few challengers from stepping forward every election cycle.

Judicial elections in Maryland are supposed to be non-partisan affairs, and the Democratic and Republican parties agree to let the incumbent judges and challengers on to both of their primary day ballots. But the primaries occasionally produce different winners, effectively setting up potentially competitive general elections.

It isn’t anything like swing states where judicial elections can become brutal, costly, intensely partisan battles. But they can still produce messy, expensive and confusing contests.

While incumbency helps in these races, it’s not a guarantee for winning a full term.

It’s almost a cliche now to say how corrosive money in politics has become. But fundraising in these judicial races can be particularly unseemly.

For starters, they get next to zero public attention, which means, inevitably, it’s only lawyers who may have cases before these judges who are contributing money to their campaigns and working the polls on their behalf.

“Politics is transactional. Judges, though, are not politicians,” Mary Ellen Barbera, chief judge of the Maryland Court of Appeals, the state’s highest court, said Wednesday. “They cannot make promises on how they will rule in future cases.”

The judge was speaking at a House Judiciary Committee hearing in support of legislation to end the practice of judicial elections for Circuit Court judges. The legislation, sponsored by Dels. Kathleen M. Dumais (D-Montgomery) and Jon S. Cardin (D-Baltimore County) in the House, and Sen. Delores G. Kelley (D-Baltimore County) in the upper chamber, would set Circuit Court terms at 14 years and require the judges to undergo so-called retention elections at the end of those terms. Barbera led a team of current and former judges who were supporting the bill.

Proponents and opponents of the legislation had to slalom between the House and Senate buildings Wednesday, as hearings on the legislation were taking place almost simultaneously.

To press her argument, Barbera quoted former U.S. Supreme Court Justice Sandra Day O’Connor: “I don’t think we should have cash in our courtrooms.”

Just how awkward and prevalent are these fundraising solicitations for judges? While the hearing was taking place in his committee, House Judiciary Chairman Luke H. Clippinger (D-Baltimore City), reported that he had just received a text inviting him to a sitting judge’s fundraising event in March.

The Anne Arundel County Circuit Court judges are holding a fundraiser next Wednesday evening at City Market in Annapolis. The Prince George’s judges have an event of their own scheduled for the evening of Feb. 27 at The Country Club at Woodmore, in Mitchellville.

Stranger still, consider the identity of the man chairing the sitting judges’ election campaign in Prince George’s County: That would be Alexander Williams, the former federal judge and close Bruce Bereano ally who is surely Hogan’s favorite Democrat. Hogan has rescued Williams from retirement, appointing him to several key appointed posts. Those include his role as chairman of the Appellate Courts Judicial Nominating Commission, where he recommends the most qualified candidates to the governor for judicial appointment to the state’s two highest courts, the Court of Appeals and Court of Special Appeals, when vacancies arise.

There’s nothing illegal about this arrangement but it feels — there’s that word again — a little unseemly.

Ironies abound. Earlier this week, a Howard County Circuit judge seeking election this year, John Kuchno, issued a news release saying he had been endorsed by Attorney General Brian E. Frosh (D) and by Frosh’s predecessor, Douglas F. Gansler (D). Yet on Wednesday, Gansler was present in the House Judiciary Committee to testify in favor of the Dumais-Cardin legislation.

“My preference is for judges not to raise money,” Gansler said. “I don’t fault judges at all. They’re placed in a very uncomfortable position. It’s so unseemly, the idea of judges calling people for money.”

Getting money out of judicial elections in Maryland surely sounds like a good idea. But there’s a potent counter argument as well: Many people who follow the Maryland judiciary argue that the elections — and particularly, the possibility of taking on appointed incumbents — contributes to the diversity on the bench, which would not be as pronounced if judges were appointed and automatically got 14-year terms.

The majority of the Legislative Black Caucus has been particularly resistant to the idea of eliminating elections for Circuit Court judges.

“The current system is responsible for why we have a majority of blacks and women [on the Circuit Court] in Baltimore City and why we have a majority of blacks and women in Prince George’s County,” said William H. “Billy” Murphy Jr., the powerhouse Baltimore attorney and former judge. “We’re not in a post-racial environment. Racism is alive and well in certain parts of the state.”

It’s not that incumbent judges are ousted very often. Retired Baltimore County judge Robert Dugan, who pulled off the feat several decades ago, said that by his count two dozen judicial incumbents have lost since 1940.

It’s also naive to suggest that the appointment process is divorced from politics. Judicial picks are supposed to get a thorough vetting from a screening committee whose members are appointed by the governor. It’s lawyers evaluating lawyers, peers scrutinizing peers. But even Dumais acknowledges the flaws.

“Is it political to become a Circuit Court judge? Sure it is,” she told her colleagues. “But at least there’s a vetting process.”

By contrast, people who challenge appointed judges, she said, only have to be 30 years old, an attorney, and willing to pay a $50 filing fee.

This bill may get a little more traction than it has in the past, but as long as the black caucus continues to offer resistance, it is unlikely to move, this year or in the foreseeable future.

Prospects appear brighter for legislation that would change the name of Maryland’s highest courts, the Court of Appeals and the Court of Special Appeals, to the Supreme Court and the Appellate Court, respectively. Those names date back years and are the source of much confusion, Barbera and Matthew J. Fader, chief judge of the Court of Special Appeals, testified.

Maryland is just one of two states — New York is the other — whose highest court is known as the Court of Appeals and not the Supreme Court.

Remember during the 2018 gubernatorial campaign, when Democratic nominee Benjamin T. Jealous warned about Hogan’s ability to appoint several “Supreme Court” judges if he were re-elected? Hogan and his allies, and even some Democrats,  conjured up the best faux outrage they could, saying the gaffe was a reminder that Jealous wasn’t from Maryland and didn’t know how things worked around here.

Who knows: If the bill passes, Jealous may seem like a visionary after all.


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Josh Kurtz: Cash in the Courtroom