Josh Kurtz: Judicial Election Follies

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In Wisconsin last month, voters lined up for hours, risking COVID-19 contagion and worse, to elect a member of the state Supreme Court. The images were unforgettable.

It was a brutal, ideologically-charged race, and conservatives thought they could suppress the vote by making voters show up at the polls in the midst of a global pandemic. The strategy backfired, and a liberal won the seat.

Maryland has judicial races too, but except for courthouse denizens and political insiders, very few people pay attention. These races lack the ideological furor and vast sums of special interest spending that you see in some other states’ judicial elections.

But that doesn’t make them less interesting. In fact, several judicial races on the ballot Tuesday feature a quirky assortment of players, multiple resentments, ideological and partisan divides, and no shortage of drama. And of course, lawyers are making campaign contributions to judges before whom they could wind up arguing cases.

Here’s how these elections generally work: The governor appoints judges to circuit courts around the state, following recommendations from a judicial screening panel. During the next election, the judges run for full 15-year terms.

By tradition the incumbent judges run together as a slate, and the Democrats and Republicans officially agree to support the governor’s appointees in the upcoming election. But that doesn’t prevent anyone with a law license and $50 from challenging the judges in the election.

Things have a way of going awry. Voters can select as many candidates as there are judicial positions open in any given circuit court. So say there are four judges on the primary ballot, but six candidates overall. Voters in each party get four choices — and they are not obligated to choose an incumbent.

If voters know or like someone on the ballot better than the judges, one of the incumbents can lose. At the same time, different winners can emerge from party primaries, setting up competitive general elections.

In general, incumbency helps tremendously. Testifying before the legislature earlier this year, retired Baltimore County judge Robert Dugan, who knocked off an incumbent several decades ago, said that by his count, two dozen judicial incumbents have lost since 1940.

Perhaps the most bitter judicial election is taking place right now in Anne Arundel County, where four judges — Pamela Alban, Elizabeth Morris, Rob Thompson and Richard Trunnell — are seeking full terms. But there are six candidates on the Democratic and Republican ballots, including former Anne Arundel state’s attorney Wes Adams (R), who lost his reelection bid in 2018.

Adams is a known entity to voters, having been on a countywide ballot four times. And he benefits from his last name — alphabetically, he’s at the top of the ballot for both the Democratic and Republican primaries.

Adams is hardly a beloved figure in Anne Arundel, and he has faced several attacks in recent weeks, online and in campaign fliers and posters. One of his most vocal critics – and one of the most enthusiastic supporters for the slate of incumbent judges — is Bruce C. Bereano, the veteran State House lobbyist and political mixer.

Bereano has started a political action committee specifically to target Adams. And he wrote a withering commentary in the Capital Gazette earlier this month questioning Adams’ integrity, saying the former prosecutor lied when he said he would not run for a judgeship if he was not appointed to the bench by Gov. Lawrence J. Hogan Jr. (R). Adams had applied for a vacancy last year but did not get the appointment.

“Character counts!” wrote Bereano — who had his law license revoked following his conviction in the 1990’s on seven counts of mail fraud. Which begs the question of why officers of the court would want to be associated with someone with a record.

In the face of these attacks, Maryland Republican Chairman Dirk Haire, who lives in Anne Arundel and whose wife Jessica Haire serves on the County Council there, put out statements on social media defending Adams. And this week, Adams picked up the endorsement of House Minority Leader Nicholaus R. Kipke (R-Anne Arundel).

“Everything I know about Wes tells me that he’ll be a fair and tough, yet compassionate judge just as he did in his role as the chief prosecutor of our county,” Kipke said in a statement.

While most elected officials in Anne Arundel, Republican and Democrat, had endorsed the entire slate of judges, Kipke had only endorsed three. He did not endorse Trunnell, he said, because Trunnell never asked him to.

My son the judge

Bereano’s involvement in judicial elections does not end in Anne Arundel. Among the five circuit court judges seeking full terms on the ballot in Prince George’s County is Bereano’s son, Bryon S. Bereano, who was appointed to the job by Hogan earlier this year.

Already the younger Bereano had been a Hogan-appointed district court judge since 2016 — a favor to Bereano Senior, one of the few Annapolis lobbyists to go out on a limb and publicly support 2014 the Republican in the gubernatorial election.

Bereano the Elder has sent out at least a couple of fundraising solicitations on behalf of his son and the other Prince George’s judges.

“In some cases, during the campaign, the challengers have intentionally misrepresented the vast legal experience of the current sitting judges running for election in order to enhance their own qualifications,” Bereano wrote in one solicitation to clients and friends.

Then came the ask: “This is not an ideal time to be asking for campaign contributions, especially in light of the economic impact the coronavirus situation has had on all of us, but the election is still going forward and the sitting judges’ opponents are not just staying on the sidelines.”

In Montgomery County, it appeared as if the incumbent judges were on an easy path to reelection, until the Montgomery County GOP — possibly by mistake — put a notice on its website urging Republican voters to support “the Hogan judges.”

After a flurry of conversations between county Republican and Democratic leaders, the Montgomery GOP took the message down from its website. But the damage may have been done. Several progressive leaders in the county, including Somerset Mayor Jeffrey Z. Slavin, a longtime statewide Democratic activist and donor, are now urging voters to bullet-vote for one of the challengers, Marylin Pierre, who is making a second run for a judgeship.

In Howard County there is only one judge seeking a full-term on the primary ballot, John J. Kuchno. But he has an interesting array of challengers.

One candidate, Z. Stephen Horvat, bought billboards on Regional Transportation Agency of Central Maryland buses, listing his name. They didn’t say he was a candidate for judge, they didn’t carry the “authority line” required of political candidates, nor did they advertise his legal practice. There was no phone number and no contact information – just his name.

Another candidate, Stephen J. Musselman, has sought to portray himself as the progressive candidate in the race. This may attract liberal voters in the Democratic primary, but it seems odd to be touting progressive bonafides in a campaign for a position that’s supposed to require an unbiased arbiter.

But Musselman isn’t the only candidate doing this. Back in Anne Arundel County, Thompson, one of the incumbent judges, possibly fearful that his name is listed so far down the ballot that he could wind up losing votes, is now describing himself as “Hogan-endorsed” on his Facebook page and is asserting that in-person voting is preferable to voting-by-mail — although in-person voting is not the preferred method of state elections officials or Hogan during this pandemic.

There’s the famous saying, attributed to Winston Churchill, that democracy is the worst form of government except for everything else. That theory may apply here.

Earlier this year, the legislature considered a bill 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 have set circuit court terms at 14 years and required judges to undergo so-called retention elections at the end of those terms.

The legislation ran out of time during the pandemic-shortened session, but no doubt it will be back in future sessions. Is that a better way to go than the current system? Who knows?

This much is sure: It would be nice if Maryland’s system of judicial appointments and elections were less messy and considerably less dominated by the very few characters who are paying the closest attention.

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Editor’s note: This story was updated after it was published to reflect that House Minority Leader Nicholaus R. Kipke (R-Anne Arundel) had only endorsed three of the four sitting judges in his county.