Challengers Running Ahead Of ‘Sitting Judges’ in Active Year for Circuit Court Races

Montgomery County Circuit Court Judge Christopher C. Fogleman chats outside of the Marilyn J. Praisner Community Recreation Center in Burtonsville on Tuesday morning. Photo by Danielle E. Gaines.

Challengers were ahead of incumbent circuit court judges in contests in Charles and Howard counties and appeared on their way to upsets early Wednesday, according to returns reported by the State Board of Elections.

A non-incumbent candidate also appeared to have captured a circuit court judgeship in Prince George’s County for only the second time in the 50 years since Maryland instituted a so-called “vetting process” for judicial appointments.

Under this system, candidates for circuit judge are recommended by 16 trial court nominating commissions around the state after a months-long process of interviews and scrutiny, with the governor making an appointment from a list of nominees forwarded by the respective commissions. The appointee then stands for election to a 15-year term.

This vetting process and the “sitting judge principle” it has yielded came in for criticism in several of the contests decided Tuesday. But in Montgomery County, Rockville attorney Marylin Pierre, who sought to put the vetting process on trial, was running a distant fifth as four sitting judges were retained by voters.

In Charles County, Makeba Gibbs, a former president of the county bar association, appeared to have won a circuit court seat on her second try in three years. Gibbs was running against Patrick Devine, appointed last year to the circuit court by Gov. Lawrence J. Hogan Jr. (R). Gibbs’ lead late Tuesday stood at 53% to 47%, about 3,500 votes.

Gibbs would become only the second African-American woman to occupy a seat on the Charles County Circuit Court.

An African-American challenger also was leading in Howard County, as Quincy L. Coleman ― a onetime parole and probation officer who later spent two decades as a public defender ― was ahead of John J. Kuchno, appointed to the court by Hogan last year. Coleman led 52% to 48%, for a margin approaching 5,000 votes.

In Prince George’s County, veteran criminal defense attorney Gladys Weatherspoon ran first in the contest for that county’s circuit court. She was boosted by endorsements ranging from The Washington Post to Progressive Maryland, which has strong ties to organized labor in the state.

Behind Weatherspoon in the race for four other available seats were sitting judges: Wytonja Curry, first appointed in 2018; ShaRon M. Grayson Kelsey and Jared M. McCarthy, appointed in 2019; and Cathy H. Serrette, initially appointed to the court in 2003 and reappointed by Hogan at the conclusion of her first 15-year term.

Another non-incumbent challenger, April T. Ademiluyi, was running about 7,000 votes behind McCarthy.

In neighboring Montgomery County, a particularly acrimonious judgeship race ended with sitting judges Bibi M. Berry, Michael J. McAuliffe and Christopher C. Fogleman ― all first appointed in 2019 ― apparently retaining their seats. David A. Boynton, first appointed in 2003 and reappointed last year, won a second 15-year term on the bench.

Pierre ― making her second run for the job after failing to get past the primary election in 2018 ― was running nearly 50,000 votes behind Fogleman, her nearest opponent.

Finally, in Carroll County, circuit court Judge Richard R. Titus defeated his challenger, Westminster attorney Laura Morton, by nearly 2-1. It was Titus’ second bid for a 15-year term, after being initially appointed to the court in 2016 but losing a campaign to keep his seat two years later.

This year’s unusually high number of contested judgeship races statewide seems certain to intensify a nearly two decade-long debate in the Maryland General Assembly on whether circuit court judges should be chosen by popular election.

By comparison, district court judges are confirmed by the state Senate following appointment by the governor, as are appellate court judges. While the latter are subject to “yes or no” retention votes every 10 years, appellate judges typically are retained by voter majorities of 80% or more.

Three members of the state’s highest court, the Court of Appeals, were garnering 83% or more late Tuesday in the retention elections, with Chief Judge Mary Ellen Barbera capturing 90% in the latest returns.

Barbera has vocally advocated doing away with elections for circuit court judge, citing the pressures on judicial independence and the conflicts inherent in raising money from attorneys who appear before judges in court.

“Politics is transactional. Judges, though, are not politicians,” Barbera told a legislative committee earlier this year. “They cannot make promises on how they will rule in future cases.”

Montgomery judges raise $500,000

Clearly nervous over Pierre’s second effort in three years to win a circuit court judgeship, the Elect Sitting Judges Montgomery County Slate committee spent more than $500,000 ― much of it raised from law firms in Rockville and Bethesda as well as Washington, D.C., and Baltimore ― during the primary and general election, as compared to less than $20,000 for Pierre’s campaign.

When Pierre ― a Haitian immigrant running in a county is now majority-minority ― captured one of four judgeship nominations available in the June Democratic primary, it prompted an aggressive counterattack by the Elect Sitting Judges committee not often seen in judicial elections.

Under the current system for electing circuit court judges, all candidates regardless of party are listed in both parties’ primaries; those who are nominated then run on a non-partisan ballot in the general election. (In Montgomery, Fogleman, a Democrat, failed to win one of the four nominations in the Democratic primary, but won a slot on the general election ballot by securing a nomination in the Republican primary.)

A detailed email sent by the Elect Sitting Judges committee to Montgomery County attorneys in late August took aim at Pierre’s lack of criminal trial experience (a charge that she had never tried a civil case in Montgomery County Circuit Court was later retracted) as well as several of her public comments. The latter, in turn, triggered an investigation by the Attorney Grievance Commission of Maryland, which apparently remains pending.

The sitting judges committee went so far as to obtain a temporary restraining order against Pierre last week after one of her campaign workers was heard incorrectly describing Pierre as an incumbent judge to those in line at an early voting site.

Marylin Pierre, who challenged the sitting judges of Montgomery County Circuit Court, arrives at an Election Day voting center in Burtonsville on Tuesday. Photo by Danielle E. Gaines.

For her part, Pierre sought to portray the sitting judges as benefitting from an insider system based on “legacy and pedigree,” declaring on Twitter last spring, “Most of them have worked at the same law firm, go to the same church, and are related by marriage.” Such statements infuriated the incumbents, who responded by pointing to the current diversity of the three dozen judges on the bench in Montgomery County, half of whom are women and one-third minorities.

Critics also noted that Pierre was now attacking a vetting process in which she had repeatedly fallen short: She applied for a total of 14 judgeship vacancies on nine different occasions from 2012 to 2017, without ever being placed by the Montgomery County Trial Courts Judicial Nominating Commission on lists of nominees forwarded first to Democratic Gov. Martin J. O’Malley and later to Republican Hogan.

Pierre’s complaints, however, were echoed this year next door in Prince George’s County by Weatherspoon. “Whoever wants to be judge, you literally join all these bar associations and visit with all the bar associations,” she told the Washington Informer last spring. “They go and say to the governor, ‘this [person] is going to be a good judge.’ This vetting thing really becomes a popularity contest.”

In a county where African-American women are a dominant voting bloc, five women emerged as judicial nominees from the Democratic primary in June. Four of them are black: incumbent judges Grayson Kelsey and Curry, along with Ademiluyi and Weatherspoon. Also nominated was another sitting judge, Serrette.

That left the two white male candidates, McCarthy and Bryon S. Bereano ― appointed by Hogan to the circuit court in late 2019 ― out of the running in the Democratic field. Both secured a slot in the in general election via the Republican primary, in which Serrette, Weatherspoon and Grayson Kelsey also finished in the top five.

But Bereano ― apparently deciding he had no path to victory ― withdrew his candidacy prior to the general election. McCarthy, who spent two years as the Prince George’s County attorney before his 2019 appointment to the circuit court, remained in the race.

Bereano fell short despite aggressive efforts by his father, influential Annapolis lobbyist Bruce C. Bereano, to boost his son’s candidacy and that of the other sitting Prince George’s judges.

In an email to Prince George’s County state legislators late last year, the elder Bereano ― whose license to practice law has remained suspended for two decades following his conviction on campaign finance-related charges ― said he would be “very involved in the campaign” to re-elect the five incumbent judges, and served notice that he would be keeping a close eye on the positions taken by Prince George’s elected officials.

“…Communicate back to me your decision please. This please is very important to me,” wrote Bereano, while noting that Weatherspoon had been approaching members of the county’s state legislative delegation to seek support. Writing in capital letters, Bereano added: “PLEASE DO NOT DO THIS AND PLEASE FULLY AND COMPLETELY SUPPORT FOR ELECTION IN THE UPCOMING ELECTION ALL OF THE 5 SITTING PRINCE GEORGE’S COUNTY CIRCUIT COURT JUDGES INSTEAD OF ANY OTHER CANDIDATES WHO MAY FILE TO CHALLENGE THESE SITTING JUDGES.”

Weatherspoon later told The Washington Post that many elected officials had related to her that they felt they had to support the sitting judges to avoid running afoul of Bereano and his influence in Annapolis.

In Charles County, Gibbs in 2018 had lost to two sitting judges ― one of whom, Donine M. Carrington-Martin, became the first African-American woman on the county’s circuit court when appointed by Hogan in 2017.

In a county that is now majority-black, Gibbs in June came out on top of the Democratic primary while finishing far behind the incumbent, Devine, in the Republican primary, setting up the general election race.

A similar scenario played out in Howard County, where Kuchno easily beat three challengers in the Republican primary. But Coleman, who finished in last place in the Republican primary, nudged out Kuchno in the June Democratic primary ― despite the latter’s support from such prominent Democrats as Maryland Attorney General Brian E. Frosh and former Attorney General Douglas F. Gansler. Kuchno worked for both men during 10 years in the attorney general’s office.

The vetting process also surfaced as an issue in that race: Coleman applied for a district court judgeship in 2005 but was not placed on the list of nominees forwarded to the governor by the local trial courts nominating commission, according to the state Administrative Office of the Courts.

In Carroll County, both Titus and Morton went through the vetting process and were placed on the list of nominees sent to Hogan, who appointed Titus to the circuit court for a second time in late 2019.

While Titus was previously appointed in 2016, he lost a 2018 bid for a full term to Maria L. Oesterreicher ― who became the first woman to serve on the Carroll County Circuit Court after 15 years as an assistant state’s attorney. Oesterreicher mounted an electoral challenge to Titus after applying in 2013 and 2016 for circuit court vacancies but not being recommended by the county’s trial courts nominating commission.

In a county in which Republicans outnumber Democrats by almost 2-1, the county Democratic Central Committee lined up behind Morton while the Republican Central Committee and the county’s legislative delegation endorsed Titus. Both candidates lobbed charges of partisanship and underhanded campaign tactics at each other during this year’s campaign.

“While the negative campaign attacks undertaken by my opponent and her supporters are regrettable, I refuse to respond in kind,” Titus said in a letter to the Carroll County Times. “More importantly, my opponent knows better. She has appeared in front of me for trials where I always treated her and her clients the same way I do all litigants — with fairness, respect and dignity. For her to suggest otherwise is just dirty politics.”

In the same newspaper, Morton’s campaign treasurer, Thomas Terhaar, asserted that Titus “has run a very partisan campaign. His message in his mailers have been different, in one emphasizing his partisanship and in another being nonpartisan” Terhaar said Morton was “also running because she believes that the reappointment of her opponent after he lost the election in 2018 undermines the election process and goes against the will of the people.”

Meanwhile, Morton sounded a theme similar to that used by the challenger, Pierre, in the Montgomery County contest.

“The criminal justice system needs to change,” Morton told the Times. “First, it must be reflective of the community. We cannot continue to have lawyers from the same politically connected law firm appointed as judges. We need judges from different backgrounds and a variety of life experiences.”

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Louis Peck
Maryland Matters co-founder Louis Peck is the founding editor of National Journal’s Congress Daily, who, over nearly two decades, built the publication into essential reading for members of Congress and their staffs, along with lawyers, lobbyists, businesses, advocates and federal officials. He is now a contributing editor for Bethesda Magazine, providing comprehensive and sophisticated coverage of Montgomery County politics, and is a contributor to the Almanac of American Politics.