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Group begins work to determine how best to select judges in Maryland

Photo by iStockphoto.com.

A workgroup created by Maryland’s judicial branch to undertake studies and conduct hearings on how best to choose judges kicked off its effort with an initial meeting Monday evening.

Formally titled the Legislative Committee Workgroup to Study Judicial Selection, the group — consisting of representatives of interested organizations as well as attorneys and current and retired judges — will issue a report “on the current state of judicial elections” and make recommendations “for change or to retain the status quo,” according to a statement on its website.

The group has an end date of March 1, 2023 — although it appears to be aiming to wrap up earlier, with a tentative last meeting set for Jan. 9.

Either way, its recommendations would come in time to be debated by next year’s session of the General Assembly — in advance of potentially placing any changes requiring a constitutional amendment on the ballot for the 2024 general election. The workgroup Monday also scheduled four other public hearing sessions prior to the end of 2022 — for Oct. 17, Nov. 14, Dec.5 and Dec. 19.

The creation of the workgroup follows years of debate in Annapolis over the wisdom of requiring circuit court judges to run in partisan primary and general elections for 15-year terms after being appointed by the governor. In contrast, district court judges are confirmed by the Maryland Senate to 10-year terms with no elections involved; appellate judges likewise receive Senate confirmation for 10-year terms, and face only a nonpartisan “yes or no” retention vote at the ballot box when their terms end.

Montgomery County Circuit Court Judge Kathleen Dumais — who co-chairs the workgroup — is said to have pushed for its creation, with the support of newly installed Maryland Court of Appeals Chief Judge Matthew Fader. While not physically present at Monday’s kickoff session due to a bout with COVID-19, Fader delivered brief remarks at the outset of the meeting and observed throughout via a Zoom link.

Prior to being appointed to the bench late last year, Dumais spent two decades as a Democratic member of the House of Delegates — including eight years as vice-chair of the Judiciary Committee — and was an advocate of doing away with judgeship elections.

Such viewpoints aside, Dumais told the workgroup members Monday: “…We really want to do a complete review and reframe the question. And it’s not whether or not we should have elections — the question is what is the best process to determine how do we have qualified members on the bench.”

On its website, the workgroup promises to “perform a fair, balanced and exhaustive examination of the various methods of selecting and retaining trial judges throughout the country and make recommendations based on that study.”

Co-chairing the group with Dumais is retired U.S. District Court Judge Alexander Williams, a onetime Prince George’s state’s attorney. While a Democrat, Williams is politically close to outgoing GOP Gov. Larry Hogan: He most recently served as co-chair of the Maryland Citizens Redistricting Commission, created by Hogan as a counter to the Democratic-dominated General Assembly.

“What we’ve tried to do with this workshop is to gather people with different perspectives,” Williams said Monday.

Emblematic of that effort is the presence in the group of high-profile Baltimore attorney William “Billy” Murphy, a former circuit court judge who has long resisted doing away with judicial elections.

“Having run against sitting judges successfully myself in 1980, I’m somewhat invested in the position,” Murphy said in introductory remarks at the session, adding, “I want to keep things the way they are – so I’m curious as to how you’re going to attempt to persuade me to get off the position that I’ve held for so many years.”

Williams is not the only former state’s attorney serving on the new workgroup: Its membership includes University of Baltimore President Kurt Schmoke, who was Baltimore state’s attorney before becoming the city’s mayor for 12 years.

Schmoke — who was not in attendance at Monday’s session — is also a former dean of the Howard University School of Law. The workgroup also includes Donald Tobin, the recently retired dean of the University of Maryland School of Law.

In addition to Dumais, the group includes two others with state legislative experience: Senate Judicial Proceedings Committee Chair Will Smith (D-Montgomery) and Brett Wilson, currently county administrative judge for the Washington County Circuit Court. Wilson was a Republican member of the House of Delegates from 2015 to 2017, when he served on the Judiciary Committee.

Other judges on the workgroup include Sheila Tillerson Adams of the Prince George’s County Circuit Court; she serves as the administrative judge for the 7th Judicial Circuit comprised of Calvert, Charles and St. Mary’s counties as well as Prince George’s. The other current circuit court judges on the workgroup are Diane Adkins-Tobin of Harford County, Stacy Mayer of Baltimore County, and Maria Oesterreicher of Carroll County. Stephen Platt, retired from the Prince George’s Circuit Court, is another member.

Attorneys who are members include Carville Collins of Baltimore-based DLA Piper, Ron Jarashow of the Annapolis firm of Bowman Jarashow, and John “Jack” Quinn of Rockville-based Ethridge Quinn Kemp Rowan and Hartinger. Representing “stakeholder” organizations with an interest in the judicial selection process are Morgan Drayton with Common Cause Maryland; William Flowers, president of the NAACP’s Maryland State Conference; and Ralph Watkins, vice president of the League of Women Voters of Montgomery County.

The current process for selecting circuit court judges dates back to 1970, and involves appointment by the governor from a slate of nominees put forth by trial court nominating commissions around the state. This is preceded by extensive vetting of those seeking judgeships by state and county bar associations as well as the trial court nominating commission themselves.

Until recent years, it was relatively rare for a “sitting judge” initially appointed by the governor to fall short in a bid for election at the ballot box to a full 15-year term. One such instance occurred in 2018 in Carroll County — when one of the members of the new workgroup, Oesterreicher, defeated a judge appointed by Hogan, Richard Titus.

Oesterreicher, who had previously spent 14 years working in the Carroll County’s state’s attorney’s office, said she had been passed over four times in the usual vetting process before deciding to run. She noted that she is Carroll County’s first — and only — female circuit court judge.

Adkins-Tobin related a similar experience in Harford County in 2018, when she ran and won election to a circuit court judgeship after being passed over for an appointment. “It was the third time he appointed a white male over me,” she said of Hogan, while acknowledging: “Although we do have a diverse bench, I really had reached the point where I realized that if I didn’t…just go for it, it would never happen. So I made the decision to run.”

Adkins-Tobin, who had worked as an assistant state’s attorney in both Prince George’s and Harford County before becoming a judge, said of her election: “I think what worked for me is the understanding of a lot of people who don’t have political connections.”

By the same token, Wilson acknowledged during Monday’s discussion that, before he left the General Assembly to become a circuit court judge, “I never made it through a judicial selection committee, but the governor saw fit to appoint me anyway.”

Proponents of retaining elections for circuit judge point to such instances in contending that the electoral process has served as a fail-safe for minorities and women seeking such positions. “Governor after governor after governor appointed white men,” Murphy grumbled toward the end of the session.

But opponents of judicial elections counter that the vetting process helps to ensure that unqualified applicants don’t end up on the bench — and have cited efforts by Hogan and his predecessors to bring greater racial and gender diversity to judicial appointments.

According to the website of the new workgroup, its tasks in the coming months include a review of current and past trends in judicial appointments “based on gender, race and ethnicity.”

In 2020, there were four instances around the state where judges named by the governor to fill vacancies were defeated by challengers as they sought election to 15-year terms. It prompted concerns in some quarters that qualified applicants would be increasingly reluctant to seek these judgeships if it meant subjecting themselves to often bruising political campaigns.

By comparison, 2022 has turned out to be a calmer year for sitting judges in Maryland: Of nine appointed by Hogan over the past year or so to fill vacancies, eight (including Dumais) turned back challengers in both major party primaries in July and are on their way to winning full terms in the November general election.

Only in one instance — Charles County, where Hogan-appointed Monise Brown won the Democratic primary but lost the Republican primary to former assistant state’s attorney Sarah Freeman Proctor — is there a judgeship contest on the ballot this fall.

Editor’s Note: This story was updated to correct that Morgan Drayton is the Common Cause Maryland representative to the judicial selection workgroup.