League of Women Voters of Montgomery County, MD, Inc. Fact Sheet, December 2005

THE MARYLAND COURT SYSTEM

             Maryland has a single state court system. All judges are considered judges of the state of Maryland and receive their salaries from the state budget rather than local budgets. Maryland has three trial courts (courts that hear testimony from witnesses and may examine documents as well as other evidence): (1) Orphans Court (one in each county except Montgomery and Harford Counties); (2) District Court; and (3) Circuit Court. Almost all cases are heard in a trial court first. There are two appellate courts in Maryland (courts that hears appeals from a trial court when one side or the other claims that an error was made at trial): 1) the Court of Special Appeals; and 2) the Court of Appeals. The Court of Appeals is the highest court in the state, the equivalent of the supreme court in other systems.

TRIAL COURTS

Orphans Court: Orphans Courts handle estates, wills and other probate matters. Each court has three elected judges, who do not have to be lawyers. In Montgomery and Harford Counties, the Orphans Courts have been abolished. In those counties, such cases are now heard by the Circuit Courts. Maryland has 66 Orphans Court judges.

District Court: The District Court of Maryland was created in 1970 to consolidate a mixture of municipal courts, peoples courts and trial magistrates into a unified state court of record. The District Court handles less serious cases such as civil cases involving less than $25,000 in value and most criminal cases where the punishment does not exceed 3 years in prison or a fine of $2,500, primarily traffic cases and landlord-tenant disputes. There are no jury trials in the District Court, so the judges decide both the facts and how the law is applied to those facts. If a person demands a jury trial in a case that involves a right to a trial by jury, the case will be transferred to Circuit Court. As the name suggests, the District Court divides the state into 12 districts, with judges assigned to each. There are currently 106 District Court judges hearing cases in 34 locations throughout the state. The courthouses for the district courts are not always in the county

            Each county in the state is assigned to a judicial circuit (see inset). The number of judges in each circuit is determined by the state legislature, subject to limits established in the constitution: there must be at least four judges in each circuit, with at least one judge residing in each county, and minimum numbers of judges assigned to the largest counties. Currently, there are 146 judges in the Circuit Court of Maryland. Circuit Court judges are paid by the state, but most other costs of these courts are borne by the local jurisdictions.

Juvenile Court: Although people may refer to “Juvenile Court,” there are not separate juvenile court judges in Maryland. Instead, judges from the Circuit Court hear cases involving juveniles and follow the procedures for those cases.

APPEALS COURTS

Court of Special Appeals: The Court of Special Appeals was created in 1966 to reduce the workload of an overburdened Court of Appeals. A person involved in a lawsuit who is dissatisfied with the decision of a trial court may appeal to the Court of Special Appeals. The role of the Court of Special Appeals is to review decisions made by lower courts and determine if the presiding judge interpreted the law correctly. If the court finds that an error was made, the case will be sent back with directions to correct the mistake. This may require a new trial or a more limited hearing to adjust a criminal sentence or modify the amount of money awarded in a civil lawsuit. There are 13 judges of the Court of Special Appeals, one from each Appellate Judicial Circuit and six members from the state at large. The judges normally sit in panels of three.

Court of Appeals: The highest court in Maryland is the Court of Appeals, created by the Maryland Constitution of 1776. It primarily hears appeals of decisions made by the Court of Special Appeals, but also appeals of District Court cases and Motor Vehicle Administration cases that have been appealed to the Circuit Court and raise important issues that require a uniform rule throughout the state. Appeals of death penalty cases, legislative redistricting, removal of certain officers and certification of questions of law go directly to the Court

of Appeals without prior proceedings in other courts. There are seven judges on the Court of Appeals, each serving a term of 10 years. The court is located in Annapolis. Because of the small size of the court, cases are heard by the whole court rather than panels of its members.

HOW JUDGES ARE SELECTED

            The judicial selection process has important implications for the independence of the courts. Maryland has a hybrid system, with different procedures for the appellate and trial courts. Orphans Court judges are directly elected without involvement of the governor or senate. All other judges are selected by the governor. After nomination by the governor:

    •       District Court judges must be confirmed by the state senate;

    •       Circuit Court judges take office immediately but must then compete in an election with any other candidates who choose to run; and

    •       Judges of the Court of Special Appeals and the Court of Appeals must be confirmed by the state senate.

            Judicial Nominating Commissions: The governor’s appointment power is limited by requirements that either the senate or the voters approve the governor’s judicial nominations. An additional safeguard was added in 1970. Beginning that year, each governor has approved an executive order establishing Judicial Selection Commissions to recommend lawyers for nomination by the governor. Currently, there is a nominating commission for the appellate courts and separate commissions for the trial courts in each of 16 districts. The majority of the members are appointed by the governor and the remaining members are elected by the attorneys for the area served by that court. Once appointed or elected, members serve for a four-year term, or until their successor has been selected.

            Members of the commissions recommend lawyers based on personal knowledge of their skills and also invite recommendations from the public. The commissions interview candidates, consult with judges and contact the Attorney Grievance Commission to consider any complaints that may have been filed against a candidate. The commission then votes by secret ballot to recommend names to the governor. The Appellate Judicial Nominating Commission is required to recommend between five and seven names for the governor’s consideration within 85 days of receiving notice of the vacancy. The Trial Courts Nominating Commissions in each of the nominating districts recommend up to seven names to the governor for any vacancy, and as few as two names if there are fewer than 30 active attorneys in the county the nominee is intended to serve. The governor is required to make judicial appointments from the lists submitted by the commissions.

            Senate Consideration: The governor nominates a judge by sending his or her name to the senate. Because the lists of the governor’s nominees for various state positions are traditionally sent to the senate in a green bag, these are sometimes called “green bag nominations.” On average, the governor sends 16 judicial nominations to the senate each year. (Click icon at left for footnote.)

            Judicial Elections: Except for District Court judges, all judges in Maryland are subject to election. After being confirmed by the senate, District Court judges serve for a ten-year term. When that term ends, the governor may appoint that judge to an additional term, subject to confirmation by the senate. No election is required.

            Circuit Court judges must stand for election after only one year of service. In that election, any other attorney at least 30 years of age who has been a resident of Maryland for at least five years and of the county in which the court is located for at least six months before the election may seek election as a judge. The election contest is held in the county in which the judge is serving. The names of all candidates appear on the primary ballots of both the Republican and Democratic parties in that county, but the ballot does not indicate which candidates are incumbent judges. Curiously, even though the election of judges is non-partisan, the names do not appear on the primary ballots provided to unaffiliated voters. The top vote-getters in the two parties are placed on the general election ballot, with the number not to exceed twice the number of judges to be elected. This results in a system in which anyone may run for a position as judge, but the governor’s nominee has a one-year head start and enters the election as an incumbent. Once the Circuit Court judge is elected, he or she serves a 15-year term before standing for election again. At that time, other attorneys may again choose to run against the incumbent judge.

            Judges of the Court of Appeals and Court of Special Appeals do not appear on the ballot until the end of their 10-year terms. No challengers are allowed on the ballot, so the incumbent judge is not running against any other candidate. Instead, the voters are asked to decide “Shall this judge be retained in office?” For the Court of Special Appeals, only the voters living in the circuit from which the judge was appointed will vote on this question, but judges designated for an at-large position appear on the ballot throughout the state. Judges of the Court of Appeals appear on all ballots in the state when their terms end. If the majority vote to retain the judge in office, he or she will then begin another 10-year term. Otherwise, a vacancy is declared and the Governor appoints a new judge. Many states have a similar “retention” election for judges who are appointed by the governors or legislatures of their states, but it is rare for the incumbent judges to be defeated. In recent years, Maryland voters have retained all the incumbent judges of the Court of Appeals and Court of Special Appeals.

JUDICIAL DISCIPLINE AND REMOVAL FROM OFFICE

            Mistakes made by judges can be corrected through the ordinary process of appeal to a higher court. Nevertheless, there are times when misconduct by a judge is so severe, or a judge has become so disabled, that it may serve the interests of justice to remove him or her from office. Any process for judicial discipline, however, should be free of political motivation.

            Because judges of the Court of Appeals, Court of Special Appeals and Circuit Courts must stand for election, those judges may be removed from office whenever their terms come to an end. The Maryland constitution also authorizes the governor to remove a judge from office if a court has found that the judge is incompetent, has wilfully neglected judicial duties, has misbehaved in office, or is guilty of any other crime. A judge may also be impeached and removed from office by the General Assembly. A judge may also be removed by “address” of the General Assembly, a procedure that requires two-thirds of each house to agree and also requires that the accused judge be notified of the charges against him and have an opportunity to answer the charges. However, these provisions for removal of judges have rarely been used. The Maryland constitution has also established an 11-member Commission on Judicial Disabilities that, in addition to recommending removal from office, can also recommend less serious action in response to misconduct. Members are appointed by the governor with the advice and consent of the senate.

            When a complaint of misconduct is received, the commission conducts a preliminary investigation and can then recommend dismissal of the charges, further investigation or disciplinary action. The commission may issue a private reprimand, enter into a deferred discipline agreement with a judge or conduct a hearing to determine whether a judge has a disability necessitating retirement or has committed sanctionable conduct. If, as a result of a hearing, the commission decides, by a majority vote, that a judge should be retired, removed, censured or publicly reprimanded, it makes that recommendation to the Court of Appeals. The judge may file a response to these recommendations. After reviewing the commission’s recommendations, the Court of Appeals determines the discipline that will be imposed, which may follow the commission’s recommendation or be more or less severe than that recommendation.

SELECTING MARYLAND’S JUDGES: FUTURE DIRECTIONS

            Voters may participate directly in the selection of judges, either by choosing among candidates for judge of the Circuit Court or voting on whether a judge of the Court of Appeals or Court of Special Appeals will continue in office for an additional 10-year term. Voters also play an indirect role in selecting judges when they choose candidates for governor and the senate because those officials play key roles in the selection of Maryland judges. Finally, because much of the current process for selection of judges is established by the state constitution, voters may also play a role in changing the selection process itself by supporting constitutional amendments.

Role of the Governor and Senate

            Because the selection of most Maryland judges begins with the choices made by the governor with approval by the senate, the voter’s first opportunity to influence the selection of judges is in the election of the governor and senators. Knowing the role that these officials play in the selection of judges, citizens should ask candidates for such offices to clearly state their views on the types of judges they would select for the state of Maryland.

            If past experience is a guide, Maryland voters will want candidates for governor and the senate who express a strong commitment to a non-partisan judiciary. In this matter, many Marylanders share the feeling expressed by H.L. Mencken in an account of a crusade by the Baltimore Sun to defeat candidates nominated by a political machine in 1882:

Whatever else politicians do, they must keep their predatory paws off the bench. A non-political judiciary that will interpret fairly the law and administer justice without political taint or touch is more vital to the community than anything else. A good judge is entitled to reelection regardless of his party affiliation; a poor judicial candidate, pushed by the politicians, should never be supported for party reasons. (Click icon at left for footnote.)

            In Maryland, one of the strongest safeguards against a governor abusing his or her power to appoint judges is the tradition of including representatives from among lawyers active in the state courts on all judicial selection commissions. Because the commissions have been created by executive order, they could be changed by any governor with the stroke of a pen. In questioning candidates for governor, voters should seek a commitment not only to continue use of these commissions but also to resisting the temptation to appoint commissioners only from the candidate’s own party.

            With respect to candidates for the senate, it has already been noted that the state senate has generally accepted the governor’s nominees for judgeships. This may reflect, in large part, the confidence that senators have in the judicial selection commissions to restrict any partisan impulses the governor may have and propose the best-qualified nominees. Voters should press candidates for the state senate to make a similar commitment to restrain any inclination they may have to punish political enemies or reward their friends through the judicial selection process.

Role of the Voters: Judicial Elections

            Judicial elections present special problems for voters. Evaluation of candidates for a judgeship is different from the evaluation of candidates for the legislature or for governor. The legislature is designed to represent the political interests of the people, so we should select candidates who agree with and articulate our own views. By contrast, citizens want a judge to be neutral and give a fair decision regardless of his or her personal views.

            The chief difficulty voters face is the lack of useful information about the candidates. As noted in “Popular Elections Unpopular with Judiciary,”in the March/April 1995 issue of Maryland Bar Journal (quoting an earlier Washington Post editorial):

Elections are designed to provide a high degree of accountability to the people. However, accountability fails where the public lacks awareness of the identity of the judicial candidates. Maryland ballots do not identify challengers and incumbents. Voters unfamiliar with the candidates often cast random votes for the office. Therefore a candidate’s ballot position is often more important than their judicial qualifications.

Voters expect candidates to provide information about themselves in campaign literature and advertisements, but candidates for judgeships do not have the same freedom as candidates for other offices. Because we want judges to be separated from politics, ethical rules strictly limit their campaign activities. Perhaps the most restrictive is that a judge:

should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office, announce the judge’s views on disputed legal or political issues, or misrepresent the judge’s identity, qualifications, or other fact. (Click icon at left for footnote.)

Although the United States Supreme Court has held that a similar rule in Minnesota violated a judicial candidate’s freedom of speech, many judicial candidates remain reluctant to be very specific in their campaigns for office. This may result in a “campaign” so bland that voters receive no useful information. A poll of Washington state voters in a 1998 judicial election revealed that 70% felt they did not have sufficient information to make a choice and only 19% felt they did. (Click icon at left for footnote.)

            On the other extreme, judicial campaigns in some states have become so expensive that fundraising efforts of judicial candidates has become an issue in itself. In one widely-reported example, a lawsuit in the Texas courts involving Penzoil and Texaco was being considered at the time of the 1985 election in which several judges appeared on the ballot. When it was discovered that the lawyer for one of the companies had contributed $10,000 to the trial court judge’s campaign, the other company demanded a new trial. Not content with seeking a new trial, however, the company and its lawyers contributed $72,000 to the re-election campaign of one of the Texas Supreme Court justices who would hear their appeal. Ultimately, the court ruled in favor of the company whose lawyers and corporate officers gave $315,000 to judicial election campaigns. This scandal raised alarms around the country regarding the election of judges.

            The League of Women Voters of Maryland is seeking to address voters’ need for information and the ethical concerns of judges through the questions it poses to judicial candidates in the Voters Guide. The League has consulted the ethical standards adopted by the state of Maryland and the American Bar Association and seeks to develop questions that will allow judges to address appropriate issues, such as their legal education and experience, commitment to upholding the law and commitment to impartiality, while avoiding questions that may invite inappropriate campaigning based upon rulings in specific cases or appeals to prejudice. To the extent that the League can expand these efforts, voters will be enabled to participate in judicial elections with greater confidence that they have been provided information that is useful and relevant for the choices they are called upon to make.

Proposals for Reform

            Under the current system for nominating candidates for the Circuit Court, only those voters who are registered in one of the two major parties are allowed to select the nominees who will appear on the general election ballot. A lawsuit challenging this practice was filed on behalf of unaffiliated voters in 2004 (and is expected to be decided soon). In addition, legislation was proposed in the last session of the General Assembly to change the primary nomination process so that all voters could participate in selecting candidates for the general election ballot.

            Although the judicial selection commissions have been used by every governor since 1970, they are created by an executive order and could be abolished by a new governor. From time to time the legislature has considered laws to establish these commissions permanently, which would prevent a new governor from abolishing the practice. Because the Maryland constitution authorizes the governor to nominate judges, however, it is not clear that the General Assembly could limit the governor’s discretion. It is likely that if the structure of the judicial selection commissions becomes a subject of public debate, Maryland’s system will be compared to those in other states. This could lead to changes in the way that the commissioners are selected. While the Maryland governor appoints approximately half of each selection commission and could select only members of his or her own party, many states require a balancing of party membership on selection commissions. Other states provide that some of the commissioners will be appointed by legislative leaders, in an effort to ensure a more representative commission than might result if the governor alone selected the commissioners.

            Many Maryland judges, as well as the state bar association, have called for the elimination of contested elections for the Circuit Court. Most of these proposals have urged that the elections be changed to retention elections, in which the voters would decide the question “Should this judge be retained in office?”. This would make the Circuit Court system similar to that used for the Court of Appeals and Court of Special Appeals. Others have proposed that the judges of the Circuit Court be named by the governor subject to confirmation by the senate. This would make the Circuit Court similar to the District Court of Maryland. Because the Maryland constitution currently requires contested elections for the Circuit Court, changes of this type would require an amendment to the constitution.

            At this time, there is no information about what reforms might be put before the 2006 state legislative session. However, the Maryland Judicial Conference, which is made up of the judges of all the courts (except the Orphans Court) has sent two recommendations for reform to the state legislature and they are likely to be considered. One would make judicial elections non-partisan, allowing all voters to participate. The other would retain the present selection process for Circuit Court judges (appointment by the governor, then, after at least one year, an election that is open to challengers) but in subsequent elections, after their terms of 15 years are over, the Circuit Court judges would run on their records, unopposed.

            The League of Women Voters of Maryland has studied the Maryland court system over the years, beginning in 1963. It supports:

            1.         A statewide uniform and unified judicial system.

            2.         Appointment of judges by the governor based on the recommendations of judicial nominating commissions, with voter confirmation in nonpartisan merit retention elections.

            3.         Effective, nonpartisan procedures for removing judges from office.

This Fact Sheet was prepared by Ralph Watkins and Marlene Cohn.

For More Information:

Maryland State Courts, www.courts.state.md.us

Federal Courts "Understanding the Federal Courts", Administrative Office of the United States Courts, www.uscourts.gov