Makeover for Maryland's Highest Court

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By Tim Maloney
Sunday, August 7, 2005

While official Washington is consumed with the future makeup of the Supreme Court, Maryland is about to undergo a major change in the composition of its own highest court. The winner of Maryland's 2006 gubernatorial election will have the opportunity to appoint three judges to the seven-member Maryland Court of Appeals.

This is not speculation but a constitutional certainty, barring early retirements, because unlike their U.S. Supreme Court counterparts, judges on the Maryland Court of Appeals do not enjoy lifetime tenure. They do, however, enjoy long tenures. Each serves a 10-year term and then is subject to a retention election -- a "yes" or "no" vote from the electorate. No Maryland appellate judge has ever lost such a vote, but all Maryland judges must retire at age 70, and three -- Irma S. Raker, Alan M. Wilner and Dale R. Cathell -- will face mandatory retirement during the next gubernatorial term.

Raker is a respected former prosecutor and trial judge from Montgomery. Wilner has been an intellectual force in Maryland law dating to his days on the staff of then-Gov. Marvin Mandel. Cathell hails from an Eastern Shore family of lawyers and is a property law expert. Collectively, the three have 53 years of experience on Maryland appellate courts.

The opportunity for a governor to make so many appointments to the court is rare. In his three years in office, Gov. Robert L. Ehrlich Jr. has filled just one vacancy, appointing Clayton Greene Jr. from Anne Arundel County.

The Maryland Court of Appeals, like the Supreme Court, is a certiorari court, which means it offers no right of direct appeal. Instead, it selects its own workload, granting writs of certiorari -- Latin for "take notice of," "to be informed" -- to hear cases of significant public importance. In fiscal 2004 the court granted 90 such writs.

At his recent swearing in for the Court of Special Appeals, Maryland's intermediate appellate court, Patrick L. Woodward took a good-natured poke at the role of the certiorari court, quoting the wag who said, "It is the duty of the circuit judge to be quick, whimsical and wrong. But from that it must not be concluded that it is the function of the Court of Special Appeals to be slow, intemperate and right because that would usurp the function of the Court of Appeals."

Since 1996 the court has been headed by Robert M. Bell, Maryland's first African American chief judge. Bell began his career in Maryland courts at age 16, when he was arrested for trespassing at Hooper's Restaurant in Baltimore during a protest of segregated lunch counters. Bell challenged the arrest, and his case eventually made it to the Supreme Court, where he prevailed in a landmark 1964 decision on public accommodations, which bears his name.

Bell, a graduate of Harvard Law School, has served on all four Maryland courts. He takes strong stands for judicial independence that have, on occasion, led to strained relations with legislative leaders. In 2002, on the eve of a primary election, his court tossed out a partisan redistricting plan prepared by the Glendening administration and substituted its own plan, which created a political uproar, especially in Baltimore City. The aftershocks of that decision are still felt in Annapolis.

In general, however, unlike the Supreme Court, Maryland's high court has been relatively free of ideological warfare. To be sure, Bell can be counted on to defend the constitutional rights of defendants in criminal cases, and Cathell is a champion of property rights; Wilner is a stickler for careful administrative procedure. But the Maryland Court of Appeals does not have the kind of public fault lines that divide the Supreme Court.

Earlier this year, Baltimore attorney Christopher Brown prepared an analysis of the court's voting patterns, focusing heavily on criminal cases as well as on some politically sensitive cases as the barometer of the court's "liberal" or "conservative" bent. Based on a similar analysis he prepared in 1999, Brown concluded that the Court of Appeals was becoming increasingly conservative, with only two judges, Bell and Greene, consistently supporting "liberal" positions. He found that Cathell, at the conservative end of the court, took "liberal" positions only 18 percent of the time.

This analysis is interesting, but of limited use because of the many factors that drive decisions at the appellate level. Many of the court's decisions are unanimous; others defy ideological pigeonholing. But Brown's study points to the influence the next governor will have in shaping the court on criminal and business law and on civil rights issues.

Unlike the U.S. Senate, the Maryland Senate has rarely contested Senate confirmation hearings for judicial nominations, even under divided-party government. Ehrlich has helped continue this tradition by making excellent appellate appointments and resisting those who sought nomination based on Republican Party credentials instead of professional qualifications.

Continuing to choose competence over ideology is a good model for future appointments to the Court of Appeals -- no matter which party wins the 2006 gubernatorial election. And a hint to the Ehrlich administration: This policy would work for executive branch appointments as well.

The writer, a lawyer in Greenbelt, served for 16 years as a Democratic member of the Maryland legislature. His e-mail address istmaloney@jgllaw.com.


© 2005 The Washington Post Company

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