3 New Judges, Picked By O'Malley, May Shift Divided Panel's Balance

Many recent land-use cases have been closely decided, according to land-use lawyers, and Cathell's departure could signal a court more sympathetic to state concerns. The new judges' records suggest they are more likely to side with the state than Cathell was, veteran land-use lawyer Stanley D. Abrams said.

"There may be a shift in that 4-3 balance," he said.

It is unclear when and in what form capital punishment and gay marriage will return to the court's docket.

Last year, the court voted 4 to 3 to uphold the state's ban on gay marriage. Cathell and Wilner sided with two other judges to form the majority in that case. Raker wrote in a concurring and dissenting opinion that lawmakers should extend the rights and benefits of marriage to same-sex couples.

In 2006, the court ruled unanimously that the state's procedure for executions was adopted improperly and that the defect must be addressed before more inmates are put to death. The de facto moratorium remains in place.

Before that ruling, however, the court was consistently divided on one wrinkle in the death-penalty debate. Three judges repeatedly held that the state's burden of proof in securing a death sentence is unconstitutionally low. The bloc included Raker but not Cathell and Wilner, both of whom voted with the majority to uphold the statute.

Cathell and Wilner were regarded as conservative votes on a conservative court, said Christopher Brown, a Baltimore lawyer who ranks the judges each year, based on their voting records, for the Daily Record. Raker also took conservative positions but less consistently so, according to Brown's analysis.

Even with the appointments by a Democratic governor, the court is likely to remain relatively conservative, particularly on criminal law, many appellate lawyers say. Historically, the Court of Special Appeals has affirmed almost all criminal convictions. Although Murphy worked for a time as a defense attorney, none of the three new judges is known to take an expansive view of defendants' rights. Only Chief Judge Robert M. Bell is considered a consistently liberal vote on criminal law matters.

The new judges might have a little time to find their footing before facing some of the hot-button issues. Foes of the gay marriage ban say they are focusing their efforts on the General Assembly, as are opponents of capital punishment.

"I think it's going to be legislatures that do it, and I think we're really close," said Jane Henderson, executive director of Maryland Citizens Against State Executions.