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

By Henri E. Cauvin
Washington Post Staff Writer
Saturday, September 27, 2008

Maryland Gov. Martin O'Malley has left his imprint on the state's highest court to an extraordinary degree, naming three of its seven judges after less than two years in office, making him the first governor in more than a century to exert such influence so quickly.

The Court of Appeals in recent years has been divided on contentious issues by the thinnest of margins: upholding a ban on same-sex marriage, finding that the standard of proof in death-penalty cases is sufficient.

The leanings of the new judges -- Joseph F. Murphy Jr., Sally D. Adkins and Mary Ellen Barbera -- are not known. O'Malley opposes the death penalty and has supported civil unions, though not gay marriage.

The three judges who have retired since O'Malley took office were regarded as generally conservative. Irma S. Raker, Dale R. Cathell and Alan M. Wilner left the court after reaching the mandatory retirement age of 70.

Their replacements were elevated from the Court of Special Appeals, the state's lower appellate court. In a state with a judicial culture that shuns ideology, even close watchers of the court are loath to predict how the new judges will rule on many issues.

"The truth is no one knows," said Andrew D. Levy, who has argued cases before the court and is the co-author of a book on appellate practice in Maryland.

The landmark same-sex marriage case, decided last year, went directly from the trial court to the high court. The judges also do not have a record on death-penalty appeals, which routinely bypass the lower appellate court.

O'Malley's chief counsel, Elizabeth Harris, said the judges were chosen for their "integrity, fairness and intellectual ability" and were "not vetted or selected to push a particular policy or agenda."

One shift that appears certain, experts say, concerns the debate over the state's role in managing local growth and development and preserving environmentally sensitive areas.

Cathell was widely viewed as the most ardent and influential voice for the rights of property owners. Adkins, who replaced Cathell in the seat covering the Eastern Shore, is considered unlikely to follow Cathell's path on land use.

"It's the starkest impact by far," said lawyer Timothy Maloney, a former state delegate who serves on the commission that screens candidates for the appellate court. "While they are both very qualified judges, they come out in very different places. If you're looking for one major difference, it will be on the environment."

Cathell, for example, wrote the majority opinion this year in an important 4 to 3 ruling that local jurisdictions are not bound by their master plans or statewide policies on growth and development.

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.

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