Campaigners without a cause

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It’s 5:50 p.m. when the four Baltimore County Circuit Court judges arrive at the Vista Room at the Maryland State Fairgrounds to start their second job.

Judges Jan Alexander, Sherrie Bailey, Ann Brobst and John Nagle are running as a slate in the upcoming election, seeking full 15-year terms on the court. Circuit court judges are the only members of the state judiciary who face a popular vote.

In fact, they face at least two popular votes. Their names appear on the primary ballots of both the Republican and Democratic parties, a gauntlet that requires campaign stops at community and political events across the county and across the ideological spectrum.

The trouble is, they aren’t allowed to do much except show up.

On this humid July evening, Alexander, Bailey, Brobst and Nagle — their names appear in alphabetical order on campaign literature because that’s how they will appear on the ballot — have accepted invitations to three events. That’s an average night.

During the next three hours, the judges will shake hands and pose for pictures from Timonium to Arbutus. And, unlike a political candidate who can talk about the issues, the most a judge can say is what Alexander said multiple times: “I appreciate you taking us into consideration.”

‘Catch 22′

The Baltimore County judicial race is one of three contested judicial elections this year, out of a total of 10 in the state.

The county judges are being challenged by T. Scott Beckman, who until last week was an assistant public defender in the juvenile division in the county. (Public Defender Paul B. DeWolfe declined to comment on Beckman’s departure because it was a personnel matter but did say it was not related to Beckman’s candidacy.)

In Anne Arundel County, former Maryland State Bar Association President Alison L. Asti is running against Judges Ronald H. Jarashow and Laura S. Kiessling, who have been endorsed by the MSBA, as have the other sitting judges in contested elections.

And in Cecil County, Judge V. Michael Whelan faces two lawyers who are also masters in chancery in the court, Harry D. Barnes and John H. Buck.

The seven sitting judges facing contested elections were appointed by Gov. Martin O’Malley within the last 16 months; under the Maryland Code of Judicial Conduct, they’ve been candidates from the moment they took the oath of office.

Whelan has been on the bench for about six weeks, and says the voters he meets are often confused by the judicial elections process and why he has to stand for election so soon.

State law requires a judge to run for election for a full term within two years of appointment, unless the vacancy he or she was appointed to fill occurred less than a year before that election.

Despite Whelan’s short tenure on the bench, the vacancy he was appointed to fill was created last October when Judge Dexter M. Thompson Jr. retired without completing his term. So, Whelan has to run.

But that doesn’t help the voters with their choice, Whelan said.

“They’re being asked to make an uninformed decision,” he said. “I don’t even have a track record.”

The Catch-22 for the judge is that his nightly campaigning is cutting into the track record he would like to create.

“I should be looking at cases rather than closing at 5 p.m.,” he said. “I don’t have time at night to do what I should be doing.”

At the fairgrounds

This night, the trail starts at a fundraiser for Rick Arnold, the clerk of the Baltimore County Circuit Court. Blue-and-white balloon arrangements dot the room. A bar and a buffet featuring udder-like condiment dispensers form a partial perimeter to a dozen round tables.

The judges each greet Arnold upon entering and then disperse around the room.

“The energy they’ve got is amazing,” Arnold said. “I’ve seen them talk to a group of five or six people and give them the same attention as hundreds of people.”

The fundraiser is largely their crowd, the lawyers and courthouse personnel they see every day. But each judge stops to introduce himself or herself to any unfamiliar face. The first judge at a table drops off the campaign literature.

Each judge has his or her own campaigning style. Alexander is a backslapper with a booming laugh. Bailey is quieter and unassuming; she and Brobst take time for more in-depth conversations with voters. Nagle weaves his way through a room, digital camera by his side. His job is to make sure someone takes a photo of the judges with the event’s organizers, which he uploads to the slate’s Facebook page. Brobst typically provides the captions.

“We complement each other well,” Nagle said.

By 6:35 p.m., the judges have gotten their picture with Arnold and they head out for the next stop.

Picnicking with the Republicans

Nearly all judges running for election this year have pledged to abide by standards created by the Maryland Judiciary Campaign Conduct Committee, a volunteer organization that promotes civility in judicial elections. The standards reflect the judicial canons and Maryland Rules of Professional Responsibility, which prohibit judicial candidates from making statements that could affect their impartiality.

A promise to render fair and impartial decisions “is not the most exciting campaign speech,” acknowledged William C. Davis, chairman of the Committee to Retain Sitting Judges of Montgomery County Maryland PAC Inc.

H. Mark Stichel, chairman of the Baltimore City Sitting Judges Committee Slate since 1995, said challenges in the city have historically been made on race or personality issues.

“It’s hard for the public to judge qualifications and temperament,” said Stichel, of Gohn, Hankey & Stichel LLP in Baltimore.

The constraints on judicial campaigns means face time with voters is the only real alternative, said Davis, a principal with Offit Kurman P.A. in Bethesda. An election ballot does not identify incumbent judges from challengers.

“A judge’s name recognition is so low that it’s tough when you get down to the bottom of the ballot to make an informed decision,” he said.

So it is that Bailey introduces herself to a voter at the judges’ next stop at 6:50 p.m., the 42nd District Republican Club picnic in Towson, explaining the role of the circuit court in the state judiciary.

The judge also chats with Michael M. Ryman, the running mate of Republican gubernatorial candidate Brian Murphy. Bailey takes a Murphy campaign flier, saying she will add it to the collection of campaign literature she is keeping for posterity.

Local Republicans have brought their own picnic fare to the backyard barbecue in the woods off Cowpens Avenue, where they will later announce their endorsements for a variety of federal, state and local offices.

Nagle soon removes his suit jacket in the early-evening humidity and grabs a soda. He and Brobst chat with a couple who say they run into Nagle at their local supermarket.

“I’m running into a lot of people these days,” Nagle says.

The woman asks the judges how they find time to eat while campaigning.

“We eat more than anyone,” Brobst replies with a laugh. “The robes are very forgiving.”

Alexander, seeing Nagle in shirtsleeves, removes his jacket as well. As the crowd begins to sit at tables around the deck with full plates, Alexander remains standing on the deck. He can’t be carrying food when there are hands to shake.

“You’ve got to time when you eat,” he says.

None of the judges eat at the picnic. At 7:35 p.m., they have their picture taken with Republican club officials and head off to their final destination of the night.

Club members sing “The Star-Spangled Banner” at the start of official business.

They will endorse all four sitting judges.

Politics and the law

Bailey said the nightly transition from judge to candidate is not difficult. Both jobs, she pointed out, involve being in front of people.

“We are who we are,” she said, speaking of herself and three colleagues. “We’re all people persons.”

Even so, the dual roles can make for an awkward encounter. Bailey has seen people on the campaign trail who have been criminal defendants in the courtroom.

“Some people say, ‘Sending me to jail was the best thing,’” she said. “Others say they are on probation and doing well.”

Even judges running unopposed this year see the judicial campaign trail as a minefield.

“You just invite yourself to trouble,” said Judge Leo E. Green Jr. of Prince George’s County.

Another unopposed candidate, Washington County Circuit Judge Daniel P. Dwyer, said he was concerned how he might appear to the public from the bench right up to the filing deadline.

“I tried to put politics out of my mind completely,” he wrote in an e-mail. “However, it was a mental exercise to always be examining my rulings trying not to let public opinion enter my thoughts.”

Sometimes an unpopular decision is the legally correct one, a distinction that can be lost on voters, said Laura M. Robinson, chairwoman of the Arundel Judges’ Slate.

“It’s impossible to get away from the fact it’s an election… but the question is not about politics but how to apply the law,” said Robinson, of Lessans, Praley & McCormick P.A. in Glen Burnie.

Some challengers, though, say judicial elections have become political during the O’Malley administration. Former Gov. Robert L. Ehrlich Jr., who is running for the Republican nomination, appointed 72 judges during his term, 35 of whom were Democrats. But only four of O’Malley’s 68 judicial appointments have been Republicans.

“That can hardly reflect the background and views of all that applied,” said Asti, who is running in Anne Arundel County. “To say people don’t want to have elections because of politics is hypocritical.”

Beckman, the challenger in Baltimore County, said it was O’Malley’s lack of Republican appointees that led him to run.

“You have to give the public the opportunity to put people on the bench they are comfortable with,” he said.

Asti called judicial elections “the only check and balance in the system.” Buck, running in Cecil County, agreed.

“I think [voters] should look at candidates and vote up or down,” he said.

The debate between judicial accountability and independence is as old as the country. Political scientist Matt Streb, who has written and edited books about judicial elections, noted that the Declaration of Independence charges King George with “making judges dependent on his will alone.”

At the same time, Alexander Hamilton and other Founding Fathers stressed the need for judicial independence after seeing a patronage system of sorts under colonial rule, according to Streb. The federal judicial system they created allowed for lifetime appointments of judges selected by the president once vetted by the Senate.

While independence reigned at the federal level, accountability has mostly won out at the state level. Some states gave voters the option of electing trial judges in the early 1800s, and in 1832, Mississippi became the first state to require the election of judges in its constitution, according to Streb. By 1861, 70 percent of states had judicial elections in their constitution. Maryland, a relative latecomer, followed suit in 1867.

“We don’t want judges making decisions on their own ideology,” said Streb, an associate professor at Northern Illinois University.

Streb, who has studied extensively intermediate appellate court state elections, said the “political judicial election” has yet to trickle down from the top state courts. But the recent trend has been away from partisan elections and toward retention elections, he said, where a judge receives an up-or-down vote.

Maryland Attorney General Douglas F. Gansler is an outspoken advocate for retention elections at the circuit court level. With the backing of former Supreme Court Justice Sandra Day O’Connor, Gansler unsuccessfully pushed the General Assembly to adopt 10-year terms with retention elections this year.

Contested elections were once needed, Gansler said, to diversify benches in districts with large minority populations, like Prince George’s County and Baltimore City. Yet not a single minority candidate has been elected in Western Maryland, Southern Maryland or the Eastern Shore, he said.

“Clearly the system is not working for diversity of the circuit court bench,” he said.

Critics of retention votes argue that very few judges lose in such elections, and that the money and politics of contested elections would merely shift to retention elections.

“So be it,” Gansler said. Should a judge lose a retention vote “opponents can’t pick the substitute,” he said. “The process starts over.”

One last stop

The Baltimore County judges arrive at their last stop of the evening, Paul’s Restaurant in Arbutus, at 8 p.m. (“We try to travel together so we can talk to each other,” Brobst says. “Plus it saves gas.”)

Owner Clem Kaikis greets each of the judges outside in the fading sunlight. Stickers from a variety of campaigns cover the window by the door, including one for Bailey, Brobst and Nagle — a relic from the slate as it existed before June, when Alexander was elevated from district court.

Kaikis notices he needs a sticker with all four judges’ names; Alexander retrieves the new campaign sticker from his car before entering the restaurant.

Inside, the fundraising event for county executive candidate Joe Bartenfelder is winding down, residents mingling with the candidates for court clerk and County Council. The judges fan out once again, with Alexander and Brobst hitting the booths on the far wall while Bailey and Nagle stay closer to counter seats.

By 8:20 p.m., the crowd has thinned out. The judges, with no more people to meet and no more campaign stops to make, grab seats at the counter. Alexander, Bailey and Brobst make sandwiches with the ham and pit beef on the countertop buffet. Nagle, ice tea in hand, says he does not like to eat much at campaign stops.

“I go home hungry,” he says.

They pick at the cheese and fruit platters in front of them. They chat with Bartenfelder, local political organizers and other candidates. They pose for more photos.

The sun has set by the time they leave Paul’s at 8:40 p.m.

Tomorrow, they will do it all over again.