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Bar member requirement possible for Orphan’s Court judges (access required)

Baltimore’s Orphans’ Court may become the only one in the state whose judges have to be members of the Bar, if Marylanders on Nov. 2 approve a constitutional amendment imposing that requirement. Approval of the amendment would be distressing for Ramona Moore Baker, a non-lawyer who, running unopposed, is virtually assured of winning a seat that day to become one of the city’s three Orphans’ Court judges. If the amendment passes, Baker’s election victory presumably would be short-lived, as the absence of a Maryland law license would render her ineligible for the judgeship. It is, therefore, not surprising she contests the proposed amendment. But Baker said her opposition is not just based on the judgeship she would lose under the amendment. She believes limiting the Orphans’ Court bench to attorneys is bad public policy. Baker, who has an MBA, said being a lawyer is not as important to the task of being an Orphans’ Court judge as having financial expertise when presiding over probate cases, which generally center on money and property. “Why should it just be [limited to the] Maryland Bar?” said Baker, an interior designer who has worked as a mediator. “The important thing is getting the needs of these families met.” Targeted amendment? Baker, who ran unsuccessfully for the Orphans’ Court in 2006, said she believes the proposed amendment is targeted at her specifically. The proposal would apply only to Baltimore city, she said. The state’s other Orphans’ Court judges, who preside in 21 of the 23 Maryland counties, still would not have to be lawyers if the amendment passes, Baker added. (In Montgomery and Harford counties, circuit court judges preside over Orphans’ Court cases.) Currently, two-thirds of the state’s Orphans’ Court judges are not lawyers, according to the Maryland Judiciary. “Other counties do what we do,” Baker said of non-lawyers serving as Orphans’ Court judges. “They seem to be able to get through the process.” Baltimore has had a vacancy on its three-member Orphans’ Court bench since Gov. Martin O’Malley appointed Karen Friedman to the District Court in July. After Baker’s victory in the September primary, she became the only candidate running for the seat previously occupied by Friedman, virtually assuring her of election on Nov. 2. Baltimore’s two sitting Orphans’ Court judges — both attorneys — disputed Baker’s contention that the proposed restriction is aimed at her. Rather, the long-overdue limitation is designed to ensure that Orphans’ Court judges are learned in the law when they preside over the complex legal issues that arise when distributing property after death in Maryland’s most populous city, the judges said. Chief Judge Joyce M. Baylor-Thompson said a glib understanding of the law and experience in conducting legal research are essential in deciding cases that often involve areas of the law outside of probate. These other areas include contract, property and family law, as well as the bane of many a law student: the Rule Against Perpetuities. “Believe it or not, it shows up,” Baylor-Thompson said of the rule that a bequest of property is valid only if it transfers no later than 21 years after a life in being at the time the bequest was made. “It’s very detailed work,” she said of judging on the Orphans’ Court. “You have to be aware of all the nuances that go into making a decision.” Her colleague, Judge Lewyn Scott Garrett, said being a lawyer is as essential to the task of judging as being a periodontist is to the task of oral surgery. “I consider myself intelligent, but if you need a root canal, do not come to me,” Garrett said. Legal logistics Meanwhile, Baylor-Thompson and Garrett have been outspoken in urging Marylanders to vote for the proposed amendment, which will be Question #3 on the statewide ballot. Baylor-Thomson said that — based on her 16 years of experience on the bench — putting a non-lawyer on the Orphans’ Court in Baltimore would create logistical problems. Under the Maryland Estates and Trust Article, non-attorneys cannot perform any judicial act without the assistance of a judge who is an attorney, she explained. Thus, a judge licensed to practice law would have to sit with the non-attorney judge during hearings, as well as sign orders presented to the non-attorney judge, Baylor-Thompson said. As a result, the processes of the Orphans’ Court would slow, as the court would be unable to hear three cases at the same time, and “paperwork is going to be backed up” since orders cannot be signed as quickly, Baylor-Thompson said. “It’s just going to back-log the court,” she added. “I see a non-lawyer as a judge as a liability to the court in Baltimore City.” Matthew A. Mace, who has been practicing estate and trust law in Maryland for 25 years, echoed Baylor-Thompson’s concerns. “The workload in Baltimore City is such that they are a busy enough docket that they need to sit as three judges hearing matters that come before that court,” said Mace, of Ober/Kaler in Baltimore. “It just leads to clogging of the docket in Baltimore City.” Judicial diversity But Howard County Orphans’ Court Judge Joyce C. Pope said having a non-attorney — such as herself — on the bench can be an asset. “Being an attorney doesn’t guarantee a superior knowledge of probate and estate law,” Pope said. “Being an attorney doesn’t guarantee that they would be a good judge.” Pope said the Orphans’ Court was designed to be “a lay court, a court of your peers,” presided over not just by attorneys but by judges from many occupational backgrounds who can bring their diverse perspectives to the disputes before them. For example, while a judge with a legal background might better understand the law, the lay judge might be able to relate more keenly to the litigants and understand what they were thinking when they signed documents, she said. “I think that probably makes for a healthy balance on the court,” Pope said of the judicial diversity. “I think a balance is healthy.” Charles M. Coles Jr., a farmer who served with Pope on the Orphans’ Court, agreed that being a lawyer should not be a requirement for the job. “Not all attorneys make good judges,” said Coles, who served 12 years on the bench — including eight as chief judge. He lost a re-election bid in 2006. “The essential thing to be a good judge is to be a good listener,” Coles said. He noted that federal law does not require justices on the nation’s highest court to be attorneys. “If it’s good enough for the Supreme Court, it’s certainly good enough for the Howard County Orphans’ Court,” said Coles, who is running this fall in an effort to regain his seat on the bench. Policy rationale The General Assembly’s approval of this fall’s ballot question followed its failed effort to bring a similar proposal before voters in 2008. That year, the General Assembly voted down a proposed ballot question to enable lawmakers to require Orphans’ Court judges to have a professional license, such as one to practice law. Del. Samuel I. “Sandy” Rosenberg, who sponsored the proposed amendment this year, spoke of the compelling need to have a trained attorney decide probate and estate cases. “There’s a substantive policy rationale for this” amendment, said Rosenberg, D-Baltimore City. “Given the complexity of so many of the cases, you need someone who is a member of the Bar. You need someone who has had the legal training.” Mace, who chairs the Maryland State Bar Association’s Estate and Trust Law Section, agreed. Lawyers are trained to spot issues and resolve such complex and “nasty” disputes as a lost will or a misplaced codicil that spurs litigation over whether the testament had been changed or revoked by the decedent, Mace said. But Baker disputed that argument. Graduating from law school and passing the Maryland Bar does not necessarily make that lawyer an expert in probate law, Baker said. Wills, trusts and estates is generally a one-semester elective course in law school, she noted. “All lawyers don’t specialize in this area,” Baker said. A challenge brewing Though she said the proposed amendment is not targeted at Baker, Baylor-Thompson on April 8 asked for the attorney general’s opinion as to whether a non-lawyer could serve as an Orphans’ Court judge in Baltimore if he or she were elected and the proposed amendment were passed. Assistant Attorney General David K. Hayes responded that such a person could not serve. “An individual who presently meets the qualifications under the Maryland Constitution to serve as an Orphans’ Court judge may run for that office in the upcoming election,” Hayes wrote on behalf of Attorney General Douglas F. Gansler. “However, if the qualifications are changed by the passage of the amendment to the Constitution, and that individual no longer possesses all of the qualifications set out in the amendment, then he or she may not serve.” If she wins but is barred from serving due to the amendment, Baker said she will “absolutely” challenge in court the refusal to seat her as a judge. “I am not going to sit and be quiet,” she said. “I am not going to give up because the powers that be say you cannot reach this.”