Danielle Ulman//Daily Record Legal Affairs Writer//December 18, 2011
//Daily Record Legal Affairs Writer
//December 18, 2011
Look at this year’s financial disclosure forms from the judges on the Court of Appeals, and that is the only disclosure you will find in many a category.
Since 1975, the Maryland Judiciary has given itself the option of filling out the bare minimum on financial disclosure forms, listing information only if it varies from the prior year’s filing.
Otherwise, “no change” is sufficient.
No change — from what? That’s the question Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, asked.
“Is this outrageous? Yeah, it is,” she said. “I don’t know if it’s laziness or a desire to be obstreperous or they think ‘How dare you ask me that? I’m a judge.’
“That’s obviously the problem,” Dalglish said. “No one has said, ‘Hey, what are you doing here?’”
Year by year by year
While the “no change” option is convenient for the judges, it introduces a Catch-22 from the public’s point of view.
You need the form to tell you what the judge’s financial holdings are, but to get the right form, you need to know the last time those holdings changed.
Even looking at the form for every year a judge has been on the bench may not be enough, as Judge Clayton Greene Jr.’s history illustrates.
Greene, who has been on the Court of Appeals since 2004, first became a judge in Maryland District Court in March 1988.
In the first Statement of Financial Interest he filed as a judge, he wrote “no change” for the value of two of his three properties.
According to Greene and Angelita Plemmer, director of communications for the courts, Greene has always disclosed any information required of him and he properly disclosed the value of those properties — before he became a judge.
Until March 1988, Greene was a deputy public defender and fell under a separate disclosure law for certain state employees. Those forms are filed with the State Ethics Commission, not the Administrative Office of the Courts.
Greene still had a copy of his final form as a public defender in his personal files. He provided it to Plemmer, along with a statement for The Daily Record.
“I believe the inherent power of the Judiciary lies in the public trust and confidence of the people we serve,” Green said in the statement.
“To be sure, judges are not immune from, or above, criticism or scrutiny, nor ought they be…,” his statement said. “Throughout my career, first as a legal practitioner and finally as a jurist, I have demonstrated a standard of honesty, integrity and responsibility.”
No online access
The “no change” provision would be less of a problem if Maryland’s forms were online. But without an Internet presence, there is no easy way to review the forms.
William Reynolds, the Jacob A. France Professor of Judicial Process at the University of Maryland Francis King Carey School of Law, said the documents should be more accessible.
“It is very important for the public to have confidence in the judiciary and the key to achieving that confidence is transparency,” he said. “That means today that those forms should be available online and they should be updated annually. Anything less than that is a disservice to the people of the state.”
As it is, the forms are stored in four different locations depending on their age. The Administrative Office of the Courts holds forms in its main office for four years, then transfers them to its basement for another five to six years. From there, they are kept for 10 years in the AOC’s warehouse. Anything older than that goes to the State Archives.
Many of the judges have been on the bench for decades, and getting their financial picture can prove tricky because of the “no change” provision, signed into the rules on Jan. 6, 1975 by then-Chief Judge Robert Murphy.
Some judges do provide extensive information anyway. While the instructions allow judges to identify their residence only by county, most judges provided a street address.
Judge Mary Ellen Barbera included pages and pages of documentation showing her investments and used “no change” in just one category, the value of her home, on the form filed this year.
“I have always endeavored to give a complete answer to every question asked on the Financial Disclosure form,” Barbera said in a statement.
Judge Sally D. Adkins also went into great detail on the form filed this year. The words “no change” do not appear anywhere on her form.
Judge Joseph F. Murphy Jr., who retired from the court Sept. 30, also did not use the term in the form he filed in March.
Chief Judge Robert M. Bell was forthcoming about his debts, even listing his payments on charge accounts at high-end department stores like Neiman Marcus and Bloomingdale’s.
However, Bell was mum when it came to his assets, identifying his real estate holdings only as “1, 2 and 3” and using “no change” to describe their location, type, value, date of acquisition, transferor, and any co-owners.
Bell gave similar treatment to his interests in corporations, describing them as “1, 2, 3 and 4” and entering “no change” in every category asking for more details.
Judges Lynne A. Battaglia and Glenn T. Harrell Jr. provided details in most categories, but also made use of the “no change” option.
Over the years, Greene has used the phrase the most regularly, with his 1993 real property form reading “no change” all the way across, aside from a note under the conditions and encumbrances section, saying “no change other than balance reduced by regular payments applied to principal.”
In the form he filed in 1989 — his first as a judge — Greene did supply a good deal of information, including the rates of interest of his mortgages, how much the balance decreased and what was left to pay, although the value of two of his three properties was listed as “unchanged.”
Unlike Bell, Greene did identify his properties by address on his 2011 form. And, Plemmer notes, Greene has followed the Judiciary’s rule by providing information whenever his financial interests change.
For judges only
None of the judges wanted to discuss the policy implications of the “no change” rule or whether it should be updated given the number of years each has served.
According to Plemmer, several members of the court met last week and reviewed questions from The Daily Record regarding the policy. However, they decided not to discuss the issue because they are short two judges at present, with the retirement of Murphy and the temporary absence of Battaglia following a medical procedure.
Plemmer said that when the court does take up the issue, it “would like to obtain additional information on how other branches of our State Government and judiciaries in other states handle such matters.”
Maryland appears to be one of only three states that still require people to view financial disclosure forms in person. The other two are Alaska and Nebraska.
Within Maryland, the Judiciary is the only branch that authorizes a response of “no change,” according to Executive Director Michael Lord of the State Ethics Commission.
The general instructions written by the Judiciary for filling out the disclosure forms provide, “If you have filed a statement of financial interests covering all or part of a prior year, you need supply detailed information only with respect to changes that have occurred in respect to the information supplied in the previous statement. It is only necessary to insert the words ‘no change’” in the appropriate block of the appropriate schedules.”
The Judiciary’s power to make its own rules stems from State Government Article 15-610, Lord said.
“If you take a look at the statute it does give them the authority to set up their own process,” he said. “They get to decide how it’s done and what the rules are.”
For other state employees and officials, disclosure forms can be filled out (but not viewed) online. Lord said about 75 percent to 80 percent of the state’s roughly 14,000 filers fill out the form online, which does not allow a “no change” response. Filers who write “no change” are told to go back and fill in the information if their form is picked for an audit.
On the local level, financial disclosures and increased transparency have become a hot-button issue in the wake of recent corruption prosecutions.
Baltimore County Executive Kevin Kamenetz and Baltimore City Council member Carl Stokes have each proposed putting financial disclosure forms online. Kamenetz would also levy fines for late or incomplete filings, something not included in the state ethics rules and the judges’ own provisions.
Kamenetz declined to comment directly on the Judiciary’s financial disclosure processes, but he did note that different disclosure rules might make sense for “volunteers and appointees.”
“For elected officials, I think that, by nature of our willingness to put our names on the ballot, we waive that expectation of privacy to a certain degree,” he said.
(Court of Appeals judges are appointed by the governor, but face an uncontested retention election following their appointment, and every 10 years after that.)
Stokes said the Judiciary probably adopted the “no change” rule simply to make it easier to fill out the forms. He compared it to the campaign finance records he must submit, which are “prepopulated” electronically with his information from the prior campaign cycle so he doesn’t need to start from scratch each time. However, he acknowledged, the campaign finance reports are easily accessible online.
That’s not true of his ethics filings as a city official. In Baltimore, people must not only appear in person but must sign in to view an ethics filing, he said. And, on request, any public official can get the names and addresses of the people who have viewed his or her files. Online access would stop that, he said.
Stokes said he has gotten some pushback from colleagues, who raise concerns about the safety of their spouses and children as well as fear of the “‘gotcha’” moment,” where an inadvertent error gets picked up and blasted by the media.
To Stokes, though, putting the disclosure forms online just makes sense. The forms are public information, he said, so why not put them where the public can actually see them?
“My idea is to be as transparent as possible in this age of electronic communication,” he said. “I don’t see the rationale to make it not accessible to people.”