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Editorial Advisory Board: Orphans’ Court judges need legal training

In preparing for your death, you should, of course, have written and executed a will and made sure your heirs know where your property is and how to secure it once you die. The popular press is filled with advice about other steps you should take to protect your property after you die. It is always a good idea to contact an attorney who specializes in wills, trusts and estates (and other matters of elder law, including durable power of attorney and living wills to advance your interests should you become ill or suffer an incapacitating accident) to assist you in planning for the future.

The issues are often complex, and an experienced attorney in the field will be able to translate your desires into the proper language and adopt appropriate tax mitigation strategies. The structures for your situation may include the establishment of trusts for your spouse, your children or others. Specific bequests may be provided for. Not all estates implicate all the complexities, but you will not know whether yours does unless a lawyer helps you.

It is without cavil that these matters are not for the lay person. It may come, then, as something of a shock to learn that in most Maryland jurisdictions, the person with the authority to render judgment on your will, however complex it may be, can be a lay person, not a lawyer.

This deeply unfortunate state of affairs is enshrined in the Maryland Constitution. The Orphans’ Court is an archaic name for the court that hears all contested matters regarding a decedent’s estate, including validity of wills and legal questions involving transfers of property. The Orphans’ Court supervises all judicially probated estates, reviews and approves accounts and awards the payments made to personal representatives and attorneys from the assets of all estates.

Each of Maryland’s jurisdictions — Baltimore City and the various counties — has an Orphans’ Court. You are guaranteed a “real” judge, that is, a judge who has a law degree and is a member of the Maryland Bar, if the decedent resided in one of only three jurisdictions. In Harford and Montgomery counties, a circuit court judge sits as the Orphans’ Court. For Baltimore City, the voters (of Baltimore City and the state) in 2010 passed a constitutional amendment to require Orphans’ Court judges to be lawyers and be members in good standing of the Maryland Bar.

At present, the requirements to qualify for election as an Orphans’ Court judge are that an individual be a citizen of Maryland and reside for the preceding 12 months in the jurisdiction from which an individual is elected. Elections are held every four years, and a vacancy is filled by the governor, subject to confirmation or rejection by the Senate.

Next up in this November election are Baltimore County and Prince George’s County, where proposed constitutional amendments, one for each jurisdiction, would follow the Baltimore City practice. As a practical matter, the change would not alter the make-up of either court: The three judges in each county obtained their J.D.s and could stand for re-election, if they chose, after passage. That makes it far safer for survivors of those who die while residents of five of the more populous jurisdictions in Maryland.

We share a nagging suspicion that the presence of non-lawyers on the other Orphans’ Courts may have something to do with the absence of action by the General Assembly for the remaining jurisdictions. Should a jurisdiction with a non-lawyer Orphans’ Court judge or judges be subject to a constitutional amendment a la Baltimore City’s, the judge or judges would instantly fail to meet the qualifications of their office.

The magnitude of the change by requiring all Orphans’ Court judges be lawyers can best be understood by reviewing the bios of the current judges on the Maryland State Archives website. Taking the absence of any reference to a law degree or being a member of the Maryland Bar as evidence that the judge is not a lawyer, a stunning 11 counties have not a single lawyer judge on the Orphans’ Court. Another six counties have but a single lawyer judge along with two non-lawyer judges. Only Howard and Frederick counties have two lawyer judges on their Orphans’ Courts.

Not a single one of those 19 counties has an all-lawyer court. That is stunning: it means that if you live anywhere but a few select jurisdictions in Maryland, when you die your heirs will, or may, have to depend on the ability of a non-lawyer to judge whether your affairs are handled in the manner that you chose before you passed on.

An abiding problem arising from the use of lay judges is their lack of legal training to manage the adversary proceedings over which the Orphans’ Court has jurisdiction (will contests, petitions to remove personal representatives, exceptions to accounts, etc.). Their inability to decide legal issues — evidentiary questions and motions — causes most lawyers to transmit the issues to the Circuit Court, in the hope of trying the matter before a judge who understands the hearsay rule. This means that what might be done efficiently in the Orphans’ Court now becomes a part of the more crowded docket in the court of general jurisdiction.

We appreciate the fact that the problem has been bequeathed, pun intended, to us by our forebears in the form of a Maryland Constitution that is unsuited to respond to current complex matters of estate law. The General Assembly has, thus far, followed a jurisdiction-by-jurisdiction solution. That appears to us to create political problems that could and should be overcome by a different approach. (Political but not partisan: The non-lawyers on the Orphans’ Court are Republicans and Democrats.)

As in the case of the current proposed constitutional amendments, the General Assembly approves placement of these matters on the ballot. There is a tradition that matters affecting one jurisdiction are voted on only with the consent of the members from that jurisdiction. We can understand the possible concern of lawmakers who represent the 19 jurisdictions where, if the Baltimore City solution were adopted, current elected officials would lose their jobs. Every fired non-lawyer judge is a voter, and they have families, friends, acolytes and patrons.

Perhaps the lawmakers can take comfort from the letter sent to the General Assembly in 2010 by the Maryland Association of Judges of the Orphans’ Courts supporting a constitutional amendment that would require that all Orphans’ Court judges be lawyers. As matters now stand, wrote the judges: “In essence anyone could serve in this capacity that is illiterate, a high school dropout or even a criminal felon.”

We believe, with the judges themselves, that the public interest controls. The public interest demands an end to lay judges picking through complex legal documents with lives and hard-earned fortunes at risk. The solution rests in a comprehensive constitutional amendment that covers the entire State, thereby avoiding most of the political risks to lawmakers from individual counties. The time for piecemeal action has passed, if there was ever a time for one.

By all means, on Election Day, vote for the proposed amendments in Prince George’s and Baltimore counties: Not one person will lose his or her job as a result if they are enacted. And then join in the business of changing the law in all jurisdictions that permit non-lawyers to decide issues of great import for the citizens of this state. The lay “judges” are judges in name (and salary) only. They should go, and soon.

Editorial advisory board member Wesley D. Blakeslee did not participate in this opinion.

Editorial Advisory Board

James B. Astrachan

Chair Laurel Albin

John Bainbridge

Neil Duke

Eric Easton

Arthur F. Fergenson

Elizabeth Kameen

Wesley D. Blakeslee

C. William Michaels

William Reynolds

Frederic Smalkin

Norman Smith

H. Mark Stichel

Christopher West