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Letter to the editor: Response to 10/15/12 Editorial Advisory Board column

Editor’s note: The Oct. 15 column included a quote from testimony of the Maryland Association of Judges of the Orphans’ Courts, given in support of a constitutional amendment to require Orphans’ Court judges in Baltimore to be lawyers. The letter below opens with that quote.

“In essence anyone could serve in this capacity that is illiterate, a high school dropout or even a criminal felon” is no more true of an Orphans’ Court judge than it is of any other elected official.

One of the tenets on which the United States was founded is that, in government, lay people govern professionals. The Constitution tells us that the president is commander in chief of the armed forces, yet the only requirements to become president are that he/she shall be a natural-born citizen of the United States, at least 35 years old and a resident for 14 years. Members of the House of Representatives must be at least 25 years old and a citizen for seven years. Senators must be 30 years old and a citizen for nine years. The job of legislators is to make laws, yet they are not required to be lawyers. There is not even a requirement that justices of the Supreme Court be lawyers. On a more local level, practicing teachers generally may not serve on school boards, and county executives have authority over police departments.

The bottom line is this: People seeking election must persuade the electorate they are worthy of the office in order to be elected. The public must be trusted to choose who will serve them best as Orphans’ Court judges just as they must be trusted to choose who will represent them best in Congress.

There are many attributes that contribute to making an Orphans’ Court judge successful. Life experience is one; an understanding of people is another. It helps to have a good working knowledge of mathematics, to be a good problem solver, to be committed to preparing for cases and to doing research. Also, the judges must participate in mandatory classes at the Judicial Institute in Annapolis.

Because the Orphans’ Court was designed to be made up of three judges, two of whom must agree, it is a collaborative effort.

While the position is rewarding from the standpoint of accomplishment and service, a quick look at Orphans’ Court judges’ salaries will tell you that judges in only the top four counties in population (excluding Montgomery County with no separate Orphans’ Court) receive salaries in excess of $10,000 per year — hardly equal to the salaries of other judges.

By law, practicing attorneys are prohibited from serving in all but five jurisdictions: Baltimore City, Prince George’s County, Baltimore County, Calvert County and Howard County (excluding Montgomery and Harford counties, in which Circuit Court judges act as the Orphans’ Court). In the five jurisdictions in which practicing lawyers are allowed to serve on the Orphans’ Court, those lawyers may not practice probate law, the very specialty of the Orphans’ Court. The reasoning for this can be found in the rich and interesting history of the court that began in England and was adopted here in America in the 1770s.

If the Constitutional amendments are adopted this year requiring Baltimore County and Prince George’s County to allow only members of the Maryland Bar to serve as Orphans’ Court judges, this will ensure that in those counties, the Orphans’ Courts will be presided over by a single judge instead of by a tribunal. For those counties with very large populations, that may be an efficient way to process a large number of cases. However, that system might not be preferable to less populated counties.

Before you advocate throwing the baby out with the bathwater, you might want to consider Thomas Jefferson’s view that the best government is the government closest to the people.

Just because it is counterintuitive for lay people to serve as Orphans’ Court judges does not mean they don’t do a good job. Any lawyer would advise you to rely on facts rather than intuition when prosecuting a case. Why not investigate just how well lay judges do their jobs before calling for their removal? A review of whether or not lay judges are more likely than other judges to have cases overturned on appeal might be the place to start.

Anne L. Dodd

Howard County

The writer is a non-attorney Orphans’ Court judge in Howard County. The letter represents her personal view.