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Editorial: On bail, changing what they can

The Maryland Court of Appeals broke new ground with its decision that the state Constitution includes a due-process right to counsel when bail is set. But it made no friends in the highest echelons of the other two branches of state government.

Senate President Thomas V. Mike Miller was characteristically blunt at Wednesday’s Annapolis Summit, hosted by radio host Marc Steiner and co-sponsored by The Daily Record. Noting that two retired judges, including former Chief Judge Robert M. Bell, were in the 4-3 majority, he called the ruling in DeWolfe v. Richmond a “poke in the eye” by judges on their way “outta Dodge.”

And the governor — a skilled attorney who surely knows better — implied that the court had flip-flopped on the constitutional question in the past and might do so again when, as he put it, the “final-final ruling” comes down.

Final-final ruling? Yes. Governor O’Malley, Senate President Miller and House Speaker Michael Busch made it plain that they don’t consider the September decision by the state’s highest court to be the last word on the subject. Hanging their hats on what happens next in the trial court (where the judge has yet to revise his ruling as ordered, and the state would like a further delay in implementation) Senator Miller and Governor O’Malley have promised yet another round of appeals.

Arguably, the Court of Appeals itself has invited this disrespect. In November, the court adopted rules to implement Richmond. However, it also declined to put the rules into effect pending “further order of the court.”

So perhaps the Senate president could be forgiven for noting that the court is now under the new leadership of Chief Judge Mary Ellen Barbera: “We now have a new Court of Appeals…,” Senate President Miller said. “The chief dissenter is now the chief judge of the Court of Appeals.”

But a court is more than the sum of its members, and expecting a decision to change because the judges have changed is risky business. One of the most fundamental principles of jurisprudence is the doctrine of stare decisis, which, in essence, tells the court to leave previously decided matters alone. While it is not an absolute ban on overturning past decisions — if it were, we would still be drinking from segregated fountains — respect for precedent provides certainty and prevents needless litigation and endless appeals.

It is risky business in a more immediate sense, as well. Since Richmond, much work has been done to rethink the current system, in which bail is set by a court commissioner and then reviewed by a judge. More than a dozen proposed reforms, designed to improve efficiency and reduce the number of presumed-innocent people behind bars, are now before the General Assembly

But the measures are sure to draw heavy opposition. If the leadership views the right to counsel at bail as a temporary inconvenience, lasting only until the next trip to Rowe Boulevard, the will to change will be temporary as well.

Several of the proposals drew praise from the governor, Senate President Miller and House Speaker Busch, and that’s where the executive and legislative branches should be focusing their efforts — not on the possibility that a reconstituted court may change its mind.

Of course, there is another option.

Richmond is based solely on the Maryland Declaration of Rights, part of the state Constitution. Senate President Miller lambasted that limitation at the Annapolis Summit, saying the Court of Appeals had taken that approach in order to insulate the decision from Supreme Court review.

What the Senate president did not say — what no one said — is that the General Assembly has the power to propose a constitutional amendment, which would ultimately put the matter to a public vote.

In our system, that’s how a legislature overturns a court.