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List of nominees for Court of Special Appeals sits on O’Malley’s desk

Steve Lash//Daily Record Legal Affairs Writer//February 13, 2014

List of nominees for Court of Special Appeals sits on O’Malley’s desk

By Steve Lash

//Daily Record Legal Affairs Writer

//February 13, 2014

A list of 18 nominees for three vacant appellate court judgeships has been sitting for more than four months on Gov. Martin O’Malley’s desk, raising concerns that appointments delayed is justice denied.

“Vacancies on all courts should be filled as soon as possible in order to provide speedy justice to all citizens of the state,” said William Reynolds, the Jacob A. France Professor of Judicial Process at the University of Maryland Francis King Carey School of Law. “It is difficult to understand why three vacancies stand unfilled for four months. In that time frame, delay has denied citizens justice. This should not happen.”

On Oct. 3, the Appellate Judicial Nominating Commission submitted a list of names to O’Malley to fill the seats on the intermediate Court of Special Appeals. O’Malley is not bound to select his appointees from that list, but his practice has been to do so.

O’Malley spokeswoman Nina Smith said the four-month span is not inordinate, adding that the governor has been interviewing candidates for the vacancies as part of the lengthy process of making judicial appointments.

In addition to the Court of Special Appeals vacancies, O’Malley is interviewing candidates for open seats on circuit courts in Baltimore city and in Baltimore, Montgomery and Talbot counties.

“It’s a process, and the governor interviews, talks to each of the folks that are put up,” Smith said. “The interview process is constant. It’s an ongoing process.”

The General Assembly created two of the vacant Court of Special Appeals seats last year at the request of the court’s chief judge, Peter B. Krauser.

Krauser said increasing the court’s complement of judges from 13 to 15 was necessary to ease the burden on his overworked bench. While the number of judges had remained unchanged since 1977, the number of cases heard by each judge climbed from 115 cases to 157 per year, Krauser told legislators last winter.

O’Malley signed the legislation into law last April. The two seats are at-large, meaning they can be filled without regard to the appointees’ city or county of residence.

The third seat became vacant in July when O’Malley elevated Court of Special Appeals Judge Shirley M. Watts to the state’s top court, the Court of Appeals. That seat is reserved for an attorney or judge who resides in Baltimore.

Krauser declined to address O’Malley’s pace for filling the vacancies.

“We hope that we will hear in the near future about the appointments,” Krauser said.

The more than four-month wait — and counting — exceeds the three-month and two-month spans that preceded O’Malley’s last two appointments to the Court of Special Appeals.

In December 2012, the governor named Douglas R.M. Nazarian to the court after receiving the nominating commission’s list of candidates in September 2012 to succeed retiring Judge James R. Eyler.

O’Malley appointed Stuart R. Berger to the court in December 2011 after receiving the commission’s list of candidates in October 2011 to succeed Ellen L. Hollander, whom President Barack Obama appointed to the U.S. District Court in Baltimore.

Eyler said Tuesday that more than four months seems “inordinate” and results either in a backlog of cases or in increased reliance on retired judges to fill the vacancies.

Unfilled seats cause “harm in the sense that you don’t have the number of people who have been authorized” to be active judges, Eyler said. “You either find other people to do it [hear cases] or it doesn’t get done, and that’s the bottom line.”

Retired Court of Appeals Judge Howard S. Chasanow said he understands both Krauser’s concern about his court’s ever-increasing docket and the governor’s desire to appoint the right people to the bench.

“It is very concerning that they [the Court of Special Appeals] are in such obvious need of new judges, but there are other factors that the governor has to take into consideration,” said Chasanow, now a private mediator. “I am so glad that I don’t have his job in making such a difficult decision.”

The candidates for the two at-large seats are listed in the above box. The candidates to succeed Watts are Kevin F. Arthur, Audrey J.S. Carrion, H. Mark Stichel and Baltimore City Circuit Judge Michael W. Reed.

The Appellate Judicial Nominating Commission reviewed the qualifications of applicants for the vacancies before submitting its recommendations to the governor.

Six of the candidates were certain to land on O’Malley’s desk: Andrew H. Baida, Donald E. Beachley, Daniel A. Friedman, Karen L. Federman Henry, Denise O. Shaffer and Martin E. Wolf.

The nominating commission had sent its names to O’Malley to fill other Court of Special Appeals vacancies within the previous two years. Under judicial nominating rules, their names remain on the governor’s desk for two years as candidates for the next available vacancy on the same court.


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