The Maryland Constitution will kick Judge Glenn T. Harrell Jr. off the state’s top court once Saturday arrives — or it will at least try.
Harrell, who hits the state’s mandatory judicial retirement age of 70 that day, says he will remain on the Court of Appeals until his successor is seated. Chief Judge Mary Ellen Barbera will enable Harrell to keep serving by specially assigning him to hear cases until then. “I’m going to be doing exactly what I’ve been doing,” said Harrell, who has served on the high court since Sept. 10, 1999.
Harrell added he does not expect Gov. Larry Hogan to name a successor until at least October due to the Appellate Judicial Nominating Commission’s deliberative process — especially during the vacation-filled summer — of submitting candidates to the governor.
The Court of Appeals is not scheduled to hear arguments again until Sept. 2, the start of its 2015-2016 term. On that date, Harrell will not be sitting in his familiar seat, as senior judge, to the direct right of the chief judge; rather, he will be sitting to Barbera’s far left, in the seat reserved for the least senior judge.
“I will be going from senior [judge] to ‘who is that guy at the end?’” Harrell said.
Even after his successor takes the bench, Harrell said he, like many other retired judges, will remain available to Barbera and Court of Special Appeals Chief Judge Peter B. Krauser to sit in for active appellate judges when they recuse themselves.
Harrell served on the intermediate Court of Special Appeals from May 28, 1991, until his appointment to the high court by then-Gov. Parris N. Glendening.
Barbera said in a statement Thursday that it “has been an honor to work side by side” with Harrell.
“Judge Harrell’s devotion to the judiciary and to the law is matched only by the ferocity of his keen intellect,” Barbera added. “While he will be missed as an incumbent judge by his colleagues, I am delighted that he has agreed to be recalled to serve until his successor is named and, I hope and expect, well into the future.”
When not judging, Harrell said he may preside over private alternate dispute resolution proceedings, such as arbitrations and mediations.
“Isn’t that what retired judges do?” Harrell said, noting many former judges now do ADR work.
The state constitution’s mandated retirement age comes from a time when life expectancy was younger, Harrell said, adding that people now are “vibrant longer.”
Nevertheless, Harrell said now is “a good time for me to transition away” from judging.
The new paperless technology may be passing him by, Harrell added, as the Maryland Judiciary heads toward a system of electronic filing of cases.
“I have openly been skeptical of technology,” Harrell said. “I don’t want to test the theory of the old dog and the new trick.”
Harrell also conceded he has been heading toward a rut as a judge, in which he feels that “everything I touch, I’ve been there and done that already.”
Being on the bench is not “quite as engaging as it was,” Harrell said. “It was just getting harder to get psyched up.”
He voiced hope that being specially assigned by Barbera and Krauser to a few cases might help, citing the adage of absence making the heart grow fonder.
“If I do less of it, maybe that will be an invigorating effect,” said Harrell, who graduated from the University of Maryland School of Law in 1970 and joined the state bar that year.
Harrell may be best remembered for infusing popular culture into his opinions, often citing or quoting from television shows, such as “Seinfeld” and “House of Cards,” and movies, including “Fight Club” and “Notting Hill.”
These opinions were “equal measures of trying to amuse myself and trying to take what could otherwise be arcane legal discourse and [making it] more accessible to people other than lawyers and other judges,” he said.
Of all his opinions, Harrell said he is most proud of a dissent.
In James Coleman v. Soccer Association of Columbia, he disagreed strongly with the court’s July 9, 2013, decision to uphold the doctrine of contributory negligence under which a negligent defendant cannot be held liable if the plaintiff’s negligence contributed at all to his or her injury.
Harrell said he was “personally invested” in the dissent because “contributory negligence is a terrible doctrine,” which the court itself created in an 1847 decision, Irwin v. Sprigg.
In his dissent, Harrell assailed contributory negligence as an archaic doctrine that unfairly punishes victims of negligence and exists in only five jurisdictions.
“A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability,” Harrell wrote. “The name of that dinosaur is contributory negligence.”
Harrell predicted then that his views will be adopted by “a future majority of this court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.”
Legislative efforts to codify or eliminate contributory negligence have failed repeatedly in the General Assembly, as business and consumer interests have been at loggerheads.
“I think the court is going to have to step in and break the stalemate,” Harrell said this week. “I believe that eventually that [dissent] will prevail.”
Harrell added he has no regrets regarding any of the opinions he has written. But he said he wished he could take back some of the opinions he has joined. He declined to name any of those opinions.
“Suffice to say I have some regrets but not about anything I wrote,” Harrell said.
He added that he has loved being a judge.
“The nature of the job is to do meaningful things,” said Harrell, who was in private practice for about 18 years before joining the bench. “It’s all very infused with significance and importance. You make things happen.”
As for life in retirement, Harrell said he welcomes the opportunity to read “more for pleasure” after spending his years on the bench reading legal briefs and opinions in preparation for argument and reaching decisions.
He said he also looks forward to spending more time with his wife, Pamela, though he fears that sentiment might not be reciprocated. “She has made it very clear that I have to be out of the house quite a lot,” Harrell said.