ANNAPOLIS – The Maryland Constitution kicked Court of Appeals Judge Lynne A. Battaglia off the state’s top bench Thursday, her 70th birthday, but not without her parting shots at mandatory judicial retirement.
“It is difficult when someone is at the top of their game … to say to them that they can no longer contribute in a way that they have contributed,” Battaglia said Wednesday, her last day as an active judge. “It is hard to see people like that, at an arbitrary age, being separated from the court.”
Battaglia will remain on the high court via special assignment until her successor is appointed. She will also be available for special assignment from Chief Judge Mary Ellen Barbera when an active judge recuses from a case.
Battaglia said she also will be available for special assignment to lower courts, including the Court of Special Appeals; the circuit courts in Baltimore city and Howard and Anne Arundel counties; and the district court in Ellicott City.
But not being an active member of the high court will be an “enormous” transition, Battaglia said.
“There’s a tremendous difference between choosing it [retirement] and facing it mandatorily,” she said. “Someone else is choosing for you and it’s not personal. You see it coming and it’s frustrating when you get to it.”
Battaglia, however, said she also regards the forced retirement as an opportunity to help lawyers and law students battling addictions or depression. She will be pursuing a master’s degree in mental health at Johns Hopkins University.
“I want to feel that I’m doing something purposeful,” Battaglia said.A proposed constitutional amendment to raise the mandatory judicial retirement age to 73 died in the General Assembly this year. So, with retirement now a reality, Battaglia said she will miss “the intellectual stimulation” of being a high-court judge and the collegiality of being part of a seven-member tribunal.
“You’re looking at the law,” Battaglia said. “You’re interpreting the law and you’re able to work with people who are really engaged in it.”
However, the she said she will not miss the perpetual and disturbing sensation that work is being left undone.
“I feel like I haven’t had off time,” Battaglia said. “There’s always an opinion to write; there’s always a brief to read.”
Recalling Blackwell, Conaway
Of her opinions, Battaglia said she is most proud of the one she wrote for a unanimous court in Blackwell v. Wyeth in May 2009.
In its decision, the Court of Appeals upheld then-Baltimore City Circuit Judge Stuart R. Berger’s grant of summary judgment for Wyeth Inc. in a lawsuit alleging the pharmaceutical company’s vaccine preservative Thimerosal had caused a boy’s autism.
The high court ruled that the parents’ epidemiology expert’s methods and theory of causation were not generally accepted among epidemiologists and that their other medical experts lacked sufficient training in epidemiology to provide reliable testimony on a causal connection between Thimerosal and autism.
The case required the court to perform the difficult task of applying law, which relies on following precedent, to science, which is ever-changing, Battaglia said, referring to her opinion.
“The quest for truth in the courtroom and the quest for knowledge in science are not necessarily intersecting endeavors,” Battaglia wrote in Wyeth.
“A trial on the one hand, may be quick and determinative; it is a process by which ‘advocates for each side present evidence in the light most favorable to their case, and the finder of fact sifts through it and assesses whether it establishes guilt or liability to the required degree of proof,’” Battaglia added, quoting from a Brooklyn Law Review article. “The search for knowledge in science, on the other hand, is rarely quick or final; rather, it represents an ongoing cycle, in which each inquiry into an observable phenomenon is but one aspect of an ongoing quest.”
Battaglia said she is also “very proud” of her 81-page dissent from the high court’s September 2007 holding in Conaway v. Deane that found no fundamental constitutional right to marry someone of one’s own gender.
“I really did believe that under our [Maryland Constitution’s] Declaration of Rights that people of the same sex could marry,” Battaglia said.
Her dissent, which then-Chief Judge Robert M. Bell joined, was vindicated last June when the U.S. Supreme Court found in Obergefell v. Hodges of a fundamental right to same-sex marriage.
Battaglia, however, said she will leave it for history to judge her work on the court.
“Law is a reflection of the norms of society and how society changed,” she said. “”We’ll have to see whether my opinions stand the test of time.”
Having been appointed by then-President Bill Clinton, Battaglia was nearing the end of her tenure as U.S. attorney when then-Gov. Parris Glendening appointed her to the Court of Appeals in January 2001.
Battaglia said she was initially concerned that being a judge “would be too contemplative” for her after serving as a chief federal prosecutor. She quickly warmed to the pace, however.
“I really learned the importance of reflection and the generosity of time, which I never had before,” Battaglia said.
The retired judge added that she received on-the-job training in working collegially and in striving for unanimous agreement.
“I don’t think this job comes with a toolkit that tells you how to get six people to agree with you,” Battaglia said.
Reminded that a Court of Appeals judge need only convince three people to form a majority, Battaglia said the goal is always to write a unanimous opinion.
That way, “you don’t have anybody writing about how you are dummy,” she added.
Battaglia also advised her to-be-named successor to meet early with each high-court member, seek his or her advice and find a mentor “to help you through the shoals of being on the appellate court.”
Eight judges and attorneys have applied to succeed Battaglia as Court of Appeals judge for the 3rd Appellate Circuit, which covers Howard and Carroll counties and western Maryland. Each is being vetted by the Appellate Judicial Nominating Commission, which is expected to submit its list to Gov. Larry Hogan by the end of the month.
While the practice over the last four decades has been to appoint a name from the commission’s list, the governor is not bound to do so.
The applicants are Court of Special Appeals Judge Kathryn Grill Graeff; Frederick County Circuit Judge Theresa M. Adams; Washington County Circuit Judge Donald E. Beachley; Howard County Circuit Judge Richard S. Bernhardt; and attorneys Joseph M. Getty, Hogan’s chief legislative officer; Andrew D. Levy of Brown Goldstein Levy LLP in Baltimore; Karen Louise Federman Henry of the Office of the Montgomery County Attorney; and Thomas E. Lynch III of Miles & Stockbridge PC in Frederick.