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Barbera, ex-judge battle over eliminating judicial elections

Chief Judge Mary Ellen Barbera xxxxxxx (Bryan P. Sears/The Daily Record)

Maryland Chief Judge Mary Ellen Barbera. (The Daily Record / Bryan P. Sears)

ANNAPOLIS – Opponents and proponents of contested circuit court elections in Maryland battled Wednesday over proposed constitutional amendments to end the practice, with the state’s top judge saying the elections politicize the one governmental branch that should never be politicized and a former elected judge calling the elections necessary to ensure the judiciary remains diverse.

“Judges, quite simply, are not politicians,” Court of Appeals Chief Judge Mary Ellen Barbera told a Senate panel, citing the ethical prohibition on judges making campaign-style promises on how they would decide cases.

Judges are also bound to avoid even the appearance of partiality, which is difficult to do while raising money – often from the attorneys who appear before them – to defeat an election challenger, Barbera told the Senate Judicial Proceedings Committee.

“Where there are contested elections, there is a need for money,” Barbera said. “The only currency in Maryland courts should be, must be, impartiality.”

But William H. “Billy” Murphy Jr. said the right to run against sitting judges helped minorities and women diversify through election victories what had been a predominantly white male judiciary through the 1970s.

Murphy, who is black, successfully ran for a seat on the Baltimore City Circuit Court and served until 1983.

He said Maryland governors have increased the circuit courts’ diversity through their appointments, but he added that the right to run against a sitting circuit court judge remains necessary in the event future governors are less enlightened in selecting jurists.

“If we don’t have a seat in the electoral process, we’re going to be stuck with a judiciary that’s predominantly white, predominantly male and predominantly Democratic,” Murphy told the Senate committee. “If you pass this bill, don’t be surprised if the judiciary starts turning all male again, starts turning all white male again.”

The Senate panel was considering two similar proposals to abolish contested circuit court elections that have repeatedly failed in the General Assembly amid criticism that the current system enables the voting public to evaluate the quality of the judges and the diversity of the judiciary.

In response, Barbera said applicants for the circuit courts are vigorously evaluated and vetted by nominating commissions, which winnow the list of candidates before submitting names of potential appointees to the governor. These commissions strive to ensure diversity as they consult with bar associations representing the gamut of minority groups, Barbera added.

“We have advanced light years from those days” when circuit court appointees were all white men, said Barbera, the first female chief judge of Maryland’s top court.

Barbera said popular elections of circuit court judges enable less-qualified candidates to avoid this vetting process by making a direct appeal to voters, electioneering that she said causes “damage to public trust and confidence” in an independent judiciary.

But Sen. Jill P. Carter, a member of the Senate panel, said the nominating commissions engage in “a more comfortable set of politics” in which they generally favor mainstream judicial candidates over those with unorthodox backgrounds.

“Those persons who aren’t chair of the Maryland state bar or traveling in certain legal circles are excluded” from consideration for judgeships, said Carter, D-Baltimore city. “Doors are closed not because they’re bad or unqualified but because they are an outsider or deemed too controversial.”

Sens. Benjamin F. Kramer, D-Montgomery, and Delores G. Kelley, D-Baltimore County, are chief sponsors of the two proposed constitutional amendments to end contested circuit court elections.

“Our judges must not be forced into the role of playing politicians,” Kramer said in support of Senate Bill 415. “They are charged with being impartial and unbiased.”

Kelley, speaking in favor of SB 596, told the Senate committee that “it is time to take politics away from a place where it does not belong.”

SB 596 has been cross-filed in the House of Delegates. Dels. Kathleen M. Dumais, D-Montgomery, and Jon S. Cardin, D-Baltimore County, are chief sponsors of House Bill 518.

To be ratified, proposed constitutional amendments require a three-fifths vote in both the Senate and House followed by a majority vote by Marylanders on Election Day.