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Maryland’s retiring top judge recalls ‘sleepless nights’ as she prepares to pass ‘the baton’

Retiring Court of Appeals Chief Judge Mary Ellen Barbera did not expect to spend the last 18 months of her eight years as Maryland’s top jurist trying to keep the state’s courthouse doors as open as possible in an effort to stanch the spread of a deadly virus.

“There were certainly sleepless nights,” Barbera said Thursday in reflecting on her emotions as she issued orders suspending jury trials from March 2020 through April 2021, as well as other directives, which culminated in a mandate that all Maryland Judiciary employees be vaccinated or tested weekly beginning Sept. 27.

Barbera said the Judiciary met the challenge wrought by the COVID-19 pandemic because of the advice, assistance and cooperation she received from all the judges, clerks and support personnel before issuing the orders and ensuring they were carried out under trying – but invigorating – circumstances.

“It’s exciting even though we are working on the most difficult project any one of us has ever had to deal with,” Barbera said.

“What’s been exciting is the energy and the innovative things that are going on, that has brought me pride of the members of the judicial branch,” she added. “It’s sort of pulling the oars in the same direction, and sometimes the waters were very roiling.”

Barbera offered these reflections as she approaches Maryland’s mandatory judicial retirement age of 70 on Sept. 10. Gov. Larry Hogan has not yet named Barbera’s successor as chief judge of Maryland’s top court, a role that also carries the responsibilities of the state’s head administrator of the Judiciary.

Barbera, who declined to comment on her feelings regarding her constitutionally mandated retirement, advised her successor to “take the good and make it better,” adding that “we all can do that.”

“A new chief will be able to pick up the baton and move it forward in a positive direction to the betterment not simply of those who operate within the judicial branch but ultimately our mission to serve the public and that, I hope, we managed to do every single day, even during these very, very difficult times.”

As for retirement, Barbera said her days of sitting on the bench are indeed over, as she will not make herself available to sit in for active judges when they recuse themselves from a case. Declining to serve as a “recalled judge” will enable Barbera to speak out on issues she feels passionate about, including juvenile justice reform and protecting the elderly against abuses in their guardianship.

“There are things that we can do and say as judges and matters we can testify on as judges, but when one is not a judge then it opens opportunities to voice one’s opinion in ways that might not fit the necessary parameters of being a sitting judge,” Barbera said.

She added that she plans to address policy issues in testimony before the General Assembly and law school and undergraduate audiences, though “not right away.”

“You’ll see me kicking around I think one place or another down the road,” Barbera said. “I need a little bit of a rest.”

In the vein of self-expression, Barbera said her greatest pride as an appellate judge is not in the majority opinions she wrote but in her concurrences and dissents, where she was free to express her own views and not those of the court.

“That’s really where I think everyone of us rolls up his or her respective sleeves and when you get to express yourself,” Barbera said.

“You are essentially unleashed,” she added. “You are not working with the majority. It’s always done respectfully – at least I try to be, and I think the same of my colleagues.”

Barbera specifically cited her dissent from the Court of Appeals’ 2018 ruling that upheld life sentences for juvenile offenders because state law, parole commission regulations and a gubernatorial executive order provide these convicts a constitutionally required “meaningful opportunity” for release based on their maturity and rehabilitation behind bars.

“It is neither just nor merciful, much less compliant with the Eighth Amendment, that, currently in Maryland, a young teenager who commits a crime that leads to a life sentence is likely to spend the rest of his or her life in prison,” Barbera wrote in dissent in the consolidated cases Daniel Carter v. Maryland, James Bowie v. Maryland and Matthew McCullough v. Maryland, Nos. 54, 55 and 56 September Term 2017.

“And it is not just to have on the books the ‘possibility of parole’ yet provide a protocol for granting or denying parole that is without standards to guide those who are the decisionmakers: the Parole Commission and the governor,” she added. “Under the United States Constitution, a meaningful opportunity for release cannot exist in name only, as it does now in Maryland.”

Barbera, the first woman to serve as the state’s top jurist, said she wants her legacy to be that she “worked hard.”

“As a leader, I brought into the fold many, many brilliant hard-working, thinking individuals all of which to serve the mission of effective, fair, equitable, efficient delivery of justice to the people of Maryland,” Barbera added. “I found people. I found great people to do the work, to do a lot of the heavy lifting, and I am very proud of them.”