Gov. Larry Hogan has the opportunity next year to place two more judges on Maryland’s Court of Appeals. Judge Robert N. McDonald will reach the mandatory retirement age of 70 on Feb. 23, and Chief Judge Joseph M. Getty will hit the magic age on April 14. Getty was elevated to his current position by Hogan from a judgeship on the same court upon the retirement this year of Chief Judge Mary Ellen Barbera.
Perhaps now would be a good time to review the qualifications set in our Constitution for a judge of the Court of Appeals and to question the wisdom of one.
The qualifications for all state judges are set forth at Art. IV, Sec.2. A judge must be a Maryland citizen and a qualified voter. A judge must be at least 30 years old, a member of the Maryland bar, and have resided in Maryland “not less than five years, and not less than six months next preceding” their election or appointment in the jurisdiction or judicial circuit in which he or she is to serve. Judges “shall be selected from those . . . who are most distinguished for integrity, wisdom and sound legal knowledge.”
If a vacancy occurs in the office of a judge of an appellate court, the governor shall appoint, with the advice and consent of the Senate, a qualified person to fill the vacancy until the election for continuance in office. Art. IV, Sec. 5A.(a) & (b).
The Court of Appeals’ jurisdiction is statewide, yet its judges are appointed from seven judicial circuits, one from each. Each judge must reside in their judicial circuit for six months before appointment. Art. IV, Sec.14 . And here is the rub: The judicial circuits are very different in population.
The 3rd district — Carroll, Howard, Allegany, Garrett, and Washington counties — has a population of 1,028,542. Baltimore County and Harford County, together the 2nd circuit, are the home for 1,115,459 people. Montgomery County is its own circuit with 1,062,061. Prince George’s County, also its own circuit, has a population of 967,201, and the 5th — Anne Arundel County along with Calvert, Charles, and St. Mary’s counties — 961,438.
The trouble arises when those circuits are compared with the 6th of Baltimore City, and the 1st, of the nine counties of the Eastern Shore. The former has a population of 585,708, and the latter 456,815, each roughly half the population of the other circuits.
This is not a violation of the U.S. Constitution requirement of one person one vote, because the appointment is made by a governor elected statewide and consented to by a Senate whose members are elected from districts with equal population. The geographic mandate of the Maryland Constitution is materially different than that found unconstitutional by the Supreme Court in 1989 in New York City Board of Estimate v. Morris. That board exercised jurisdiction over all of the city, and its voting members included the presidents of each borough elected by very different populations.
Just because the Maryland Constitution can require the judges be appointed from districts with substantially different populations does not mean it is wise. That judicial districts are defined in the Maryland Constitution means that they are, as a practical matter, frozen. While it may have made sense to assign Baltimore city its own judicial district at one time based on its population, that has long since lost its force.
Nor do we believe that political considerations support keeping the current — or any — divisions in the Constitution. The governor appoints and the Senate confirms, and they can insure, to the extent necessary, that the political subdivisions have their share of the spoils.
It may well be that if the Constitution is amended, two judges will reside in Baltimore city. It has been suggested that consideration be given to the number of Circuit Court filings in addition to or independent of population and traditional divisions. We offer no opinion on how an unfettered choice by the political branches should be made.
We do not suggest that wise lawyers with integrity who demonstrate sound legal thinking cannot be found in each of the districts, just that the governor and Senate are capable of looking to all the lawyers wherever they may be to sit on Maryland’s highest court.
Editorial Advisory Board members James K. Archibald, Gary E. Bair, Nancy Forster, Susan Francis, Leigh Goodmark and Julie C. Janofsky did not participate in this opinion.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Gary E. Bair
Andre M. Davis
Arthur F. Fergenson
Julie C. Janofsky
Ericka N. King
C. William Michaels
Angela W. Russell
Debra G. Schubert
H. Mark Stichel
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.