A decades-old debate over whether Maryland should end contested judicial elections was reignited Friday when an appointed judge who opposes the practice and a senator who supports it squared off during a legislative briefing by a work group studying the issue.
Montgomery County Circuit Judge Kathleen M. Dumais, a co-chair of the work group, said compelling sitting judges to campaign and raise money presents a conflict of interest for the judge. Sen. Jill P. Carter said denying a lawyer the chance to run for the bench fosters a judiciary of “elite” individuals whose socializing with nominating commission members and governors paid off.
“Whether it’s me individually or my campaign committee asking for money, these are still the attorneys that are going to appear before me,” Dumais told a joint hearing Senate Judicial Proceedings and House Judiciary committees.
“I don’t think that affects me, but the appearance of that impropriety and that conflict is concerning,” said Dumais, a former House Judiciary Committee member. “That’s probably the main reason that I’m trying to make some change and the reason why I have for a long time thought that these contested elections were not the right way to select judges. I think the right way is to keep it independent and keep it separate and apart from campaigning and campaign contributions.”
But Carter, a member of the Senate committee, said county residents should have the chance to elect to the bench those lawyers they would like to see as judges but who lack connections to nominating commissions and the governors
“The people deserve the right to weigh in on who is presiding over their (legal) issues in their jurisdiction,” Carter said. “It (the appointment process) has always struck me as a very paternalistic, elitist enterprise.”
That process excludes “lawyers that are working very hard every day, struggling to meet their bottom lines, that are going from this courthouse to that courthouse, that are fantastic lawyers and would make wonderful judges but they just don’t have the time to join all of the bar associations and to schmooze around with the type of people that are hand-selected to be on nominating commissioners by the governor,” Carter said. “They don’t work at (DLA) Piper, they don’t work at Venable, they don’t, you know, have a lot of time to sit around at the bar associations.”
The Judicial Conference Workgroup to Study Judicial Selection briefed the legislators on its progress toward issuing recommendations in late April on whether competitive judicial elections should be retained or eliminated and any other alterations that should be made to the selection process.
Dumais, despite her personal views, said the work group remains open to hearing from all sides on the election and appointment issues.
She said the work group is using as a guidepost in its consideration a plan retired U.S. Supreme Court Justice Sandra Day O’Connor put forth in 2014 suggesting that state courts abandon judicial elections in favor of gubernatorial appointments based on the recommendations of nominating commissions the vet candidates for the bench. Appointed judges would then sit for uncontested retention elections under O’Connor’s plan.
Currently, circuit court judges are appointed by the governor based on a recommended slate of candidates put forth by local Trial Courts Judicial Nominating Commissions after a vetting process. A lawyer may also run for a circuit court judgeship and try to unseat an incumbent on Election Day.
Eliminating or altering contested judicial elections would have to be accomplished via legislation to amend the Maryland Constitution. The legislation would have to be passed by three-fifths of both the Senate and House of Delegates and then approved by Maryland voters in the next statewide election, in 2024.
Attorney Carville Collins, a work group member, said the group will likely recommend the adoption of a formal ethics code for nominating commission members expressly spelling out their need to avoid conflicts of interest involving the judicial candidates they vet and to exercise independent judgment in recommending candidates to the governor.
Another recommendation will likely be the creation of uniform rules of procedure for each of the 16 Trial Courts Judicial Nominating Commissions to follow to ensure “transparency and consistency” throughout the state, added Collins, of DLA Piper in Baltimore.
Former U.S. District Judge Alexander Williams Jr. is Dumais’ co-chair on the 20-member work group. The group includes former Anne Arundel County Circuit Judge Ron Jarashow, who lost his seat in a contested election, and former Baltimore City Circuit Judge William H. “Billy” Murphy Jr., who won his seat in a contested election.
Since 1996, 15 circuit court judges were seated by winning contested elections, according to data from the work group.
In five of those elections, a Black challenger defeated a white incumbent; in four others; a white challenger defeated a Black incumbent. In the remaining six, a white challenger defeated a white incumbent.
In seven of the elections, a female challenger defeated a male incumbent. In no election did a male challenger defeat a female incumbent.
The last major push to end judicial elections was during the pandemic-shortened 2020 General Assembly session.
Then-Maryland Court of Appeals Chief Judge Mary Ellen Barbera pressed for the elimination, telling legislators a truly independent judiciary must be free of the need to make campaign promises and to raise money from the attorneys who appear before the judges in court.
“Justice is meant to be fair and impartial,” said Barbera, now retired and an ex officio member of the work group. “We (judges) are not politicians. We cannot make promises about how we would rule in future cases.”
In 2010, O’Connor came to Annapolis to speak against contested elections, calling them a stain on judges’ need to be free of even the appearance of bias.