| Bar Bulletin |
February, 2003 |
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MSBA
REAFFIRMS OPPOSITION TO
JUDICIAL CONTESTED ELECTIONS
~Supports Refined Retention Election
Process for Circuit Court Judges~
By Janet Stidman Eveleth
After
months of engaging debate, the Maryland State Bar Association has voted to
reaffirm its opposition to judicial contested elections. On January 28,
2003, the MSBA’s Board of Governors (BOG) voted to oppose contested
judicial elections, a position the Association has maintained for over
three decades. This vote comes on the heels of considerable deliberation
and dialogue with local bar leaders, judges and MSBA members.
In
lieu of contested elections, the MSBA is supporting a refined retention
election process for Maryland circuit court judges. Specifically, the BOG
has endorsed a process in which a circuit court judge is initially
appointed by the Governor, with the advice and consent of the State
Senate, to fill a vacancy. The BOG is proposing that “the judge then run
in a retention election in the appropriate jurisdiction to retain his or
her seat in the next general election after a year after the date of
appointment, rather than a year after the occurrence of the vacancy, as is
used by the appellate courts.”
At the
conclusion of a ten-year term, the sitting judge will stand in a retention
election to retain his or her seat. The MSBA is proposing that the term be
reduced to ten years (down from the present fifteen-year term) because it
should lend greater judicial accountability to the judicial selection
process and correct flaws in the current system. In this way, the public
has a greater say and more control over the performance of circuit court
judges.
To
bring this about, the MSBA seeks a constitutional amendment in the 2004
election to reform the judicial selection and retention of Maryland
circuit court judges. It supports an amendment that would eliminate
contested elections and institute a system where sitting judges run in
retention elections to retain their seats on the bench with the above
modifications. The MSBA is supporting legislation to this effect, with
amendments, in the 2003 Maryland General Assembly. There are currently
three such bills filed in Maryland’s Senate and one in the House of
Delegates.
The
MSBA supports the merit selection of Maryland circuit court judges which
has been in place by Executive Orders since 1976. The Association has
consistently backed retention elections where judges run on their judicial
records and the public votes on that record. Retention elections, which
offer greater judicial accountability, have been used as the means of
electing Maryland’s appellate court judges for decades. Through the merit
selection system, the public has a voice in the process and elects judges
on the basis of their records rather than on the basis of politics.
Essentially, the MSBA would like to see politics removed from Maryland’s
judicial selection process. It opposes contested judicial elections
because of ethical, political, campaign, judicial independence and
monetary concerns. The Association fears these elections inadvertently
transform judges into politicians and push them into the fray of partisan
politics, contradicting judicial ethics. This threatens the independence
and impartiality of Maryland’s Judiciary and erodes the public’s trust and
confidence in our legal system.
Opposition to contested judicial elections seems to be a growing trend in
Maryland. The Court of Appeals’ Public Trust and Confidence Implementation
Committee voted in October and again in December to seek the elimination
of contested elections and replace them with the retention election system
used in Maryland’s appellate courts. The Conference of Circuit Court
Judges voted to oppose contested elections in November. Even Chief Judge
Robert M. Bell, who traditionally backed contested elections before
becoming Chief Judge, is now maintaining a neutral position.
Judicial elections have also been the focus of several animated
discussions, including a lively one during the MSBA’s 2002 Bar Presidents’
Conference in Easton, Maryland, last October. For over two hours, bar
leaders from the MSBA, local bar associations and specialty bar
associations engaged in a spirited debate on contested elections and what
system could possibly be promoted to replace them. This topic was also
debated during an MSBA Young Lawyers Section open forum on January 13,
2003.
In
Maryland, circuit court judges are the only members of the bench who must
stand for contested elections. The Governor initially appoints all judges
after the candidate has undergone an extensive screening and evaluation
process by independent judicial nominating commissions, as set forth by
Executive Orders since 1976. District court judges serve for ten years
then may be reappointed by the Governor with Senate consent, while
appellate judges run in retention elections.
However, circuit court judges must run in the general election immediately
following their gubernatorial appointment and then must stand for
re-election every fifteen years to retain their seats. Sometimes, sitting
judges face contenders in these elections. Technically, any Maryland
attorney over the age of 30 who is admitted to the Maryland Bar, has
resided in the state for five years and has lived in the specific circuit
for six months can challenge a sitting judge in a contested election.
Frequently, these contenders have not been through the extensive judicial
screening process sitting judges must undergo prior to appointment.
MSBA Opposition
The MSBA opposes
contested elections because they subject sitting judges to partisan
politics and force them to campaign and fundraise to retain their seat on
the bench. Considerable expense accompanies contested elections, as
sitting judges must raise money, advertise, make public appearances and
actively campaign for votes. Campaigning also costs judges time which,
given heavy court dockets, is at a premium.
Contested elections
pose ethical dilemmas for sitting judges, too. For one thing, Judicial
Canons prohibit sitting judges from directly soliciting campaign funds,
although their non-judicial opponents do not operate under these
restrictions. In addition, attorneys who appear before judges in their
courtrooms may contribute to the campaign, casting shadows of impropriety.
Overall, contested elections present the potential for conflicts of
interest.
The MSBA opposes
contested elections because they threaten the independence of the
judiciary. Judicial campaigning not only costs judges time and money, it
can compromise their impartiality. While their challengers may speak
freely, make election promises and offer rhetoric that may be inflammatory
or misleading, judges are bound by the Judicial Canon of Ethics.
The recent Supreme
Court ruling on White vs. Minnesota further complicates this issue,
as the Court struck down one of those Judicial Ethics rules because the
rule infringes on a judicial candidate’s First Amendment freedom of
speech. As the judicial ethics rules will now need to be revised,
candidates for judicial elections remain properly barred from forecasting
future judicial decisions, though they should be permitted to announce
their philosophical and political views.
Judicial campaigning
further erodes the public’s confidence and already negative view of our
justice system as well. A 2002 American Bar Association poll found the
majority of the public “believes the impartiality of a judge is
compromised by the need to raise campaign money for judicial elections.”
Eliminating contested elections for circuit court judges would foster
greater public trust in the legal system and allow the public to voice its
opinion by voting on the individual record of sitting judges.
Further, contested
elections discourage many qualified attorneys from seeking a judicial seat
because of the expense associated with campaigning, the time investment
and the possibility of losing one’s seat to a contender. Plus, the public
often does not know who the sitting judges are and votes for circuit court
judges on the basis of alphabetical order and party affiliation rather
than judicial qualifications. Voting polls indicate that party labels and
ballot positions are often more significant than judicial qualifications,
an unfortunate basis on which to select circuit court judges.
The MSBA is convinced
that the merit selection of judges places the most qualified judges on
Maryland’s bench. When judges run in retention elections, they run on the
merits of their records. In this way, the public holds the judge
accountable, evaluates his or her record and votes accordingly.
Sitting judges have
successfully completed a rigorous interview, evaluation and selection
process. Their skills, judicial temperament and qualifications have been
demonstrated to the Maryland Judicial Nominating Commission. Many have
also been evaluated by local and state bar associations. Often,
challengers have not been through this process, so voters have less chance
of assessing their judicial traits.
Thus, the MSBA urges
Maryland’s legal community, and the public, to support a constitutional
amendment abolishing contested elections. The Association is committed to
a retention election selection process for circuit court judges, who,
after gubernatorial appointment and Senate confirmation, serve ten-year
terms before standing for retention election to retain their seats on the
bench. The MSBA believes this process will promote judicial accountability
and ensure the most qualified jurists serve on Maryland’s bench.
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