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2002 FINAL STATELEGISLATIVE PROGRAM CORE ISSUE ISSUE: JUDICIAL INDEPENDENCE SUMMARY: Attempts by some legislators to intimidate the Judiciary have been increasing in recent years, but the level of hostile rhetoric and filing of bills to trump court decisions reached a distressing level in 2000. The effort to add a new judgeship beyond the certification process, the spate of bills to nullify court decisions through retroactive application, and the constitutional amendment to radically change the one subject rule, taken in their entirety, represented a dramatic breach in the legislative/judicial relationship. In some ways the legislative/judicial clash of the 2000 session may be viewed as simply the latest of a series of assaults on judicial independence that has been occurring for over a decade. Traditionally, a certain level of conflict between these branches of government is expected during most General Assembly sessions as legislators file bills in response to court rulings on specific public policy issues. As the legislature has passed laws and the courts have interpreted these statutes in the constitutional context, friction has often developed, but in prior eras the debate centered on the scope of the particular issues under discussion. Bills submitted in the 1990's however have been a different variety, designed to threaten judges with fines, public humiliation, or recall from office. In 1992, for example, a measure was introduced to fine judges who failed to render decisions in cases after 60 days. The bill was killed in the Senate Judicial Proceedings Committee, but this did not discourage the sponsor who filed similar bills in 1993 and 1994 that would have required the Administrative Office of the Courts to publish the names of circuit court judges who failed to decide cases within 60 days. During the ensuing several sessions, attempts by some legislators to delay or defeat items in the Judiciary budget as a means of sending messages to judges with whom they disagreed on certain court decisions seemed to multiply. This development was not particularly novel, but it was the brazenness of these actions, coupled with an attitude that this was an acceptable public policy function that disturbed the Judiciary and the MSBA. Efforts to blunt these attacks were successful for the most part within the General Assembly, but some legislators recognized that in the political arena criticizing the courts was a popular message with certain voters. This approach took the form of campaign rhetoric in the 1994 General Election, as some candidates openly espoused the adoption of a constitutional amendment that would provide for a recall of judges who did not sentence those convicted of crimes to the maximum term permitted by law. Fortunately, the judicial recall constitutional amendment was swiftly and decisively rejected in the 1995 session, but defeat of this specific proposal was attributed primarily to the flaws in the recall concept and to the arrogance of the sponsors of the bill. Criticizing the Judiciary in other areas for tactical purposes still was alive and well within the Maryland General Assembly. Reviewing initiatives affecting judges and the courts that have been filed in recent years provides a good indication of the areas that may threaten judicial independence in the future. The judicial appointment/confirmation process, criminal sentencing, trial delays, judicial salaries, creation of new judgeships and the Judiciary budget have been and will continue to be scrutinized by the General Assembly. All of these topics are appropriate for legislative action. The challenge, however, for those who are committed to protecting judicial independence will be to distinguish between those items that are submitted for sound public policy reasons and considered within the context of the legislature’s historic and constitutional mission, and those efforts that are designed to harass judges and to intimidate the courts. Establishing judicial salaries is a legislative function. Tying strings to the approval of a judicial pay raise is judicial harassment. While the General Assembly refused to abstain from its affection for retroactive legislation in 2001, the focus of these bills and the debate surrounding them was more temperate. An issue concerning judicial independence that has begun to gather momentum is one that would limit the unfettered authority of trial judges to revise criminal sentences. The 2001 legislation was derailed temporarily, but it is expected to return in 2002. With the possibility that the redistricting plan may be challenged in the courts, some legislators may be reluctant to be overly aggressive in their criticism of the Judiciary because they imagine it could be harmful to their interests. Nevertheless, some constituencies thrive on efforts to bash judges, and some legislative candidates, including incumbents, often cater to these groups in order to improve their chances of success at the polls. Additionally, the rejection of the Judiciary’s request for new judgeships in 2001 for the second year in a row, while not directly aimed at intimidating the courts, certainly has a chilling effect on legislative/judicial comity. MSBA 2002 POSITION: Oppose all bills designed to threaten judicial independence or to weaken the Judiciary's status as a co-equal branch of government. SAMPLE LEGISLATION: NOTE: See MIDDLE RANGE ISSUE: Judicial Power to Revise Criminal Sentences
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