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A CONVERSATION WITH THE HONORABLE JOSEPH M. GETTY OF THE COURT OF APPEALS OF MARYLAND

with

Steven M. Klepper and Paul Mark Sandler, Editors

Each edition of Appellate Practice for the Maryland Lawyer includes an interview with the Chief Judge of the Court of Appeals of Maryland. The editors—Paul Sandler, Andrew Levy, and Steven Klepper—are preparing the Sixth Edition, planned for early 2023 to coincide with the likely renaming of Maryland’s appellate courts.

Because Chief Judge Getty will reach mandatory retirement age before then, we are conducting this interview between the Fifth and Sixth Editions. He met with us via video conference in December 2021. 

Q: Thank you for taking the time to meet with us, Chief Judge Getty. We understand you took an unconventional path to becoming a lawyer and judge. Could you tell us about your career path?

I started my career in the historic preservation field. I went to Washington College on the Eastern Shore and was an American Studies major. A few years before I graduated, Congress passed the National Historic Preservation Act, so there were lots of opportunities in the historic preservation field. I worked for the Maryland Historical Trust and the National Trust for Historic Preservation where there were a lot of young and talented people working to improve their communities.  When I was at the National Trust, my father was diagnosed with Lou Gehrig’s disease.  My wife and I were in Washington, D.C., and we decided to move home to help out the family. In moving back to Carroll County, there weren’t a lot of job opportunities in historic preservation. But I had worked closely with the lawyers for the National Trust on issues like historic district zoning and decided to go to law school at age forty. That was the beginning of my legal career, getting there by a circuitous route through historic preservation.

Q: What did your legal career look like?

A: While I was in law school, I ran for the House of Delegates. A family friend from Hampstead, Delegate Richard Matthews, decided to retire. I ran in 1994 for his open seat and was successful. Part of my legal work was legislative in nature, representing the people of Carroll County in the General Assembly.

Today, legal publications carry articles about mentoring. I was fortunate to have an excellent mentor, Hampstead attorney E. Elwood “Woody” Swam. I opened my own law office in Hampstead, and Woody served as my mentor in my legal practice. It was a pretty typical “main street” practice. I knew most of my clients from the community.

Q: When were you appointed as judge of the Court of Appeals of Maryland?

A: Governor Hogan appointed me to the Court on June 27, 2016.

Q: When were you named Chief Judge?

A: I was appointed Chief Judge on September 11, 2021.

Q: What are your responsibilities as Chief Judge of the Court of Appeals?

A: The Chief Judge’s responsibilities are twofold. First, as Chief Judge, I am the Court’s presiding officer. We sit as seven judges en banc for all of our cases. The Chief Judge presides over oral arguments, and then, at the end of each day’s arguments, we conference the cases heard that day to take an initial vote. I assign opinions to the judges based on who is in the majority and best-suited to write the opinion.

Although the Chief Judge handles most of the organization of the cases that come before the Court, the most senior judge handles many of the administrative issues that arise. That judge, currently Judge Robert McDonald, works with the Clerk to address matters like motions and scheduling cases for oral argument.

The Chief Judge’s second main responsibility is to serve as the Maryland judiciary’s administrative leader. We have an Administrative Office of the Courts, with a State Court Administrator who is the chief operating officer. We address major decisions that involve the entire judiciary. Part of the Chief Judge’s responsibility is to preside over the Maryland Judicial Council, which is made of up representatives of the circuit courts, the District Court, the Conference of the Circuit Court Clerks, the Conference of the Circuit Court Administrators, and the District Court administrators. The Council is a policy committee that looks at trends and developments in the judiciary and brings proposals to the Chief Judge for decision-making.

Q: What were your priorities and challenges when you became Chief Judge?

A: When I was appointed Chief Judge, I told State Court Administrator Pamela Harris that one of the first things I wanted to do was to walk through the Administrative Office of the Courts and meet the people who do a lot of the work across the State for the Maryland judiciary. My predecessor, Chief Judge Mary Ellen Barbera, put together an excellent and talented team. Appellate judges don’t see that team very much because the programs of the Administrative office are oriented towards supporting the trial courts. These programs include access to justice, mediation and conflict resolution, and problem-solving courts. We also have a special program team working on guardianships chaired by Judge Karen Murphy Jensen.

Every judge is required to take 12 hours of continuing education each year, and we have an excellent judicial education team that keeps our training up to date. The Administrative Office of the Courts also coordinates an annual judicial conference. The team has done an excellent job looking at judicial trends across the nation to put Maryland’s judiciary in a leadership role. My priority has been to support these programs and help them grow in their mission to support our judges throughout the state.

Q: How has the COVID-19 pandemic affected the Court’s business?

A: The biggest challenge, obviously, has been the Court’s response to COVID-19.  The pandemic began when Chief Judge Barbera was presiding over the Maryland judiciary, and she did an excellent job working with a committee from the circuit courts and the District Court in establishing an effective response. She issued emergency orders to ensure that the courts continued to provide critical services. The media reported that the courts were closed, but in reality, that wasn’t the case. Courts statewide remained available to deal with urgent matters and to provide fundamental services. For a short period of time, statutes of limitations were tolled during the national shutdown. Since the beginning of the pandemic, the courts responded quickly in adapting to greater use of technology. Most jurisdictions that have been incorporated into the Maryland Electronic Courts (MDEC) system were able to function with e-filings and access to electronic documents. Having that system in place, which has been a more than eight-year project so far, greatly benefitted attorneys across the state in being able to do work for the court system.

When I became Chief Judge, I felt that we needed to have a plan for the post-pandemic Maryland judiciary. I appointed a work group chaired by Court of Special Appeals Chief Judge Matthew Fader to survey the entire Maryland judiciary and to identify things that came out of the pandemic that should be incorporated into long-term practices, specifically the use of technology in certain court proceedings. Chief Judge Fader is submitting a report to Maryland Judicial Council, and we’ll use that report to incorporate operational improvements that came out of the pandemic into our long-range programs.

Q: What is the jurisdiction of the Court of Appeals of Maryland? In other words, how does one get before the Court?

A: The vast majority of the cases the Court of Appeals hears come to the Court by way of the Court’s grant of a party’s petition for writ of certiorari, commonly referred to as a “cert. petition.” The Court has the discretionary authority to grant the petition, in whole or in part, or deny the petition outright. Other cases reach the Court as a matter of statutory right of direct appeal to the Court of Appeals, including, for example, appeals from judicial challenges brought in connection with contested elections; post-conviction appeals involving DNA collection and testing; and appeals from judicial decisions approving the transfer of assets of savings and loan associations. Still other cases come to the Court via certification of a question of Maryland law by the Court of Special Appeals, a federal court, or a sister state court. In addition, the Court of Appeals has original jurisdiction to review, upon the petition of any registered voter, the legislative redistricting of the State. The Court also handles bar admission matters, attorney discipline cases, and matters involving judicial discipline and disability.

Q: How many certiorari petitions does the Court receive each year, and how many are granted?

A: COVID has created a trough in filings before the Court of Special Appeals and the Court of Appeals, because of the circuit courts’ inability to conduct a full schedule of cases over the last 22 months.

In fiscal year 2020, the Court received 477 certiorari petitions. The Court granted 35 out of 240 civil petitions, for a grant rate of 14.6%. We granted 27 out of 237 criminal petitions, for a grant rate of 11.4%.

In each month’s batch of certiorari petitions, there are a number of pro se petitions from incarcerated individuals, generally handwritten, with a slim opportunity to be granted unless the Court can identify a “cert-worthy” issue. On the civil side, there are a number of “frequent flier” litigants (filings that have been denied but the petitioner continues to submit petitions). These filings skew the percentage of petitions that are granted.

[Editors’ note: Mr. Klepper calculates that, on petitions filed through counsel, the grant rate was 21% in civil cases and 30% in criminal cases.]

Q: What is the Court’s procedure for reviewing and granting the petitions?

A: The Court holds a monthly conference, typically the third Thursday of each month. At that conference, each judge receives a bundle of petitions and the required attachments, including the lower court’s opinion. If the respondent filed an answer, we receive it as well.

Unlike the Supreme Court of the United States, which has a much higher volume of petitions, we do not have a “cert. pool” to review the petitions. From what I know of other judges’ practices, we do not involve law clerks in deciding which petitions to take. We read all of the petitions ourselves.

Traditionally, the judges would vote on the petitions at their next monthly conference. A few years ago, however, we started granting petitions earlier. Under the current chemistry of the court, most judges read the petitions immediately, instead of waiting four weeks for the next conference day. Judges circulate their views by email, which allows discussion at our conferences held after each oral argument. By granting petitions earlier in the month, we accelerate the timeframe to brief and hear the case.

Q: How many Judges does it take to vote for granting the petition before the case can be accepted?

A: Without recusal of a sitting member of the Court, it takes three votes to grant certiorari.

Q: What is the affirmance rate on the merits in the cases the Court does take?

A: In our September 2020 Term, the Court affirmed in about 54% of cases. We reversed, reversed in part, or vacated the judgment under review in about 44% of cases, and we dismissed about 2% of cases. The reversal rate was higher in civil cases than in criminal cases.

Though, it is hard to draw much from the affirmance rate because we sometimes affirm the judgment on different grounds.

Q: Have you noted any voting patterns on the Court?

A: I did a statistical analysis for the Court’s September 2020 Term, looking at how the Court split in its voting patterns. In 52 cases, the Court’s decision was unanimous. Fifteen cases were six-to-one, seven cases were five-to-two, and four cases were four-to-three. Some of those split votes were concurrences instead of dissents.

From this analysis, it is clear that, unlike the Supreme Court of the United States, the Court of Appeals doesn’t have any systemic voting blocs. In other words, any member can vote any given way, depending on the facts of the case.  Sometimes the Court has been criticized as being pro-prosecutor or pro-defense in criminal cases. However, in the September 2020 Term, the Court split pretty evenly in those cases where there was a split vote. Five went in favor of the criminal defendant, and four for the State.

If you look at the dissents, they’re generally all over the board, and there isn’t a particular bloc of judges voting together. I’m very impressed with the overall approach of the judges of this Court. They pay close attention to the facts of the case, applying the rule of law, and when somebody votes it is with a studious approach to the law and the facts.

It’s a collegial court, and you know every member is trying to get the law right.

Q: What is the Court’s schedule for oral arguments and conferences?

A: The Court hears arguments four days early in each month from September to June and holds one conference day late in the month. The judges used to come to Annapolis for one full week to do all of the court’s work for the month. We now usually break up the four argument days with a weekend in between.

Q: Which do you consider to be more important: the oral argument or the brief?

A: Both are important in their own regard. Oral argument can be very impactful in close cases. There have been cases where I personally have felt one way based on the briefs, but after oral argument have been convinced otherwise. I don’t know if that means one is more important than the other. The briefs are certainly very important, and the Court can readily tell when a brief has been poorly prepared or perhaps hasn’t gone far enough into the intricacies of a particular case. Sometimes an opinion requires a little more diligence because the briefs weren’t as strongly prepared as they might have been. But don’t consider the votes to be fixed when the briefs are read. Oral argument is critical to the Court forming its opinion on how to vote, because it’s the opportunity for the Court to ask questions, understand the potential impact on future cases, and perhaps address nuances in the law, such as issues of statutory interpretation or legislative history.

Q: What tips can you offer us for effective argument, and pitfalls?

A: Oral argument is a little like a political debate. You need to be prepared. You need to know what the key points are, and how to address the weaknesses in your own arguments. It’s all about thorough preparation.

If you don’t track the Court of Appeals very closely, you may want to watch past arguments on the Court’s website for similar issues. You should understand which judges are most likely to be interested in your topic. An indicator that attorneys are not well prepared is when they don’t know the judges’ names, or when they spend too much time on the facts or a legal issue that is already resolved or isn’t at the heart of the case.

Q: Do you have any suggestions for written briefs or petitions?

A: Written briefs should be well-organized and focused on issues most pertinent to the case. When I was appointed to the Court, I was surprised by the extent to which statutory interpretation is key to modern appeals. When we all were in law school, the case books would trace the common law back to the 1600s, and you’d learn about stare decisis and precedent. Then, there would be only five pages in the back of the casebook about statutory interpretation.

However, in practice, with the legislative codification of common law, cases before the Court are much less about common law interpretation and more about statutory interpretation and legislative history. I’ve spoken with law school deans to discuss how an understanding of the legislative process is critical to modern lawyering. The Court’s opinions often take deep dives into legislative history. It used to be the cardinal rule of statutory interpretation that you look at the statute, and if the language is clear, the analysis would stop without considering legislative history. The modern trend is to begin with the plain language but also to analyze the legislative history to confirm the plain language interpretation of the statutory language.

Q: What is the role of judicial law clerks in the Court’s business?

A: The Court of Appeals uses law clerks in a very similar manner to the Supreme Court of the United States, although we do not generally involve them in selecting which certiorari petitions to grant. We usually hire law clerks right out of law school, or with one year experience with a firm or clerking on a lower court. We hire for an August-to-August term.

Clerks prepare bench memoranda that analyze the key legal issues in a given case, how the lower court(s) ruled, and how the issue is postured. Judges use their law clerks differently for writing opinions. Some judges like to write their own first drafts and have their clerks proofread and check the citations. Others have their clerks prepare initial drafts.

Q: What advice would you give to the next Chief Judge?

A: I’m preparing a punch-list for the next Chief Judge. Foremost, there is a constitutional amendment to change the Court’s name to the Supreme Court of Maryland. There are a number of decisions as to how that transition will work.

My general advice would be to get a good understanding of the staff who work in the courtrooms and clerk’s offices across the state. Over the last few months, I’ve tried to meet with clerk’s office staff around the state to learn what issues they’re confronting. That information has helped in the Maryland Judicial Council’s decision-making process. I think it’s incumbent on a Chief Judge to be a people-person who works with the staff and has a good understanding, top to bottom, of how the judiciary works.

Q: Is there any question you wished we asked, so we can share something with the readers?

A: I am often asked what I would like to accomplish as Chief Judge, recognizing I’m a short-termer. Here’s where I view my role:

Maryland is in a state of generational change. I was appointed to a Court where all seven judges had birthdays in the 1950s. We had common life experiences, which helped with collegiality. We talked about our similar experiences growing up, going to college, and going to law school, and raising families. One of our favorite stories shared with each other at lunchtime conversations, was that when Chief Judge Barbera was twelve, her parents wouldn’t let her attend the Beatles concert at Baltimore Civic Center. All of us could relate to that.  Our common reference points helped us to understand the law, and to handle cases where we had diametrically opposed opinions. Yet, we all were approaching mandatory age of retirement. Since I’ve been on the Court, five of seven judges have retired. We see a similar transition occurring across state government. We had a new Speaker of the House of Delegates in 2019, a new Senate President in 2020, and a new State Treasurer in 2021. After the 2022 election, we will have a new Governor, Comptroller, and Attorney General.  My priority is to support this generational change in the Maryland courts and courthouses in whatever way possible. I am trying to lay a foundation for a smooth transition to the new judges who are representative of this generational change as we build a better Judiciary to serve the citizens of Maryland.