By Patrick Tandy
Appearing in his capacity as MSBA President, the Honorable Keith R. Truffer reaffirmed the Association’s long-standing opposition to contested judicial elections during testimony he delivered to the Senate Judiciary Committee of the Maryland General Assembly on February 14, 2019, in Annapolis.
Truffer joined a delegation that included Chief Judge Mary Ellen Barbera, Court of Appeals of Maryland, and Anne Arundel County Circuit Court Judge Laura S. Ripken, who chairs the Maryland Judiciary’s Conference of Circuit Court Judges. The delegation appeared in support of Senate Bill 246, which proposes an amendment to the Maryland Constitution that would abolish contested judicial elections in the state.
“For over 30 years, the MSBA has opposed the contested election of Maryland’s circuit court judges principally on ethical grounds,” Truffer said in prepared remarks. “We believe that partisan, electoral politics have no rightful place in our judicial selection process, principally because elections transform judges into politicians and immerse them into the arena of partisan politics.”
Moreover, Truffer noted that the high costs associated with running a successful campaign necessitate fundraising on the part of the incumbent judge. “Often, those dollars come from the large corporations, and more often, the very lawyers most likely to appear before them on the bench,” he said. “The end result of our current election process is the gradual erosion of the public’s confidence in the impartiality of our legal system.”
Presently, judicial candidates are subjected to an exacting interview, evaluation, and selection process administered by the Maryland Judicial Nominating Commission, the MSBA’s judicial appointments committee and those of the state’s local and speciality bar associations, all of which diligently assess each candidate’s judicial skills and temperament.
Nevertheless, despite this thorough vetting, Maryland circuit court judges appointed by the governor are required to run in non-partisan contested elections in the next major election cycle. Each candidate must appear on the primary ballots of both major parties; different winners result in a general election run-off. Successful candidates receive a 15-year term.
This sets the stage for any lawyer age 30 or older who is admitted to practice in Maryland; has resided in the state for at least five years; and who has lived within the circuit in question for six months or more to challenge a sitting judge in a contested election. Unlike sitting judges, many of these contenders have not been subjected to the same extensive screening process and careful scrutiny as those whom they seek to unseat. These challengers also enjoy the privilege of speaking freely, issuing campaign promises, making misleading or inflammatory statements and even attacking the judicial records of their opponents, who, conversely, are compelled to remain silent in accordance with the Maryland Code of Judicial Conduct.
Furthermore, a lack of familiarity with members of the bench renders contested judicial elections a source of confusion for many voters. As such, many in our increasingly divided electorate vote for circuit court judges simply on the basis of known party affiliation, or even alphabetical listing on the ballot – a poor formula, to be sure, for a fair and impartial judiciary.
Maryland’s appellate judges face retention elections every 10 years. Judges of the Orphans’ Court are elected via non-partisan elections every four years.