This column appeared originally in The Business Monthly.
By Len Lazarick
It takes a lot to become a judge in Maryland, and sometimes it takes a lot to keep the job.
First you must be a lawyer, and then go through a grueling application process with Trial Courts Judicial Nominating Commissions around the state. Bar associations conduct interviews and make recommendations as well.
The nominating commissions send names to the governor for appointment. Governors take the process seriously and interview the candidates. The judges they appoint are perhaps the governors’ most significant legacy, because the jurists serve for 10 or 15 years, long after the governors are gone.
After the governor finally makes the appointment, the new judges then go through a training process, often in areas of the law where they have limited experience.
After all that, the judges of the circuit courts have one final hurdle. To keep their jobs, they must face the voters on the ballot. Any lawyer in the county can file to run against them for their seats.
Sometimes these sitting jurists get knocked off the bench. It happened in Anne Arundel County in 2010, when Alison Asti, former executive director of the Maryland Stadium Authority, defeated Judge Ronald Jarashow by 20,000 votes. There was a partisan edge to that race, because Gov. Martin O’Malley appointed few Republicans like Asti as judges.
In 2014 in Frederick County, former Republican state’s attorney Scott Rolle beat Judge Danny O’Connor by 1,600 votes.
Independents shut out of primary
This year, there are four sitting judges on the Anne Arundel County ballot, a third of the 12-judge circuit court bench in Annapolis. They are being challenged by three other lawyers.
Sitting judges on the ballots this year are also being challenged in Allegany County, Baltimore City, Garrett County, Prince George’s County and Washington County. In all, 17 sitting judges around the state face 10 challengers, with the most in Anne Arundel.
In seven other counties, 10 sitting judges are running unopposed since no challengers filed.
One of the perverse aspects of the judicial election is that the judges and the challengers are listed as candidates in both the Democratic primary and the Republican primary. If the sitting judges win in both primaries, only their names appear on the general election ballot and they have effectively retained their seats. The use of partisan primaries eliminates the voice of registered voters who are not affiliated with either major party, 84,000 Anne Arundel.
Legislature refuses to change election
The legislature again this year refused to change the system by constitutional amendments. For years, lawmakers and other state leaders, such as Attorney General Doug Gansler, have proposed legislation to have these judges run in “retention elections,” as do the judges on Maryland’s courts of appeal. In a retention election, all voters in the November election, including the unaffiliated, get to vote yes or no to retain an appellate judge. But the legislature has rejected all these attempts. (District court judges are appointed for 10 year terms and don’t have to run for their seats.)
Unlike other candidates, they can’t talk about anything they want, such as laws they like or don’t like. Constrained by a code of ethics, they can’t promise to be tough on crime or punish with harsh sentences.
Running as a ticket
To ensure they survive the election, the sitting judges throughout Maryland band together on tickets, generally supported by the bar association and practicing attorneys.
The Anne Arundel judges — Glenn Klavans, Stacy McCormack, Donna Schaeffer, and Cathy Vitale — have joined in a ticket called 4 Judges Strong. While Klavans and Vitale where appointed by O’Malley at the end of his term, all four are Republicans. They all are actively promoting their endorsement by Gov. Larry Hogan, including campaign signs with a picture of the four judges standing with Hogan.
The governor, an Anne Arundel County resident prior to his election, won the county in 2014 with 66% of the vote, and is extremely popular in statewide polls.
All the judges have wide ranging legal experience, ranging from 20 years for McCormack to 29 years for Schaeffer and 37 years for Klavans. Besides her 26 years practicing law, Vitale was a member of the House of Delegates when she was appointed and a County Council member before that.
Challengers applied but weren’t nominated
All three of their challengers had applied to be judges, but were never nominated to the governor.
“I’ve been through that process … the nominating commission won’t send my name forward,” said Mark Howe at a Severna Park forum last month sponsored by seven Republican clubs and the Republican Central Committee. “I am letting the voters decide whether they want a man of my temperament on the bench.”
Howe is a former county cop who’s been practicing law for 25 years. He was the only challenger at the forum. As organizer David Zwald of the North County Republican Club explained it, their job is electing Republicans, so only the GOP candidates got invited.
Lack of minorities
The other two candidates for judge are African-American Democrats. Anne Arundel County, which is 13% African-American, hasn’t had a black judge on the circuit court for over 20 years. (The Census Bureau estimates the county’s Latino or Hispanic population at 17%.)
Ricky Nelson Jones, both a pastor and a lawyer from the Laurel area, sued in federal court last year because the nominating commission did not send his name to the governor. He calls the lack of minority representation in the county “shocking and unjustifiable.” Jones has been a lawyer for about 25 years, with a wide-ranging practice.
Claudia Barber, the other black Democrat from the Laurel area, has been an administrative law judge for the District of Columbia for 10 years and before that practiced civil and criminal law for 16 years.
Barber emphasizes her experience as an administrative law judge. She noted that most of her decisions have been upheld on appeal and that none of the new judges had judicial experience prior to their appointment. “I have a large wealth of experience,” Barber said.
She had applied for a judgeship in the past, but not for the most recent vacancies. she said.
The opposition to moving to retention election comes in general from two political minorities who don’t think they get their fair share of judgeships: African-Americans and Republicans, with enough votes in the Maryland General Assembly to squelch any change.