Howard County this primary election has one of the most competitive races for circuit court judge in recent decades. Three lawyers are trying to defeat a sitting judge.
Yet, more than 42,000 unaffiliated and third-party voters – 20% of registered voters – get no say on who sits on the bench.
The disenfranchisement is even worse in Montgomery County, where there are two challengers to four sitting judges. There, 156,000 independents and third-party voters – 23% of those registered and far more than Republicans – do not get to vote on the judges.
The discrimination is longstanding in Maryland law. After their appointment by the governor, judges of the circuit courts, the basic trial court in Maryland, must run in potentially contested elections to retain their seats.
But the sitting judges and the attorneys who have paid the $50 filing fee to get on the ballot do not run in the same kind of nonpartisan race as do school board members. Regardless of their personal party affiliation, the judges and their challengers run in both the Democratic primary and the Republican primary.
In some cases, the sitting judges win both party primaries and go on the November ballot unopposed, effectively retaining their 15-year appointments. This is what happened in Howard County in 2012 and 2006, where a single challenger opposed two sitting judges in each election.
A March article explained how Judge John Kuchno got appointed to the circuit court by Gov. Larry Hogan after a lengthy process that includes extensive vetting by a Judicial Nominating Commission (appointed by Hogan) and several bar associations. In the end, Hogan interviewed the five people nominated out of the 13 lawyers who applied.
“I believe the current process is flawed,” said Ellicott City attorney Stephen Horvat during an online Zoom forum May 16 for the candidates by blogger Scott Ewart. “What we have is a political process” and the appointment is “essentially a political gift.”
The other two challengers to Kuchno, former public defender Quincy Coleman and public defender Stephen Musselman, also agreed that the process is too political. CLARIFICATION: Horvat and Musselman went through this longstanding process but were not nominated. The third, Quincy Coleman, had applied for an opening on the district court in the past but was not nominated.
But Horvat is running the most aggressive and most expensive campaign against Kuchno.
Horvat, who spent the past decade in asbestos litigation, has put close to $52,000 of his own money into the campaign, according to state financial reports. He has spent the money on direct mail, Facebook ads, and outdoor signs prominent at several gas stations in the county.
Horvat also has raised $21,000 from others, mostly out-of-state law firms. He criticized Kuchno for taking campaign contributions from lawyers and law firms who may come before his court.
Coleman and Musselman are largely self-financed, and they also do not believe judicial candidates should take money from local law firms. Coleman loaned his campaign $10,851, enough to do a single mail piece, and Musselman loaned his campaign $3,749, spending most of his money on Facebook ads.
About 44% of the $57,435 Kuchno has raised for his campaign has come from lawyers and law firms from Maryland, though many are not based in Howard County. That figure rises to 55% of Kuchno’s campaign chest if you include his largest and most unusual donation, a $6,000 contribution from Michael Edney, a partner with the D.C. firm Steptoe & Johnson. Edney was on the opposing side against Kuchno when he was an assistant attorney general in a case involving the State Center project in Baltimore.
The judge also has loaned his campaign $6,000.
Horvat inaccurately claimed in a Facebook posting that Kuchno has raised “$50,000+ from local lawyers and law firms,” which he conceded is legal but inappropriate. The true figure is only about $32,000.
It is a longstanding practice for sitting judges to raise money to keep their seats. In several larger counties that is handled by a committee of local lawyers that support the sitting judges on principle. Such a committee does not exist in Howard County, which has five circuit court judges.
No issue with judge’s performance
Aside from his fundraising and the process by which he got there, Kuchno’s challengers do not take issue with the judge’s performance in the year and a half he’s served on the circuit court.
They simply say they are just as qualified as he is to be a judge. “He’s not the only fit one,” said Horvat, challenging Kuchno’s assertions that he was found “highly qualified.”
But Kuchno, 62, has been a lawyer longer than his three opponents – 35 years. And he has countered the political nature of the process by gaining the endorsement of both Democrats and Republicans, including the two Democratic attorneys general he worked for as an assistant attorney general.
One of his mailers has a picture of him with Attorney General Brian Frosh on one side and with Gov. Larry Hogan on the other. Kuchno has been endorsed by Liz Bobo, the former Democratic delegate and county executive, who recorded a robocall in Kuchno’s behalf.
Other Democrats endorsing Kuchno included Sen. Guy Guzzone, Del. Terri Hill, Clerk of Court Wayne Robey, County Council members Deb Jung and Opel Jones, former Attorney General Doug Gansler and former Judge Donna Hill Staton, the last judge to lose the contested and highly politicized 1994 election in Howard County.
Besides Hogan, other Republicans endorsing Kuchno are Del. Trent Kittleman, Council member David Yungmann, former County Executive Allan Kittleman, former Sen. Gail Bates, and former Del. Robert Flanagan.
Kuchno has also been endorsed by the Maryland State Bar Association and the AFL-CIO.
Horvat has been endorsed by former Howard County Council member C. Vernon Gray, a Democrat, and by the political arm of the African American Coalition of Howard County, which lists Horvat as a Democrat on its sample ballot.
For a countywide race or even a legislative race in Howard County, the money being raised and spent is relatively moderate. But the raising of money by judges is one of the longstanding objections to the election process which the legislature refuses to reform. Given the amounts involved, this might be an ideal office to use public financing, but even there, under most systems, small amounts from many contributors must be raised to show a candidate has support.
The fact that judges who hold what is supposed to be the most nonpolitical of offices must run in partisan primaries, with no chance for independents and third-party voters to participate, also needs fixing. But the partisan duopoly in Annapolis, which consistently discriminates against voters who are not members of the two major parties, has failed to act.