Monday, February 17, 2014

Keep Your Vote

If these two judges were up for election, what would voters do?

Askew Gatewood defied the Maryland Constitution by moving out of Baltimore where he sits as a judge and by running a real estate business.  A few years ago the state criminally convicted Gatewood of illegally dumping construction debris into the Patapsco River around his Anne Arundel County home.  As part of the cleanup, 240 dump trucks carried away 4800 tons of debris from the river.  That was only what could be gotten out.  Who knows how much actually went in?

Alfred Nance, not long after his appointment 15 years ago, became the subject of numerous complaints by female attorneys for inappropriate, sexually-based conduct towards them.  He was reprimanded by the Judicial Disabilities Commission, brought up again on charges, yet has continued to serve as a judge, where he has enriched his reputation for rude, arrogant behavior and inappropriate comments towards women, lawyers, jurors and witnesses.  He's made news for berating a potential juror for wearing his yarmulke crooked and for ordering a woman to be locked up for yelling "I love you"  to a defendant. He also threatened to send her child to jail with her.

It's my bet that if given the chance and the facts, voters would kick out Gatewood and Nance.  But only in Nance's case is there any possibility.  Nance is a Circuit Court judge, the only type of Maryland judge that must be elected by Maryland voters.  Gatewood sits on the District Court which is, for all practical purposes, a lifetime appointment.

The election of Circuit Court judges probably has its roots in early American history when citizens elected local, trusted citizens to preside as judges in their small communities.   Circuit judges preside over all jury trials and the most important civil and criminal cases in Maryland's court system. The governor appoints them and then they "stand for election."  Most of the time they are not challenged because the bar associations throw their weight and money behind the "sitting judges." To challenge the sitting judges risks significant legal ostracization for practicing attorneys.

Many in the legal establishment want to get rid of Circuit Court judicial elections, fearing that politics will corrupt what is supposed to be the independent branch of our government.  Attorney General Doug Gansler, now a gubernatorial candidate, made a big push to eliminate Circuit Court elections in Maryland a couple of years ago.  He failed, largely because black legislators opposed his effort.  It was thanks to the vote that African Americans finally obtained representation on Baltimore's Circuit Court.

In theory I oppose electing judges.  In practice, I have concluded that voters should never give up the right to vote for Circuit Court judges until the legal establishment shows the will to boot out the bad ones.  

Anyone who thinks that the appointment of judges produces better, less-political judges doesn't know Maryland's system.  Many of the judicial applicants that I have personally known worked harder trying to get appointed than they ever did at their jobs.  It isn't about the best, most qualified candidates, as the system pretends.  It's about those who best develop connections and satisfy the governor's political purposes.  As a result we have an average--at best--judiciary in Maryland.  (One notable exception is new Chief Judge Mary Ellen Barbera, a ray of hope for the future.)

The worst part is that once judges are appointed, citizens are stuck with them, no matter how badly they behave.   When Gatewood was charged with dumping all those tons of debris into the Patapsco, the Judicial Disabilities Commission didn't even bother to wait until the criminal case concluded.  They issued a little "tsk tsk" (a reprimand) and sent him back to the bench.  And although the Maryland Constitution requires the governor to remove a judge convicted of a crime, Governor O'Malley did nothing after Gatewood was pronounced guilty.  Next year, by law, the governor will have to appoint Gatewood to a new 10-year term when his current term expires.  Only the failure of the Maryland Senate to confirm his appointment could stop Gatewood from serving, a rare occurrence.  

As for Nance, despite his documented behavioral issues, was very quietly reappointed by Governor O'Malley, who knows better.   

So the only ones left to act are the voters.  I don't fool myself into thinking that they will kick Nance out come this year's election. The law firms and bar associations stand ready to purchase advertising and space on the ballots of other candidates, and the sitting judges will hold hands with Nance and ask voters to vote for all of them.  Citizens will re-elect Nance not because they approve of him but because they won't know about him.  He bears the legal establishment's stamp of approval as "best qualified" to be judge.  

But voters should never give up their vote.   They couldn't do any worse than the legal establishment in selecting our Circuit Court judges, not if they played eenie-meenie-miney-mo in the voter's booth. Maybe, just maybe, someone or some group will rise up, get their attention, and get a bad judge off the bench.  A small chance is better than no chance.  

Since the original publication of this post two matters have been brought to my attention. Judge John Arnick left the District Court bench in the early 1990s when racist and sexist remarks he made were revealed prior to his confirmation hearing in the Senate.  

And I apologize to the Baltimore Judicial Nominating Commission for originally stating that it renominated Judge Nance.  (I stand by my original remark that Baltimore's commission has made many poor choices over the years, including Nance the first time around, whose behavior on the bench should have been no surprise.)  Governor O'Malley reappointed Nance without going through the commission, so the responsibility rests entirely with him. 

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