As a litigator, I frequently get asked by my clients about how a judge is selected for appointment to the bench. Judges come from a wide variety of backgrounds. Some have lengthy careers in public service prior to appointment to the bench, often in the Attorney General’s Office, a State’s Attorney’s Office and/or the Office of the Public Defender. Others have lengthy careers in private practice. Many have experience in both the public and the private sector.
Previously we discussed the differences between the Circuit Court, the District Court, and the Orphans’ Court. Today, we’ll discuss how judges on each of Maryland’s state trial courts are appointed.
District Court of Maryland
Judges on the District Court for Maryland are appointed by the Governor and approved by the State Senate. Judges serve a ten-year term. At the end of their ten-year term, a judge is nominated for a “retention” election, which is simply an “up or down” vote as to whether the judge should be elected to another ten-year term. Unlike for the Circuit Court (as we will discuss momentarily), attorneys may not run for election to the Circuit Court.
Maryland Circuit Courts
There are two paths to appointment as a Circuit Court judge. The first path is through the Judicial Nominating Commission. The alternative path is through direct election.
Most Circuit Court judges are seated after a rigorous vetting process. Lengthy applications are submitted to a local Judicial Nominating Commission. The Judicial Nominating Commission interviews the candidates, reviews their applications, and whittles the pool of applicants down to a few finalists. The names of the finalists are submitted for consideration to the Governor. The Governor and his staff vet the finalists and, ultimately, the Governor appoints a Circuit Court judge to fill a vacancy. The Circuit Court judge appointed by the Governor serves on the bench until the next even-numbered year (i.e., Congressional election year) following his/her appointment. At that time, the Circuit Court judge runs for election for a 15-year term.
In the alternative, occasionally attorneys choose to run for election for a Circuit Court judgeship. The winner of a contested judicial election is appointed to a 15-year term. The attorney runs to unseat an individual who has gone through the vetting process and been appointed by the Governor. Contested judicial elections is not only a hot button national issue, but is a controversial issue among the Maryland Bar. Every two years, there is usually a contested judicial election in at least one of Maryland’s counties, notwithstanding the admonitions from the Maryland State Bar Association to its members that the MSBA supports sitting judges and opposes the concept of attorneys running for election. The position of the MSBA is that sitting judges should not be forced into costly elections on which they must walk a tightrope of judicial ethics which do not constrain their opponents, and which diverts their attention away from hearing cases impartially. This year, for example, a member of the St. Mary’s County State’s Attorney’s Office is running to unseat a sitting judge of the Circuit Court for St. Mary’s County.
Maryland Orphans’ Courts
The appointment of Orphans’ Court judges varies depending on the jurisdiction within Maryland. In Harford and Montgomery Counties, Orphans’ Court judges are drawn from the Circuit Court bench. Thus, Orphans’ Court judges in those jurisdictions are Circuit Court appointed or elected judges. In the 22 other jurisdictions in Maryland, Orphans’ Court judges must run for election every four years and must reside in the jurisdiction in which they run for election for at least 12 months prior to their election.
One of the requirements of District Court judges and Circuit Court judges is that they have a law degree and be a member in good standing of the Maryland Bar (have passed the bar exam). Shockingly, in only 3 of Maryland’s 24 Orphans’ Court are you guaranteed to appear before an Orphans’ Court judge who has a law degree and is a member of the bar. As stated, in Harford and Montgomery Counties, Orphans’ Court judges are drawn from the Circuit Court bench, and therefore are attorneys. In 2010, Maryland voters approved a Constitutional amendment requiring that Orphans’ Court judges in Baltimore City be members of the bar. In 2012, Maryland voters will have the opportunity to approve Constitutional amendments requiring that Orphans’ Court judges in Prince George’s County and Baltimore County be members of the bar. Even if the 2012 Constitutional amendments are passed, 19 of the 24 jurisdictions in Maryland will still allow members of the general public to serve as an Orphans’ Court judge and pass judgment on highly complex legal issues affecting the rights of citizens, so long as the individual seeking appointment has resided in that jurisdiction for the previous 12 months.
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Jeremy Rachlin is a Senior Associate at the Bethesda, Maryland law firm of JDKatz, P.C., practicing civil, commercial, employment, and estate litigation. Named as a “Rising Star” by Maryland Super Lawyers Magazine in 2012 and 2013, he can be reached at (301) 913-2948 or by e-mail at firstname.lastname@example.org. JDKatz, P.C., can also assist clients in need of estate planning, estate administration, and tax law representation, and Jeremy invites you to contact him regarding these issues, as well.
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