This article was republished with permission from WTOP’s news partners at Maryland Matters. Sign up for Maryland Matters’ free email subscription today.
After years of study, a judicial workgroup is recommending that Maryland do away with contested elections for its 175 circuit court judges, saying the process presents ethical problems and poses a risk to judges’ safety in the current political atmosphere.
Instead of standing for reelection every 15 years in a campaign in which they could face challengers, the workgroup said that circuit judges should face voters every 10 years in a retention election, where voters get a simple yes-or-no choice of whether to keep the judge on the bench. That is the process currently used for the state’s appellate judges.
“The majority of the workgroup agreed that contested elections for trial court judges, more extreme and adversarial than ever before, are certainly not a prudent direction for Maryland,” the report said. “Contested elections create an array of potential ethical violations and untoward appearances that serve to undermine the public’s trust and confidence in this branch of government.”
The recommendation is the highlight of a final 63-page report – supplemented by more than 750 pages of appendices – by the Legislative Committee Workgroup to Study Judicial Selection, which took “a comprehensive, academic review of the entire process used for judicial selections” and made suggestions across the board.
But the recommendation to eliminate contested elections for circuit judges is certain to attract the lion’s share of attention in the 2025 session of the General Assembly, which for decades has rejected dozens of such proposals. Any such change would ultimately have to go to voters to consider as a constitutional amendment.
It was a constitutional amendment in 1970 that set up the system under which district court judges – who hear misdemeanors, certain felonies and some civil cases – are selected. They are appointed to a 10-year term by the governor, subject to a confirmation vote by the Maryland Senate, but do not stand for reelection. If they have not reached the retirement age of 70 by the time their first term ends, they are appointed for another term.
In 1976, voters approved a constitutional amendment on appointment and retention of the state’s appellate court judges, who serve on the Maryland Supreme Court and Appellate Court of Maryland. In addition to gubernatorial appointment and Senate confirmation, appellate judges are up every 10 years for retention election.
The workgroup’s report said that more than 75 proposals have been introduced since the 1980s to change the selection of judges on circuit court, where jury trials are held and the most serious criminal cases and major civil cases are heard.
Defenders of contested elections have long said they help open the door to judgeships for women and minority candidates, in what had been seen as a largely closed political process. The workgroup included William “Billy” Murphy, a Black attorney from Baltimore who won a circuit court judgeship as an insurgent candidate more than four decades and has long been opposed to doing away with contested elections.
The 20-person judicial selection workgroup, which included attorneys and current and former judges, as well as representatives of groups like the Chamber of Commerce, Common Cause, the League of Women Voters and the NAACP, was co-chaired by Montgomery County Circuit Court Judge Kathleen Dumais and former U.S. District Court Judge Alexander Williams. It began meeting regularly in the fall of 2022 and held a public hearing late that year.
The final report, two years in the making, said 75% of the workgroup’s membership voiced support for doing away with contested judicial elections – although the report did not provide a specific breakdown of which members had lined up for or against the recommendation.
The report acknowledged that contested judicial elections have been seen as “ensuring representation of women and minorities on the bench,” adding, “This process has been in place for decades and, in many historical instances, offered the only path for under-represented citizens … to serve on the circuit court bench.”
But it said that of nearly 170 circuit court judgeships that were filled as of this spring, 31% were held by African-Americans – roughly equal to the Black population of the state – and 51% were occupied by women.
“Current judicial demographics reflect a much more diverse and equal representation of Maryland citizens,” the report asserted.
The workgroup gave credit to a system of vetting and appointing state judges that was instituted by via executive order in 1970 by then-Gov. Marvin Mandel and has been kept in place by every governor since.
Under the Mandel framework, judicial nominating commissions are established around the state – currently 16 for trial courts in various judicial districts and one for the appellate courts. Those commissions vet would-be judicial nominees through extensive application forms and interviews, while seeking the opinions of bar associations at the state and county level.
A nominating commission then submits a slate of at least three finalists to the governor, who conducts his or her own assessment before making an appointment.
Although several workgroup members dissented from the recommendation to do away with contested elections for circuit judges, the panel was virtually unanimous on keeping the current appointment structure in place for all judicial appointments. The report did acknowledge that “the diversity in statewide numbers” of those appointed to the bench in recent years “is not reflected in smaller counties and jurisdictions,” and urged some reforms in the manner that the judicial nominating commissions operate.
That includes expanding nominating commissions, often comprised largely if not entirely of attorneys, to “increase transparency in the vetting process through input from special bars, the public and other sources.” Maryland has nearly two dozen specialty bars, associations of attorneys organized on the basis of race, gender, sexual preference and legal specialty.
Despite calling for some tweaks, the workgroup said the current process is preferable to letting candidates bypass the vetting process and simply file to run in a contested election for a circuit court seat.
The vetting process “involves a careful examination of the qualifications of all who seek the appointment, and the elimination of those thought to be unqualified or less qualified,” the report said. “That review, that screening, is entirely absent when a challenger is initially elected” absent the appointment process.
Under state law, “anyone who is thirty years old, who has resided in Maryland for five years, in the circuit for six months, and who is a member of the Maryland Bar can enter the race, whether or not he or she has been subjected to the nominating process,” the report said. “There is no vetting or requirement that they have ever practiced law, tried a case before a judge or adjudicatory body, or that they have any knowledge or experience with the judicial system.”
Instances of circuit court candidates bypassing the vetting process and winning a judgeship as a challenger were nearly unheard of until 2000. Since then, about a dozen judges initially appointed by the governor have been ousted by general election challengers, with about one-third of those races in 2020.
There are 31 candidates running for 28 circuit court judgeships in 12 counties this fall, with contested races in Anne Arundel and Prince George’s counties.
Besides the ability to skirt the vetting process, the report cited two other reasons for doing away with contested elections: The growing amount of campaign money being spent and the potential for conflicts of interest, along with increasing concern about the personal security of judges.
“The workgroup found that in Maryland, and in many other states, the overwhelming majority of funds raised by circuit court or trial judges in recent contested elections is from lawyers who will appear before the very judge who is raising the money,” the report said. “The lawyers are the most interested in such races and, thus, the natural supporters.”
The fact that judges are raising money from “lawyers who will seek favorable rulings from the judges raises fair concerns about judicial independence,” the report said.
And in today’s political environment, “…another real concern with contested judicial elections is that these campaigns may now employ polarizing attack ads. The campaigns are becoming more contentious and increasingly expensive,” the report said.
The group had hoped to present its findings in time for the 2024 General Assembly, but the question of judicial selection was sidetracked by security-related legislation, after the October 2023 fatal shooting of Circuit Judge Andrew Wilkinson in Hagerstown by a disgruntled litigant.
While not naming the Wilkinson case, the workgroup report pointed out that “judges make very personal and complex decisions about the lives of families and individuals, which is different than campaigning on public policy issues. The decisions made by judges routinely involve serious violence – in both civil and criminal cases.
“Judges running in a contested election … must make very difficult choices between effective campaigning and undertaking precautionary measures,” the report said.
Judges seeking reelection have to “canvas neighborhoods, knock on doors and attend political events on nights and weekends” and the workgroup said it “heard testimony from several judges regarding knocking on doors of citizens who had been before them on family and criminal cases and being approached by citizens (some disgruntled) at the polls.”
While it would replace contested elections with retention elections, the workgroup acknowledged greater public education is needed to make the retention vote process work.
“The workgroup repeatedly heard that voters are ill-informed about the judges for whom they are currently casting a ballot,” the report said. “It is critical that retention elections become meaningful. To do so there must be outreach to the community; public comment, input, and participation in the process; and public education.”
It heard testimony about a Colorado Office of Judicial Performance Evaluation that it said “provides voters with a county-specific, searchable database with biographical information on the judges running in a retention election, along with a notation as to whether those judges meet performance standards based on an evaluation conducted by an independent commission.”
But it refrained from making any suggestions in the potentially thorny area of crafting evaluations of sitting jurists. It said “further study of how judicial evaluation commissions or other procedures might contribute to that goal is merited,” but referred the matter to the Maryland Judicial Council “so that the issue can be more fully considered.”
“Judicial performance evaluations were not part of the workgroup’s initial charge. As such, the workgroup did not have the opportunity to review research and available models or to seek public comment,” the report said.
The report was recently approved by Maryland Chief Justice Matthew Fader and the legislative committee of the Maryland Judicial Council, a body of top judicial branch officials that advises Fader.
Dumais – who served for nearly two decades in the House of Delegates before being appointed to the circuit court bench three years ago – said she “would love” to see passage of the proposal in the 2025 legislative session.
“I’m very hopeful: I think the report is solid, and makes it very clear that it is time for the legislature to allow the voters of Maryland to make this decision,” said Dumais, who favored doing away with contested elections while she was a legislator.
But she hastened to add, “I am also a realist, and … based on my legislative experience, many times this kind of policy change may take a year or more.”
