The retirement next month of Chief Judge Robert M. Bell of the Maryland Court of Appeals is a critical event, the first transition in the leadership of Maryland's courts in nearly 20 years.
A matter of central importance for the new chief judge must be the shocking state of the docket of the state's highest court, a problem that long predates Chief Judge Bell's stewardship.
Article IV, Section 15 of the Maryland Constitution requires that "an opinion, in writing, shall be filed within three months after the argument or submission of the cause." Although the Court of Appeals held in 1908 that this deadline was not mandatory, it was nonetheless generally observed. In 1972, Chief Judge Hall Hammond's last year, the average time between argument and decision was one month; the average time was 1.7 months as recently as 1977. New associate judges caused the time lag to drift to 8.5 months in 1988. Two years later, an exasperated Judge William Adkins, who retired early from the court, appealed in an article for "collegial will" to correct "this hands-off approach to the pace of litigation."
This protest produced improvement, the average delay falling to four months by 2007. In that year, the court stopped publishing the average delay in its Annual Report. Delays escalated to six months in 2009, eight months in 2010 and six months in 2011. In August 2011, The Daily Record calculated each judge's record, ranging from 1.6 months for Judge Alan Wilner, a retired judge rarely called to active service by the chief judge, to 24.2 months for Judge John Eldridge, the most frequently recalled judge. For the current judges, delays ranged from three months to 12. In one criminal case, an appeal remains pending seven years after argument — cold comfort for the defendant, who in the meantime has served his five-year prison sentence.
A 2012 follow-up study by The Daily Record credited all six associate judges with delays of no longer than four months. Chief Judge Bell's average was 31.5 months and that of Judge Eldridge 22.3 months. However, individual responsibility was obscured when an unprecedented torrent of 11 unsigned opinions, averaging 32.7 months' delay, was released in the summer of 2012.
Clark v. O'Malley, contesting the removal in November 2004 of a former Baltimore City police commissioner, is a particular embarrassment. In March 2008, the court held, after a delay of 17 months after grant of review, that Commissioner Clark could only be removed for cause and had not been so removed. His ensuing quest for damages, unsuccessful in the lower courts, was granted review in the Court of Appeals in September 2009. It remains fully argued, submitted, yet undecided nearly four years later.
While the court has been thus delinquent in its core function, it and the chief judge have distracted themselves by pursuing an aggressive, semi-political agenda. The state bar has been blanketed with questionnaires about pro bono activity and continuing legal education. Mandates for the first, however, are easily politicized, and for the second chiefly benefit the operators of cruise ships and ski resorts.
During Chief Judge Bell's 18-year tenure, he has promulgated 69 administrative orders under his authority as chief judge, several times the number published in the preceding 30 years. Of late, these have centered on a court-created Commission on Professionalism, which has published a useful handbook but has also begun campaigning for controversial causes like "civil Gideon" (extending the right to counsel in criminal cases to civil cases as well) and mandatory continuing education. The most remarkable administrative order transferred to the new, propagandizing Commission on Professionalism $300,000 of the funds provided by lawyers to finance the long-standing commission responsible for "regulation of the practice of law in Maryland and implementation of the Maryland Lawyers' Rules of Professional Conduct." It also imposes a permanent assessment on lawyers for the future upkeep of the new body.
The new commission is constituted so as to be completely under the control of the chief judge. The first among its "Ideals of Professionalism" appropriately proclaims: "Punctuality promotes the credibility of a lawyer. Tardiness and neglect denigrate the individual as well as the legal profession." This admonition needs to be directed inward as well as outward.
The Daily Record editorial board has observed: "This is not merely personal. Opinions are issued by the Court, and it is the Court as a whole that bears responsibility for running itself in a responsible manner." Judges who have quietly acquiesced in an indefensible situation and who have not committed themselves to drastic change do not deserve promotion. Chief judgeships should not be filled on the principle of "Buggins' turn" giving brief tenure to senior judges, nor should courts become career bureaucracies whose members are looking toward the governor's office and the next rung on the ladder. The next chief judge of the Court of Appeals should be someone sensitive to clients, costs and deadlines.
His or her agenda should center on the court's opinions, not on its rule-making and support agencies.
The court's most influential action in the last century was the decision in Brady v. Maryland imposing on prosecutors a duty to disclose exculpatory evidence. It was the product of a restrained court exercising its core function, was affirmed by the U.S. Supreme Court, and has been followed throughout the English-speaking world.
Chief Judge Bell during his tenure reasserted the independence of his court from the governor's office in politically charged cases involving reapportionment, public utility regulation and election laws, and introduced specialized courts for drug cases and complex business cases. His opinions, including those in dissent, have kept his court honest on questions of criminal procedure. As an opinion-writer he never forgot that the central function of courts in any free society is the prevention of arbitrary imprisonment: the protection of personal liberty, properly so called. That, and not ill-conceived side shows and a history of delay, which he inherited, should be his legacy.
Social justice is not fostered by clogging civil dockets through new and imperfectly understood rules, nor will liberty be preserved by a dilatory court or a cowed and over-regulated bar.
James B. Astrachan (email@example.com), George W. Liebmann (firstname.lastname@example.org) and Henry R. Lord (email@example.com) are members of the Baltimore bar.
Clarification: An earlier version of this article failed to credit The Daily Record as the source of the 2011 and 2012 studies on each judge's average delays in issuing opinions. The Sun regrets the omission.