What are the qualifications for someone to be appointed by the Governor to fill a judicial vacancy?
Under the Maryland Constitution, the Governor fills a new judgeship or other vacancy in judicial office with an individual having the following basic qualifications:
How does the Governor use this appointment power?
Although the Constitution sets forth these basic qualifications, it provides the Governor with limited guidance in making judicial appointments. In 1970, Governor Marvin Mandel issued an Executive Order creating Judicial Nominating Commissions to assist in the judicial selection process. Every Governor since 1970 has issued a similar Executive Order – both Democrat and Republican Governors.
What is the role of the Judicial Nominating Commission?
The Judicial Nominating Commission’s primary responsibility is to screen candidates for judicial office at all levels -District, Circuit and Appellate Courts. Once the Commission completes this screening process, it compiles a list of candidates for the Governor to consider appointing. This screening process allows the Governor to appoint the most highly qualified candidates from a list of candidates who have been thoroughly vetted. The Governor and his or her staff then conduct a separate review and vetting of each candidate followed by an interview before the appointment.
Is there an application to seek an interview by the Judicial Nominating Committee and ultimately an appointment by the Governor?
Yes, the merits selection process starts with the completion of a lengthy application. The questions require each candidate to provide a detailed personal and professional history, including descriptions of their education, legal career, breadth and depth of legal experience, personal background information, involvement in the community, publication, references, and courses they have taught, if any. Each candidate must submit two writing samples.
Other than the Judicial Nominating Committee, do any other groups vet the candidates for the vacancies?
Yes, the candidate can agree to be interviewed by the bar associations in Maryland, including the specialty bars. The candidates are not required to, but if they interview with the bar associations, the associations send a letter with their recommendation as to the qualifications of the candidate to the Judicial Nominating Committee.
Which specialty bars interview the candidates?
Why is it important that the specialty bars interview the candidates
It ensures that diverse communities and organizations represented by the various specialty bar associations have a voice in the judicial selection process. The diverse organizations that participate in the vetting process have ensured the appointment of a bench that reflects our community.
Do the bar associations do anything beyond the interview?
Prior to the interview, the bar associations vet each applicant and review the applications. The Montgomery County Bar Association also sends a referendum ballot to its over 2,000 members who vote on the qualifications of each applicant.
What information does the Judicial Nominating Commission use to vet each candidate:
The Commission thoroughly vets each candidate. They review the application and writing samples of each candidate; contact the candidate’s references, as well as opposing counsel for trials noted in their application and judges whom they appeared before; run criminal background checks; and, consider the recommendations of the bar associations, including the specialty bars. They also accept information about candidates that anyone is willing to provide. The final piece of vetting a candidate is their interview with all members of the Commission.
Why do newly appointed judges have to run in the next election?
Under the Maryland Constitution, once appointed and sworn in, Circuit Court Judges must run in the next election for a 15-year term. In the meantime, the new Judge must close their practice or resign from their employment to begin the important work of serving the community as a sitting member of the bench once they take their oath.
How often do Circuit Court Judges have to run in an election?
Any Judge appointed to the Circuit Court by the Governor, must run in the next election. Once a Circuit Court Judge wins in an election, they are on the bench for 15 years before they must run in an election again.
What is the vetting process for someone who challenges the Sitting Judges by paying to be on the ballot?
There is no vetting process of these candidates. If they meet the age and residency requirement and are lawyers in good standing, there is no review or vetting of their qualifications.
What does the Judicial Nominating Committee consider in their vetting and interviewing process?
They first consider the candidates’ legal experience and knowledge. They look at the type or types of law the candidates practiced, the candidates’ trial skills, and the reputation the candidates have in the legal community. They are looking at the candidates’ community involvement to ensure that they are in touch with the community—they want to recommend people to the Governor who will represent the community well. They are also looking at the candidate’s demeanor. As a judge, will the candidate have the patience, compassion, listening skills, and tolerance to handle the courtroom and its participants with respect, dignity and understanding? Is the candidate one who communicates well and who will instill confidence in the judicial system and provide parties who are leaving the courtroom with an understanding of the Court’s rulings?
Doesn’t the election require Judges participate in politics?
Yes. Even though the sitting judges must stay on top of their dockets, rule on matters daily in court and serve the public members of the bench, the sitting judges also must run campaigns to garner votes and they must raise money to finance their campaign. While judges are supposed to be separate from politics to ensure that their rulings are non-political, this part of the process requires the sitting judges to participate in the campaign and election process. The Judicial Rules of Ethics controls what and how the sitting judges may do this, including limitations on participating in partisan politics to ensure independent decision-making and maintain public confidence in the judicial system.
Current occupation and employer, and up to two previous employers?
Judge Boynton: Associate Judge, Circuit Court for Montgomery County, Maryland since 2003. Prior to my appointment to the bench, I worked for 20 years as a trial lawyer, 17 of which were spent in public service as a Montgomery County prosecutor, and 3 of which were spent representing clients in the private practice of law at the law firm of Donohue, Ehrmantraut and Montedonico
Judge Fogleman: Associate Judge, Circuit Court for Montgomery County, Maryland
Judge Berry: Associate Judge, Circuit Court for Montgomery County. Before that, I sat on the Bench for over 2 years as a Family Magistrate in Montgomery County. Prior thereto, I was a litigator and Principal member of the law firm of Paley Rothman in Bethesda Maryland.
Judge McAuliffe: Currently: Judge of the Circuit Court for Montgomery County. Prior to that, I spent 32 years in the private practice of law at Ethridge, Quinn, Kemp, McAuliffe, Rowan & Hartinger.
Why are you running for office?
Judge Boynton: I am a lifelong resident of Montgomery County and my professional calling is public service. As a Circuit Court Judge, I have spent the last 16 years as a public servant: resolving disputes that could not be resolved; solving problems that could not be solved; helping people that could not help themselves; protecting people that could not protect themselves. I am running so that I may continue to serve the wonderful citizens of Montgomery County.
Judge Fogleman: In the year since I have been appointed to the Circuit Court, I have been serving in the family rotation, handling divorces, child custody and support disputes, and domestic violence cases. I have had the opportunity to make decisions in very difficult cases and I feel that I have made a positive difference in people’s lives. I would like to continue in this work and serving the citizens of Montgomery County.
Judge Berry: As a recently appointed judge, I am constitutionally required to run in this election to retain my position. I already was serving as a member of the Bench as a Family Magistrate, and the judgeship offered an opportunity for me to utilize my skills and experience to positively influence the administration of justice and have a greater impact on the community in which I live.
Judge McAuliffe: I became a Judge because I owe a tremendous debt to this country and to my community. My grandparents came here from Ireland in the early 1920s. They were fleeing famine, poverty and oppression. In America, they were given a chance to work, to learn, and to succeed. Our justice system protects that vision of America at its best. As a judge, I can help safeguard that precious system.
What experience (work, political or other) has prepared you to hold this office?
Judge Boynton: As an elected Circuit Court Judge, I have spent the last 16 years presiding over and deciding thousands of criminal law, civil law, family law and juvenile law cases. During that time, I have demonstrated that I have the wisdom, legal knowledge, practical judgement, life experience and compassion for others to make the right decision under the law based upon the facts and circumstances presented. My years of trial work, raising a family, active community involvement, leadership in church, youth sports and scouting activities all prepared me for my work as a judge.
Judge Fogleman: I was a judicial law clerk, an Assistant Public Defender for 3 years, and an attorney in private practice for 30 years. I have represented a diverse group of people who were frequently at the lowest point of their lives. This has well prepared me to be a judge, where I see people facing possible incarceration, seeking compensation, or experiencing the breakup of family relationships. Additionally, my wife and I have raised five children and I’m in my 27th year of coaching youth baseball. I have a good understanding of young people which has proven valuable in child custody determinations.
Judge Berry: I have worked in the legal field for over 24 years, as a legal assistant, law clerk, litigator, Family Magistrate and now, as a Judge. I have represented adults and children in domestic matters, I am mediation trained, and I have taught family law and litigation at multiple educational and professional levels. This experience is ideal for developing great listening skills, strong instincts, empathy, legal acumen and strong decision-making abilities. Those who appeared before me consistently reviewed me as an excellent Family Magistrate and I have continued my strive for excellence in my current position as a Circuit Court Judge.
Judge McAuliffe: I have spent my entire adult life as a trial lawyer in Montgomery County. I have tried hundreds of civil, criminal and family cases on behalf of individuals, families and small businesses in Montgomery County. When it comes to being a trial judge, there is no substitute for actually conducting trials. I have also been involved for years with our community, through our churches, our schools, and the Boy Scouts.
Are there any important issues, other than qualifications, that voters should consider?
Judge Boynton: Circuit Court Judges are public officials who, following an appointment by the Governor, must run for election seeking a 15-year term. Since 1970, every judicial appointee must first have been nominated, following a thorough vetting process, by an impartial Judicial Nominating Commission to ensure only the most highly qualified applicants are appointed to the bench. The Sitting Judges (Judges Berry, Boynton, Fogleman and McAuliffe) were all appointed following this stringent vetting process. For many years, each challenger has applied to become a judge multiple times, to multiple courts, under multiple Governors, and was never found qualified to be a judge.
Judge Fogleman: The four sitting judges have been endorsed by many public officials and organizations, including the Maryland State Bar Association, the IAFF Local 1664 Montgomery County Career Fire Fighters, the Montgomery County Fraternal Order of Police Lodge 35, the Montgomery County Government Employees Organization, the majority of Montgomery County’s state senators and delegates, and several members of the Montgomery County Council. This is a recognition of the importance of the sitting judge principle, which ensures that Montgomery has only the most qualified judges on the bench. The four sitting judges, Judges Berry, Boynton, Fogleman and McAuliffe, are vetted, approved, and experienced.
Judge Berry: The multiple month long vetting process for sitting Circuit Court Judges is extensive. We are vetted by several Bar Associations. The goal of those Associations is to advance and protect the interest of the communities we serve, including, women, the Hispanic community, the Jewish community, the Black community, the Asian community, and the LGBT community, to name a few. In addition, we are voted on by the local Bar Association of over 2,000 members. We are separately vetted by the Trial Courts Nominating Commission. Our 2 challengers made the choice to avoid this vetting process entirely.
Judge McAuliffe: The Sitting Judges (Judges Berry, Boynton, Fogleman and I) have all been through the Merit Selection Process. This involves an extremely lengthy application, 13 rounds of interviews by specialty bar associations, a referendum of over 2000 Montgomery County lawyers and multiple background investigations. These investigations included integrity, competence and temperament. Each of us was deemed “highly qualified” by the Trial Courts Nominating Commission. Collectively, the two challengers went through this Merit Selection Process for 20 judgeships and were never been found qualified. Now they seek to avoid the Merit Selection Process altogether by simply running for the position.
Political experience (public offices held and when, as well as unsuccessful campaigns for office and which years; do not include political party positions)?
Judge Boynton: In November 2001, I was nominated by then Governor Parris Glendening’s Judicial Nominating Commission to fill a vacancy on the Circuit Court for Montgomery County. In December 2003, I was appointed by then Governor Robert Ehrlich to a one year term on the Circuit Court for Montgomery County. A year later in November 2004, I was elected by the citizen’s of Montgomery County to serve a 15-year term on the Circuit Court for Montgomery County. In October 2019, prior to the expiration of my elected term, Governor Lawrence Hogan reappointed me to serve a one year term on the Circuit Court for Montgomery County.
Judge Berry: My career has been in the law, as a litigator, and now as a jurist on the Bench. I am not a politician.
Judge McAuliffe: I have not held public office. I have been elected to numerous positions within the Bar Association of Montgomery County and the Maryland State Bar Association, but I am not a politician.
What can you share about the process and outcomes of Montgomery County’s judicial merit selection system?
If one is interested in applying for a Circuit Court judgeship, he or she must submit an application. Applicants must include their personal history, family and affiliations, avocational interests and activities, educational and professional backgrounds, teaching projects, publications, practice history, including details about cases they have had in the courts for which they are applying. They must detail community involvement and organizations in which they are active, criminal history and any violations of the law or professional standards, experience in various areas of the law, memberships and offices held, business and civic involvement and affiliations, litigation to which they have been a party and anything else in their backgrounds that would be relevant to the determination of their qualification for the position of Judge. This application is often 25 or more pages long once completed.
Applicants must submit 2 writing samples and multiple references. References are those in the legal community who are familiar with the applicant’s professional qualifications. They are often leaders of the legal community who are trusted to offer honest and informed opinions about the applicants. It is important to note that information about the applicant is sought from judges, opposing counsel, other lawyers and community members who are familiar with the applicant professionally and personally–not just those references listed by the applicant.
Applicants are invited to authorize transmission of their application to 13 or more Bar Associations and organizations. The persons who sit on the judicial selection committees of these associations and organizations and the Trial Courts Nominating Commission are all volunteers with a common goal of ensuring that applicants’ backgrounds are thoroughly explored before they may be nominated for this important judicial position.
The statewide judicial nominating commissions were first established in 1970 to vet applicants and propose nominees for appointment to the courts. Today, each commission consists of thirteen members appointed by the Governor. Four of the members are nominated by the local bar association.
The name of any judge or lawyer living or practicing in the county who applies for the judicial position appears on a referendum ballot issued through the county Bar Association, unless an applicant declines to be subject to that vote. None of the sitting judges has declined. In Montgomery County, the County Bar has over 2000 members who receive the referendum ballot. Bar members consider the integrity, wisdom, legal knowledge, and temperament of the Applicants and vote on them.
Members of the Trial Courts Judicial Nominating Commission consider carefully the recommendations of the above-referenced organizations and the results of the vote of the members of the entire County Bar Association.
The Commission independently reviews every application, obtains the input of multiple members of the legal and lay communities, interviews each and every Applicant, deliberates carefully about each Applicant, and following this incredibly intense vetting, forwards to the Governor the “short list” of those Nominees found most qualified. The entire exercise is nonpartisan.
The Governor’s office then does its own vetting, which requires another round of less formal, but important interviews with the Governor’s advisers.
By the time the Governor interviews the Nominees on the “short list,” each has been thoroughly vetted and is assuredly professionally qualified for the position.
Under the current law of this State, this entire merit selection process can be avoided and has been avoided by candidates who are not judges who have elected to run against the sitting judges. To run and be elected as a judge, these candidates need only meet the very lowest level of qualification to be a judge in Maryland—residence in the state of Maryland for at least five years, age of at least 30 years and a license to practice law. They need not have submitted themselves to the extensive vetting discussed above.
The vetting process is emphasized because it is a vital exercise, and when it is avoided in its entirety, this gravely disadvantages our community.
The goal of the sitting judges always has been to educate community members about the details of the vetting process and this slate stands ready to be available to answer any questions. None of the applicants who have failed to be nominated have authorized any members of the committees and commission who have vetted them to publicly release details of their application to reveal why they have been rejected repeatedly as unsuitable to join our Circuit Court Bench.
The value of the vetting and selection process is not only that qualified candidates are placed before the Governor for appointment, but also that unqualified candidates are weeded out after their backgrounds, qualifications, reputation and acumen are independently and thoroughly explored by these multiple committees before the applicant is ever interviewed by the Judicial Trial Courts Nominating Commission or presented to the Governor for consideration.
Is the judicial vetting process a reliable method for identifying the most highly qualified candidates? Does it disproportionately favor any particular type of candidate?
The judicial vetting process is the ONLY method we have, and it is a reliable method. As described in the answer above, the vetting is extensive. An applicant is interviewed and investigated by Bar Associations and organizations all over Maryland.
Each of these groups sends its findings and recommendations to the Trial Courts Nominating Commission. This Commission consists of 13 members chosen by the Governor and the local bar president (in this case the President of the Bar Association of Montgomery County). The Commission receives and reviews the recommendations of all the different groups. The Commission then conducts its own thorough investigation and interviews each candidate. The Commission then votes whether each applicant is “highly qualified.” If an applicant receives a majority of the votes, the applicant is then nominated and this list of qualified nominees is sent to the Governor’s office.
The Governor’s office then conducts its own investigation and the Governor personally interviews those persons who have made the “highly qualified” list. After this process, the Governor selects the new judge.
As to whether this process favors any particular type of candidate, the process clearly favors experienced trial lawyers who have been active within the legal system. A lawyer who is in court regularly develops a reputation among judges and other lawyers. Through close questioning of these judges and other lawyers, the vetting process provides answers to important questions. For example, does the lawyer treat people fairly and respectfully? Does the lawyer have the proper temperament? Does the lawyer have the necessary integrity and honesty? Does the lawyer handle serious matters with the appropriate skill and preparation? When it comes to working with various bar associations and community organizations, is the lawyer generous with his/her time? Does the lawyer have an appreciation for the importance of the courts in people’s lives?
A highly qualified, ethical and experienced trial lawyer can come from any background. At each step in this process, diversity of background is considered and valued. In our multicultural society, diversity is an important issue. Political affiliation is never considered at any point. In the entire process, no one is asked about political beliefs or party membership.
What are the greatest challenges facing Maryland’s court system & how can these be addressed?
Judge Boynton: Court access to all citizens and ever-increasing case filings provide big obstacles. The court can provide a welcoming environment by providing free child care to litigants, knowledgeable and helpful support staff, free legal advice on process and procedures, and interpreters who assist non-English speakers. Court processes are established to streamline procedures and to encourage early resolution of cases.
Judge Fogleman: The court system is challenged by the increasing number of people unable to afford an attorney to assist them with the judicial process. The court system needs to ensure a fair and balanced judicial process for all litigants regardless of whether they are represented by counsel. Also, access to the courts must be enhanced for non-English speakers and persons with disabilities.
Judge McAuliffe: So many litigants seek help from our court system but do not have lawyers helping them. Many feel overwhelmed. Our courts do not exist just for the wealthy, or just for English speakers. Montgomery County has created centers for free advice on legal procedures, provided interpreters, and provided childcare to needy litigants. Every judge encourages self-represented litigants to use these resources.
Judge Berry: Education and broadening perspective are significant challenges. I am on the Judicial Education Subcommittee of the Judicial Council for Maryland’s Judiciary where we work to develop educational programs that focus on identifying and combating bias, understanding human development, learning cultural differences and appreciating the value of non-traditional solutions.
What steps can the courts take to reduce the risk that bias will influence the outcome of legal proceedings?
Judge Boynton: A very stringent application, vetting and appointment process is utilized to identify and select as judges those individuals who possess the highest level of legal knowledge, training, skill and experience and who also unfailingly conduct themselves with the highest degree of fairness, ethics and character. All hearings are electronically recorded and open to the public. The courts provide a removal process to address complaints of perceived bias in judicial conduct.
Judge Fogleman: After they have been appointed, judges participate in the New Trial Judges Orientation program, which includes a focus on bias. Each year thereafter, judges attend a judicial conference which also includes programs addressing bias. This judicial education helps reduce the risk that bias will influence the outcome of judicial proceedings. Judges must always be aware of potential implicit bias.
Judge McAuliffe: The best way to deal with explicit bias and implicit bias is through strict vetting of judges. Our courts need judges who have dealt with serious matters throughout their professional lives and shown the highest levels of fairness, ethics and professionalism. In addition, hearings in court are open to the public and are recorded so that we have a record of what happens.
Judge Berry: We must acknowledge the existence of implicit and explicit bias and understand the myriad ways bias impacts us in our interactions, daily choices, values, belief systems and our decision-making, and we must support and participate in educational programs that teach us different perspectives.
What role, if any, do Montgomery County courts have in preventing the spread of coronavirus throughout its prison population?
The Montgomery County Department of Correction and Rehabilitation (MCDCR) is responsible for the care of inmates housed within its facilities. They have one lock up facility with 200 beds located in Rockville (MCDC) and a larger facility with 1028 beds located in Clarksburg (MCCF). The current occupancy rate is only 50% of capacity.
To prevent the influx of the virus, all new detainees are housed at MCDC for 14 days before being transferred to MCCF. Any inmate who develops symptoms of coronavirus has access to excellent medical care within the facility and Shady Grove Adventist Hospital, and can be immediately quarantined at MCDC to prevent transmission to other inmates.
The courts would only be involved when a motion is filed on behalf of MCDCR or an inmate seeking some relief. Additionally, the courts have asked MCDCR to actively identify inmates who might qualify for relief.
Non-violent offenders are often released early from their sentence by the Administrative Judge of our court based upon some compelling medical or personal circumstance. Requests for early release based upon the coronavirus would likely be handled in a similar manner by the Administrative Judge on a case by case basis.
The court handles many domestic abuse cases. We have heard that domestic abuse victims must shelter-in-place with their abusers. How do you believe the courts should handle this expeditiously?
Neither the Governor nor the judiciary is requiring, asking, or encouraging domestic abuse victims to shelter in place with their abusers. This would be completely inconsistent with the purpose of Maryland’s domestic violence laws. Maryland’s Domestic Violence Act was designed to aid victims of domestic abuse by providing an immediate and effective remedy. Domestic violence cases are being handled expeditiously. During this public health crisis, the Montgomery County District Court Commissioners and Judges and Circuit Court Judges are hearing domestic violence cases. These cases are considered emergencies and are being heard and decided on a daily basis.
Should the race of the defendant be a factor to be considered by the judge when deciding an appropriate sentence?
Every judge should be sensitive to the impact that bias, including implicit bias, may have on sentencing decision-making and work diligently to ensure that bias does not infect sentencing outcomes to the detriment of any particular demographic. It is not permissible for any judge to make a decision about sentencing based on race.
How can Montgomery County courts reduce the impact of incarceration upon the poor residents of the county which can result from either failure to pay fines or Maryland’s bail system?
No individuals, poor or otherwise, are jailed in Montgomery County for failure to pay fines. Fines that are imposed and not paid are deemed uncollectible by the Court and referred to Maryland’s Central Collection Unit whose job is to collect delinquent debts owed to the state.
In recognizing the disproportionate impact of Maryland’s cash bail system on the incarceration of poor people, Maryland Courts passed a new rule in 2017 changing the manner in which pretrial bails are set. As a result, this rule has for all intents and purposes done away with the use of monetary bonds in criminal cases. Defendants are now either released on their own recognizance (promise to appear at all future court dates), with certain pretrial conditions, or, they are held without bond if it is determined that they are likely not to appear at future hearings or they pose a danger to the community if released. These determinations are made without regard to poverty or wealth.
What can the court do to reduce recidivism?
Judge Boynton: In many cases, recidivism may be caused by the failure to recognize and address the core addiction, mental health or socioeconomic problem which produces criminal behavior. Drug/Alcohol Court and Mental Health Court can be successful in appropriate cases. Providing services, guidance, supervision and accountability through the use of probation can also be successful in less severe cases.
Judge Fogleman: Specialty courts, like drug courts and mental health courts, play an important role in addressing recidivism. Our drug and mental health courts have had success in reducing recidivism. I am one of three judges assigned to our mental health court. Judges should also consider the offender’s potential for rehabilitation, consistent with public safety, in their sentencing decisions.
Judge McAuliffe: We often see recidivism related to drug addiction, alcoholism and mental health issues. Montgomery County judges formed the Drug/Alcohol Court and the Mental Health Court to deal with these underlying issues. We give people the opportunity to take control of their lives and change destructive behaviors. We all benefit from these programs, which are being copied around the state.
Judge Berry: To reduce recidivism the courts must support intragovernmental cooperation and partnerships to supply substance abuse and mental health treatment for offenders, work release programs, vocational training, and reentry services for adults and youth.
VOTE FOR YOUR SITTING MONTGOMERY COUNTRY CIRCUIT COURT JUDGES
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BY AUTHORITY OF ELECT SITTING JUDGES MONTGOMERY COUNTRY SLATE, NANCY HOSFORD, TREASURER.
BY AUTHORITY OF ELECT SITTING JUDGES MONTGOMERY COUNTRY SLATE, RAYMOND GAMBRILL, TREASURER.
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