Several bills would require Maryland Orphans’ Court judges be attorneys in select counties

Last year, Maryland voters approved a constitutional amendment to require that, for the city of Baltimore only, Orphans’ Court judges be attorneys (HB 417 of 2010). The effort to expand the use of attorney-judges has resulted in four additional bills introduced this year.

HB 930 and HB 1165 would require Orphans’ Court judges in Baltimore County (which is different and distinct from the independent city of Baltimore) be attorneys. Interestingly, while HB 930 is in the House Judiciary Committee, while HB 1165 is in the House Rules Committee.

On the Senate side, SB 832, which was limited to Baltimore County only, was withdrawn by its  sponsor on March 21. Instead, SB 281, which includes Baltimore and Prince George’s counties was approved unanimously by the Senate on March 8 and is set for a hearing in the House Judiciary Committee March 30.

MD: Bills would require Administrative Office of the Courts keep central registry of when spouses refuse to testify against spouses in domestic violence cases

For decades, Maryland law has required that the invocation of spousal privilege in domestic violence cases be especially noted and recorded by the court clerk (Md. Courts and Judicial Proceedings 9-106)

(b) Record of assertion; expungement.-

(1) If the spouse of a person on trial for assault in any degree in which the spouse was a victim is sworn to testify at the trial and refuses to testify on the basis of the provisions of this section, the clerk of the court shall make and maintain a record of that refusal, including the name of the spouse refusing to testify.
(2) When an expungement order is presented to the clerk of the court in a case involving a charge of assault in any degree, the clerk shall check the record to determine whether the defendant’s spouse refused to testify on the basis of the provisions of this section.
(3) If the record shows such refusal, the clerk shall make and maintain a separate record of the refusal, including the defendant’s name, the spouse’s name, the case file number, a copy of the charging document, and the date of the trial in which the spouse refused to testify.
(4) The separate record specified under paragraph (3) of this subsection:

(i) Is not subject to expungement under Title 10, Subtitle 1 of the Criminal Procedure Article; and
(ii) Shall be available only to the court, a State’s Attorney’s office, and an attorney for the defendant.

Two Maryland bills (HB 1169 and SB 919) would require the record of refusal be sent to the Administrative Office of the Courts to maintain a central registry. Access to the individual record would be limited to the court, a State’s Attorney’s office, an attorney for the defendant, the spouse, and the defendant. Access to statistical data from the registry would be limited to “an organization that conducts research or provides services related to domestic violence…for research, evaluation, and statistical analysis…[and]…may not contain any unique identifying information, including names, record numbers, or case file numbers.”

HB 1169 is set for a House Judiciary Committee hearing on 3/17. No word yet on any hearings for the Senate version.

Just who exactly gets to administer the oath of office to a judge? Maryland and Arkansas grapple with the question.

It may sound relatively mundane, but in many states judges of various courts may only be sworn into office by specific office holders. The issue came to a head in Maryland recently. In November 2010, state voters approved a constitutional amendment requiring Orphan’s Court judges in Baltimore City be attorneys. At the same election, Baltimore City residents voted into office as an Orphan’s Court judge non-attorney Laudette Ramona Moore Baker. The state’s governor did not issue her a commission and the circuit clerk, who under existing Maryland law administers the oath personally or through a designated deputy, declined to swear her in.

Enter HB 410 of 2011, which would expand the list of those who could administer a judicial swearing in to include “any officer whose office is established in the Maryland Constitution”. The bill is set for a hearing on February 23 before the House Health and Government Operations Committee.

At the same time, Arkansas is also recodifying who gets to swear in judicial and other elected officials via SB 156. Current law provides Supreme Court, Court of Appeals, Circuit Court, and District Court judges have a choice of taking their oath before

  1. the Governor
  2. a Supreme Court Justice
  3. a Circuit Court Judge
  4. the clerk of the county court or
  5. the clerk of the circuit court.

SB 156 keeps these 5 but adds judges of the Court of Appeals to the list. SB 156 was approved by the full Senate February 14 and is currently pending in the House State Agencies and Government Affairs Committee where it had a hearing earlier today (February 16).

MD: Bill would move judges out of Judges’ Retirement System

Readers may recall that in 2010 I did a feature on the massive changes being proposed to retirement systems for judges and court staff. (Click here for a review). This year is starting off on exactly the same footing in Maryland, whose public-employee retirement system was poorly reviewed by the Pew Center on the States and whose plight is near direMaryland’s SB 6 of 2011 provides that, on or after July 1, 2011, an individual not already a member of the Judges’ Retirement System may not join. Instead, all judges previously eligible for the Judges’ Retirement System would be placed into the state’s Optional Retirement Program. The same would apply to those who would otherwise be eligible for most of the state’s pension systems. The bill is currently in the Senate Budget and Taxation Committee.

Legislation on control of the court’s docket/calendar

Who controls a court’s docket/calendar? This is somewhat of an open question in many states, particularly as it relates to trials in criminal matters. In this legislative cycle, three states have explored granted judges more power over the matter.

Maryland’s HB 208 establishes that the date for trial of a criminal matter in the circuit court shall be set by the county administrative judge and not the prosecution. It was overwhelmingly approved by the House (134-2) in February. The Senate version (SB 398) however has had less luck. Having been approved by the Senate Judicial Proceedings committee in early March, it was amended on the floor, delayed, and ultimately sent back to committee in mid-March.

Coincidentally, the South Carolina Senate debated a nearly identical bill (SB 4450) at the same time. That bill provides that it is exclusively the power of magistrates in Magistrates Court and municipal judges in Municipal Courts to set the dockets for their courts and to set the order in which cases may be tried. The Senate Committee on Judiciary approved the bill as amended on March 24.

A similar calendar/docket control bill was introduced in North Carolina in 2009 (HB 1396). It was never taken up by its assigned committee.

No more non-attorney judges?

While no longer as popular as in the past, many states continue to retain non-attorney judges. Trial judges in at least 27 states, most in probate, justice of the peace, or other similar limited jurisdiction courts, are not required to be attorneys. Several states, however, are trying to eliminate this practice.

Georgia’s HB 478 requires municipal court judges be attorneys unless already serving as municipal court judge. It was approved by the House Committee on Governmental Affairs on February 4.

Indiana’s SB 122 would require City and Town judges be attorneys as well.

Maryland HB 417 would require Orphan’s Court judges, in the city of Baltimore only, be attorneys. Prior versions (such as HB 387 and SB 293 of 2008) would have required most if not all of the state’s Orphan’s Court judges be attorneys. The Senate version made it through that chamber in 2008 (42-4), while the House version failed to achieve the three-fifths majority needed (failed 84-50, with 85 votes needed).