The holidays. A time to be thankful for all that one has, and a time to take stock of the year closing in order to help give guidance for the year ahead. Speaking of being “thankful”, I am to those viewing my blog and taking the time to comment or contact me about issues raised herein. I have been actively trying to get the attention of the Baltimore Sun and the Washington Post for some of these issues, but have been told by many that the politics behind both newspapers has stopped some good local stories from being reported there first. So perhaps they will jump on the bandwagon once another one writes first?
Back to the judiciary: subject of many recent posts. I’m trying to imagine reporting to Santa Claus whether the Maryland judiciary had been naughty or nice. It’s a loaded question.
You see, it’s kind of along the same lines as asking whether a person is Good or Bad. Is anyone all-good or all-bad? Very few, I believe. There are good people who make bad decisions. And I think if you ask people if they are happy with the judiciary, or unhappy with it, their answer is going to depend on the experiences that they had with it. Allow me to give an example: a woman I met has had experiences with the Howard County Circuit court in which a judge SAID she wouldn’t rule in the case, but then ruled in the case anyway. Her ex claimed to have “bought the judge”, and well, he won. She would vote “Naughty”. On the other hand, her ex would probably vote “Nice”.
My criteria is a little bit different. I tend to look at the issues that affect larger numbers of people instead of those that just affect myself. Granted, sometimes something has to happen to me FIRST, so that I can then go looking to see how it might be affecting others also. I don’t like to think that things only happen to me, as if I’m being singled out, though that certainly does sometimes happen for various reasons. So here’s MY (citizen of the state of Maryland and user of the judiciary’s services) report for 2016:
I have to say that the thing I found MOST surprising and not-so-good about the judiciary is what I consider to be their propensity for NOT reading case materials that are given to them. It seems worse when it comes to materials submitted by folks who are doing it pro se (without lawyer), as if they don’t believe a non-lawyer has anything of substance to contribute. I read an unreported opinion in which a circuit court judge had been quoted by them as having said that she was thankful for having caught her mistake at her level as opposed to having ruled in a way that would have caused an unnecessary appeal (and the cost associated with one). The appellant appealed her decision anyway, and was trying to capitalize on keeping the error in place. The appeals court noted this in their opinion (that he was doing that). I wish I had noted the judge’s name, as I REALLY would like to have given her credit for having done as she did. But that’s another part of the things that are not-so-good with the judiciary: they are secretive about the identity of the judges whose decisions they are being asked to review for errors. The only way that I knew the judge was a woman, was because I had to go see the original brief filed in the appeal in order to get the name (it’s required to be placed onto the brief and the mandatory appeal form).
To be fair, I want to say that I believe part of the problem to be the case time standards that were put into place by Annapolis a few years ago. I think that just as it was with NASA and the space shuttle explosion that was traced back to rushing things that shouldn’t have been rushed, some judges are creating catastrophes because they are not able to handle all that the time standards require of parties. Perhaps they should make it more like grocery checkouts: if you have ___ items or less and are therefore qualified to use the express lanes, then off you go. For cases that need more hand-holding, a judge with the proper temperament to handle that sort of case, can be assigned to it. In a perfect world, a judge should be able to say “ya know, I’m probably not the right person to hear a case about X these days” and be relieved of the burden that will otherwise become that case participant’s nightmare. A judge who recently learned that he was still responsible for his old law partner’s line of credit years later, is maybe not the best person to hear cases involving business partnerships. (Note: that particular information was found by viewing a judge’s annual financial disclosures. More on those in a bit, hang tight!)
I’ve already written about the prohibitive costs associated with appeals and, since legal fees won’t be declining anytime soon, the need for the judiciary to provide greater resources to those who might think they were given the shaft by a judge who didn’t read everything or didn’t allow more trial time so that a party could present their entire case. Yeah, those time standards at work, baby! What I didn’t write about before is that the judiciary could also be doing a better job to help with appeal costs in a way that it already helps some parties.
If you work for a state’s attorney office or legal aid, you can get copies made from records at the COSA for FREE. Why they don’t do that for a pro se (no legal representation) party, I do not understand. At 50 cents PER page, they actually seem to be making money off of the copying. (I’m only using the per page rate for Staples of about 13 cent per page as a comparison). Chief Justice Barbera, aren’t you supposedly looking into ways to better serve the growing pro se community in Maryland?
I’ve also written about the “unreported opinions” in Maryland, though I haven’t used the language I’m getting ready to write about them. I think they are an excuse used by far too many judges, and that goes for the COSA as well as the circuit courts. Stats say that easily 90% of cases that go to the COSA are resolved using those “unreported opinions”. The decisions in them can’t be used in other cases, and I found an interesting writeup by a Baltimore Sun reporter Melissa Harris from 2009 where she referred to them as having been “..deemed to offer no new insights into the practice of law..”. They are also referred by her as not establishing any precedent “..for lower court judges faced with similar issues.”.
Her article is found by clicking this Nonpublication.com/baltsun.htm
Now, I have to say that when I read that, I find it troublesome on many levels. If a person has a case in which the COSA has missed the mark completely (I have read briefs by attorneys expressing that the COSA had been completely wrong in analyzing something, or had ignored something completely that was presented to them) with their decision, will that error just live on if the Court of Appeals declines to hear the appeal of COSA’s work? (Note: the Court of Special Appeals was created in order to take the burden off of the COA so that they could concentrate on those cases that they felt had the ability to craft and mold laws that needed shaping).
If the COSA affirms the decision of a lower court judge, and the decision is contrary to the law that the Court of Appeal has shaped in their other decisions, doesn’t that mean that a new analysis has been done in Maryland concerning the law in question? And wouldn’t that mean that the circuit court judge, when faced with the same issues in another case would then have been empowered by the COSA to rule similarly as he/she had in the other case (which then causes more folks to have to appeal)? (Note: Hmmm… please see my post on party names being changed by the court, the extraordinary efforts to get it made right (it has yet to be corrected), and the COSA’s ruling that empowers that and any judge to be able to do THE SAME in YOUR case). It is found by clicking HERE
Okay, enough on the “naughty” side. Rome wasn’t built in a day…
Something “NICE” to report!
Required Annual Financial Disclosures for Judges. For those who don’t know (any many people don’t), the men and women in the black robes at the courthouses have to honestly give their answers to questions that they are asked every year. That’s right, judges have to provide information about themselves to the public that they serve (YOU and me), and they must do it every year. Judges, who are public officials who serve the public (I write it that way because I think many people have forgotten who serves whom), have their job to do, but also have responsibilities in terms of how they conduct themselves while doing their job for us.
According to the Maryland Judicial Disabilities Commission website, there have been a number of cases in which judges have been flagged by them for being “condescending”, “disrespectful”, “sarcastic”, “irritable”, having a “judgmental tone”, and making “inappropriate comments”. Wow, I didn’t know anyone was actually getting put on time-out for being that way. Nice work, JDC (and the people who made their complaints to the Commission. If that black robe makes people feel like they can say and do whatever they feel like, perhaps they should take it off for a while until they get themselves together and can come back to play with respect in the sandbox! There have also been instances where judges have gotten flagged for:
-failing to disclose a relationship with a defendant’s attorney (& not removing himself from the case)
-presiding over a case involving an attorney who used to be in law practice with the judge
-failing to disclose a family relationship with an attorney bringing a case
-hearing case of a party who the judge had represented before judge was a judge
-utilizing office to persuade others to contribute to the success of private business ventures
So, it turns out that the issue of what relationships a judge has and had with others IS an important matter. Of course it is, since judges aren’t supposed to do things that are detrimental to the reputation of the judiciary or engage in “conduct prejudicial to the proper administration of justice”. Judges aren’t supposed to enter into business relations where his or her personal interests makes one reasonably question whether he/she is being impartial as a judge. That’s because they work for US, first.
One way that the public can keep track of what the judges (and many public officials for that matter) are doing is through their annual financial disclosures. As with most things with the judiciary, there is a Rule about it:
Rule 18-603(b), called “requirement”, reads that “Each judge and each former judge shall file with the State Court Administrator a financial disclosure statement in the form prescribed by the Court of Appeals. When filed, a financial disclosure is a public record.” (Note: here, “former judge” means one that is approved and recalled temporarily to hear cases.)
It’s not optional, it’s mandatory. And though it’s surprising that the form doesn’t ask the judge to make their disclosures by signing some sort of oath that the contents are true and accurate (blah blah blah), the Rule has a provision that says that if a judge leaves out information that should have been filed… well, a Judicial Ethics Committee will look into it, and if they find hanky-panky, can refer it to the good folks at the Judicial Disabilities Commission for possible timeouts to be doled out.
These disclosures, therefore, are 100% an accountability tool that the public can and should use in order to keep judges walking a straight and narrow line that is called ETHICS. (many judges won’t like this, but it’s actually OUR job to keep them accountable!)
How do you have accountability? From transparency.
And how do you get that? Disclosure.
Members can see these disclosures by simply visiting the Administrative Offices of the Court down in Annapolis, MD. There’s a very nice woman there named Debra Kaminski who will grant you access to view them during normal business hours. So, long story short… I thought that the judiciary had lost almost a decade’s worth of judicial financial disclosures! They weren’t sitting over at the Maryland Archives like it was assumed they would be (they are from the 1990s and early 2000s), and it took the longest merry-go-round ride to finally find someone at Archives who tracked down the last time the AOC had given them any judicial disclosures. It was in 1996, and it was only disclosures going up to year 1991! Yes, the Maryland Judiciary is or was fighting with Archives and withholding payment over documents that they wanted to make available, but they were land record documents. That story can be found attached below, though I note that none of our local newspapers have reported on it. With my hero Justin’s (@Archives) help, we were able to tell the AOC that the decades of financial disclosures could be freed from their bondage in the COA basement and delivered to archives for their proper safekeeping.
That’s where our problems started (or continued, if you count that the judiciary said they couldn’t find decades of important documents that are set on the “do not destroy” retention schedule). The argument (it didn’t feel like one at the time, but I will call it one in looking in hindsight) became one concerning the ability to see the documents JUST as they had been filed by the judges. I didn’t bold this part of the Rule mentioned above, because it’s better to be bold now: When filed, a financial disclosure IS a public record. The judiciary was taking the position that they were going to redact the addresses from ALL of the disclosures that I wanted to view. I like writing this…
Say what now?
When I asked how they thought that they could (i.e. “what right they had”), I was initially told that a Rule had been put into place by the COA that was making them do the redaction. Of course, I asked for disclosure of the Rule. There was no Rule, but what there is are revisions to the INSTRUCTIONS that are provided to the disclosure filer. They are informed that they “may” refer to property they own by only the county and state, if they wish.
I can see that for maybe safety reasons for your primary residence ONLY, if you’re concerned about that. But properties purchased in business ventures? Commercial properties? How are the governed supposed to keep judges ethical in this area, without the proper tools/information? Unless there is something else shady going on here…
Let me put myself on timeout…and get back to the NICE part, because that’s where this was heading.
We’re arguing about the information on the old forms.
Judiciary: No, we’re gonna go behind what the judges filed years ago, and take off the information from those disclosures.
Me: No, you can’t do that because it’s already a public record, and whatever they filed is what they wanted people to know (obviously, given the judiciary’s warning to them in the instructions about it being public info).
Just when I thought it was going to turn into a public information lawsuit, the judiciary told me to come on down this week… to view the disclosures I requested.
Hallelujah, and an early holiday gift for me (and for democracy and transparency)!
And a big shout-out to Ms. Kaminski, who also is apparently affiliated with the Judicial Nominating Commission. Yikes! Have to believe you might be riding on an uncomfortable see-saw. I will only say that I’m glad that at least the “access” hurdle has seemingly been overcome. I’m cautiously optimistic, and of course I would be.
Shout-out to State Ethics Commission also, because as I told some folks at the judiciary, the Ethics process for viewing historical disclosures (that yes, have addresses on them) involves no fanfare, drama, hoops to jump through, or proposed redactions.
The disclosures should be online, as so many other states have already done with theirs. Common Cause Maryland has an interest in this and you can read a Washington Post article on our disclosures here in Maryland by clicking HERE. More on that in a later post because I’m not the only one interested in disclosures here in Maryland.
Later. Because Rome wasn’t built in two days either!
UPDATE 12/17/16: Apparently, the word “MAY” has different meanings for the judiciary? Found this in the retention info for the courts, as it pertains to getting those records over to the Archives. Note the language “Court records which are required to be permanently maintained may be
transferred to the State Archives for permanent storage..”. The word must mean “WILL”, when they feel like it. Here it is:
Here is the archives/judiciary dispute info: