Trial by Fire
Three Judges and Three Challengers Politick for Circuit Court Bench
"Judges have no business running" for the bench, says Baltimore City Circuit Court Judge John Themelis. He's standing outside of a Fells Point bar on Aug. 29, joined by the two other sitting judges--Barry Williams and Gale Rasin--who are locked in a race against three challengers who want to wear their robes. The three have just left a political event at the Green Turtle, where they grinned and gripped as all politicians must. Then they ran into a reporter and spent about 15 minutes defending their fundraising, which has included donations from litigants with cases currently before the Circuit Court, a phenomenon that could reasonably undermine the public's confidence in an impartial judiciary.
The bottom line, Themelis argues, is that contested judicial elections mean incumbent judges need to raise campaign cash, especially when there are challengers in the race. Money from donors--people who may, and often do, end up coming before the Circuit Court bench--creates unavoidable appearances of conflict of interest. That's the way it is, he argues, but it's not the way it should be.
Themelis' comments are seconded by higher authorities. A 2002 U.S. Supreme Court concurring opinion in a case involving the free speech of elected judges in Minnesota, written by now-retired Justice Sandra Day O'Connor, argues eloquently that "relying on campaign donations may leave judges feeling indebted to certain parties or interest groups," and that "the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public's confidence in the judiciary." Maryland holds contests for Circuit Court judges, so, as O'Connor wrote, if it "has a problem with judicial impartiality, it is largely one the State has brought upon itself by continuing the practice of popularly electing judges."
The potential conflicts wrought by judicial campaign contributions are recognized by the Maryland Judicial Campaign Conduct Committee, a group formed earlier this year, at the suggestion of Maryland Chief Judge Robert Bell, that sets voluntary standards for judicial candidates. While recognizing the "practical necessity of raising campaign funds" under Maryland's system of judicial elections, the committee's standards state that "a judicial candidate must be mindful, however, of the corrosive impact on the repute of the judiciary of the impression that money is a weight on the scales of justice."
With challengers running against the sitting judges, the issue of campaign money becomes weightier, because more money is needed to underwrite the re-election effort. The Baltimore City Sitting Judges Committee Slate was formed in 1992 to receive and spend funds on behalf of retaining the city's Circuit Court judges, who run for 15-year terms. Traditionally, the committee raises almost all of its money from lawyers who, more likely than not, will represent clients before the Circuit Court. Typically, the same lawyers and law firms give to the committee repeatedly through the years. The inherent conflict of this situation is buffered, to the extent possible, by leaving it up to the slate committee's officers (instead of the judges themselves) to raise funds, slate chairman and attorney H. Mark Stichel explains.
This year, however, a significant portion of the $120,000 raised by the committee came not from the same familiar names in the local legal community, but from a broad array of individuals and businesses. The list of nonlawyer contributors giving $1,000 or more to the judges' slate committee includes restaurants, developers, pharmacies, a dentist, a cabinetmaker, a painting contractor, an electrical contractor, a beverage-filling machine manufacturer, a baker, and a caterer.
The baker is H&S Bakery, owned by developer John Paterakis (Themelis says Paterakis is his daughter's godfather), and the caterer is Martin Resnick, of Martin's catering halls, known for hosting big-time political gatherings. Also giving $1,000 is Pete Koroneos, the owner of the Greektown poker hall that was robbed at gunpoint on May 25 ("Luck of the Draw," Mobtown Beat, June 7); one of the 21 victims was attorney Stephen Prevas, brother of Circuit Court Judge John Prevas.
"There were some other names this year" on the donor list, Stichel acknowledges, pointing out that the judges up for election this year "work in various communities," and that donors "that aren't lawyers are typically first-time givers [to the slate committee] with some personal connection to the judges." Stichel says all of this is entirely "innocent, but it may not look good. And that's a problem with judicial races."
Another first-time donor to the sitting judges' slate is Edward Smith Jr., a well-known local attorney who chairs the Baltimore City Board of Liquor License Commissioners. Smith, who gave $500, is scheduled for a fall trial before the Circuit Court as a criminal defendant, charged with wielding a deadly weapon with intent to injure and two counts of second-degree assault. The victims allege that Smith threatened them while holding an ax. Rasin says a judge will be brought in from outside Baltimore to hear Smith's case. "No Baltimore City Circuit judge is going to preside over that trial," Rasin says. A message left for Smith at his law office had not been returned by press time.
Donors to the sitting judges' committee that currently have cases before the Circuit Court also include a construction firm defending itself in a motor-vehicle lawsuit, a real-estate investor being sued over lead paint, and a plaintiff in an asbestos case. The combined total of their contributions is a minute fraction of the sitting judges' total take.
"I have tried to head off some of these things," Stichel says of the eyebrow-raising donations. "But as long as we have elections and judges have to raise money, these issues are going to come up. And the more you have to raise, the more they're going to come up."
Edward Smith Jr. also gave $1,000 to one of the sitting judges' challengers: District Court Judge Emanuel Brown. With that check, Smith became Brown's top donor in a campaign that, as of Aug. 15, has raised a little more than $5,600.
Another challenger, 37-year-old attorney Nicholas Del Pizzo III, raised funds from two title companies and a developer that are currently involved in litigation before the Circuit Court. These donors gave a combined total of $600 out of the nearly $33,000 Del Pizzo's committee has raised.
The third challenger, 33-year-old Rodney M. Jones, has not raised and spent enough campaign money to file a campaign-finance report. His short, four-year legal career hit a snag last August, when the Maryland Attorney Grievance Commission reprimanded Jones for representing a client in a bankruptcy matter before he was admitted to the federal bar. According to the commission's reprimand, when Brown was ordered by the U.S. Bankruptcy Court to return his client's fee, he failed to do so, and then was found in contempt after he "was found to have made misrepresentations to the court." Attempts to reach Jones through an e-mail and a message left at his office were unsuccessful.
While Themelis and others in the legal and judicial community rue judges' need to be politicians, challengers like Brown and Del Pizzo argue that new, energetic blood is needed to rejuvenate the bench, and that in Maryland, elections are often the only way that is accomplished. Although gubernatorial appointments to fill vacancies have provided increasing opportunities for women and minorities to join the bench--the city Circuit Court has become ever more diversified in that fashion--there's nothing like a challenger winning a seat to shake up the status quo.
As a young lawyer, Brown clerked for the last challenger to win a seat on the city Circuit Court--Kenneth Lavon Johnson, who won in 1982--and went on to work as an assistant state's attorney, then as a District Court judge since 1998. He has been passed up twice for appointments to vacancies on the Circuit Court and says he is tired of waiting. "The time is now," he says. "And I'm taking my case to the people." A deacon in the Mount Moriah Baptist Church, Brown touts an endorsement from the Interdenominational Ministerial Alliance as evidence of his electoral appeal.
Del Pizzo sees judicial elections as "a great check-and-balance if you're not happy with the judges," and as way to get "more passion on the bench." He says the sitting judges have been remiss in their leadership on crime and justice issues: "They have to be leaders, get involved with improving schools, drug treatment and rehabilitation, prison reform, better court facilities, things like that." He says judicial fundraising is a "necessary evil" that poses potential conflicts, but that "all you can do is try to stay as fair as possible." Del Pizzo is concerned that, if he loses, he'll face retaliation that could hurt his law practice, and he points out that fundraising is a bear because other lawyers fear repercussions for donating to a challenger's campaign.
yAttorneys have told me, `Hey, it takes guts to run against the sitting judges,'" Del Pizzo remarks while standing outside the same Fells Point fundraiser the incumbents had attended. "But I haven't heard one say, `You know, Nick, Baltimore City is the best run Circuit Court, I can't believe you're running.' I say, as a lawyer, you have a moral obligation to try to improve the legal system, even if it means you rub some people the wrong way."
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