Jan 13, 2006 8:32 pm US/Eastern
Three Court of Appeals Judges To Retire
ANNAPOLIS (AP) ―
Three of the seven judges on the Maryland Court of Appeals will reach retirement age during the upcoming gubernatorial term, giving the next governor an opportunity to mold the state's highest court.
Judges Alan Wilner, Dale Cathell and Irma Raker will all turn 70 within a period of about 18 months, starting just after the governor takes the oath of office next January. None has plans to retire before he or she must.
"What's at stake really is that the next governor will very much get to set the political tone of the Court of Appeals' makeup," said attorney C. Christopher Brown, who has compiled statistics on the judges' votes to tabulate which are more liberal or conservative.
In Brown's analysis, Cathell is the most conservative of the sitting judges, while Wilner came in third, meaning two of the three most conservative judges will retire soon.
Since the departures of left-leaning judges Howard Chasanow in 1999 and John Eldridge in 2003, the court has become slightly more conservative, although it remains one of the most liberal top state courts in the country, said Byron Warnken, a law professor at the University of Baltimore.
With Wilner, Cathell and Raker leaving, a Democratic lawyer would have the opportunity to swing the court back toward the left.
Gov. Robert Ehrlich, a Republican, is expected to face a tough re-election battle against either Baltimore Mayor Martin O'Malley or Montgomery County Executive Doug Duncan, the leading Democratic primary candidates.
The court is currently split 4-3 on how to apply two recent U.S. Supreme Court decisions to Maryland's death penalty law. Several death row inmates -- including Vernon Evans, scheduled for execution in February -- have argued before the court that it is unconstitutional for the state to require that a jury find that aggravating factors in favor of execution outweigh mitigating factors against it by a "preponderance of the evidence" standard, rather than a standard of "beyond a reasonable doubt."
Wilner, Cathell and Judges Lynne Battaglia and Glenn Harrell have rejected the inmates' appeals on those grounds, but Raker dissented. Depending on whom the next governor appoints to replace Wilner, Cathell and Raker, the court could come to a different conclusion on the issue, which would bring the future of Maryland's death penalty law into question.
"If you get three people like (Greene), the death penalty's gone," said William Reynolds, a University of Maryland School of Law professor.
Despite the potentially high stakes, the makeup of the Court of Appeals is not likely to become a campaign issue, said University of Maryland law and government professor Mark Graber.
"Unless the state judiciary sanctions gay marriage or tosses out the death penalty of a mass murderer, most people who do not have law degrees cannot tell you the name of anyone on the appellate courts," he said.
If Ehrlich is re-elected, however, there could be "fireworks" when his Court of Appeals nominees go to the Democrat-controlled Senate for approval, said Zach Messitte, a political science professor at St. Mary's College of Maryland. Messitte said Ehrlich's judicial appointees have been qualified but have also tended to be Republicans.
No matter who is elected governor, the court will undergo a substantial change when it loses three experienced judges, Chief Judge Robert Bell said.
"They are very valuable members of the court, all of them, and there's a lot of judicial experience that's represented in those three people," Bell said.
(© 2006 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)
