The tug of war between Circuit Court Judge Joseph H.H. Kaplan and the Department of Juvenile Services has set the stage for a judicial determination on how far judges can go in making administrative decisions for state agencies. Not only does Judge Kaplan want to dictate a treatment program, he wants to send a juvenile offender to a costly out-of-state facility instead of permitting cheaper in-state treatment.
State juvenile officials are fighting the judge's order. The question that now must be answered is how far a judge can go in specifying terms of treatment for someone under state supervision.
What worries officials is a growing tendency by judges to cross the line into functions that rightly belong to the executive or legislature. The Court of Appeals did so recently when it not only upheld the constitutionality of ballot questions seeking to impose caps on property taxes, but took the unprecedented step of re-writing the referendum questions to suit the court's fancy.
In the case of Juvenile Services, officials object to Judge Kaplan's deciding that a young car thief should be sent to a Pennsylvania reformatory at a cost of $30,000 a year. They maintain that similar treatment is available closer to the juvenile's home at a lower cost. This, they feel, would be more beneficial for the youth.
Should professionals in the field of juvenile treatment make this decision? Should the executive branch be allowed to determine the best form of treatment for juveniles? Or should judges have the right to preempt the executive branch, regardless of the cost, and become self-proclaimed juvenile experts?
If so, wouldn't inmates in state prisons be able to challenge a prison assignment and get a judge to send them to some other facility more to their liking, perhaps even in another state?
These are the kinds of questions the appeals courts will have to address. Judicial activism poses a real danger for Maryland's courts. The third branch of state government will have to decide for itself how far its reach should extend.