Judge John F. McAuliffe leaves court of Appeals

January 10, 1994|By Norris P. West | Norris P. West,Staff Writer

There isn't much Judge John F. McAuliffe would change about his eight-year stint on the Maryland Court of Appeals. But if he could, he'd change the name of the state's highest court.

"It would serve the public well to change the name, and I think it would serve the court well," he said.

Judge McAuliffe, 61, who officially retired Dec. 31, said the Court of Appeals gets too little respect here and around the country because its name doesn't ring with the authority of the state's supreme tribunal.

"Many judges and lawyers around the country think the Court of Appeals of Maryland is an intermediate appellate court," he said during an interview in his chambers in Rockville.

In his eight years on Maryland's highest bench, Judge McAuliffe has made rulings on legal issues ranging from the death penalty to land-use regulations to divorce.

For him, Maryland's second highest court -- the Court of Special Appeals -- sounds more powerful than the Court of Appeals. New York is the only other state that calls its highest tribunal the Court of Appeals.

"I don't think this court's opinions get the recognition or are used as much [as a reference by lawyers and judges] because judges consider them intermediate court opinions and don't give them the weight they normally give to a state supreme court decision," said Judge McAuliffe, who offered a compromise -- the Maryland Supreme Court of Appeals.

Though some of his six colleagues would support changing the name, others prefer the current name because of its tradition dating back to the Colonial period, Judge McAuliffe said.

The name has been used since 1650, when the upper house of the General Assembly served legislative and judicial roles. In 1776, the Maryland Constitution reformed the court. It would take a constitutional amendment to rename the court.

Judge McAuliffe, of Germantown, has served on the state's high court since 1985. He announced his retirement in March, saying he wanted a change of pace. However, he will be available to fill in temporarily as an appellate and trial judge. Montgomery Circuit Judge Irma S. Raker will take his seat if she is confirmed by the state Senate.

Judge McAuliffe was raised in Friendship Heights in Montgomery County and is the son of Col. James S. McAuliffe, a former county police superintendent. His brother, James S. McAuliffe Jr., is a former state legislator and retired Montgomery Circuit judge.

Judge McAuliffe earned his law degree in 1955 at the American University's Washington College of Law, where he is an adjunct faculty member. He also serves in the American Academy of Judicial Education, a teaching program for judges.

He served on the Montgomery Circuit Court for 12 years before Gov. Harry Hughes appointed him to the Court of Appeals.

Judge McAuliffe said he has missed being a trial court judge since he was elevated to the more reclusive job of appellate judge.

"I miss the live action and the fast action of the circuit court," he said. "I have thoroughly enjoyed being on the Court of Appeals, don't get me wrong. It's an outstanding court, and the work is important and interesting, but having seen every level of the court system, the most exciting job is that of a general jurisdiction trial judge.

"Things move so quickly, and you interact with people every day," he said. "I've always preferred trying jury trials."

The seven-member Court of Appeals sometimes reverses the decisions of lower-court judges, and Judge McAuliffe has faced some of the jurists whose rulings he has voted to overturn.

"Occasionally, you'll see a trial judge at a judicial conference who wants to take you aside and explain what an egregious mistake you've made," he said. "Most often, however, they understand that in a fast-moving case there isn't always time to get everything precisely right."

As far as judicial philosophy is concerned, Judge McAuliffe said he doesn't have one.

He acknowledged that he is sometimes described as a conservative but said some of his decisions can be described as liberal.

As an example, he cited his dissenting opinion in a death penalty case in which he objected to a death sentence because of flaws in the state's capital punishment law in effect at the time.

The U.S. Supreme Court agreed with him in a 1987 ruling that overturned all of Maryland's death sentences.

But Judge McAuliffe is not opposed to the death penalty.

"My concern was that if you're going to execute people, you're going to have to do it right," he said. "That was my feeling then, and it still is."

Under state law, the Court of Appeals must hear all death penalty appeals.

Other appeals are heard when at least three of the seven judges agree to take a case.

Immediately after a hearing, the judges take a preliminary vote. Those votes can be changed after the judges and their law clerks research the point of law at issue. The judge assigned to write an opinion sometimes circulates drafts to colleagues.

"There is constant adjustment of majority opinions and dissenting opinions," Judge McAuliffe said, adding that judges often pick apart everything from paragraphs to commas.

Many of the court's decisions make public policy, he said, even though some government scholars argue that judges should not make law.

"We don't just call balls and strikes," he said. "The court controls policy. The principal policy-making arm of government is the legislature. The state supreme court should not be involved in turf battles with the legislature.

"Once you find out what the legislative policy is, you have to follow that. But where the legislature has not spoken and when there is no significant legislative intent, the court is going to set policy."

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