Can a judge avoid gender-based cases? Bollinger's move in wake of beating controversy is new to legal experts

February 16, 1997|By Joan Jacobson

A JUDGE expunges a businessman's criminal conviction for brutally beating his estranged wife, after the man said he needed a clean record to join a country club.

Under fire from women's rights activists and legislators calling for his head, the judge reverses himself, reinstating the conviction on a legal technicality - and disqualifying himself from hearing any more cases on rape, sexual offense or domestic violence.

That bizarre chain of events in the last two weeks involving Baltimore County Circuit Judge Thomas J. Bollinger has left legal experts stumped. They've never heard of a judge bowing to public pressure by voluntarily avoiding an entire category of cases.

"As far as I know this is unique," said Stephen Gillers, a law professor at New York University, echoing several other legal experts this week.

And in such uncharted waters, those who study the judiciary are unsure how his move to duck a wide range of cases involving women will affect Bollinger's abilities on the bench.

While Gillers and others say it's not uncommon for a judge to remove himself from a single case, his refusal to hear a whole category of cases might make some wonder why the judge stays in the job at all.

"To be fit to serve, a judge has to be intellectually and emotionally competent to handle all kinds of matters within the jurisdiction of his court. The job requires that, and if he's not, he's not doing his job," said Gillers.

Byron L. Warnken, law professor at the University of Baltimore, agrees that "for a judge to recuse himself from a category of cases is quite unusual."

But Warnken thinks it might be a good idea in the case of Bollinger, who drew the ire of women's rights groups for his comments in a 1993 rape case.

In deciding not to hear such cases anymore, Bollinger cited the Maryland Code of Judicial Conduct, which recognizes "such action is required when extensive publicity has caused a judge's impartiality to be questioned by litigants ..."

And Warnken noted, "Certainly the reaction to Judge Bollinger's various rulings in this case would indicate there is an issue of public confidence."

Even though Bollinger's action has "never happened before, that doesn't make it an an inappropriate response, and it might make it the most appropriate response," added Warnken.

But Bollinger's decision also has lawyers at the Women's Law Center of Maryland questioning if he should remain on the job.

In a letter of complaint sent last week to the Commission on Judicial Disabilities and to a judicial Select Committee on Gender Equality, the law center's president, Christyne L. Neff, wrote that Bollinger's decision "raises issues of gender bias as well as judicial economy, self-interest of the judge, and a distinct issue of public trust.

"If a judge believes he is perceived to be so biased against women by the public at large that he must recuse himself from entire categories of cases involving violence against women, then that, in of itself, raises questions as to whether the judge I is fit to remain on the bench," she wrote.

Bollinger responded to his critics late last week through his lawyer, who rejected calls for the judge's resignation, saying there was no legitimate reason for him to leave the bench.

When Bollinger first wiped out the battery conviction of pawnbroker Charles H. Weiner Jan. 31, women's rights activists and women legislators were already familiar with the judge.

In 1994, Bollinger was given a reprimand by the Commission on Judicial Disabilities that arose out of a 1993 rape case. A 44-year-old man raped an 18-year-old employee who had passed out drinking, and Bollinger criticized the state's rape law for being too tough in such instances.

On Monday, when the judge reversed himself in the Weiner case, several women legislators said he hadn't gone far enough. (Weiner's request to have his conviction wiped out will be heard by another judge.)

Last week, Del. Nancy K. Kopp, president of the Women Legislators of Maryland, sent a harshly worded letter to the judicial disabilities commission asking for an investigation and calling for Bollinger's removal.

Bollinger's decision not to hear a broad range of cases has sent legal scholars searching for precedents - and finding none.

Gillers said he knew of only one other example that was even remotely related: a California case in which the federal court removed a judge from hearing police brutality cases because he appeared to be biased.

But in that case, the judge did not voluntarily disqualify himself from hearing a certain type of case, as Bollinger has.

Lynn Hecht Schafran, director of a program that educates judges on gender-related issues for the NOW Legal Defense and Education Fund, said she'd heard of instances in which judges were removed "from hearing domestic violence or matrimonial cases because it was clear they were unsuited to handle these areas of the law."

She had never heard of a judge's voluntarily recusing himself from so many kinds of cases involving women. But knowing of Bollinger's previous comments in the 1993 rape case, she thinks it might be a good move.

Meanwhile, inside the Baltimore County courthouse, the administrative judge, John Grason Turnbull II, said Bollinger's decision to excuse himself from so many cases should cause no inconvenience for the other 14 judges on the circuit court.

"We have a rotation policy on our bench anyway. There are months at a time where certain judges don't see certain types of cases," said Turnbull.

"It will not create any problems whatsoever," he added.

Joan Jacobson is The Sun's Baltimore County court reporter.

Pub Date: 2/16/97

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