PSC chief's case raises ethics questions

In suit to keep job, he gets judge with ties to his lawyer


When Public Service Commission Chairman Kenneth D. Schisler filed a lawsuit in Talbot County Court aimed at preserving his job, he was guaranteed to get a judge with a close relationship to his attorney and whose financial future rested at that moment in the hands of Schisler's patron, Gov. Robert L. Ehrlich Jr.

At the height of the debate over bills designed to pressure BGE to reduce the 72 percent rate increases faced by the utility's residential customers, Schisler sought a restraining order to prevent the state from enacting a bill that would have effectively fired him and the other four members of the commission.

Instead of filing in Baltimore, where the commission works, or in Anne Arundel County, where the legislature was soon to decide the bill's fate, Schis- ler took his case to Talbot County, where he was a lawyer and a member of the House of Delegates before being appointed to the PSC by Ehrlich.

FOR THE RECORD - A Page 1A article Thursday incorrectly described the status of a decision by a Talbot County circuit court judge to delay implementation of a proposed state law reconstituting the Public Service Commission. The decision is being considered by the Court of Special Appeals.
The Sun regrets the errors.

Talbot County has one circuit judge, Sidney S. Campen Jr. Two years before, when Campen was a lawyer in private practice in Easton, his firm was represented in a breach-of-contract suit by the attorney Schisler hired to argue the PSC case. That attorney, David R. Thompson, is a principal in the Easton law firm that once employed Schisler.

Moreover, when the PSC suit was filed April 7, Ehrlich had to decide whether to veto a bill designed to allow Campen to serve as a retired judge after he turns 70 in March, a designation that would give him the opportunity for lucrative employment for years to come.

Attorney General J. Joseph Curran Jr. argued that the suit had major legal flaws - one was that the bill had yet to become law - but Campen granted Schisler a temporary restraining order. The Court of Appeals declined to dissolve the order.

Because the General Assembly adjourned without overriding Ehrlich's veto of the PSC bill, both sides say the case is moot. Even so, the case is alive. The Court of Appeals has declined to dismiss the case until it is assured that the legislature will not override the veto in a special session.

An assistant to Campen said the judge could not answer questions about the case because it is pending. A spokeswoman for the Administrative Office of the Courts confirmed that judges are not allowed to comment on pending matters.

PSC spokeswoman Christine Nizer said Schisler could not comment on a pending legal case.

Thompson called any questions about Campen's impartiality "absurd."

"Judge Campen is well known for his honesty, professionalism, ethics and judgment," he said.

Del. Michael D. Smigiel Sr., a Cecil County Republican and an attorney, said the potential conflicts for the judge are "absolutely not" what lawyers should expect when they enter the courtroom.

"It's not only not passing the smell test; it's starting to stink," Smigiel said.

The Maryland Code of Judicial Conduct says that "a judge shall recuse himself or herself from a proceeding in which the judge's impartiality might reasonably be questioned, including an instance when the judge has a personal bias or prejudice concerning a party or a party's lawyer."

Maryland's Judicial Ethics Committee has not made public any opinions on the question of whether a judge is permitted to hear a case being argued by a lawyer who had previously represented the judge's firm. But in a March opinion, the committee cautioned judges to avoid cases in which they have a close personal relationship with one of the attorneys.

"Any circumstance which suggests bias erodes confidence in the court," the opinion says. "Judges often believe they can remain impartial in matters where one party is represented by a friend, a former law clerk, or even a former associate. However, others may reasonably see this relationship as creating a bias in favor of that attorney."

The American Judicature Society's Center for Judicial Ethics reported in the fall 2002 edition of the Judicial Conduct Reporter that there is no nationwide standard for such cases.

Some states' judicial ethics commissions have ruled that judges need not recuse themselves from such cases after their representation by the attorney ends. Others require a waiting period of up to two years after the conclusion of the representation, and some require that the relationship be disclosed to the other litigants, the report said.

Many states consider the extent and type of representation the attorney provided to the judge. Cases in which the attorney handled a routine real estate transaction, for example, are considered less serious than ones in which the attorney handled matters of personal or financial significance to the judge.

Nizer said Schisler hired the firm Cowdrey, Thompson & Karsten without a bid because of its experience and qualifications in handling the legal issues involved in the suit.

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