State's `Activist Judges' Are Just Doing Their Job

September 03, 2006|By C. Fraser Smith

Were it not for the Maryland Court of Appeals, the state might well have slot machine gambling today.

One more strong candidate might still be in this year's race for attorney general.

And the Free State might be seeing voters go to the polls earlier than Sept. 12, primary election day.

These are just a few of the policy or political circumstances sharply altered by the crimson-gowned men and women who are the final arbiters of many important, often political, public matters.

Has Maryland suddenly become home to "activist judges," that bugbear of the conservatives? Several recent court rulings at the state level have looked more "conservative" than conservatives might have expected. Imagine that - judges led by the law as they read it.

Or has our system simply called upon the courts to resolve issues raised by legislative or gubernatorial decision-making?

However one answers these questions, the courts must be seen as carrying out their fundamental role in our democratic system of government. They are the check in our system of checks and balances.

There can be little doubt, however, that the courts are a player in some important matters. Sometimes this role is direct and sometimes it is inadvertent. It is quite often very consequential.

In recent years, Maryland's highest court threw out a new map of the state's political districts, concluding that the political cartographers had violated some of the rules of making sure each congressional district has the same number of voters.

Ideally, this process, called redistricting, takes into account somewhat abstract concepts such as communities of interest and geographical coherence. The court was offended by the 2000 redistricting plan drawn by Gov. Parris N. Glendening because it looked to many like a tour de force of political gerrymandering - the drawing in or out of voters in an effort to help friends and hurt enemies.

The court drew its own map, one that put House Speaker Casper R. Taylor Jr. of Cumberland in a relatively new Western Maryland district. Mr. Taylor, thought to be a supporter of slots, lost a race he might have won had he been in the district he had grown accustomed to serving.

And the course of recent legislative and political history changed drastically.

Mr. Taylor's successor, chosen in a vote by the House of Delegates, was Michael E. Busch of Anne Arundel County, a slots opponent. Mr. Busch led his chamber in opposition to legislation offered by Gov. Robert L. Ehrlich Jr. that would have allowed the machines at Maryland racetracks and other venues.

Mr. Ehrlich now runs for re-election without his signature initiative, slot machines at the tracks. One could argue that the Court of Appeals' map influenced gubernatorial politics as well. That result was, of course, not the objective.

More recently, the court waded into the race for attorney general, ruling that Montgomery County Council President Thomas E. Perez was not qualified, apparently because he did not have 10 years of experience as a lawyer practicing in Maryland. The court's ruling reduced the number of Democratic candidates and probably improved the chances of State's Attorney Douglas F. Gansler of Montgomery County. Mr. Gansler and Mr. Perez had been competing for votes in the largest voting jurisdiction in the state - to the advantage of the third major candidate, Stuart O. Simms of Baltimore. Now Mr. Gansler has a much-improved shot at winning votes in Montgomery County.

At the same time, the court ruled that a five-day early voting period is not permitted by the state constitution, which restricts voting to the date set for the primary or general election. The liberalizing of voting procedures, bringing more voters to the polls, generally helps Democrats. So whatever merit could have been found in the liberalized voting procedure, there was a political dimension to the ruling.

In coming weeks, perhaps, the court will decide whether it was within the General Assembly's prerogatives to fire the Public Service Commission. That decision, too, will have political implications.

Mayor Martin O'Malley and the Democrats support the Democrat-controlled Assembly's decision to sack the regulators. Governor Ehrlich, who appointed them, vetoed the bill - and the Assembly overrode the veto.

Now the court will act. If a decision comes in the next few weeks, it could have an effect on who governs Maryland for the next four to eight years.

The stakes are high. The court, presumably, will act as though nothing matters but the law.

C. Fraser Smith is senior news analyst for WYPR-FM. His column appears Sundays. His e-mail address is fsmith@wypr.org.

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