Orphans' Court judges: A question for voters

It's complicated: A constitutional amendment on whether a jurist need be a lawyer

October 06, 2010|By Dan Rodricks

I love the Dickensian sound of it: the Orphans' Court. One hears the phrase delivered from the lips of Dame Judith Dench or Ian McKellen: "The Or-phans' Court." It has existed in Maryland since 1777, and its name derives from London's Court for Widows and Orphans, where the children of deceased male landowners were considered orphans whose inheritance had to be protected.

The Orphans' Court operates in Baltimore and all but two Maryland counties, and — news flash from the 18th Century! — an Orphans' Court judge does not have to be a lawyer.

You can look it up: Someone we call a judge in Maryland, and who resolves matters of probate — wills, estates, the distribution of assets of the dearly departed — does not have to be a member of the bar.

There has been dispute and argument about this, off and on, since the early 19th Century. But, come Nov. 2, those of us registered to vote in the 21st Century are going to get to resolve it.

You can look that up, too:

Question 3 on the November ballot proposes a state constitutional amendment (Article IV, Section 40) regarding the qualifications for Baltimore City Orphans' Court judges. Here 'tis:

"Under the Maryland Constitution, the voters of each county and Baltimore City elect three judges to the Orphans' Court of their respective jurisdictions, with the exception of Montgomery and Harford counties, where circuit court judges sit as the Orphans' Court. The judges must be citizens of the State and residents, for the preceding 12 months, in the city or county in which they are elected. The constitutional amendment would add an additional eligibility requirement for judges of the Orphans' Court in Baltimore City, requiring them to be members in good standing of the Maryland Bar who are admitted to practice law in Maryland."

Apparently, there have been numerous attempts over the years to abolish the Maryland Orphans' Court or to at least require its judges to be attorneys.

Both efforts have failed numerous times, according to an illuminating history of the Orphans' Court written by Janet Stidman Eveleth for the Maryland Bar Association Journal a couple of years ago.

"From the days of the provincial commissary down to present times, there has been recognition of the incongruity of permitting laymen to pass upon legal matters concerned with the settlement of the estates of deceased people," Ogle Marbury, Maryland chief judge, told the state bar convention in 1941: "All lawyers know the danger, the delay and the added expense of having legal decisions made by laymen."

Nevertheless, nothing changed. Statewide, approximately two-thirds of all Orphans' Court judges are not members of the bar.

Apparently, in most Maryland counties, especially in rural areas, Orphans' Court judgeships are part-time jobs, and there has been a lot of resistance to requiring a law degree. In busier jurisdictions, such as Baltimore, the push has been stronger, and this year senators and delegates who represent the city in the General Assembly finally succeeded in getting their colleagues to approve the referendum.

Lisa Gladden led the effort in the Senate, while Sandy Rosenberg made the case in the House of Delegates. Key for Delegate Rosenberg and Senator Gladden was this: An elected Orphans' Court judge who is not a lawyer must have one who is to help with cases. That means each hearing requires two judges if one is a non-lawyer. Can you do the math on that? Instead of three judges working independently and resolving three cases, you have three judges, two of them working together, to resolve two cases.

It's an inefficiency voters could do away with Nov. 2.

Here's the twist to this story: On the same day citizens get to vote on Question 3, requiring Orphans' Court judges in Baltimore to be lawyers, there's a nonlawyer on the Baltimore ballot for judge of the Orphans' Court. Her name is Ramona Moore Baker.

The other two candidates in the general election are incumbent judges, Joyce M. Baylor-Thompson and Lewyn Scott Garrett, both with law degrees.

Karen "Chaya" Friedman (also a lawyer) had been the third incumbent judge, and she garnered more than 26,000 votes in the September primary. However, Gov. Martin O'Malley appointed Judge Friedman to the District Court.

There is no fourth candidate.

So there's a good chance Ms. Baker will become an Orphans' Court judge. The question is: Will she be allowed to serve for the next four years if voters approve the constitutional amendment requiring Orphans' Court judges in Baltimore to be lawyers?

The lawyers should have a field day with that one.

Dan Rodricks' column appears Tuesdays, Thursdays and Sundays. He is the host of Midday on WYPR, 88.1 FM. His e-mail is dan.rodricks@baltsun.com.

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