Maryland's system of resolving disputes over wills and estates is being challenged in Baltimore County this fall, as voters decide whether the local Orphans' Court judges should be required to have law licenses.
A statewide referendum in the Nov. 6 election proposes amending the Maryland constitution to exclude the county's "lay judges," a title that has existed since 1777, when the court was created under the constitution. A similar, separate ballot question applies to the court in Prince George's County.
The two ballot questions have been overshadowed by referendums on broader hot-button issues such as same-sex marriage and expanded gambling. But the Orphans' Court issue has sparked a local debate over issues of efficiency and openness.
Those in favor of the change say it would make the courts — which mainly handle cases involving wills and the administration of estates — more efficient as the counties' populations age and cases become more complicated. Opponents argue that the proposal would limit candidates for the job.
Voters approved a similar shift in Baltimore City in 2010 by a wide margin, a change that was complicated by the simultaneous election of the court's first non-lawyer in a half-century. Gov. Martin O'Malley ultimately refused to seat the candidate.
Orphans' Courts across the state are staffed by three part-time judges and can include lawyers and non-lawyer judges, except in the city. Montgomery and Harford counties do not have separate orphans' court judges; there, a Circuit Court judge resolves estate disputes.
In Baltimore County, all three sitting judges are members of the state bar, and they are pushing for the ballot question. They say the court operates more effectively when staffed by lawyers.
Although non-lawyers can serve now, a second judge who is a qualified attorney must sign off on orders.
As the caseload increases, it would be "cumbersome" to have multiple judges involved on an issue, said Chief Orphans' Court Judge William R. Evans. "On average, the court entertains 100 petitions, motions, every day."
Opponents, however, including Del. Joseph C. Boteler III, a Baltimore County Republican, say the added requirement is unnecessary.
"There aren't any problems with the Orphans' Court now," Boteler said. "Simply because we are going to have a lot of Baby Boomers who are going to retire does not mean that [lay judges] can't handle their job."
He added that the measure would give lawyers an unfair advantage over other potential candidates.
"This ends up a jobs bill for lawyers. There are a lot of good people that can hold that position without having to be a lawyer," Boteler said.
Retired Orphans' Court Judge Gloria J. Butta, who served from 2001 to 2006, said "any mature adult with a high school or college education can do this."
She said it's a benefit to have lay judges. "It levels the field. You have common people heard by common people."
All civil and criminal court judges in the state must be members of the bar. But the 240 District Court commissioners, who review charging documents and determine if a defendant should be released or must post bond before a trial, are not required to be bar members.
Julie Ensor, clerk of the Baltimore County Circuit Court, served for 12 years on the county orphans' court as a lay judge. "I didn't find it difficult not being an attorney," she said. "It is true with lay judges it did require two signatures to process any of the orders. When I was there, it didn't present itself as a problem. I thought we ran a very efficient operation."
Ensor said the court experienced an increase workload since she was first elected in 1994.
"That was one of the concerns we had as well. It appears that Maryland residents stay in Maryland even when they retire," she said.
Because a large number of aging residents is expected to continue to call the county home, Del. Jon S. Cardin, who sponsored the ballot question legislation, said it's important to ensure that the court can handle its caseload. The county needed to "make sure we dealt with this before we had a problem," he said.
Although voters will face the ballot question this fall, Baltimore County Orphans' Court judges are not up for re-election until 2014.
Judge Colleen A. Cavanaugh said that in some counties, where there might be only about 50 lawyers, it could be challenging to fulfill the requirement — and it would be unnecessary where courts have a low volume of cases and meet only once a week.
But in Baltimore County, requiring Orphans' Court judges to have a more formal law background has added benefits, she said. "These cases are becoming more and more complex. I can't imagine someone without a legal background coming into this. I think it is a qualification most people would want in their judges."
Evans does not believe the added requirement of Bar membership would lead to a dearth of candidates for the Orphans' Court.
"I certainly don't expect to run unopposed," he said.
Joked Evans: "Every time you turn over a rock, there's a lawyer."
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