Who Judges the Judges?

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Former Judicial Court Candidate, Claudia Barber.
Former Judicial Court Candidate, Claudia Barber.

In last year’s 5th Circuit Court elections in Maryland’s Anne Arundel County, Claudia Barber, the first African American woman judicial candidate on the ballot in that court’s 367 years, encountered a political buzz saw that not only lost her the election, but also shredded her career. Barber was fired for an ethics violation from her job as an administrative law judge in the D.C. Office of Administrative Hearings (OAH) and was called out in the press for misuse of campaign finances, while her four sitting judge opponents combined resources to form a slate. They hired a political strategist whose marketing techniques crushed Barber’s homegrown campaign by publicizing her supposed lack of qualifications and misrepresenting her experience. The campaign was filled with controversy and added fuel to the fire that is burning around a lack of diversity within the Maryland judicial system and proved to be a referendum on the judicial selection process itself.

The blame for this debacle shouldn’t be laid just on the cast of political characters, but must be shared with you and me as the voters. We were complicit through our lack of knowledge. How many of us accepted at face value what we read about Barber’s ethics violations, without investigating whether that was the whole story? How many of us knew anything about the four appointed judges or even understood how they all had their names put on the ballot in the first place? How many of us saw the yard signs of Barber’s opponents, “The Four Sitting Judges,” or “The Final Four,” popping up on every strip of green grass in Anne Arundel County and didn’t bother to question it? These signs aggressively suggested that voters were to select all four, as if the judges together were one singular choice. What did you feel at the sight of such demands being placed on your right to choose, or did you not even recognize the implication of the wording on these signs?

Campaign postcard of the Four Sitting Judges campaign. Barber's name is muted, and there is no mention that her removal is under appeal. (Photo credit: Brenda Wintrode)
Campaign postcard of the Four Sitting Judges campaign. Barber’s name is muted, and there is no mention that her removal is under appeal. (Photo credit: Brenda Wintrode)
 Opposite side of postcard. Barber was a judge longer than the four sitting judges combined.
Opposite side of postcard. Barber was a judge longer than the four sitting judges combined.

Instead of centering the candidates, I will center the voters, and ask us to look not only at Barber’s actions, but also to examine the campaign actions and methods of her four opponents, Glenn Klavans, Donna Schaeffer, Stacy McCormack, and Cathy Vitale. We have a responsibility to know what is really at play before we cast our ballots, and further, I believe we have a mandate to go beyond the points being made and to scrutinize those who are doing the pointing.

In Maryland, there are two ways to become a Circuit Court judge. First, the governor can appoint a lawyer from the “short list” of recommendations from the state’s Trial Courts Judicial Nominating Commission, and then once appointed, the new judges must face voters in the next election year. Second, if one meets the qualifications of a judge designated by the state, one can file a certificate of candidacy for this election without governor appointment, and all of the names are put on the ballots in both the Democratic and Republican primaries. The top four vote-getters then move on to the general election in November. Sitting judges either retain their seats, or are unseated in this process. This is called a contested election.

Two weeks after Claudia Barber filed as a candidate, former circuit court judge Ronald Jarashow sent a letter to Barber’s then-boss, Chief Administrative Law Judge (CALJ) Eugene Adams. Jarashow’s letter alleged that Barber violated the OAH’s code of ethics, which states, “An Administrative Law Judge shall resign from judicial office when the Administrative Law Judge becomes a candidate either in a party primary or in a partisan general election…” Jarashow further asserted that Barber “should be immediately required to resign from office, or be terminated as an Administrative Law Judge.” In his letter, he urged Adams to take “immediate action.”

Jarashow had lost his circuit court judgeship in 2010 to Judge Alison Asti in a contested election.

“He’s got a bone to pick that the only way judges should be nominated is through the glorious JNC process,” says Barber, “The constitution is the law of the land, and the constitution says I can run in this judicial election.” Jarashow’s law firm contributed $4,000 to the Friends of the Anne Arundel County Judges Campaign PAC, which was created by Barber’s four opponents. Jarashow deferred all questions to his attorney, Justin Flint, who replied “no comment” to all inquiries.

In 2015, well before she filed for candidacy, Barber had begun researching whether or not she could run for the judgeship and still keep her job in D.C. “I was concerned. This one issue bothered me greatly, and I had to figure it out,” says Barber. The ethics codes and laws that she researched were nuanced, leading her to inquire within three different groups: the OAH ethics committee; the Board of Ethics and Government Accountability, which oversees the conduct of D.C. employees; and the Commission on Selection and Tenure (COST), which oversees the conduct of OAH judges and the body that would ultimately order her removal from the bench.

Then-chair of the OAH’s ethics committee, James J. Harmon Jr.‘s first reference point was the American Bar Association’s Annotated Model Code of Judicial Conduct—Canon 4, to be precise—which specifically applies to judicial candidates. It states “Judges need not resign when seeking another judicial position.” Barber remembered feeling that this was a good sign. “I thought, I’m all right,” says Barber. She would later cling to this legal resource, only to have it overridden.

Harmon continued his research, and to Barber’s disappointment, he wrote an advisory letter pointing to a Maryland Court of Appeals decision, Suessman v. Lamone, which held that Maryland judicial elections are partisan affairs because independents and unaffiliated voters are not allowed to participate in the Republican and Democratic primaries. Barber was running in party primaries, even though the position she sought is nonpartisan. There is nothing in the Maryland election code that states judicial elections are nonpartisan, and Barber moved forward in filing her certificate of candidacy and made her decision not to resign from her D.C. OAH job. These decisions would create major setbacks for her career.

In response to Jarashow’s letter, Adams put Barber on immediate administrative leave with pay. Barber then requested an affidavit from a former CALJ, Tyrone Butler. Butler wrote that he saw no ethics violation. He had been the CALJ over the administration that created the OAH Code of Ethics and passed it through the D.C. City Council. He attested to the code being in accordance with Canon 5 of the ABA’s Judicial Code of Conduct, and that the code of ethics does not and was not created to prohibit an ALJ from running in either a bipartisan or nonpartisan election. Nevertheless, Barber’s administrative leave was upheld. Calls to the OAH for comment generated an email response from Communications Director Robert Marus, of the D.C. Attorney General’s office, stating their: “practice is not to comment on pending litigation against the District other than the public-record statements and filings we make in court.” Barber’s removal from the bench is pending appeal.

In April 2016, Barber came in fourth in the Democratic primary, ahead of Klavans. This made Barber the first African American female judicial candidate in Anne Arundel County to advance to the general election ballot and much was being made of that fact in local papers. That summer, the county nominating commission put forth a short list to the governor that included an African American woman, Lorraine Jeanette Rice. Either or both Barber and Rice could have been the first African American woman on the bench.

Governor Larry Hogan, who publicly endorsed the four sitting judges, withheld his judicial appointment for the new position until after the general election, in which Barber had come up short. Hogan appointed his former deputy counsel, Mark Crooks. He could have made that appointment any time after the 2016 list of nominees had been released by the JNC, including prior to the general election, but did not.

Campaign marketing material for the four sitting judges publicized Barber’s OAH firing, and misrepresented her credentials to voters. Since the judges’ names would be laid out in alphabetical order on the ballot, their campaign postcard listed the four sitting judges’ names in that order, which means they were sequential, thus muting Barber’s name as if she were not an option. The sitting judges also appeared in a photo wearing judicial black robes, while Barber was pictured in a casual outfit. At the time of the election, the four sitting judges’ collective bench time was less than Claudia Barber’s.

Items listed next to Barber’s picture on the postcard misrepresented her experience. The first stated that Barber was “Fired for an ethics violation.” By this time, that was true, but the matter was on appeal. The second bullet said that she “Failed twice to be found qualified by the AACo. JNC.” The JNC does not issue findings on a candidate’s qualifications. The third bullet stated that Barber had “Never handled a jury trial in Anne Arundel Circuit Court.” This is true but misleading, since she conducted many successful jury trials in other counties for sixteen years, but worked as a judge for the last ten years in D.C., not in Anne Arundel County. To the voter, Barber appeared to be an illegitimate choice. Voters would be right to ask why she was even still on the ballot.

There was also a stunning disparity in contributions received by each of the campaigns. Barber’s campaign contributions totaled $30,975.82. The four sitting judges had pooled their resources in a PAC, called the The Friends of the Anne Arundel County Judges, which raised $257,431.20 in contributions. Twenty-five law offices and eight more individuals from various legal professions contributed $4,115, or 13%, of Barber’s total contributions. The four sitting judges received 185 separate contributions from law offices and 223 contributions from persons claiming they worked in legal professions. A total of $147,553.50, or 57%, of the PAC’s total contributions came from legal professionals, some of whom try cases before the four judges today.

Money spent in Barber’s campaign went to office supplies, postage, yard signs, radio spots, and boosting her Facebook page. Of the PAC’s total contributions, 94% was paid to GOP campaign advisers Scott Strategies. Scott Strategies is run by Francine Scott, wife of assistant state’s attorney, Lawrence Scott, who works in an advisory role to State’s Attorney Wes Adams (R). Adams participated in the campaign by recording a robocall in support the four sitting judges, claiming that voters should vote for ethical judges. County Executive Steve Schuh (R) recorded a similar message for a separate robocall on behalf of the slate. Scott Strategies is the consulting engine behind Schuh, Adams, Asti, District 33 Delegate Sid Saab (R) and District 31 Delegate Nic Kipke (R).

None of what the Anne Arundel County politicians did was illegal, but as voters, we should know who is partnering with whom, what efforts are being made to maintain the status quo and why, and who is conducting their campaigns in an upright fashion. We can then place our votes according to facts rather than the misrepresentation of them. We should be the judges of our elected officials’ ethical and moral standards, official codes notwithstanding.

When law offices fill the campaign coffers of judicial candidates, are citizens receiving fair trials?

When politicians can buy public opinion with a well-funded megaphone, are the voters getting all of the facts?

Do we want our judges to have to become politicians?

Are implicit biases to blame when our county’s judicial selection process spits out white person after white person?

If our system is equitable, then why is it not producing candidates with varied ethnic backgrounds?

It’s hard to prove that racial bias exists within either the nominating commission process or the 2016 campaign itself, but it’s also just as difficult to say it does not. The Anne Arundel County Circuit court has only had two African Americans on the bench, Rodney C. Warren and Clayton Greene Jr., in its 367 years of existence. In recent years, many highly qualified and experienced African American candidates have tried and been denied the post. Kevin Outing, Evelyn Darden, Doris Walker, Keith Gross, Ginina Jackson Stevens, Tracey Parker Warren, Sheila E. Lundy-Moreau, Rickey Nelson Jones, Gloria Shelton Wilson, and Claudia Barber have all attempted gubernatorial appointment via application to the JNC. There has also never been a Latinx, Native American, or Asian judge on the 5th circuit.

In the instance of last year’s campaign, there is the appearance of a set of unwritten rules telling those within the system to band together and keep out newcomers, and if true, that is not democracy. The money and power at work from within the process to appeal to voters ultimately led to everybody involved lowering their ethical standards. We should all have felt like the ball inside a rugby scrum.

Barber’s OAH dismissal case is pending appeal in D.C. She would like to have her job back as an Administrative Law Judge. No one else lost their job participating in this campaign. They are all still safe inside the system.

Brenda Wintrode is a freelance writer from Anne Arundel County.

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