Maryland State Archives

Horst

Emily Oland Squires schrieb:

Dear Mr. Dippel,

Dr. Papenfuse asked me to contact you directly. I believe the 1834 law you are interested in can be found on the Archives of Maryland Online. Please see the following link for Chapter 166 of the 1834 Maryland Session Laws.

http://aomol.msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000541/html/am541--175.html

Is this what you are looking for, or did you require a manuscript copy? Sincerely,

Emily Oland Squires

Maryland State Archives

Dear Ed:

As there are some server problems in the university, I am unaware of any incoming mail. I just realized that we both overlooked an adopted amendment of the December session of 1834, ch. 166 ("An act to alter and change a part of the division line between the second, third, and fourth election districts in Washington county"). The reason is obvious: I did not realize that it changed the constitution, and indeed, it is hard to see how it may have done so. But it was treated as an amendment and there is the ratification of the amendment in the December session of 1835, ch. 17. I shall very much appreciate if you can send send me a copy or scan of 1834, ch. 166 (not of the confirmation act of 1835, which I have) at your earliest convenience.

Horst

Edward Papenfuse wrote:

Dear Horst:

If I have not put you in contact with Dan before this, I should have.

Dan is the authority on Maryland's Constitution and you should be in correspondence with each other.

I will do what I can to sort out the amendments for you over the next couple of weeks, but Dan can be most helpful as well (I have cc'd him on this).

I thought you might like to see his most recent piece in the Daily Record on removal of judges.

As to failed amendments, because the constitution required two legislatures to pass proposed constitutional amendments, failed amendments are not easy to search out and document (as you know). We are attempting to put all proceedings of the Legislature on line, beginning with those sessions that addressed constitutional issues. Unfortunately until just recently we have not had the resources to index well all the work we have done to date. Hopefully that will be rectified soon with the addition of a specialize Google search engine for our site which encompasses the Archives of Maryland series.

Ed

---------- Original Message ---------------------------------- From: "Friedman, Dan"

Date: Fri, 24 Mar 2006 21:50:19 -0500

That's funny. I had registered for a Bench and Bar breakfast on Monday morning featuring Judge Murdock talking about the Courthouse art collection. Then on Thursday, I got a notice announcing that she had changed topic to the far more newsworthy, "Judicial Independence." I am still going and I hope that she'll have read my article. But I am a little sad to be mising the art collection discussion. I'm glad she's getting some use out of it! (That's sounded like I was hinting around for an invite, but that was not my intention--I will be at the O'Malley fundraiser on Tuesday. But I hope the Barrister's Club goes well and that on some other occassion I can hear about courthouse art!). Dan.

-----Original Message----- From: Edward C. Papenfuse [mailto:edp@maryland.gov] Sent: Fri 3/24/2006 5:42 PM To: Friedman, Dan Cc: Subject: Re: Daily Record Article

Bravo.

I will be at the Barrister's Club on Tuesday with Judge Murdock talking about the art collection in the Court House. I know how much she will appreciate what you wrote.

Ed

At 02:51 PM 3/24/2006, you wrote:

I thought you might enjoy this article. _____

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State constitution does provide standards for removal of judges

March 24, 2006 By DAN FRIEDMAN, Special to The Daily Record [] I’m afraid my book publisher won’t like this. It turns out that there is an error in my new opus on the Maryland state constitution. Here it is: In describing the judicial removal provisions, I noted my approval of the modern judicial disabilities process created by Art. IV, §4B and opined that it was “unlikely that future judicial discipline and removal will take place pursuant to” the three archaic procedures found in Art. IV, §4. Not four months after publication of that statement, here comes Del. Don Dwyer, Jr., R.-Anne Arundel, proposing the removal of Judge M. Brooke Murdock of the Circuit Court for Baltimore City. And Del. Dwyer wants to use the “outmoded” procedures that I wrote would never be used again. Turns out Del. Dwyer prefers to try to remove Judge Murdock through one of the “old fashioned” methods of Art. IV, §4 because he believes that there are no standards governing such a removal. Thus, the delegate reasoned, Judge Murdock could be removed because he disagreed with a decision rendered by the judge, specifically, her decision in Deane v. Conaway, that the state law prohibiting gay marriage was unconstitutional. The House Judiciary Committee wasted little time in rejecting Del. Dwyer’s proposed address. My continuing interest is in Del. Dwyer’s claim (reported in another newspaper) that there are no constitutional standards to guide the legislature’s decision under Art. IV, §4. Any claim that there are “no standards” carries a strong whiff of the totalitarian for me. I think Del. Dwyer’s analysis is wrong, both as a matter of constitutional interpretation and of public policy, but it takes a moment to explain. His reasoning begins (and ends) with the text of Art. IV, §4, which provides: Any Judge shall be removed from office by the Governor, on conviction in a Court of Law, of incompetency, of wilful neglect of duty, misbehavior in office, or any other crime, or on impeachment, according to this Constitution, or the Laws of the State; or on the address of the General Assembly, two thirds of each House concurring in such address, and the accused having been notified of the charges against him, and having had opportunity of making his defence. The provision is not artful but describes three separate methods for removing a sitting judge: (1) conviction by a court; (2) impeachment in accordance with the procedure laid out in Art. III, §26; and (3) on address in the General Assembly. (The judicial disabilities process described in Art. IV, §4B provides a fourth method of removing a judge, by which an independent commission investigates charges and recommends judicial discipline to the Court of Appeals). It is worthwhile noting the differences between the three procedures described in Art. IV, §4. Conviction in court seems relatively straight forward. Impeachment requires a constitutional majority of the House of Delegates (71 Delegates) to approve articles of impeachment, followed by trial in the state Senate, and requires a vote of 32 Senators to convict. Removal “on address” presents a more streamlined process — a judge must be given notice of the charges and an opportunity to present a defense before a vote is taken — but requires a vote of 2/3 of both houses to convict. Returning to the central point, however, Del. Dwyer’s position, I take it, is that the standard for removal set forth in Art. IV, §4 (“incompetency, of wilful neglect of duty, misbehavior in office, or any other crime”), because of the order in which it is recited, only applies to the first procedure, not the second or third. Alternatively, he may be making the plausible argument based on the punctuation of Art. IV, §4 that this standard applies to the procedures described before the semi-colon, i.e., conviction in court or impeachment, but not “on address.” If a judge is to be removed on address, Del. Dwyer would argue, there is no applicable standard. Flat prohibition Finding the correct standard for judicial removal, however, requires us to look beyond Art. IV, §4. Instead, we must begin with Article 33 of the Maryland Declaration of Rights, which provides: “That the independency and uprightness of Judges are essential to the impartial administration of Justice, and a great security to the rights and liberties of the People: Wherefore, the Judges shall not be removed, except in the manner, and for the causes provided in this Constitution.” Article 33 acts as the interpretive guide for the constitutional provisions governing judicial removal. It flatly prohibits removal of a judge for any cause other than those provided by the Constitution. Moreover, Art. IV, §4 doesn’t exist in a vacuum, but for the express purpose of protecting the “independency and uprightness” of our judges. Our constitutional framers weren’t trying to develop novel forms of judicial removal; they were trying to limit the existing ones. Remember, one of the key colonial grievances leading to the American Revolution was that the King of England refused to allow colonial judges to retain their offices on good behavior (thus insulated from political pressures), but instead he could remove them at his whim. Article 33 was designed to prevent this abuse. Therefore, there is no such thing as a standard-less removal of a Maryland judge. There are two other provisions of the Declaration of Rights that help inform lawmakers considering the removal of a judge. First, Art. 6 reminds us “[t]hat all persons invested with the Legislative or Executive powers of Government are the Trustees of the Public, and, as such, accountable for their conduct.” The Maryland framers described a legislator’s role by reference to the well-understood legal role of a trustee (who must act for the long-term benefit of the trust) rather than as a servant (who is required to obey each passing whim of the master). My view is that this provision should counsel toward the long view of protecting judicial independence not sacrificing it in a disagreement with one judge on the outcome of one case. Second, Art. 8, which describes the separation of powers principle, provides a helpful backdrop for evaluating standards of judicial removal. It provides “[t]hat the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.” Under this principle, legislators must be cautious in interfering with the operations of a coordinate branch of government. To be fair, Del. Dwyer’s Web site describes his involvement in the Deane v. Conaway case as motivated, in part, as a defense of the separation of powers. His conception of the separation of powers, however, is a level removed at best and ignores the primary separation of powers analysis that the courts, through the power of judicial review, serve as a check on the unconstitutional acts of the legislature. Whatever one thinks of Judge Murdock’s decision, there can be no doubt that it follows this traditional model. By contrast, Del. Dwyer’s conception of the separation of powers, in which we impeach judges because we disagree with their rulings, seems to have gone out of fashion after the U.S. Senate refused to impeach Justice Samuel Chase of Maryland in 1805. When all the relevant constitutional provisions are read in harmony, it is clear that a judge may only be removed under Art. IV, §4 for “incompetency … wilful neglect of duty, misbehavior in office, or any other crime.” Moreover, the General Assembly must be cautious in removing a judge to ensure that its motives are not to attack the “independency” of judges or intrude on the judiciary’s core function: Judging cases. Read correctly, the standards for removal under Art. IV, §4 are arguably more limited than those provided under Art. IV, §4B (“misconduct while in office, or of persistent failure to perform the duties of the office, or of conduct prejudicial to the proper administration of justice”). Given Art. IV, §4’s narrower standard, obvious procedural disadvantages, and inability to provide a graduated, humane outcome, Art. IV, §4B must be the preferred method of judicial discipline and removal. That should leave Art. IV, §4, as I said in my book, moribund. It will only be used by those, like Del. Dwyer, who use its provisions for political grandstanding. _____

Dan Friedman is an attorney with Saul Ewing LLP in Baltimore. His book, The Maryland State Constitution: A Reference Guide, was published by Greenwood Press in November.

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