Who Is on the Court Of Appeals: The Role of Retired Judges

By Kevin Arthur

As most Maryland lawyers probably know, the Court of Appeals consists of seven judges from the various geographical regions in the state. But because the Maryland Constitution requires judges to retire at age 70 and then permits retired judges to be recalled into service, the Court of Appeals currently has as many as six additional members who serve provisionally on a case-by-case basis . After Judges Battaglia and Harrell are required to retire over the next two years, the Court may have more provisional, retired members than it has active members.

In recent years, retired judges have had an outsized role in some of the Court’s most prominent and controversial decisions. Most notably, in Tracey v. Solesky, 427 Md. 627 (2012), two retired judges provided the decisive votes in support of a 4-3 opinion that held that landlords could be held strictly liable for injuries caused by their tenants’ pit bulls. One of the retired judges authored the divisive opinion, which spurred a successful motion to reconsider some of the majority’s more expansive pronouncements (concerning liability for so-called “pit bull mixes”), unsuccessful efforts at corrective legislation in a special session of the General Assembly in 2012, the acrimonious collapse of a legislative compromise at the end of the 2013 legislative session, and additional legislative proposals in the upcoming session.

The Tracey decision, however, is not alone. In part because the Court of Appeals seems to exhibit little unity on many of the issues that come before it, retired judges may supply the deciding votes, and even author the majority opinions, in cases of great public importance. For example, in just the last five months, a retired judge has authored opinions in close cases upholding the doctrine of contributory negligence (Coleman v. Soccer Ass’n of Columbia, 432 Md. 679 (2013)) and holding that the Maryland Constitution affords indigent detainees the right to counsel at an initial appearance before a district court commissioner. DeWolfe v. Richmond, 434 Md. 444 (2013). Both decisions will be the subject of legislative proposals in the upcoming legislative session, and some officials claim that the cost of complying with the Richmond decision will total tens of millions of dollars a year.

Without questioning the merits of any of these decisions, it is still fair to ask whether retired judges should have such influence on questions of public importance. As a certiorari court that selects most of its own caseload, and as the final arbiter of Maryland law, the Court of Appeals participates in setting the state’s public policy. Yet, retired judges, who presumably do not participate in the Court’s decision to grant a writ of certiorari in a particular case, can nonetheless play a decisive role in the outcome of a case. The upshot is that the set of judges who decide that the Court should hear a case are not the same as the judges who actually adjudicate the case. Is that a good idea?

In some circumstances, it clearly is not. Take Tracey, the pit bull case. As my colleague Steve Klepper has pointed out to me, the assertion of judicial law-making authority in Tracey contrasts with the Court’s cautious, deferential approach in other, recent cases such as B.J.’s Wholesale Club, Inc. v. Rosen, 2013 WL 6182775 (Nov. 27, 2013), in which the Court affirmed a parent’s ability to give a prospective release of a child’s tort claims; Warr v. JMGM Group LLC, 433 Md. 170 (2013), in which the Court declined to change the common law to impose dram shop liability; or even Coleman, in which a different retired judge authored the 5-2 opinion that declined to jettison contributory negligence. In short, as the Court’s membership shifts with retired judges pinch-hitting for active members, the Court undermines its ability to enunciate a consistent and coherent view of the state’s public policy.

Unfortunately, it is easier to identify a potential problem than to define a solution. Ideally, a retired judge would participate only if his or her vote could not change the outcome of a case. In practice, however, that proposal would be impossible to implement, because the judges rarely know how the Court will decide a case until after oral argument, the discussion at conference, and the circulation and discussion of draft opinions.

A more realistic approach might be for the Court generally to refrain from either taking or deciding cases if more than one of the seven active members must recuse himself or herself. On one hand, this approach assures the maximum overlap between the judges who decide that a case is “important and in the public interest” for purposes of granting certiorari jurisdiction and the judges who actually decide the case. On the other hand, the proposal does not eliminate the issue of 4-3 opinions in which a retired judge casts the decisive vote. Nor will a one-recusal limit be workable if more than one of the seven active members arrived recently from the Court of Special Appeals, as a custom has developed for those judges to recuse themselves in all cases in which they participated in the vote to publish an opinion, not just in cases where they sat on the panel below.

At bottom, perhaps the best solution is for all members of the Court—active and retired—to inform their actions with an awareness of the Court’s policymaking role. This awareness might limit recusals to the extent that they are truly necessary, limit the number of cases in which retired judges are likely to play a decisive role, and perhaps even encourage active and retired judges to moderate their views so as to enhance judicial consistency. No one wants to deprive the Court of the retired judges’ wisdom and expertise, or of their assistance in researching and drafting opinions, but the Court should be more than just a collection of different panels of disparate decision-makers.