COSA Spotlight: Judge Stuart Berger

By Steve Klepper (Twitter: @MDAppeal)

This post kicks off a series of profiles of the judges of the Court of Special Appeals. Our guinea pig for this series is Judge Stuart R. Berger, who holds one of the Court’s eight at-large seats. I interviewed him at his Baltimore City chambers.

Path to the Appellate Bench

Judge Berger is a 1981 graduate of Bucknell University and a 1984 graduate of the University of Baltimore School of Law. His first job was as an associate at Melnicove, Kaufman, Weiner, Smouse & Garbis, P.A. “That’s where I learned to be a trial lawyer,” he said. There he worked with deans of bar, such as Al Figinski, Robert Cahill, and Arnold Weiner. Figinski was his mentor, and, when the firm dissolved in 1989, Berger followed him to Weinberg & Green, LLC, which eventually merged with Saul Ewing just before Judge Berger’s appointment to the bench. Figinski maintained a significant appellate practice, giving Berger experience with appeals in the Court of Appeals, Court of Special Appeals, and Fourth Circuit.

Governor Glendening appointed Judge Berger to the Circuit Court for Baltimore City, where he served for 13 years—including as chief of the criminal docket from 2002 to 2003. “I’m a product of my experience on the circuit court,” Judge Berger told me. He sees appeals from a trial judge’s perspective, helping him when he encounters the kinds of issues (such as Hicks questions) that trial judges routinely face.

Governor O’Malley appointed Judge Berger to the Court of Special Appeals in 2012. The Maryland State Bar Association Section of Litigation selected Judge Berger as its Judge of the Year for 2012–13. In 2013, he was a finalist for Baltimore City’s seat on Court of Appeals.

The greatest adjustment for Judge Berger upon moving to the appellate bench was the schedule. When he was a trial judge, his day ended as soon as he discharged the jury; but he needed to give four months’ notice to take a day off. As an appellate judge, he works longer hours, but with much greater flexibility where and when he works. He gives the same flexibility to his senior clerk, who works remotely for a portion of the week.

Chambers

Judge Berger’s cavernous chambers are filled with bound volumes of the Maryland Reporter. He still uses the bound volumes, despite ribbing from his law clerks. Calling himself a “dinosaur,” Judge Berger spoke of his love for reading newspapers and hard-copy briefs. He takes pride in his filing system for briefs and records on appeal, plus a large filing cabinet filled with every one of his appellate opinions. Although most newer judges have three law clerks, Judge Berger’s paper-driven chambers call for the more traditional setup—a judicial assistant, one senior clerk, and one term clerk.

His chambers are tight-knit. His judicial assistant, Kathy Boone, has followed him from job-to-job, stretching back to Judge Berger’s days as an associate at Melnicove Kaufman. Mentoring clerks (22 so far) is one of the great joys of the job for him, and he considers his law clerks to be his legacy.

Judge Berger interviews 10 to 12 candidates for his term clerk position each year, looking for the best fit among the qualified candidates. He tends to hire early in the cycle, more than a year before the clerkship begins.

He does not use interns as much as some other judges, though he sometimes does hire a summer intern. Interns typically write bench memoranda.

Argument and Opinions

Judge Berger loves oral argument, which is his chance to get answers to burning questions. The judges receive their panel assignments about five weeks before argument. Although Judge Berger enjoys writing in all areas of the law (“we’re the last generalists,” he said), he loves zoning, planning, and land use cases. He also is happy when a case draws amicus briefs.

Asked if there are any Senior Judges he likes to see assigned to a panel with him, Judge Berger said “all of them” because “our court is indebted to the retired judges we have on our court.” (He quickly added that “they are no longer referred to as ‘retired judges.’ They now are labeled ‘senior judges.’”)[*] “I, along with my colleagues, greatly value the senior judges with whom we serve. The institutional knowledge each of them has is beyond parallel.” When pressed to name a few names, he pointed to Judge Glenn Harrell (known for his colorful opinions) and Judge Robert Zarnoch (particularly in statutory construction cases).

The judges receive their panel and opinion assignments for argued cases four to five weeks before argument. He divides the opinions (about 5 to 8 per month) between his two clerks for bench memoranda or opinions. He writes out his opinions in longhand on legal pads. He aims to deliver all of his opinions, including reported opinions, within 90 days after argument.

Judge Berger does not hesitate to write a dissenting opinion when he thinks the majority opinion is wrong on the law. In five years on the bench, he has written eight dissents.

Quirks

The trade-off for Judge Berger’s large chambers is that they’re in the courthouse basement. There is only one window that captures natural light, and not much of it. (Imagine Lieutenant Daniels’ office in Season 1 of The Wire, but cleaner.) He chose space over a view, moving from the sixth floor when Judge Albert Matricciani retired. As a result, don’t be surprised to see Judge Berger taking a walk in or around the courthouse, in search of light and human interaction. Now that he’s an appellate judge, of course, hardly anyone recognizes him.


[*] The terminology for recalled judges changed from “retired judges” to “senior judges,” effective August 1, 2017. See Rules Order, 193rd Report of Rules Committee (June 20 2017).

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