On the Record

Yup, you read correctly. 30 people are seeking to fill the seat of Judge Edward P. Murphy, who retired Feb. 28. Applications were due yesterday afternoon to the Administrative Office of the  Courts.

By contrast, 22 people applied for a Circuit Court vacancy in 2008.

The District Court vacancy appears to be the first since November 2005, when Judge Philip Tirabassi was appointed to the bench.

Among the applicants are several senior prosecutors and public defenders, as well as an Orphans’ Court judge. The Judicial Nominating Commission for Baltimore County will meet in May and submit a list of nominees to Gov. Martin O’Malley, who will pick one.

A District Court judge’s annual salary is $127,252.

I mentioned in my story in Wednesday’s paper a letter written by the Board of Visitors at the University of Maryland School of Law concerning former Dean Karen H. Rothenberg and the recent audit of the University of Maryland, Baltimore.

Here is the letter in entirety. The board’s chairman, Paul D. Bekman, said the seven judges and one elected official (Sen. Ben Cardin) who are members were ethically precluded from endorsing the letter because of their positions. Otherwise, the letter represents the board’s unanimous position.

The last time I wrote about the Prigel Family Creamery was in July, when Bobby Prigel and his Bellevale Farm Inc. received a $250,000 loan from the county for their proposed creamery and store.

It turns out that shortly after the loan was announced, opponents of the Glen Arm business filed a second lawsuit against the creamery seeking to halt its opening. (The first lawsuit, arguing the creamery is prohibited under a state easement regulation, is on appeal.)

The second lawsuit, which also names the the state Department of Health and Mental Hygiene, alleges Prigel did not submit all “plans, specifications and other information” as required by DHMH, and that DHMH is awaiting final plans even after the building’s shell has been completed. The lawsuit is specifically concerned about a “lack of a plan for wastewater treatment,” which could harm the groundwater used by the Prigels’ neighbors.

Lawyers for Prigel, in seeking to dismiss the complaint, point out the creamery has not applied for nor been issued a milk processing permit and that the building itself remains unused and vacant. A lawyer for DHMH, in a similar motion, called the complaint “premature” and said the public would be better served by the lawsuit’s dismissal.

“DHMH’s willingness and availability to work with permittees prior to the submission of an application is exactly the kind of service the citizens and State desire and deserve,” the motion states.

Judge H. Patrick Stringer denied a defense motion to dismiss the lawsuit during a hearing last week in Baltimore County Circuit Court on grounds that the defense did not directly address the plaintiffs’ claims in its motion to dismiss. Stringer denied the motion without prejudice, however, meaning Prigel could file another motion to dismiss in the future.

Following the hearing, Prigel’s lawyers indicated they were gathering evidence from DHMH to show compliance with state building regulations.

Happy Monday! Here are some law links to start your day:

• Did you know it’s legal to marry your first cousin in Maryland? Legislators, including the powerful head of the House Judiciary Committee, want to change that.
• The ever-fiery Page Croyder says district court judges are handsomely compensated for doing not much work. Anyone want to respond to her allegations?
• It was really tough to get a job as an associate at a top law firm in 2009, even if you were graduating from an excellent law school.
• It’s four years to the day since Clarence Thomas’ last question at oral arguments. A new paper argues that his silence hurts the court and his own reputation.
• Last Wednesday, an Iowa prosecutor returned from a lunch break in a murder trial with ash on his forehead. The defense attorney objected, saying it might sway the jury, the judge agreed, and the prosecutor wiped it off. Thoughts?
• The lady who crusaded against dog poop on the streets of New York, leading the city to enact a pooper-scooper law, has died at age 99. Sounds like she was a real pistol.

I’ve come to view the social norms of the courtroom as very similar to a house of worship. You dress up nice, speak in hushed tones and try not to snore during a sermon or closing argument.

I also know you don’t whip out your cell phone in either sanctuary. If you have to call someone or need to have an in-depth conversation, you step out into the hallway as far away from everyone else as possible. It’s both considerate and common sense.

I was thinking about this as I read Andy Green’s criticism of the Baltimore City Circuit Court’s ban on Twitter in the courthouse, prompted by the Dixon trial and verdict. As The Daily Record’s Official Dixon Verdict Tweeter, I guess I’m part of the reason why the ban was enacted.

My tweets, for the record, came from the hallway outside the courtroom. Granted, most of my tweeting was done while we were awaiting a verdict, so I wasn’t leaving the courtroom during any proceeding. But when court was in session, I would try to leave quietly during a break in the action, even if that was simply someone else speaking.

Of course, the nature of the Dixon trial meant there were at least a half-dozen people “quietly” leaving the courtroom at the same time as me. Judge Dennis M. Sweeney solved the problem on at least two occasions by allowing a group of reporters to sit in the back of the courtroom and leave to Tweet and report on his cue. Once we left the courtroom, though, we were not allowed back inside until the proceeding ended.

So while you’re “working” from home today, answer me this: How would you handle Twitter if you were a judge?

Parade Magazine had an interesting notebook item recently about jury duty. (And no, unfortunately, Howard Huge didn’t jump into a jury box thinking it was some sort of play space.)

The story reports many jurisdictions are experiencing an increase in the number of people “who say they can’t afford to serve or who simply don’t show up, causing cases to be delayed or even dismissed.”

The problem has been exacerbated by the recession; a Minnesota plumber was found in contempt of court and jailed for a day in November after saying during voir dire that he couldn’t afford to miss more than a day of work. “I don’t get paid when I’m not working,” he said, according to court records. “I could see myself just going with the flow to get it over with to get back to work.”

The American Tort Reform Association has proposed states pay jurors more, noting Arizona offers jurors $300 per day for trials lasting longer than five days.  By comparison, jurors in Maryland are paid between $15 and $30 per day depending on the jurisdiction.

So, what say you - is a larger per diem the best way to ensure citizens answer the call of jury duty? What else could be done to make the experience more palatable for potential jurors?

On the heels of Attorney General Doug Gansler’s call to end the popular election of circuit court judges comes an article in the latest University of Baltimore Law Forum with some additional recommendations on how to reform the system.

Retired Judge Dana M. Levitz and Baltimore County prosecutor Ephraim R. Siff (Levitz’s former law clerk) echo Gansler’s call to end judicial elections as we know them. Levitz and Siff say circuit court judges now live a “schizophrenic existence,” apolitical until they are required to “transform into consummate politicians and successful fundraisers” to win an election.

Judges with only a limited time on the bench before having to campaign are particularly hampered by the current system, Levitz and Siff write.

“It can be argued that the first few years of experience are most important to the judge’s evolution from advocate to arbiter,” they write.  “Instead of studying the new areas of the law with which they must become familiar, a new appointee is out most nights and weekends shaking hands and kissing babies at political clubs, community association meetings, bull roasts, charity events, or anywhere groups of people assemble.”

Short of abolishing the elections, the authors recommend eliminating contested re-elections, as Gansler has suggested. Levitz and Siff also propose requiring challengers to choose the particular judge they wish to run against, and requiring district court judges to resign from the bench prior to running for a circuit court seat.

“The one recommendation that is paramount is that Maryland do away with this antiquated system of choosing circuit court judges in contested elections, where the most adept fundraiser and politician is elected to sit in judgment and is authorized to dispense justice,” they conclude.

Welcome back to everyone who was out of the office over the holidays, and Happy 2010! A variety of legal news clippings to smooth your way back to working a full week:

• First, 2009 is behind us, and according to numbers compiled by Law Shucks, when it comes to big law firm layoffs, that’s a good thing.
• Now that we’re in 2010, what kind of novel legal thinking can we expect to kick off the decade?
• What about suing your hospital because it wasn’t prepared for a Biblical-scale natural disaster? Now presenting a new litigation product, Medical Malpractice by Katrina! (HT: Overlawyered). Or what about highlighting the possible sociopathy of crime victims?
• Speaking of pathologies, I think John Mesirow at Legal Juice summed it up well when he wrote “it’s not often that an attorney gets busted for doing cocaine, in the courthouse, in the midst of a trial.” Here’s what happened.
• I don’t know who fared worse, the lawyer in the last bullet point (and his client!) or the lawyer who lost his Madoff investment…and then couldn’t share that loss with his ex-wife! (HT: Maryland Divorce Legal Crier).
• In more upbeat news, here’s a well-done and feel-good story about late U.S. Supreme Court Chief Justice William H. Rehnquist’s grandson, Peter, a walk-on to the basketball team at Boston College. (As a legal reporter who sometimes wishes he had walked on to his college basketball team, I got a double kick out of this one. HT: How Appealing)

Has it really been more than seven months since I’ve noted the annotations in the opinions of Court of Appeals Judge Glenn T. Harrell Jr.?

Sadly, it has.

I’ve been checking periodically since May, of course, but honestly I haven’t been as diligent as I should have been. (Anyone else smell a New Year’s resolution here?) So I did a quick review of the judge’s opinions since I last wrote about them. And while I didn’t see too many Harry Potter references, two opinions stood out.

Harrell referred to a zoning dispute between Baltimore City residents and a neighboring apartment complex as “the city’s version of the Hundred Years’ War” in a July opinion. Not only does Harrell give a brief description of the Hundred Years’ War in a footnote, he includes this gem:

The Hundred Years’ War gave history Joan of Arc. The instant case also has a central figure named Joan (one of the Petitioners), who, like her saintly antecedent, faithfully presses her cause, having battled the Mayor and City Council of Baltimore numerous times. Although Joan of Arc suffered an unfortunate fate, her principals… ultimately succeeded.

One month later, Harrell went from the historical to the philosophical. He began a majority opinion holding the state can regulate noise from a shooting club in Allegany County with a question: “If a tree falls in the forest and no one is around to hear it, does it make a sound?” Harrell notes many attribute the question to 18th century Irish philosopher George Berkeley.

The judge then partially answers the question. “An existentialist likely would decline to confront the riddle because human impact expressly is excluded by the query,” he writes. His footnote offers a crash course in existentialism:

Most existentialists treat the human subject as the starting point for philosophical thought. Thus, this riddle likely would be deemed by them to be too abstract and remote from the concrete human experience to be worthy of serious contemplation.

In other words, the opposite of Harrell’s opinions.

There was a pause toward the end of yesterday’s pre-trial hearing in Parkton residents’ lawsuit alleging groundwater contamination from a neighborhood gas station.

Judge J. Norris Byrnes broke the silence with a comment.

“I want to know if we signed a .400 hitter or a long reliever,” he said.

The comment was timely for two reasons.

First, the residents are represented by Peter Angelos, also known as the owner of the Baltimore Orioles. The judge’s comment was directed toward H. Russell Smouse, who was sitting in the courtroom gallery. Smouse is the Orioles’ general counsel.

Second, baseball executives and personnel have converged on Indianapolis this week for the annual Winter Meetings, the official start of the off-season wheeling and dealing commonly referred to as the Hot Stove league.

As the lawyers in the courtroom smiled, Smouse replied.

“We’re hoping to sign you,” he told Byrnes.

The judge chuckled. He is retired and specially assigned to the Parkton case.

“I am a long reliever,” Byrnes said.