Challenger seeks to put judge selection process on trial in circuit court race

Challenger seeks to put judge selection process on trial in circuit court race

'Sitting judges' focus on qualifications, Pierre's failure to get nominated

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Circuit judge candidates in the Nov. 3 general election, clockwise from top left, are: David Alan Boynton, Marylin Pierre, Christopher C. Fogleman, Michael Joseph McAuliffe and Bibi M. Berry. Pierre is taking on the four sitting judges in a race for four seats.

Submitted photos

This story was updated at 10:40 p.m. Oct. 7, 2020, to add more information and to correct the spelling of  J. Stephen McAuliffe’s name.

For decades, circuit court judge elections in Montgomery County were largely perfunctory, with voters asked to ratify incumbents named by the governor, following an extended vetting process.

For more than 40 years — 1958 to 2002 — there were no contested races for circuit court judge in county general elections.

In 2002 and 2014, non-incumbent judicial candidates made their way on to the general election ballot by capturing a nomination in the primary. But in both instances, the challenger lost to the “sitting judges” come November.

This year, Rockville attorney Marylin Pierre is hoping to break precedent by winning election to a 15-year term on the circuit court bench. She is competing against four sitting judges — Bibi Berry, David Boynton, Christopher Fogleman, and Michael McAuliffe — who were appointed or reappointed by Gov. Larry Hogan over the past two years.

Pierre is seeking to put a 50-year-old process for vetting judicial candidates on trial — a system that operates on the basis of “legacy and pedigree,” she charged in a recent interview.

“Our grassroots movement starts with everyday people standing up to political insiders and backroom politics,” Pierre — a Haitian immigrant who has practiced law in Montgomery County for more than 28 years — declares on her campaign website.

In a Twitter post in May, she wrote that the sitting judges “are an in-group. Most of them have worked at the same law firm, go to the same church, and are related by marriage.”

Such statements have prompted intense public pushback — and private anger — from supporters of the four incumbents in the county’s legal community.

The Elect Sitting Judges Slate Committee has highlighted the diversity of the nearly three dozen judges now presiding in Montgomery County courts: half are women and one-third are minorities. Of 23 circuit court judges in the county, 11 are women and five — including Berry — are minority group members.

Among the 12 district court judges, six are women and six are minorities.

District court judges are not subject to election — they are appointed by the governor and confirmed by the Maryland Senate.

This year’s increasingly acrimonious race for circuit court judge — along with similar contests in nearby Anne Arundel and Prince George’s counties — could revive a long-running state legislative debate over whether the Maryland constitution should be amended to eliminate elections for circuit court judges, as well.

The temperature of the race was turned up several degrees late Wednesday, when Pierre released a six-page letter sent to her last month from the Attorney Grievance Commission of Maryland. The letter contained a dozen questions asking her to provide proof for assertions made in the course of the campaign.

Pierre pointed the finger at J. Stephen McAuliffe, chair of the Elect Sitting Judges Slate Committee, as being behind the complaint, saying in an email that it was an effort to “intimidate me, to have a chilling effect on anyone who dares to challenge other sitting judges, and to take my time away from the campaign.”

Reached for comment, McAuliffe said that, under the rules governing the Grievance Commission, he could not confirm or deny that he had filed a complaint.

The letter to Pierre was written by Lydia Lawless, a Bethesda-based attorney prior to becoming bar counsel to the Attorney Grievance Commission three years ago. Lawless could not be reached for comment Wednesday night.

In the Montgomery race, the sitting judges point out that Pierre is attacking a vetting process to which she submitted voluntarily multiple times from 2012 to 2017 — failing on each occasion to make the list of nominees sent by the Montgomery County Trial Courts Judicial Nominating Commission to the governor for possible appointment.

According to the state’s Administrative Office of the Courts, Pierre unsuccessfully applied six times, for a total of nine circuit court vacancies, during the tenures of Hogan, a Republican, and his predecessor, Democrat Martin O’Malley.

She also made three applications for five district court vacancies during O’Malley’s second term.

At a recent candidates’ forum, Pierre cited an often-quoted Albert Einstein aphorism to explain her decision to stop participating in the vetting process. “Einstein supposedly said that if you keep doing the same thing over and over again, expecting a different result, that is the definition of insanity,” she declared.

In a lengthy interview last week, Pierre voiced complaints about some members of the current Montgomery nominating commission overseeing the vetting process, while suggesting that someone on the commission had leaked confidential information from her past applications.

“This I the first time I’ve heard of any kind of a complaint,” commission Chair Terrence Zic said when asked about Pierre’s allegation. “From my general experience on the commission, all commission members take the confidentiality of the vetting materials very seriously.”

Supporters of the incumbent judges gripe that Pierre is taking political advantage of confidentiality restrictions imposed by the governor’s order setting up the nominating commission. While Pierre, as the candidate, is free to discuss what transpired when she appeared before the panel, commission members are barred from publicly discussing the proceedings.

“I actually believe that [the proceedings] shouldn’t be kept private once the candidate attacks the system,” said Berry, who spent a couple of years on the trial courts nominating commission during Hogan’s first term before going to the circuit court — initially as a magistrate and later as a judge. In an interview, she added: “… We should be able to say, ‘No, this is why this person didn’t get through.’ And we can’t.”

The vetting process governing appointment of judges to state and county courts dates to 1970 and the administration of Gov. Marvin Mandel. It has been renewed by executive order under each of the state’s subsequent chief executives.

Proponents contend it reassures the public at large that those placed in long-term judicial appointments have been thoroughly evaluated and found to have the necessary attributes.

“Every day, I see attorneys come in front of me,” Berry said. “Some of them have been practicing for years and years and years. And you would think they’re pretty good — and they’re not. But the everyday voter isn’t going to know that.”

Including the panel that covers Montgomery County, there are 16 trial court nominating commissions in the state — each consisting of 13 members appointed by the governor.

At present, the Montgomery commission is the only one made up entirely of attorneys, although it had one non-lawyer serving during Hogan’s first term. The other 15 nominating commissions contain from one to seven non-attorneys.

When a judicial vacancy occurs, interested attorneys must fill out a lengthy application detailing their professional and personal records. With their permission, this application is distributed to the Maryland State Bar Association and the Bar Association of Montgomery County, as well as nearly a dozen specialty bar associations around the state.

The Montgomery bar conducts a referendum among its 2,700 members. Respondents are asked to rate judicial candidates as “very qualified,” “qualified” or “not qualified,” or to indicate “don’t know this person.”

The evaluations of each of these bar associations are forwarded to the trial courts nominating commission, which conducts its own interviews and vetting before sending a list of nominees to the governor within three months following a vacancy.

The list generally consists of three individuals, but can have more.

The executive order governing the work of the commission instructs it to provide candidates “legally and most fully professionally qualified to fill the vacancy.” The governor and his staff then do their own vetting before the appointment is made.

Those defending this vetting process point out that among the involved specialty bar associations are three associations made up of African American attorneys, as well as other groups representing Asian American, Hispanic American and LGBT attorneys.

“The reality is that [those] who do this vetting — it’s many, many, many people and many, many, many organizations,” Berry said. “They’re not colluding — it doesn’t work that way.”

Pierre, however, is dismissive of the role the specialty bar associations play. “Whether all the public bar associations like you or not, if the governor’s commission doesn’t like you, you’re not going to go forward in front of the governor,” she asserted.

Asked how much weight is given to the specialty bar association recommendations by the Montgomery County nominating commission, Zic said: “All of that goes into the mix. The commission takes every piece of information that is provided into consideration with regard to its vetting, and each commission member would evaluate the information in deciding how … to vote.” (Zic soon will relinquish the panel’s chairmanship after being appointed by Hogan late last week to the Maryland Court of Special Appeals.)

At a candidate forum via Zoom last month sponsored by MoCoWoMen, Pierre said she stopped participating in the vetting process after being “raked over the coals” by a member of the trial courts nominating commission — who she identified in a subsequent interview as Rockville-based attorney Donna McBride.

“She has always been unpleasant, but that last time, she was just in rare form,” Pierre said. “She kept asking the same question over and over again — and the question had to do with why I was not seeking the endorsement of the Bar Association for Montgomery County.” 

Pierre objected to a $100 fee charged to those seeking the Montgomery bar’s endorsement, which a bar official said covers reproduction costs. “I equated it to The Washington Post charging Marc Elrich for interviewing to see whether or not they would endorse him for county executive,” Pierre said.

McBride is among four members of the commission chosen by Hogan from a list submitted by the county bar association.

In an interview, McBride said confidentiality rules bar her from discussing what she asked Pierre, but termed the allegation that she questioned Pierre in a hostile manner “completely false.”

Zic added: “Donna McBride has treated every single applicant with appropriate respect, and asked questions in a civil manner.”

McBride suggested that Pierre’s allegation “has to do not with what happened at the commission, but perhaps some of the comments I made during a forum with Progressive Maryland in the last month.” At that August forum, conducted via Zoom, Pierre was called out for comments she made denying she had ever been arrested or taken into custody.

Pierre last week acknowledged she was taken into custody in 1996 as part of a court order involving unpaid student loans. “I was let out the same day and the student loans were satisfied,” she said, attributing the unpaid loans to difficulty in finding employment when she graduated from law school.

While the court order under which Pierre was taken into custody alleged that she repeatedly evaded efforts to serve her with notices to appear in court on the matter, Pierre contended, “I did not know that anybody was looking for me.”

The episode is cited in an email that went out from the Elect Sitting Judges Slate Committee to members of the legal community in late August, seeking to raise questions about both Pierre’s experience and veracity.

The email asserted that Pierre “has never tried a criminal case in any circuit court in Maryland.”

The original email message also said Pierre had never tried a civil case in Montgomery County Circuit Court. That claim has now been retracted on the Elect Sitting Judges Slate Committee website.

A recent change in how the Maryland Judiciary Case Search database treats past cases “revealed that during Ms. Pierre’s years of practice she has been involved in approximately 10 contested civil cases in Montgomery County to include those involving unrepresented parties,” the committee’s website now reads. “Our regrets are extended to Ms. Pierre for the error.”

Both sides have had their stumbles in the war of words. Pierre last week asserted that one of her opponents, Judge Michael McAuliffe, “is the son and nephew of Montgomery County judges” in an effort to suggest that McAuliffe had benefited from insider treatment.

In fact, it is J. Stephen McAuliffe, chair of the Elect Sitting Judges Slate Committee, who is the son and nephew of judges. “She gets us mixed up all the time,” chuckled Michael McAuliffe, a distant cousin of J. Stephen McAuliffe.

But the Elect Sitting Judges Slate Committee appears to be taking Pierre’s challenge quite seriously. It spent more than $225,000 through mid-August, including nearly $100,000 on three direct mailings prior to the primary. That amount doesn’t include two direct mail pieces sent out last week prior to the start of mail-in balloting.

Pierre’s campaign spent only $11,000 during the same period, and reported less than $3,300 in its campaign treasury as of mid-August. The Elect Sitting Judges Slate Committee had more than $106,000 on hand, fueled by contributions from many of the county’s leading law firms. 

Pierre attempted to get on the general election ballot in 2018, but failed to get past the primary. This year, she ran third for four slots in the Democratic primary — behind Berry and Boynton, and ahead of McAuliffe. The four incumbents came out on top of the Republican primary, putting the five candidates into a nonpartisan contest on the November ballot.

Pierre’s campaign might have received a boost when the county Republican committee placed a preprimary message on its website urging a vote for the “Hogan judges.” According to sources, it was removed after lobbying by several local Democratic leaders, but prompted a push by Pierre supporters — notably Somerset Mayor Jeffrey Slavin — to urge a so-called “bullet vote” for Pierre in the primary, by voting for her and no one else.

Maryland’s Democratic and Republican parties have long endorsed the sitting judges in state and local races, and the Montgomery party committees have generally followed suit.

However, this year, with Pierre having won a slot in the Democratic primary, Montgomery Democrats have opted to sidestep the matter. “The Montgomery County Democratic Party does not make recommendations in the non-partisan election for judge of the circuit court,” the party’s general election sample ballot declares.

The county Republican committee has endorsed the four incumbents, with former Republican Chairman Alexander Bush — a Rockville-based attorney — taking swipes at Pierre.

While Pierre is running this year with the endorsement of such left-leaning groups as Progressive Maryland and Our Revolution Maryland, Bush recently told the Seventh State blog that Pierre had attended a Republican candidate training event during her 2018 campaign and “asked for the [Montgomery County] GOP’s support, claiming she would be a ‘law and order’ judge who would be tough on bail.”

Pierre acknowledged that, as a candidate in the Republican primary, she attended the event, but took issue with Bush’s statement. “I did not talk to Mr. Bush or talk to anybody else about what my judicial philosophy was on bail reform or anything else,” she said.

Bush, however, stood by his account in an interview with Bethesda Beat. “She was not having a private conversation with me. She was trying to explain to a group of Republicans why Republicans should vote for her,” Bush said. “She specifically brought up how it was too easy to get out on bail.”

Bush also pointed to a Twitter post in late 2019 showing Pierre posing for pictures at a meeting of the Potomac Women’s Republican Club with Thomas Homan, a former acting director of U.S. Immigration and Customs Enforcement (ICE) during the Trump administration.

“She’s portraying herself differently, depending on the audience,” Bush said.

***

Editor’s note: Bethesda Beat’s voters guide lists information about the candidates for circuit court judge, Montgomery County Board of Education and U.S. Congress, plus their answers to questions about issues. The guide also includes an explanation of the four Montgomery County ballot questions and two statewide ballot questions in the Nov. 3 general election.

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