Four incumbents question qualifications of challenger who did not get through ‘vetting’ process
By Louis Peck
| Published:
In most years, candidate forums for Montgomery County Circuit Court judge are low-key affairs, dominated by nuts-and-bolts discussion of courtroom policies and procedures.
A virtual forum sponsored by MoCoWomen on Tuesday with five candidates for four seats in the Nov. 3 general election started out the same way.
But an hour into the forum, a question from debate moderator Ashwani Jain on how best to select circuit court judges laid bare a major source of tension in this year’s contest.
It prompted the four so-called “sitting judges” seeking to retain their seats — incumbents Bibi Berry, David Boynton, Christopher Fogleman and Michael McAuliffe — to vigorously defend the 50-year old “vetting” process that led to their initial appointment to the circuit court bench.
They also took aim at the qualifications of the fifth candidate in the race — Rockville attorney Marylin Pierre, who advanced in this year’s Democratic primary to win a spot on the general-election ballot. On numerous occasions in the past, she has unsuccessfully tried to get through a judicial nominating commission’s vetting process.
“Ms. Pierre has tried that. She’s been up for 14 different judgeships, and never made the qualified list. And people should know that,” McAuliffe declared. “Six times, she was rejected by commissions appointed by [Republican] Gov. [Larry] Hogan. Eight times, she was rejected by commissions appointed by [Democratic] Gov. [Martin] O’Malley.
“So, this is not a political thing. She was not found qualified. All of the sitting judges were.”
For her part, Pierre complained of a “whisper campaign against me ever since I started applying,” telling her opponents: “You are allowed to have your own opinions, but you are not allowed to have your own facts. I do not have a criminal record. So, I would appreciate it if you would stop sending out emails to people saying that — and stop implying that.”
Her comments appeared aimed at an email sent late last month to county lawyers by the “Elect Sitting Judges Montgomery County Slate.” It contended that court records show Pierre — after becoming an attorney — was taken into custody in the late 1990s for failing to appear at a hearing in conjunction with a judgment against her.
Meanwhile, Pierre suggested, as she has in the past, that the vetting process is dominated by insiders and stacked against applicants such as herself. Some members of the Zoom audience echoed her with chat room comments speaking of an “old boys” network — prompting a retort from McAuliffe.
“That’s silly. Nobody has an old boys club from all over the state,” McAuliffe declared, pointing to a half-dozen statewide specialty bar associations that he said were involved in the process of vetting Montgomery County judge candidates.
“Three women’s bar associations and three African American bar associations — you think they’re the old boys club?” he continued. “These are all the groups that vetted us to make sure we had the right integrity, the right temperament, the right demeanor, the right preparation to be judges.”
Hogan appointed Berry, Fogleman and McAuliffe to the circuit court last year. They emerged among the finalists selected by a 13-person trial court nominating commission made up of lawyers and other residents. They are now running for election to a 15-year term.
Boynton, who has been on the circuit court bench since 2003, is running for a second 15-year term after Hogan reappointed him last year.
Pierre, after not making it through the primary election in 2018, this year won one of the four Democratic judgeship nominations available in the June 2 primary.
The four incumbent judges came out on top in the Republican primary, resulting in the incumbents and Pierre facing off in the general election for the four judgeships at stake.
Thomas P. Johnson III was the sixth candidate in the Republican and Democratic primaries. He did not win either, but has filed as a write-in candidate for the general election.
Fogleman — alluding to another contention about Pierre’s legal background in last month’s email from the sitting judges’ slate committee — said: “[For] someone who hasn’t gone through the [vetting] process, it doesn’t become apparent to everyone that that person may not have ever tried a case in Montgomery County Circuit Court, may not have had a criminal case that’s gone to trial in Montgomery County Circuit Court, or a contested family case — despite having practiced for 25 or 30 years.”
He added: “[For] one who has not been vetted, we don’t have that information about that person. It’s a blank slate — and it becomes, mostly through an election, a political determination.
“And that’s really not a judge’s function. A judge’s function is to be nonpolitical. … It’s meant to be a position for someone who will fairly and equally apply the law as it’s been determined.”
Maryland’s appellate and district court judges are not subject to partisan elections. They are nominated by the governor and confirmed by the Maryland Senate.
Circuit court judges remain the only category of state jurists who voters select through competitive races.
Judges on Maryland’s appellate courts appear on the ballot every 10 years for retention. Voters decide, through a yes or no vote, whether the judge should continue on the bench.
There has been a debate in the Maryland General Assembly for nearly two decades, without resolution, on whether to amend the state constitution to change this.
Pierre responded by noting that she meets the legal requirements to appear on the ballot for the judgeship.
“Vetting just means that somebody just looks at you and sees if you qualify for that employment,” she said. “If people don’t think I’m qualified for the job, they need to speak to the state Board of Elections — because I would not be on the ballot if I was not qualified to become a judge.”
Pierre’s statement was strongly disputed by Berry, as part of a debate about eligibility vs. qualifications.
It “is absolutely untrue that you have to be qualified to be on the ballot,” Berry declared.
“The constitution says that you can be on the ballot if you are 30 years old, if you are an attorney, if you live in the state of Maryland and in the county — and if you’re in good standing,” Berry added. “Good standing means that there are no current disciplinary actions against you. It doesn’t mean there weren’t past such actions. … It doesn’t mean you don’t have a criminal record.”
The incumbents also pounced when Pierre, responding to a question about obtaining data on judicial decisions, referred the forum audience to the online site “The Robing Room,” which she described as “a Yelp review for judges all over the country. … You’ll see that the so-called vetted judges have failing grades for the most part.”
Berry criticized Pierre’s comment, calling it “an extraordinary oversimplification to compare something like that to Yelp.”
Berry said: “I want people to understand that The Robing Room is not Yelp. Yelp is there for companies, hotels, restaurants that are meant to please you. And our job is to give justice to be fair, to listen to everybody — try to do the right thing. And a lot of the time, the right thing makes one of the two sides very unhappy.”
“In fact, it would be contrary to our obligation under the code of judicial conduct to make decisions in order to please people. That is exactly what you can’t do. You have to make decisions that apply the law fairly to the facts.”
Boynton noted he had recently sentenced a defendant convicted of four rapes.
“I gave him 40 years in jail, and his mother went on Robing Room and complained about the way I treated her son,” Boynton recounted. “That’s the kind of thing you see on The Robing Room, so I’m not sure how valid that is.”
Discussion of endorsements in this year’s race produced a lighter moment.
The incumbents mentioned endorsements for their slate from the Maryland and Montgomery County bar associations, as well as from Hogan, state Attorney General Brian Frosh and former state Attorney General Doug Gansler — the latter two both Montgomery County residents.
They also noted that both Montgomery County State’s Attorney John McCarthy and the county’s current public defender, Allen Wolf, were backing them.
“And they never agree on anything, but they’ve agreed on us,” McAuliffe quipped.
Pierre noted endorsements from Our Revolution Maryland, a group active in the Democratic Party’s progressive wing, and from what she described as “one lonely elected official” — Town of Somerset Mayor Jeffrey Slavin.
“He will tell you the consternation he had to go through just because he decided to endorse me publicly,” Pierre said. “I really appreciate Jeffrey’s braveness in stepping out there for me.”
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