By Barry Rascovar / July 9, 2013
FORGET THE WOMEN’S ANGLE. What’s most important about Mary Ellen Barbera’s elevation to chief of the Maryland Court of Appeals isn’t her gender but her pragmatic, consensus-building tendencies that contrast with the liberal interpretations and easy-going nature of her retired predecessor, Robert M. Bell.
Yes, it’s good to have a female at the top of Maryland’s court system for the first time, especially with the addition of Baltimore Circuit Court Judge Shirley Watts to the high court. This gives women a historic majority on the state’s court of last resort.
But the four female votes on Cotap, as it is commonly known, will not be in lock step. Indeed, there’s a gulf separating written opinions of the decidedly progressive Howard County jurist Lynn Battaglia and the more cautious Eastern Shore jurist, Sally Adkins.
Of course, this doesn’t easily break down along a liberal-conservative spectrum. Legal disputes usually involve differing interpretations of the law that have little to do with political leanings.
But on a number of heated issues, the state’s high court seems to have wandered far astray — with the chief judge having neither the desire nor clever dexterity to act as a unifier.
Indeed, Bell may have been too nice a fellow to take on the daunting task of “herding cats,” which is what it takes to keep six stubbornly independent, free-thinking judges in agreement and in the middle of the judicial road.
Effective In Dissent
Barbera is described as forthright, diplomatic and an accomplished bridge-builder. She can be remarkably frank, too.
When a court majority overturned the state’s DNA testing law for people jailed and accused of a crime, Barbera’s dissent stripped away the legal nonsense and hyperbole.
That ruling, she said, inflated privacy rights of people in jail and deflated the public’s right to be kept safe through minimally intrusive DNA sampling of inmates. The majority had taken an unrealistic and alarmist view, she wrote.
Last month, the Supreme Court agreed.
This state’s high court needs to start using common sense and rely less on legal abstractions and hypotheticals.
No Residency Rules for Politcos
Take the recent case of Daryl Jones, who sat on the Anne Arundel County Council until he served time in federal prison for intentionally not filing his income taxes. Members of the council eventually removed him, since he’d been living in a South Carolina prison for months.
Now a majority of the high court, 4-3, wants Jones returned to his council seat because of its tortured interpretation of the words “residence,” “abode” and “domicile.” It’s the legal equivalent of arguing over how many angels can dance on the head of a pin.
Atkins, Barbera and Glenn Harrell said this ruling “defies logic” and “makes no sense.” Even worse, the majority didn’t bother studying the historical record that makes clear what writers of the county charter meant.
The ruling is an extension of the high court’s continuing misadventures in defining political residence and political redistricting lines.
It’s gotten so bad one Baltimore City councilwoman hasn’t lived in her district for a decade (she prefers an Inner Harbor condo view) and communities that expanded beyond city and county boundaries are forbidden from voting in a unified district.
The Jones decision, the dissenters noted, will make matters worse because now there is essentially no legal barrier for politicians to live outside the districts they represent.
Pit Bull Chaos
Similarly, on the pit bull issue, the Bell court created a chaotic mess that the state legislature won’t or can’t figure out how to correct.
Bell & Co. traveled down a dangerous path by declaring pit bulls “inherently dangerous” without finding any empirical evidence to back them up.
It’s a terrible decision lacking in solid scientific data. It amounts to genetic racism among breeds of dog.
The dissenters, who railed against the illogic of this 4-3 ruling, again included Barbera.
Nearly all of Bob Bell’s splendid career was served on the bench. He was a trailblazer for African-American jurists. He has a brilliant legal mind.
Yet he lacked the political instincts and negotiating skills of his predecessor, Chief Judge Robert C. Murphy, a jovial but tough-minded Irishman who could deal effectively with state legislators, governors and colleagues.
Barbera promises to bring her own style of leadership to the chief judgeship. It could shape the high court in quite different ways.
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