Commentary: On the Judiciary - Split decisions in the MD Court of

Five years ago I analyzed on these pages the 1999 voting behavior of the Court of Appeals judges, with a focus upon their votes in politically charged, 4-to-3 split decisions. These 12 months of close cases revealed a court composed of three voting blocs: liberal (Chief Judge Robert M. Bell and Judge John C. Eldridge), moderate (Judges Irma S. Raker, Howard Chasanow and Alan M. Wilner), and conservative (Judges Lawrence F. Rodowsky and Dale R. Cathell). Perhaps due to the balanced nature of these voting blocs, these cases produced an overall moderate result. Liberal and conservative outcomes were achieved in equal dosages.

Five years later, Judge Glenn T. Harrell Jr. has replaced Judge Chasanow, Judge Clayton Greene Jr. has replaced Judge Eldridge, and Judge Lynne A. Battaglia has taken the place of Judge Rodowsky. One member of each bloc is now retired. The question naturally arises: what effect have these changes had on the court's current political outlook?

I reviewed the 11 cases in 2004 in which the Court of Appeals issued opinions with four-to-three votes. Only eight of these concerned politically sensitive issues that could be described on a liberal or conservative gradient. A liberal result, for example, would favor a criminal defendant. Five of these were, in fact, criminal appeals.

I added to this inquiry the 13 cases in 2004 in which the court split 5 to 2. Nine of these cases were of political import, three of which were criminal. Thus, I tallied 119 votes on 17 close cases. As with the 1999 study, while these data may not have statistical significance, they do produce insight as to the current court's workings.

The political labels - liberal and conservative - are admittedly crude shorthand and only define the judges vis-a-vis others on this court. The opinions in State v. Raines, which determined the constitutionality of the state's DNA seizure statute, produce a classic choice along this divide. Judge Cathell - with Judge Battaglia's vote and narrower concurrences from Judges Raker and Wilner - comprised a majority, which compared swabbing a DNA sample from the defendant's mouth to taking a fingerprint, and therefore permissible under the Fourth Amendment. The dissent by Bell (with Harrell and Greene) saw the DNA swabbing as a far greater invasion of privacy that would not meet Fourth Amendment standards.

The tally of 2004 votes - shown in the accompanying chart - demonstrates a liberal tandem of Chief Judge Bell and Judge Eldridge or, later, Judge Greene, but most of the rest of the court in the conservative column. The other full-time judges are fairly close to one another in their degree of conservatism, ranging from Judges Raker's and Harrell's 38 percent liberal to Judge Cathell's 18 percent. Judge Cathell, thus, takes the prize for most conservative court member.

Unlike the current U.S. Supreme Court, the Court of Appeals has no clear-cut moderate bloc that could regularly broker between the ends of the spectrum.

But there may be little need for a go between. The 2004 votes indicate a more conservative trend in place. The 1999 4-3 splits resulted in an even number of liberal and conservative outcomes. The total votes cast split 46 to 45. That court could be described as moderate. In 2004, however, of the 119 votes cast, 66 were conservative (55 percent), while only 53 were liberal.

The 2004 data show that in close cases the conservative judges are winning the vote.

They prevailed in all but two of the 4-3 cases and in 12 out of 17 cases overall. Thus, the conservative bloc usually forms the majority and rules the court in close contests.

The growing conservatism of the court over these five years could be due to either the appointment of different-thinking judges in the three vacancies that have arisen or to some veteran judges voting more conservatively.

The governor's power of appointment can significantly alter the political face of the court. These data, however, indicate that there has been a solid continuity between the voting patterns of retiring judges and their replacements.

Changes in court composition have made but a modest difference in the liberal/conservative outcomes. Judge Battaglia (25 percent liberal) replaced Judge Rodowsky (18 percent liberal). Judge Harrell (38 percent) replaced Judge Chasanow (40 percent). Although Judge Greene (75 percent) has replaced Judge Eldridge (100 percent), Eldridge's voting record dropped in 2004 to 80 percent liberal. Thus, no significant change has occurred due to political input from the appointments of either Gov. Glendening or Gov. Ehrlich.

More significantly, in 2004 the liberal bloc was less able to count on the support of Judges Raker and Eldridge.

Five years ago Judge Raker more often than not supported the liberal position (54 percent); in 2004 her figure dropped to 38 percent. Similarly, Judge Eldridge's liberal support dropped from 100 percent to 80 percent.

No other judge on the court has greatly changed his or her political position. Thus, the data show Judge Raker more often abandoning the liberal jurists and creating a more powerful majority. Yes, this seems to be a more conservative trend.

C. Christopher Brown is a partner at Brown, Goldstein & Levy in Baltimore. His practice focuses on civil litigation and includes appellate practice and mediation.

Maryland Court of Appeals'

2004 Voting Patterns

Liberal-conservative votes on 4-3

and 5-2 politically sensitive decisions

JudgeLiberal-Percent

ConservativeLiberal

Bell16-194

Eldridge8-280

Greene6-275

Harrell6-1038

Raker6-1038

Wilner5-1229

Battaglia4-1225

Cathell3-1418

Bloom0-10

Rodowsky0-10

Table by C. Christopher Brown

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