Chief Judge Robert M. Bell, as everyone knows, is one of the busiest judges in our community. Fortunately, he found a few minutes to chat with me. So I asked him questions about appellate practice in the Court of Appeals of Maryland as well as his views on a number of issues swirling around the legal community. Here is what we discussed.
Q: Chief Judge Bell, thank you for taking a few minutes to meet with me. How long have you been Chief Judge of the Court of Appeals of Maryland?
A: Well, I have been Chief Judge of the Court of Appeals since October 23, 1996, almost 10 years.
Q: Have you enjoyed the position?
A: Depends upon when you ask me. (Laughter).
Q: How long has the Court of Appeals of Maryland been in existence?
A: Oh my God, it goes way, way back, at least 100 years before the Revolutionary war, mid 17th century.
Q: What are your responsibilities as Chief Judge of the Court of Appeals of Maryland, and head of the Judicial Branch of Government?
A: Well, I guess, basically I preside over the Court of Appeals, of course, but I am also responsible for the administrative operation of the court; the Administrative Office of the Court, the District Court of Maryland, and even the budgetary issues concerning the Court of Special Appeals. With respect to the Court of Appeals I am responsible for the budget, assignments of the cases; and the assignment of judges to sit in courts other than those to which they may have been appointed to serve, upon the approval, of course, of the judges of the Court of Appeals. I guess, really, as the administrative head of the Maryland Court System, I am the face and the voice of the Maryland Judiciary.
Q: What percentage of your time is spent as the Chief Judge of the court in fulfilling administrative responsibilities and as really the chief judicial officer of the state?
A: It depends. It varies, but generally speaking it is a fair amount. Because things come up on a quick basis every now and then, you have to just deal with them immediately. And then there are on-going matters, which you have to deal with on a daily basis. It is hard to say, except to say, it varies.
Q: Do your responsibilities take you into community groups?
A: I see that as part of my responsibility, and so I try to take advantage of some outreach opportunities, particularly since I think that the major power that the court has is the trust and confidence of the citizenry. After all, if the citizens don’t understand how the Judiciary operates, we certainly can’t expect them to have trust or confidence in the system.
Q: The Court of Appeals is not an appeals court of right, as is the Court of Special Appeals of Maryland? Can you explain what that means, and also what is meant by certiorari, which many clients and lawyers seem to focus on a great deal?
A: Well we are a certiorari court, and you notice that I pronounce it a little differently than you do. (Laughter). Well anyway, it is a discretionary writ by which the court determines whether to ask the lower court to send the case up to it for review. It is not a mandatory matter, and until 1966 when the Court of Special Appeals was established, our jurisdiction was like the Court of Special Appeals — it was mandatory — but since then we moved away from a mandatory right of appeal to the Court of Appeals to a discretionary right.
In fact, there are only three or four kinds of cases we must hear as a matter of right. They are: death penalty cases, where the penalty of death has been imposed; attorney discipline and character matters; certification of questions of law from other courts, high courts and federal courts; and cases involving redistricting. Otherwise, appeals go to the Court of Special Appeals, and, thereafter, we determine whether the cases have the prerequisite importance to merit the review of the high court.
Q: What are the most important points that lawyers and their clients should bear in mind when preparing a petition for certiorari?
A: When drafting a petition for certiorari, one should focus on getting the court interested in the case, so one should be focused on what makes that case unique. And the more one is able to do that concisely, the more likely it is that the court is going to be inclined to grant certiorari. Also, bear in mind that the court is not going to be particularly interested in reviewing the case if it has 10 or 12 issues; the fewer points of interest, the more likely it is that we will take the case.
Q: How many judges must vote to accept the case before the court will take it for review?
A: All seven judges must vote; only three of them need vote for certiorari.
Q: What is the biggest mistake lawyers make in the petition for certiorari?
A: I think they don’t realize that you don’t have to present a long petition; rather, you only need to highlight that your case involves an issue that is critical or interesting to the bench and/or the bar. Focus on that. In order to pique the court’s interest, one should focus on crafting the fact pattern, along with the legal underpinning of the case, both of which can effectively crystallize the issue being presented for certiorari.
Q: Which is more important to the court when considering a petition for certiorari, the argument presented in the petition or the highlighting of the public policy issue involved?
A: I think it is a little bit of both. I think it is a combination of both because you don’t have much of a chance of getting the petition granted unless you can show that it is an important issue. However, it need not necessarily be an issue of public policy. It could be an issue involving a novel interpretation of the law.
Q: How important is the written brief, and what is the biggest mistake lawyers make in writing briefs before your court?
A: Well, I don’t know about the biggest mistake, but briefs are terribly important. A brief gives us an opportunity, in advance of the argument, to see how the lawyers are thinking and approaching the subject. What we like to see is a brief which really deals with the subject matter and does not go off on tangents. Unfortunately, we have a good deal of that.
Q: What about reply briefs — are they very important?
A: It depends. There are times when reply briefs do nothing more than to restate what was already stated in the main brief. In that case, they are of no assistance whatsoever. It is only when the reply brief really focuses on and clarifies a point raised or discussed in the appellee’s responsive brief that it takes on any significance.
Q: Can you tell us how opinions are assigned to be written, Your Honor?
A: Well after the decision is made, after the oral arguments are held, the court conferences the case, and we vote, junior judge first, all the way through the senior judge. Once that is done, we have a sense of how the case is likely to be decided. If I am in the majority, I assign the opinion; if I am not in the majority, the most senior judge in the majority will assign the opinion.
Q: What advice do you have for the Bar on how more effectively to represent clients in the Court of Appeals of Maryland?
A: When you are presenting the case to us, present the best case you can. Do it concisely, with an eye towards getting the issue before the court as opposed to trying to display your intellectual prowess. Other than that, I don’t know that I have any additional advice.
Q: Do you believe that there is gender bias or racial bias in the court system today?
A: I don’t know. However, the Judiciary is deeply concerned about making sure that there are no extraneous influences, which is why we formed the Commission on Racial and Ethnic Fairness to monitor those issues. We have an ombudsman to monitor those and other issues. We really are trying to avoid even the appearance or perception that maybe some prejudice exists.
I know that the gender bias issue has been dealt with extensively and a good deal of progress has been made there, but I am also concerned that we do not get to a point where complacency sets in, and we overlook instances of racial, ethnic or gender inequality because they are not as prominent or obvious as they once were in the past.
I don’t know if there is a solution to the problem, but I know that we need to be vigilant in making sure that racial, ethnic and gender inequality does not exist and where it does exist that we are in a position to deal with it.
Q: Do you believe Maryland should adopt mandatory pro bono requirements?
A: Now, that’s the reason for this interview. (Laughter.)
Q: Well how original is it to ask the Chief Judge about the importance of a brief in the appellate courts?
A: On an emphatic note, we did not adopt the mandatory reporting of pro bono legal services with an eye towards creating statewide mandatory minimum pro bono legal services requirement. In fact, I don’t think we should have a mandatory minimum pro bono requirement for Maryland attorneys because I’m not sure that, if we had, we would end up with a better quality of pro bono work. However, I really do believe in mandatory pro bono reporting. The reason for mandatory reporting to me is obvious: unless you have a base line, unless you know what is being done, you are not able to do very much about increasing the level of pro bono legal services. In other words, those who don’t know how much is being done for the community don’t have any goal at which to aim. I think our current system allows the Judiciary and the bar to determine how well we are doing so that our folk, including the Statewide Pro Bono Committee, can use that information to do better, if they choose to, or at least know where they are vis a vis everyone else.
Q: What about mandatory CLE [continuing legal education]? Do you believe in that, Your Honor?
A: Ah, the other reason for this interview. (Laughter.)
The issue of mandatory CLE is something that the court is going to have to deal with. It hasn’t really dealt with it in the last few years, at least the last 10 years. In fact, we have not had a formal request for mandatory CLE. Nevertheless, it is certainly an issue that I think the court is going to have to deal with. I don’t want to give an advance opinion on it one way or the other. If it is presented to us I want to be able to go into it with an open mind and address it on the merits.
Q: Now that there are televised arguments available in the Court of Appeals, has that impacted in any way the oral arguments?
A: No, sir. You know, it’s interesting, my first reaction years ago when the talk first started about putting cameras in court rooms — I really was thinking then about trial courts because at that time I was on the trial court — was that it would make a difference. I was concerned about how the lawyers and judges would react to the cameras. While it is different at the appellate level, I have noticed that there really is very little attention paid to the cameras by the Judges, and I suspect that once they get involved in the arguments, the lawyers, too, pay very little attention to the cameras.
Q: Having experienced that on both levels I happen to agree.
A: So I am not concerned about the negative impact that cameras may have on oral argument. What this does present, however, is an opportunity, perhaps for us to do a bit of community outreach, by presenting those oral arguments, through streaming video, or something similar, on the web so that the citizenry can observe the process and possibly learn more about the court system in Maryland.
Q: Finally, what is your view, if you care to express it, on the election of circuit court judges?
A: Herein is the third reason for this interview. (Laughter.)
Well, you know my history. Most people know my history. I have always been one who has taken the position that judges ought to run for election. That was 10 years ago, before my appointment as chief judge of the Court of Appeals.
Since then, I have realized that my position is inconsistent with the constituency I represent, and so I have stepped back, and I have not aggressively or affirmatively done anything to press the issue of elections for circuit court judges. In fact, I have been neutral. I believe that the circuit court judges ought to be the ones to take the lead in this arena, and I feel that I allow them to do that.
I am concerned particularly in light of Republican Party of Minnesota v. White, [536 U.S. 735 (2002)] about how level the playing field is, and for that reason I have advocated for the creation of a Judicial Campaign Conduct Advisory Group to promote fair and civil campaign conduct. There is in existence such a group, which, as you know, is headed by George Beall and Steve Sachs, both former United States Attorneys.
I firmly believe that as long as Maryland is going to have elections for its circuit court judges, we ought to have elections in which both sides are playing by the same rules. In addition, if we are going to have elections for circuit court judges, the elections should be non-partisan, because unlike a senator or congressman or other legislator, a judge has responsibility to accept that all of the citizens of that particular locality have access to the judicial process and receive, as fully as possible, full and fair justice. Hence, all of the constituents should have a voice; none should be shut out of any part of the elective process.
Our current system, while bi-partisan, is nevertheless initially guided, at the primary stage, by political affiliations or ties, thus failing to involve all the citizens. Non-partisanship, on the other hand, will achieve the desired goal, and that is why I support that approach. The non-partisanship bill, which I supported in this past legislative session, and which I will support in the future if it is introduced, in my view will ensure that we have fairness in judicial elections.
Q. Thank you very much, Chief Judge Bell.