Next governor could reshape appeals court

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ANNAPOLIS (AP) -- Three of the seven judges on the Maryland Court of Appeals will reach retirement age during the upcoming gubernatorial term, giving the next governor an opportunity to mold the state's highest court.

Judges Alan Wilner, Dale Cathell and Irma Raker will turn 70 within about 18 months, starting just after the governor takes the oath of office next January.

None has plans to retire before he or she must.

"What's at stake really is that the next governor will very much get to set the political tone of the Court of Appeals' makeup," said lawyer C. Christopher Brown, who has compiled statistics on the judges' votes to determine who is liberal or conservative.

In Mr. Brown's analysis, Judge Cathell is the most conservative of the sitting judges, while Judge Wilner came in third, meaning two of the three most conservative judges will retire soon.

Since the departures of left-leaning Judges Howard Chasanow in 1999 and John Eldridge in 2003, the court has become slightly more conservative, although it remains one of the most liberal top state courts in the country, said Byron Warnken, a law professor at the University of Baltimore.

With Judges Wilner, Cathell and Raker leaving, a liberal governor would have the opportunity to swing the court back toward the left.

Gov. Robert L. Ehrlich Jr., a Republican, is expected to face a tough re-election battle against Baltimore Mayor Martin O'Malley or Montgomery County Executive Douglas M. Duncan, the leading Democratic primary candidates.

The court is split 4-3 on how to apply two recent U.S. Supreme Court decisions to Maryland's death-penalty law.

Several death-row inmates -- including Vernon Evans, scheduled for execution next month -- have argued before the court that it is unconstitutional for the state to require that a jury find that aggravating factors in favor of execution outweigh mitigating factors against it by a "preponderance of the evidence" standard, rather than a standard of "beyond a reasonable doubt."

Judges Wilner, Cathell, Lynne Battaglia and Glenn Harrell have rejected the inmates' appeals on those grounds, but Judge Raker dissented.

Depending on whom the next governor appoints to replace Judges Wilner, Cathell and Raker, the court could come to a different conclusion, which would put the future of Maryland's death penalty law in question.

Despite the potentially high stakes, the makeup of the Court of Appeals is not likely to become a campaign issue, said Mark Graber, law and government professor at the University of Maryland.

"Unless the state judiciary sanctions gay 'marriage' or tosses out the death penalty of a mass murderer, most people who do not have law degrees cannot tell you the name of anyone on the appellate courts," he said.

If Mr. Ehrlich is re-elected, however, there could be "fireworks" when his Court of Appeals nominees go to the Democrat-controlled Senate for approval, said Zach Messitte, a political science professor at St. Mary's College of Maryland.

Mr. Messitte said Mr. Ehrlich's judicial appointees have been qualified but also have tended to be Republicans.