Md. R. Jud. & Judi. Appts. 18-104.1

As amended through April 5, 2024

Rule 18-104.1 - Definitions (Aba 4.1)

(a) Applicant.

(1) "Applicant means an individual who has applied for appointment by the Governor to a judicial office.

(2) The individual becomes an applicant when the individual files an application with a judicial nominating commission and remains an applicant until the Governor makes an appointment to that judicial office unless, prior to that time, the individual formally withdraws the application.

(3) If the individual is not appointed but, pursuant to an Executive Order of the Governor or other law, remains eligible for appointment to another judicial office without a further application to or recommendation from the judicial nominating commission, the individual remains an applicant until the Governor makes an appointment to that other judicial office, unless, prior to that time, the individual formally withdraws the application.

Cross reference: Executive Order 01.01.2015.09.

(b) Candidate. "Candidate means a candidate for election or a District Court candidate for retention.

(c) Candidate for Election.

(1) "Candidate for election means an individual who:

(A) seeks initial election to a circuit court or an Orphans' Court;

(B) is an incumbent judge of a circuit court or Orphans' Court and seeks to retain that office through an election conducted pursuant to Article IV, § 3, 5, or 40 of the Maryland Constitution; or

(C) is an incumbent judge of the Court of Appeals or Court of Special Appeals and seeks to retain that office through a retention election conducted pursuant to Article IV, § 5A of the Maryland Constitution.

(2) An individual becomes a candidate for election:

(A) if the individual is a newly appointed judge, from the date the judge takes the oath of office;

(B) if the individual is any other incumbent judge, from the earlier of:

(i) the date two years prior to the general election pertaining to that judge's re-election or subsequent retention; or

(ii) the date on which a newly appointed judge to that court becomes a candidate in the same general election.

(C) if the individual is a judge who seeks election to another judicial office, the earlier of:

(i) the date on which the judge files a certificate of candidacy in accordance with Maryland election laws, but no earlier than two years prior to the general election for that office; or

(ii) the date on which a newly appointed judge to that court becomes a candidate in the same general election; and

(D) if the individual is an attorney who seeks a judicial office, the date on which the attorney files a certificate of candidacy in accordance with Maryland election laws, but no earlier than two years prior to the general election for the office.

(3) An individual who becomes a candidate under section (c) of this Rule remains a candidate until the general election for the office unless, prior to that time, the individual files a formal withdrawal of candidacy in accordance with Maryland election laws.

(d)District Court Candidate for Retention. "District Court candidate for retention means an incumbent judge of the District Court who seeks retention for an additional term pursuant to Article IV, § 41D of the Maryland Constitution. A District Court judge becomes a candidate for retention from the date one year prior to the expiration of the judge's current term.

(e)Political Organization. "Political organization includes a political party, a political committee, and a partisan organization, as those terms are defined in Maryland Code, Election Article, § 1-101.

Md. R. Jud. & Judi. Appts. 18-104.1

This Rule is derived from former Rule 4.1 of Rule 16-813(2016).

Adopted June 6, 2016, eff. 7/1/2016.

COMMENT

[1] Rule 18-104.1 is intended to reflect and focus on the different ways in which judges in Maryland are selected and retained. See Maryland Constitution, Article IV, § 5A (appellate judges), §§ 3 and 5 (circuit court judges), § 41D (District Court judges), and § 40 (Orphans' Court judges).

(a) In all cases, a vacancy is filled by appointment by the Governor. The appointment of appellate, District Court, and Orphans' Court judges requires the advice and consent of the Senate; the appointment of circuit court judges does not.

(b) Appellate judges then face an uncontested plebiscite election (yes or no for continuance in office) for an additional 10-year term, following which they face another such election for a succeeding term.

(c) Circuit court judges face a potentially contested primary and general election for a 15-year term, at the end of which, in order to remain in office, they must be appointed by the Governor for a "bridge term until the next election and then prevail in that election.

(d) District Court judges do not face election but receive a 10-year term, at the end of which, they must be reappointed by the Governor subject to confirmation by the Senate.

(e) Orphans' Court judges face a potentially contested primary and general election every four years.

[2] The first context, applicable to all appellate, circuit court, and District Court judges and many Orphans' Court judges, is initial appointment by the Governor to fill a vacancy. Except for Orphans' Court judges, that requires an application to and consideration by a judicial nominating commission, which normally interviews the applicants, receives information and recommendations from Bar Associations, other interested groups, and members of the public, and sends to the Governor a list of recommended applicants. The Governors have agreed, expressly or tacitly, to appoint from the list of applicants recommended by the applicable nominating commission. The applicants may be attorneys seeking initial appointment to the Bench, incumbent circuit court judges seeking reappointment, upon the expiration of their 15-year term, for a "bridge period until the next election, or other judges seeking appointment to a different court. Rule 18-104.1(a) defines those individuals as "applicants.

[3] An individual seeking election, either through a potentially contested election (circuit court and Orphans' Court) or through a plebiscite-type retention election (appellate judges), is defined in Rule 18-104.1(c) as a "candidate for election. A District Court judge, at the end of the 10-year term, faces confirmation by the Senate for an additional term. That judge is not a candidate for election but is defined in Rule 18-104.1(d) as a "District Court candidate for retention.

[4] Rules 18-104.2 through 18-104.6 specify the political activity allowed or not allowed to individuals falling within those categories, as well as to incumbent judges who are not within any of them.

[5] Even when subject to election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based on the expressed views or preferences of the electorate, a judge makes decisions based on the law and the facts of each case. In furtherance of that interest, judges and candidates for judicial office must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. Rules 18-104.1 through 18.104.6 impose narrowly tailored restrictions on the political and campaign activities of all judges and candidates for judicial office.

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