Smith v. Higinbothom

• Decision Date: 19 June 1946
• Docket Number: 22-1946.
• Citation: 48 A.2d 754,187 Md. 115
• Parties: SMITH et al. v. HIGINBOTHOM et al.
• Court: Maryland Court of Appeals

48 A.2d 754

187 Md. 115

SMITH et al. v. HIGINBOTHOM et al.

No. 22-1946.

Court of Appeals of Maryland

June 19, 1946

Opinion September 3, 1946.

Appeals from Circuit Court of Baltimore City; Emory H. Niles, Judge.

Suit by Horace T. Smith and others against Paul M. Higinbothom President of the Bar Association of Baltimore City, and others, for a decree declaring that any activity of the Bar Association to promote nomination or election of a candidate for public office is ultra vires and that the activities of defendants in support of the sitting judges violates the Maryland Election Law, and for an order pending decree to restrain defendants from soliciting or expending money in behalf of incumbent judges. From an order denying a preliminary injunction and a decree sustaining defendants' demurrer and dismissing the bill, plaintiffs appeal.

Order and decree affirmed.

William Taft Feldman, of Baltimore (Laurie H. Riggs and Harvey C. Bickel, both of Baltimore, on the brief), for appellants.

Frederick J. Singley and Paul R. Kach, both of Baltimore (Wendell D Allen and Richard W. Emory, both of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, and GRASON, JJ.

PER CURIAM.

For reasons to be stated in an opinion to be filed hereafter, it is ordered by the Court of Appeals this 19th day of June 1946, that the order appealed from, refusing a preliminary injunction in the above entitled case, be and the same is hereby affirmed, and that the decree appealed from, sustaining the demurrer and dismissing the bill of complaint, be and the same is hereby affirmed with costs to the appellees.

Opinion.

DELAPLAINE Judge.

This suit was brought in the Circuit Court of Baltimore City by four members of the Baltimore bar, Horace T. Smith, Webster C. Tall, James K. Cullen and Wilfred T. McQuaid, seeking a declaratory decree and preliminary injunction against Paul M. Higinbothom, president of the Bar Association of Baltimore City, Charles C. G. Evans, chairman of the Committee for the Nomination and Election of the Sitting Judges, and the Bar Association of Baltimore City, a body corporate.

The bill of complaint, filed on June 7, 1946, alleges that complainants are candidates for Associate Judge of the Supreme Bench of Baltimore City, subject to nomination in the Republican primary election on June 24, and that they possess all the qualifications for that office; but six Judges, Michael J. Manley, E. Paul Mason, Herman M. Moser, Charles E. Moylan, Joseph Sherbow and John T. Tucker, appointed by Governor O'Conor to fill vacancies until the general election in November, are also candidates; and a committee appointed by the president of the Bar Association is conducting a newspaper and radio campaign in support of the sitting Judges and soliciting contributions to defray the expenses. The bill prays for a decree declaring that any activity of the Bar Association to promote the nomination or election of a candidate for public office is ultra vires, and (2) that the activities of defendants in support of the sitting Judges violate the Maryland Election Law. The bill also prays for an order pending decree to restrain defendants from soliciting or expending money in behalf of the incumbents. Defendants demurred to the bill. On June 11 the Court passed an order denying injunctive relief, and on June 14 passed a decree sustaining the demurrer and dismissing the bill. The appeals are from the order and the decree.

Under the Constitution of Maryland of 1776, the Governor appointed all Judges in the State with the consent of the Council. After 1837, when the Council was abolished, the Governor appointed them with the consent of the Senate. Acts of 1836, ch. 197; Acts of 1837, ch. 84. In some of the States the Judges were appointed by the Governor, in others they were chosen by the Legislature; but the wave of Jacksonian Democracy eventually led to the election of Judges by the people. This movement began in Mississippi in 1832. New York and Iowa changed to the elective system in 1846; Illinois, Arkansas and Wisconsin in 1848; California in 1849; Pennsylvania, Virginia, Kentucky, Michigan, Missouri and Alabama in 1850. The Maryland system was changed in 1851, when the members of the Constitutional Convention argued that in most instances the Judges had been appointed by the Governor on account of political party, whereas the voters would not consider a candidate's partisanship. 2 Debates, Md. Reform Convention of 1851, 464, 490. The elective system was continued in Maryland under the Constitution of 1864, and also under our present Constitution. Md. Constitution of 1867, Art. IV, secs. 3, 5; Constitutional Amendment, Acts of 1943, ch. 772. By this time the majority of the States had changed their Constitutions to provide for popular election of Judges, and this method was chosen by all the States admitted into the Union thereafter.

A half century under the elective system revealed that it had a number of disadvantages, and the modern trend has been away from popular control of the judiciary. In Connecticut most of the Judges are now appointed by the Governor with the consent of the Legislature. In New Jersey and Delaware nearly all the Judges are appointed by the Governor with the consent of the Senate.

In Maine, New Hampshire and Massachusetts most of them are appointed by the Governor with the consent of his Council. In Vermont, Rhode Island, Virginia and South Carolina virtually all are elected by the two houses of the Legislature in joint session. In recent years the American Bar Association and American Judicature Society have proposed a new method of judicial selection whereby the Governor appoints from a list of nominees suggested by a small commission. In California, first State to adopt the new plan, the Judges of the Supreme Court and of the intermediate appellate courts are appointed by the Governor with the consent of a Commission composed of the Chief Justice or Acting Chief Justice, the Attorney General, and the Presiding Justice of one of the District Courts of Appeal. Haynes, Selection and Tenure of Judges, 9-50. According to the American Judicature Society, this system, which has also been adopted by Missouri, has been a disappointment because it has not succeeded in removing politics from judicial selection. 28 Journal, American Judicature Society, 91.

However that may be, it has been recognized for many years in Maryland and the other States which still retain the elective system that it is the privilege of the bar to publish its opinion on the qualifications of judicial candidates. The Bar Association of Baltimore City was incorporated in 1880 to aid in maintaining the honor and dignity of the profession of law, to promote legal science, and to further the administration of justice. The by-laws, in prescribing the procedure by which members of the bar available for the bench are recommended to the Governor for appointment and to the people for election, require the president of the association to appoint a Judicial Committee of seven members, who investigate the integrity, wisdom, sound legal knowledge and general qualifications of available lawyers, and report their findings and recommendations to the president, who shall thereupon publish such report. The Executive Committee may direct that the proposed names be submitted to a referendum vote of the membership of the association.

The by-laws further provide that the president shall appoint such committees as he may deem necessary for the proper conduct of the business of the association and their duties shall be such as the president may prescribe. It is beyond question that the Bar Association has the power under its charter and by-laws to engage in the alleged activities in support of the sitting Judges.

Appellants strongly urged that a contribution toward the expenses of the special committee of the Bar Association may place the sitting Judges under obligation to the contributor. Undeniably this objection is one of the disadvantages of the elective system. Nevertheless, it is axiomatic that those who select the Judges ought to possess information as to the qualifications of those eligible for choice. Consequently it has been customary for the bar associations in many cities of the country to urge the election of qualified judicial candidates in the press and by radio. The Association of the Bar of the City of New York has had an active Judiciary Committee since 1898 to support the candidates considered best fitted for the bench. In 1930 the American Judicature Society reported that notable campaigns against 'intolerable conditions' had been conducted by the bar associations in Cleveland, St. Louis and Los Angeles, and in one campaign the Chicago Bar Association had collected and spent more than $75,000 for expenses. 14 Journal, American Judicature Society, 10, 11.

In this State the sitting judge policy has received public approval for many years on the ground that it is beneficial to the State to elect those who have demonstrated their integrity wisdom and sound legal knowledge. It does not mean that the sitting Judges will always receive the endorsement of the bar association. In the New Judges Fight of 1882, out of which the policy grew, The Baltimore Sun, which led the fight, published a statement signed by several hundred leading business and professional men opposing three of the four sitting Judges, and all four Independent candidates were victorious. The historians of The Sun, in referring to that campaign, state: 'A non-political judiciary that will interpret fairly the law and administer justice without political taint or touch is more vital to the community than anything else. A good judge is entitled to...