The Maryland Constitution is quite clear on this subject: all state court judges must retire at age 70. This has been in the organic state law for over a century and a half. There have been attempts in the past to raise the so-called age of “constitutional senility” to 73 or 75, but such efforts have failed. And, on balance, I personally feel that the 70 cut off makes sense, in that the forced retirement promotes a younger and more diverse bench.
Given that I was born in November of 1950, I, too, recently reached that milestone and was faced with a related question: did I want to seek recall as a “senior” judge or simply retire? Maryland law allows judges over the age of 70 to sit, on a part-time basis, to hear matters on the court from which they retired. I certainly could have availed myself of this alternative, but chose not to do so. Most judges in my position do so, as they can supplement their pension and keep doing what they did for many years.
By continuing to sit as a senior judge, however, one is still bound (quite rightly so) by the strict edicts of the Maryland Code of Judicial Conduct. These standards prohibit judges from engaging in political activities, taking partisan positions, or doing anything at any time that would undermine public confidence “in the independence, integrity, and impartiality of the judiciary.” Md. Rule 18-201.2(a). Only a few months ago, the Maryland Judicial Ethics Committee published an opinion concluding that judges should not participate in protests, marches, or rallies associated with the Black Lives Matter movement. The Committee reasoned that because the BLM movement focused on law enforcement and the perceived shortcomings in the criminal justice system, participation by a judge “could lead a reasonable person to question the judge’s impartiality in cases involving the police.”
So, if a judge could not even peacefully march, protest, or rally on behalf of racial justice, certainly a judge could not speak out publicly on these and other important issues without running afoul of the Code of Judicial Conduct. I have strong feelings about systemic racism and other matters, and wanted to be free to express my views, engage in activities, and offer my thoughts on what might make our judicial system operate more fairly and justly for all. Hence my decision not to seek recall as a senior judge.
I have been involved in juvenile and criminal justice issues over the past 45 years as a prosecutor, defense attorney, law school adjunct professor, and most recently as a trial judge sitting on the Circuit Court for Montgomery County, Maryland from 2012 to 2020. As such, I have seen the impact that race, ethnicity, and wealth has on the arrest, investigation, prosecution, and disposition of juveniles and adults in the juvenile and criminal justice systems. I have also seen the effect that legislation and common law has in these cases. And I have seen how the exercise of discretion at all levels impacts these cases.
Where does this lead me, now that I am free to express my thoughts? First, it has led me to my current position as Of Counsel at RaquinMercer Law Offices. Some of the important work of the firm implicate racial justice issues, and Isabelle and Steve have graciously agreed to provide me with a virtual platform to express my views on these issues. I have recently provided testimony to the Maryland General Assembly on proposed juvenile justice reform legislation and feel that system is in dire need of change. Over the course of the coming months, I will be writing pieces on many aspects of our justice system in Maryland, but will start with juvenile justice. The other major topic to follow will include the myriad issues facing the adult criminal justice system. If I manage to exhaust those areas, I may even move on to discuss racial and economic disparities that permeate civil justice areas such as family law, contract law, structured settlements, and the like.
I look forward to my association with this outstanding Rockville firm and to speaking out about some of the most serious flaws in our society as manifested in the current system of justice.
Judge Gary E. Bair (Ret.)
Of Counsel, RaquinMercer LLC