When is an Annual Report not An Annual Report?, or A Rule Unto Itself,
A Brief History of the Maryland Judicial Conference
by Dr. Edward C. Papenfuse, State Archivist
October 30, 1998
Judge Glynn, Judge Bell, members of the Maryland Judicial Conference, Ladies and Gentlemen,
Before I get myself into too much trouble, let me begin by saying categorically that the proceedings of this conference will be the 50th Report of the Maryland Judicial Conference.
When Judge Bell asked me in February to give you a brief history of the Maryland Judicial Conference today, I was flattered. It gave me an opportunity to spend time with the historical record. I looked forward to doing what I could in my fifteen minute allotment to lay out what I thought would prove, from a review of the 49 Annual Reports to date, to be fifty years of unparalleled growth and achievement within the Maryland Judiciary.
There has been unparalleled growth. You all recall Chief Judge Murphy's lament that when he began his term as Chief Judge, the whole conference of 82 judges could stand in line at one time waiting for the elevators at the Belvedere Hotel and that by the end of his reign your membership had grown to an unwieldy 250, requiring a fair share of its power to be delegated to an executive committee.
There have also been remarkable achievements for which this conference can share in the credit, not the least of which, it would appear from the record, is measureable progress towards adequate compensation for judges as well as the implementation of an impressive educational and outreach program.
But it is also now clear to me that the report of this meeting ought not to be the 50th Annual Report. This is neither your 50th Annual meeting, nor is it your 50th Anniversary as a Judicial Conference. By the most generous of accounting systems you may be 90, if I take the first suggestion made for your creation as a starting point, or you may be 72 or 74 if we pay close attention to the historical record of when you first met and first ventured forth forth into print with a legally mandated Annual Report, or, to be on the safe side you may only be 51, if I start counting at the point at which Chief Judge Marbury broadly interpreted the law, and called a Judicial Conference of all Judges to meet at the Belvedere Hotel on January 31, 1947, instead of just convening the 9 member Judicial Council that had been on the books since 1924.
I suspect that Judge Bell knew more about what was in store for me than he let on. In the second paragraph of his letter of invitation he refers to this assignment as "an important and potentially difficult research project." By the time I finished late last night, I agreed it was important, knew it was difficult, and found myself in near agreement with the story Chief Judge Carroll Bond told in the June 1940 issue of the Maryland Law Review:
In 1923, at the dinner of lawyers attending the first meeting of the American Law Institute, Charles EfvansJ Hughes, who had been an Associate Justice of the Supreme Court from 1910 to 1916, ... [turned] to Mr. Chief Justice Taft, [and] said: "How often Mr. Chief Justice, the justice to whom the writing of an opinion has been assigned, and who has the direction of a unanimous vote, comes back to say, 'Gentlemen, it won't write!
It seemed to me I had two choices, brave it out and make something up that would congratulate you on 50 recorded meetings of anywhere from a Judicial Council of 6 judges and three lawyers to a Judicial Conference today of over 270 Judges, or bite the bullet and attempt to explain as best I could how you got to the state in which you presently find yourselves. I chose the latter, somewhat mindful of how Lincoln's friend Judge Davis must have felt on hearing about how the President defended him against an objection to his appointment to the U.S. Supreme Court.
One day when [Attorney General Edward] Bates was remonstrating with Mr. Lincoln against the appointment of some indifferent lawyer to a place of judicial importance, the President interposed with "come now, Bates, he's not half so bad as you think. Besides that, I must tell you, he did me a good turn long ago. When I took to the law, I was going to court one morning, with some ten or twelve miles of bad road before, and I had no horse. The judge overtook me in his wagon. 'Hello, Lincoln, are you not going to the court house? Come in, and 111 give you a seat.' Well, I got in, and the judge went on reading his papers. Presently the wagon struck a stump on one side of the road; then it hopped off to the other. I looked out, and I saw the driver was jerking from side to side in his seat, so, says I, 'Judge, I think your coachman has been taking a little drop too much this morning.' 'Well, I declare, Lincoln, said he, 'I should not much wonder if you are right, for he has nearly upset me half a dozen
times since starting.' So, putting his head out of the window, he shouted, 'Why, you infernal scoundrel, you are drunk!' Upon which, pulling up his horses, and turning round with great gravity, the coachman said, 'By Gorra! that's the first rightful decision you have given for the last twelvemonth!
While I might begin your story with the recommendations of the Maryland Bar Association in 1908 that the Maryland Judiciary was in desperate need of Reform, I believe the history of this Conference really begins as a gubernatorial sin of omission that has its origins in the closest contested election for Governor to date, the election of Albert Cabel Ritchie in 1919 by a margin of 165 votes.
Ritchie came into office determined to reform State Government and the election laws. Under the previous administration the governor had been given extensive powers over the budget, and now Ritchie wanted to tackle the very structure of government itself. In September 1921 the Reorganization Commission which he had appointed, the first of its kind to include women, issued its 83 page report, parts of which Ritchie himself had written. He sent a copy to H. L. Mencken:
October 5, 1921
Dear Mr. Mencken:
One of the many respects in which I fall hopelessly short is in not reading enough. I imagine I haven't the time, which of course, is not true at all. I realized this defect the other night, when I read your Book of Calumny, which Jack Cullen loaned me, and I am simply following impulse in writing to tell you how thoroughly I enjoyed it. I am guilty of an ungracious return for a pleasant evening, in sending you a copy of the Report which I have written on the State Reorganization. If you have no room for it among your "literary indencencies", then no reason occurs to me for your preserving it.
Very truly yours, Albert C. Ritchie, Governor
Mencken promptly replied three days later:
1524 Hollins St. Baltimore
October 8th [1921]
Dear Governor:
I'll be delighted to read the Report on State Reorganization. I hear that it is a fine piece of work. We have been running on aimlessly in Maryland, adding wing after wing to the house until it now looks like a train of freight cars. I hope you manage to lop off at least 50% of the state boards. A board is inevitably inefficient. One man can always do the work better than two, and two better than three, and so on forever.
Sincerely Yours,
H. L. Mencken
Intentionally or otherwise, both forgot the caboose. The report only addresses the executive branch, not a word was said about the Judiciary. Notes in Ritichie's files indicate that he may have intended to turn to the judiciary next, but before he could act, the matter was taken out of his hands by the Legislature. During the 1922 session a Joint Resolution was passed
providing for the appointment by the Governor of Maryland, of a Commission to study carefully our whole judicial system and methods for its improvement, and report to the next General Assembly.
Whereas, the maintenance of the highest standards in the administration of justice is of the utmost importance to our State:
NOW, THEREFORE, be it
Resolved by the General Assembly of Maryland, That a Commission, to be known as the "Judiciary Commission", not exceeding twenty one in number, be appointed by the Governor of Maryland, to serve without compensation, for the purpose of studying carefully, the whole judicial system of this State and methods for its improvement, and the Commission shall report the result of its labors to the General Assembly of 1924.
Governor Ritchie probably was relieved that he did not have to appoint more than 21 members. His Reorganization Commission numbered 105 with an executive committee of 22. That spring and summer he set about securing recommendations for appointment to the Judiciary Commission, and on August 9, 1922 made the full 21 appointments, selecting a Baltimore lawyer, Charles F. Harley as Chairman. There was some overlap between the two Commissions, but one member of the Executive Committee of the Reorganization Commission, Judge Carroll T. Bond of the Supreme Bench of Baltimore City, was conspicuously absent, probably at his own request. In June 1922, Judge Bond sent Governor Ritchie a letter of caution and advice that 1 suspect the Governor had cause to remember well several months later.
My dear Governor,
I believe that at the last session of the Legislature a resolution was passed requesting or authorizing the Governor to appoint a commission to investigate the judicial system of the state. I have hesitated to speak to you about it for fear it might be taken as a manifestation of candidacy for membership on the commission. I do not find the copy of the act or resolution in the advance sheets I have so far, but I understand it has been passed and I presume by this time you have a commission picked out. May I take the liberty of making a suggestion or two which has occurred to me in studying this thing in the past?
The whole suggestion of a "judicature commission", as it has been called in Massachusetts, I believe, arose from the report of a sub-committee to the last meeting of the State Bar Association which I wrote. A year before, Judge Soper, in his address as president, had recommended a study of the system with a view to inaugurating the unified state-wide organization advocated by some of the progressive students of these things. As an investigation of the same subject had been made by an excellent commission in Massachusetts, I got the reports from a secretary in that state and I think we were all rather struck with the expedient of an judicature commission. A judicature commission is really a partial constitutional convention. Instead of undertaking a comprehensive constitutional convention in which the study of the judicial system would probably be one of the subjects hurried over, the judicature commission took up that section of the constitution alone and made its recommendations to the state legislature and to the people. Many of its suggestions were adopted and have since been put in force.
If we appoint a similar commission here, it may, of course, have the fate of many other commissions in the past, that is, it may idle away its two years' time and make a perfunctory report, or it may take its job seriously, realize that it has all the dignity and importance of a constitutional convention pro tanto, and give us something worthwhile.
This matter has probably not been brought to your attention at all, outside of the mere fact that you have to appoint a commission. Therefore I make bold to give you this statement of the origin of the idea, and of the importance of the work if undertaken in the right spirit. Of course, anything which you might say on the subject would largely be the determining factor in the spirit with which the work is undertaken. Possibly you might find an opportunity to start the ship on the right course at the State Bar Association meeting.
I believe Walter Buck was the man who took the idea up in the legislature. I had nothing to do with that, and rather expected that nothing would be done for some little time yet, but the die is cast for better or worse. …
Yours very truly,
Carroll T. Bond
Perhaps I should add that the Judicature Commission in Massachusetts recommended against any radical reconstruction. They attached great value to the sanction of tradition and habit in an orderly government, and had only a few important proposals to make.
Governor Ritchie made his appointments to the Judicial Commission authorized by the Joint Commission, but he did not take the time to offer his own opinions as he had with the Reorganization Commission. Indeed when a lawyer by the name of Eugene O'Dunne suggested that the state could get matching funds from the Rockefeller Foundation for an exhaustive study of need, he forwarded the letter on to the Chairman of the Judiciary Commission, Charles F. Harley with the observation that
"of course, no appropriation has been made for this work, and, under the Budget system, I know of no fund which would be available for the purpose [of matching a Rockefeller grant]. Nevertheless you may be interested in the proposition. Mr. O'Dunne spells Rockefeller in a rather unusual way."
Mr. Harley's response was brief:
“I thank you for your letter of the 14th instant, and enclosure from the gentleman whose peculiarities are not confined to orthography [spelling]."
Over the next year one member of the Commission resigned and another died. Ritchie replaced both immediately telling one in June 1923 that he got the appointment because of the
views you so eloquently expressed at Frank Kent's the other night on the subject of the judiciary. ... I am not doing this because of the view point you expressed, although it certainly appealed to me most strongly, but because I want to feel that that side of the question is adequately presented to the Commission when the time comes for their decision about it.
An interim report of the Commission, in fair measure the work of Walter H. Buck, was ready by May 1923, with Frank R. Kent detailing its conclusions and recommendations in two articles in the SUN. The Commission met in December to finalize its recommendations, and its printed report was sent to the Governor on January 13, 1924, four days after his second inauguration, having won election this time by over 50,000 votes.
Governor Ritchie read the report carefully. Very carefully. An annotated copy in his hand is in the Archives. He noted that only eight members signed the majority report and that the minority report was not included although F. Neal Parke's dissent was acknowledged. He wrote the Chairman requesting copies of the minority report. He looked for any evidence supporting the recommendations of the report which included reducing the number of judges on the court of appeals from 8 to 5 and increasing the administrative powers and responsibilities of the Chief Judge. By Ritchie's own calculations, assuming no deaths, the first judge on the Court of Appeals whose term would expire under the plan would be Judge Adkins in 1934. There would be no gubernatorial appointments to the court for another decade. Without any evidence of documented need for change and with the prospect of no significant judicial appointments for decade, Governor Ritchie began to have second thoughts. He conducted his own poll of all the commissioners discovering that there were indeed only 9 members in favor of the report and 11 against. He decided to scrap the report and start over and sent his reasons to the Sun and the American which were printed verbatim in the Sun on
January 22, 1924. Ritchie's friend and Commission member John Requardt who had voted in favor of the report dashed off a quick note:
Tuesday (January 22)
Dear Albert,
Just to keep the record clear is the reason of this note ... I gave you the best that was in me in talking to you about the Judiciary Committee. You have answered it in the Sun this morning.
My best judgment is that you have made a big political blunder and certainly you haven't been very gracious to those members of the Commission who have always been your good friends.
I am not sore but I wouldn't amount to much if I didn't tell you how I felt,
Yours,
Jack
From the press clippings in the Governor's file it is clear that the Sun papers were none to happy with the Governor's stand, with columns headed "Too Cavalierly" and "the governor is not convincing." The Baltimore News even ran a cartoon titled "The Manner of Amasa's Bumping-Off' depicting Governor Ritchie in biblical dress attacking a startled judge labeled 'judiciary plan," with the caption: "And Joab said to Amasa, Art thou in health, my brother? And Joab took Amasa by the beard to kiss him. but Amasa took no heed to the sword that was in Joab's hand; so he smote him therewith in the fifth rib, and shed out his bowels to the ground, and struck him not again; and he died. II Samuel xx., 9-10.
It was out of this mess that your organization emerged, if in a somewhat different form than you know it today. It was clear to both the Legislature and to Governor Ritchie that leaving judicial reform to the almost exclusive provenance of lawyers and not asking the physicians to heal themselves was a strategic mistake. Waiting in the wings was an able judiciary willing to take on the assignment of reforming itself, albeit rather slowly, as long as sufficient funds were appropriated and adequate staff was provided. This time the legislature responded, not by a joint resolution calling for a commission, but the establishment of a Judicial Council in law composed of nine members, 6 judges and three lawyers with the chief judge of the Court of appeals as Chairman. They were charged with the continuous study of the organization, operation, rules and methods of procedure and practice of the Judicial System of the State of Maryland; the work accomplished and the results produced by that system and its various parts. The membership was geographically balanced with the Chief Judge of the Court of Appeals as President and the chief Judge of the Supreme Bench of Baltimore as permanent members, with the remainder of the Commission to serve limited terms. The Council was to report to each Session of the General Assembly on the work of the various branches of the Judicial System, with its recommendations for modification of existing conditions. It was also permitted from time to time to submit such suggestions as it may deem advisable, for the consideration of the Judges of the various Courts, with relation to rules, and practice and procedure. The Council was empowered to hold public hearings. No compensation was provided the members, but expenses were allowed for travel, clerical and other services, not to exceed $1,000 as provided for in the budget.
Governor Ritchie responded quickly, not only gathering recommendations for appointments from the sitting judges, but also taking advantage of the enforced retirement at age 70 of Chief Judge A. Hunter Boyd, by appointing his cautionary friend, Carroll T. Bond as Boyd's successor. Judge Bond began work immediately, but warned the Governor that because the Legislature had failed to appropriate any money to the Commission
"I shall have to be indulged a little, in some degree, perhaps, because of the lack of funds for secretarial work, but chiefly because there is a heavy docket of work for the October Term of the Court of Appeals and, as I see it, any considerable amount of time devoted to executive work like this might be at the expense of the judicial work. I find that the strictly judicial work can take all the time there is, and more besides."
Thus it might be argued that by September 25, 1924, the Judicial Council, the immediate progenitor of today's Judicial Conference, was born.
There are but a few loose ends to my story this afternoon. Reform of the Judiciary always moves slowly, but it does move. Judge Bond filed his first and only Annual Report in 1927 and it would be another 20 years before another of the legally mandated annual reports would appear. Judge Bond explained why it might take that long in his first report to the Legislature. Statistics had been compiled on the business of the courts and average times calculated about the institution and disposition of cases, but "lack of funds for carrying on the work with which" the council has "been charged places narrow limitations upon it." Judge Bond's message was clear: appropriate the funds and the work will get done. Fortunately for me the funds were not appropriated until 1942, 15 years later. In the meantime Judge Bond focused his attention on the Preservation of the historical Records of the State, heading up a funded commission that built the Old Hall of Records, wrote legislation establishing an Archival Program, and hired a professional Archivist to implement it. The tradition begun by Judge Bond continues to today with Judge Bell who recently was elected chairman of the Hall of Records Commission in the place of the late Comptroller Goldstein.
In 1942, with the support of the Maryland Bar Association, Governor O’Conor took on the cause of the reform of the judiciary. In doing so, he turned to Judge Bond, persuading him not to retire and appointing him to head a funded commission which proceeded to propose constitutional amendments that were to effectively accomplish what the ill-fated Judiciary Judiciary Commission had failed to secure 22 years before. In 1943, the Court of Appeals was reduced to five judges. This time there were several good studies of the work of the courts published in the Maryland Law Review and privately printed, such as a fine analysis by future chief Judge Fred Brune, which provided ample support for this and may future reforms.
Still the Judicial Council remained inactive and no annual reports were forthcoming until after the war, when it became abundantly clear that the legislature would move from biennial sessions to annual sessions. Now it became imperative that the judiciary organize itself in preparation of an annual budget process and with the prospects of increased interest, some called it interference, of the Legislature in the administration of justice.
Which brings me to my final observation and the close of my efforts at presenting a brief history of the Maryland Judicial Conference. Since January 31, 1947, the Judicial Conference has met almost every year. Legally you were known as the Judicial Council limited by law to 9 members, even though in 1947 Chief Judge Ogle Marbury invited all judges to attend the nearly annual meetings thereafter. You remained the Judicial Council until the 1980s when, under the leadership of Chief Judge Murphy, you asserted your constitutional independence, taking your cue from Judge Bond's one and only Annual Report of 1927. In the 1980s you had yourselves removed from the Maryland Code as a Council, the creation of which by law was possibly unconstitutional in the first place, and instead placed yourselves under the Rules of the Court where such an entity as a Judicial Conference clearly belongs. As Judge Bond pointed out in 1927:
A special study has been made of the extent of the power of the courts to make by their rules any improvements that may be found desirable, for, because of the greater elasticity of rules, and the ease of making any alterations which experience may dictate, it seems that improvements should primarily be sought by the utilization of that power, so far as it may be found sufficient.
So in closing, happy 74th birthday to a distinguished body that probably always knew that it was a rule unto itself, and to its chairmen, beginning with Carroll T. Bond and continuing to the present, who not only have led the cause for separation of powers and constitutional self rule, but have also contributed immeasurably to the preservation of the historical record as Chairmen of the Hall of Records Commission, even if at times those very records are not always what, at first glance, they seemed to be, like for example a"49th Annual Report."
