383 Md. 697 - Suessmann v. Lamone

¶1Concurring Opinion by

HARRELL, J.

¶2I write separately (and briefly) to record my semantical disagreement with the Court’s description of the primary election process for Circuit Court judgeships in Maryland as “partisan”. The Court’s opinion makes a better case for *736labeling that process, at worst, as bipartisan1 or multi-partisan. Even better judgment, in my view, would be shown if the Court avoided volunteering any alternative label.2

¶3Whatever the wisdom animating the requirement that Circuit Court appointees/incumbents run in potentially contested elections, the overall regulatory scheme governing that primary election process is sui generis when compared to other types of elective State office. For instance, for what other potentially contested office are certain candidates’ campaign conduct regulated by an enforceable professional code of ethical conduct, such as provided by Maryland Rules 16-813 (Canon 5, B) and 16-814 (Canon 5, B), the requirements of which trump otherwise permitted “partisan political activity allowed by law”?

¶4I believe it sets entirely the wrong tone for this Court unnecessarily and without qualification to describe as “partisan” a process that is designed to foster other than a traditional “partisan” approach to campaign conduct in a judicial race.3 What appears to occur in contested judicial elections in other States, which seem to be conducted with much of the indicia of truly partisan campaigns,4 need not occur also in *737Maryland or, at least, we need not encourage an evolution along those lines. In my judgment, the labeling of judicial elections as partisan ultimately works against the Judiciary’s aspiration of retaining the trust and confidence of the general public, a premise upon which its very existence depends. We rather should engage in mitigation of politicization of judicial elections In this case, we should not appear to recognize judicial elections as truly partisan ones.5 It suffices to declare, for the purposes of the present case, that such elections are not non-partisan.

¶5. Md.Code (2003), Election Law Art., § l-101(kk), contemplates that there may be no more than two "principal political parties” at a given time. Moreover, as the Majority points out, a candidate may cross-file in the primaries of both principal political parties, regardless of the candidate’s party affiliation or lack thereof. Maj. op. at 708-09, 862 A.2d at 7-8.

¶6. Incorporating appellants’ concession within their relevant argument in the present case, the Court need resolve only whether the process is non-partisan. If it is not, as the Court declares (with which conclusion I concur), we need say no more.

¶7. In expressing this view, I am a pragmatist temporarily channeling for an idealist.

¶8. See newspaper article in Chicago-Sun Times of 25 August 2004 (http://www.suntimes.com/output/news/25ads.html) that the Illinois State Bar Association will monitor judicial campaigns "in an effort to add civility to a southern Illinois Supreme Court race that has generated a lawsuit, allegations of garbage picking and a television commercial exhorting voters to get rid of ‘bad judges.’ ” At the news conference *737announcing the bar associations' intentions, two Supreme Court candidates, Democrat Gordon Maag and Republican Lloyd Karmeier, signed pledges "disavowing advertisements that impugn the dignity of their opponent or the judiciary." The candidates denied having anything to do with the negative commercials, which were run by third party groups. See also article in Columbus, Georgia's 17 July 2004 Ledger-Enquirer (http:// www.ledger-enquirer.com/mld/Iedgerenquirer/news/local/ 9176624.htm) reporting that a Georgia Superior Court race has turned "into a campaign cat fight ... filled with sniping letters, predawn fusses on live TV and name-calling that would be more at home on a preschool playground."

¶9. Even the U.S. Supreme Court majority in Republican Party of Minnesota v. White, 536 U.S. 765, 783, 122 S.Ct. 2528, 2539, 153 L.Ed.2d 694 (2002), expressed a sentiment of reservation when it stated that "we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office.”