MacGomery Law

Archive for the ‘Montgomery County Courts’ Category

This story has been told by judges and family division masters in Montgomery County many times but it bears repeating. A couple stands before the judge in a highly disputed child custody case. The judge turns to the mother and says, “Ma’am, do you love your child?” To which she replies, “Of course I do!” He then turns to the father and asks the same question. “But of course I love my child.” The judge turns to them both and says sternly, “Well I do not. Why in the world you would want someone like me making decisions for you and your child is beyond me. Now go outside and try to work this out between you like adults and parents or else I am going to make a decision that I guarantee you neither will be happy with.”

Typically, no one is happy when the court has to decide who a child gets to live with and when the other parent can see the child and under what circumstances. It is almost always better for the parties to agree between them as to these matters rather than leaving it to the court. The system itself is set up to strongly encourage settlement between the parties. There are court facilitators available at no cost after the scheduling conference to try and assist the parties in coming to an agreement. The court often orders mediation as well to try and get the parties to agree. And the whole point of what’s known as collaborative law is to remove the court from the process and rely upon the parties to fashion their own parenting plan addressing custody and visitation.

I had a recent case in which both parties strongly felt that each should have custody of the minor child. They put all their eggs in one basket and relied on the findings of the court to make this terribly important decision that would affect their lives and that of their child for many years to come. Sadly, the court arrived at a solution that neither party was happy with – much like the story above. Each walked away blaming the system without stopping to consider that it was within their power to have fashioned an agreement of their own choosing. They may not have gotten all they wanted but much of what they would have gotten would have been better than what they ended up with.

The question is obviously highly political. But it is about to come to a head here in Maryland as we await a legal opinion from Attorney General Doug Gansler as to whether or not under Maryland law same sex marriages that are legal in other states can be recognized here in Maryland. Same sex marriages themselves are not permitted in Maryland but are in several other states (currently Massachusetts, Connecticut, Iowa, Vermont, and Maine, as well as the roughly 18,000 same-sex marriages that are legally recognized in California). Governor Martin O’Malley (D) is apparently leaning towards recognizing such marriages. The District of Columbia already recognizes out-of-state same sex marriages while Virginia has yet to weigh in on the issue.

Regardless of how you feel personally, it is a fascinating legal argument full of due process and equal protection issues as well as the obvious argument concerning full faith and credit.

For the record, not that anyone cares, I support both same-sex marriage and recognition of out-of-state same sex marriages. I wrote on the subject in law school and have followed the debate closely as various states struggle with the question. What I have determined, and you may come to a different opinion, is that when all is said and done, the real reason for reserving the institution of marriage to the heterosexual community is because they/we want the word and it’s meaning to themselves/ourselves. You can have the same thing, just call it by a different name – civil union. Governor O’Malley supports civil unions in this state rather than same-sex marriages. Even the state’s highest court, in the seminal case of Conaway v. Deane, 401 Md. 219, 932 A.2d 571 (Md. App., 2007) articulated that belief in the final sentence of their conclusion in the 4-3 decision upholding the ban on same-sex marriages by saying “In declaring that the State’s legitimate interests in fostering procreation and encouraging the traditional family structure in which children are born are related reasonably to the means employed by Family Law § 2-201, our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex.”

So what we are fighting over is the interest in fostering procreation and encouraging family values. It seems to me that we in the heterosexual community are doing a pretty good job of screwing those objectives up without any help from the state. When more than half of the marriages in this state end up in divorce, when a vast number of folks are divorced multiple times, when many chose to marry and not have children, or have children outside of marriage, or end up spending years screwing up their kids lives in broken marriages – I ask just exactly what are we holding onto?

If you are interested in sending a message to Attorney General Doug Gansler in support of the recognition of out-of-state same sex marriages, go to can sign a petition here and view a sample letter.

I am struck by the fact that the two most recent appointments to the judicial bench, at least to me and my little practice, have been powerful women. At the national level, Judge Sonia Sotomayor will be sworn in this Saturday as the Supreme Court’s 111th justice, third woman and first nominee by a Democrat in 15 years. I was not practicing law when the previous two women were appointed to the Supreme Court so it has been interesting for me now to follow the nomination and confirmation of Judge Sotomayor. More locally, Judge Cynthia (Cindy) Callahan was sworn in on June 29th as the newest member of the bench of the Montgomery County Circuit Court.

For Judge Sotomayor, it was Princeton, Yale, NY County District Attorney’s office, private civil practice, informal solo practice, lots of public service, and then the federal bench. Judge Callahan started at St. Mary’s College, Columbus School of Law Catholic University (my alma mater), private practice, partner in ten years, solo practice, managing partner for Dragga, Callahan, Hannon, Hessler & Wills, LLP, and lots of public service.

Two very powerful women. Two very interesting careers. Two intriguing stories to follow…

I’m sure it will come at some point. Listening to all of my esteemed colleagues, who have been practicing far longer than I have, moan and groan about the system and about judges in particular, makes me wonder when I will become equally jaded. Because to date, I have been remarkably surprised about how accommodating the court has been towards me and my clients. There have been times when my clients have been late for court, or unprepared, or disrespectful (despite my efforts to make sure they are not) and still the court affords them a level of dignity that perhaps some might not think they deserve. And certainly I have demonstrated my ignorance on more than one occasion before the court only to have most judges take the time to explain to me the error of my ways.
I think bottom line, if you are polite and respectful to the court, it returns the favor. It only stands to reason that that would be the case. I have only really had a problem with two judges. One who ruled against me because he was mad at my boss (only to be overturned on appeal) and one who I think made an error regarding evidence (see my earlier post). But in general, my experience has been a good one marked by respect and civility. Maybe things will change, maybe I’ll become more jaded and cynical at some point. But I am not there, yet…

I was defending a client in Baltimore County yesterday and ran into a judge that, in my humble opinion, misapplied MD Rule 10-104. His position was that after Plaintiff files the 10-104 that the medical treatment and cost is “presumed” to be fair and reasonable and proximately caused if the doctor so states in the records. And furthermore, that if the Defendant wishes to challenge that, they can enter their own 10-104 of a DME or else bring a doctor to trial to refute.

But as I read and re-read 10-104, the purpose of the statute is an evidentiary shortcut to get the records into evidence without the need for testimony. The statute goes on to say 10-104(d)(2) A finder of fact may attach whatever weight to a writing or record that the finder of fact deems appropriate.

To me, that says there is no presumption and that the finder of fact must consider all the evidence (including the force of impact for instance in a motor vehicle accident case) and THEN give the medical testimony whatever weight the court deems appropriate. When it was pointed out to the judge that presuming their appropriateness a priori shifted the burden to the defendant he indicated that Plaintiff had met her burden in that she presented medical evidence. When asked why he wouldn’t consider all the evidence his response was “I am not going to pick apart the medical records. They are in and I take them as is.”

I do mostly plaintiff’s work so I am on the opposite side of this argument most often. And I have had plenty of judges look at my records and say “I don’t believe that the force of this accident can cause those types of damages” or “I do believe that the costs of this treatment is excessive” and in both situations discounted the medical bills based on that conclusion. And if the judge had gone on record and said he considered all of the evidence and found the medical treatment to be reasonable and proximately caused then I would have little to quibble about. But he went on record and said “I start with a presumption…”

To me, that is incorrect and I believe my client suffered as a result.

The fourth opening on the Circuit Court for Montgomery County was created by the announcement that The Honorable William J. Rowan, III will retire effective April 4, 2009. The vacancy is to be filled by appointment of Governor Martin O’Malley. The Governor has the opportunity to go in a different direction from his last three appointments and select a candidate who currently serves on the bench of the District Court for Montgomery County. According to the Judicial Nominating Commission, that would include the Honorable John M. Conroy, the Honorable Barry A. Hamilton, or the Honorable Cheryl A. McCally. On its face, it would seem to be a no brainer decision. Judge Conroy and Judge McCally took the bench in June 2006. Judge Hamilton has been serving the citizens of Montgomery County as a District Court judge since 1966. With 12 years on the bench, and 20 years prior to that as an Assistant States Attorney for Montgomery County, it would appear to be a simple decision. But then again, the Governor has gone in a different direction in each of the last three appointments to the circuit court by selecting a county attorney, a family division master, and an attorney in private practice. Isn’t it about time to acknowledge the contributions of a loyal servant to the county and appoint a judge with nearly 30 years of courtroom experience? Isn’t that what the citizens of Montgomery County deserve?

Governor Martin O’Malley yesterday announced the selection of Richard E. “Rick” Jordan to fill the upcoming vacancy on the Circuit Court for Montgomery County, replacing the retiring Honorable S. Michael Pincus. In less than a year,  the Governor has appointed three new judges to the highest level county court. Back in September 2008 he appointed Honorable Steven G. Salant and Sharon V. Burrell to the bench. While all three are excellent lawyers with fine reputations, none of the three have any experience on the bench. True, Mr. Salant was a Family Division Master and as such controlled a docket, handled competing attorney’s arguments, and applied the law. But Ms. Burrell was an attorney for the County and now Mr. Jordan is an attorney in private practice. So the question that is begged is: “why not a District Court judge?” There was a time that the District Court was the natural breeding ground for candidates for the higher court. It seems as if the Governor has turned a deaf ear on that lineage. Which doesn’t seem right for the citizens of Montgomery County. There is a least one District Court judge who is eminently qualified and for whom a variety of the specialty bars of the County have advocated. And beyond that, several more District Court judges would seem to be a good fit for the Circuit Court bench. Are there other considerations that influence the Governor’s decisions? Of course there are – there always are. One can only hope that those “other factors” serve the citizens of the County.