The debate over whether the mission of the Judicial Branch of the Government should be enhanced to include a “problem- solving” component is over! However the debate over the method by which that enhanced mission should be accomplished and what priority to give it is very much ongoing. It is visible in a variety of forums including the conference rooms of the Court of Appeals of Maryland, The Rules Committee, the hallowed halls of the General Assembly of Maryland, and the Clerks Offices and Judges Chambers of every Courthouse in our State. It often presents difficult choices between more clerks to support traditional case management functions and more professional staff for ADR and other quote “problem-solving” operations. Different opinions on the merits of each are pronounced.
The terms and the tenor of that debate are demonstrably driven far more by economics, budget, legal cultural issues and even philosophy, politics, and personalities than by law. The actors and actresses in these legal and judicial Reality Shows sometimes proffer apparently inconsistent positions depending on what role they are playing in the particular unfolding drama.
The controversy over the “firing” of Nancy Forster as The Maryland Public Defender allegedly for refusing to terminate or lay off some support personnel not directly involved in the staffing of the day to day litigation functions of The Public Defender’s Office in the districts and her refusal in lieu thereof to hire more staff attorneys and support personnel as directed by a two person majority of a three person Board illustrates how this debate can affect high level careers as well as the livelihoods of innocent employees whose jobs put them in the cross fire of these battles in these perilous economic times.
Assuming that these differences over the office organization and priorities of the Maryland Public Defenders Office as opposed to simply personal issues between the players truly created this drama which is still unfolding and it is at best incongruous and at worst inconsistent and illogical for the same Public Defender’s Office to argue almost contemporaneously to the highest court in this state in Robert Calvin Brown III v. State of Maryland that “Maryland’s Problem – Solving Courts including the Baltimore City Adult felony Drug Treatment Court, lack fundamental jurisdiction.”
The gravamen of The Public Defender’s claim on behalf of Robert Calvin Brown was, as pointed out by Judge Joseph F. Murphy set forth in Robert Calvin Brown’s Petition for Certiorari: “All of these problem-solving courts including the one involved in the case at bar have “Team” meetings prior to any review hearing in open court. In these meetings, the team discusses whether or not sanctions should be imposed and reports on poor behavior and noncompliance with the rules. Further each team member votes on the sanction. All of this is done in the absence of the defendant/participant.”
With this “factual” predicate, the Public Defender’s Office argued only legal issues and constitutional issues were available to them based on those facts. Specifically they argued that “Maryland’s Problem-Solving Courts including The Baltimore City Adult Felony Drug Court lack fundamental Jurisdiction” and that their client’s “treatment” in the form of “sanctions” for Violation of Probation constituted double jeopardy.
Judge Joseph F. Murphy writing for a unanimous Court of Appeals almost summarily rejected both arguments and in doing so in the legally limited context provided by the issues as they were preserved and presented pointed out that “Petitioner’s “fundamental jurisdiction argument overlooks the critical distinction between (1) lack of jurisdiction and (2) the improper exercise of jurisdiction.” The Court of Appeals then held that the Drug Treatment Court which is simply a specialized function, in this case of The Circuit Court for Baltimore City, has “the power to render a judgment over that class of cases within which Petitioner’s case falls.” The Court of Appeals after further ruling that the issue of double jeopardy was not preserved and therefore not properly before the court then further pointed out that “if the procedures established by the Baltimore City Adult Felony Drug Treatment Court erroneously violate the rights of a defendant, there are well- developed mechanisms for correcting any violations.”
Those “well-developed mechanisms for correcting any violations” were not invoked by The Public Defender’s Office in Robert Calvin Brown III v. State of Maryland, so Judge Murphy writing for the court of Appeals, could not utilize them to determine the really important issues raised by the case. Those important issues were whether a defendant can be allowed or even required to waive some of his rights as sort of a trade-off in order to obtain the assistance and support of the “problem- solving” Drug Court and its superior judicial, professional, and therapeutic resources to help him/her solve his/her problem of drug addiction. In other words, do any constitutional provisions, statutes or even Rules preclude or limit an individual from giving up some rights or applying a cost/benefit analysis to their waiver for the purpose of deciding whether to avail himself or herself of the benefit of the court’s “problem-solving” capacity and mission.
Entry into any Maryland Drug Treatment Court is totally “voluntary” on the part of the Defendant. Each Defendant who is offered the option of entering into the Drug Treatment Court Program is physically and psychologically prescreened first to determine his/her “amenability to the treatment.” So “likelihood of success” is considered. The defendant who chooses to participate in The Drug Treatment Court Program obtains significant benefits. He/she usually receives a suspended sentence where he/she might otherwise be incarcerated for a longer time because of his/her criminal record and the nature of the offense. His/her case is the subject of much greater attention, time, and focus from the Drug Court Presiding Judge who has received special training and as a result is more knowledgeable in the treatment of addiction than other judges. In addition much more intensive and arguably efficient drug and psychological therapy as well as community support, job training and housing assistance, if needed, is provided. The goal of the Drug Treatment Court is rehabilitation not simply deterrence and prevention.
These are the important issues. They may have a constitutional dimension in the context of criminal cases. But in every civil case or even unfiled dispute or controversy there are new and innovative methods of addressing disputes including the entire field of Alternative /Appropriate Dispute Resolution which have already or are making their way into our culture. Some of these techniques not only address legal disputes by acknowledging their multidisciplinary roots but also attempt to do so in ways that promise to limit future conflict. These techniques also arguably teach and empower parties to resolve their own future conflicts in ways that do not require formal court intervention. This has the potential to save the taxpayers the cost of paying for more judges, clerks, and staff.
Can Courts or legislatures require citizens to receive education and training such as in “Parent Communication” and actual “Parenting” classes as well as participate in Mediation and pay for all these things as a precondition to presenting their case to a judge in a conventional courtroom setting? So far the answer is a conditional “Yes” to the overall question of whether the Judiciary can impose its enhanced mission of “Problem-solving” on those who approach the Judiciary to have their disputes resolved. What hasn’t been resolved are the fiscal and operational priorities to be assigned to these functions, and how they will be translated into changed institutions and operations. They will be discussed in future columns.