By Adam Pagnucco.
In Maryland, circuit court judges are initially appointed by the governor but must then run for election after a year. The appointment process involves rigorous multi-layered vetting by several bar associations and a state nominating commission. The appointees who emerge from it typically run together as a slate of “sitting judges.” However, other attorneys may run against the appointees and sometimes they win. One frequent challenger to the sitting judges in Montgomery County is Marylin Pierre.
Pierre ran for judge and lost in the 2018 primary and the 2022 primary. She survived the 2020 primary but lost in the 2020 general election. She is running again this year.
The 2020 circuit court judge race was a wild election and I wrote about it more than once. Pierre was running against four sitting judges. In June, Pierre tweeted “Lock em up” about the police officers who killed Minnesota man George Floyd prior to their trial. Pierre blamed a campaign volunteer for the tweet but that did not stop the sitting judges from blasting it and recounting her long history of being rejected for judicial appointments. In September, a former Republican party chairman revealed that Pierre courted and donated to the GOP despite running as a progressive. In October, the sitting judges obtained a temporary restraining order against Pierre because one of her volunteers inaccurately claimed that she was a judge at an early voting site. Pierre responded by accusing the sitting judges of smearing her. Pierre did not close come to winning, but she did get a lot of ink!
It turns out that the 2020 election had spillover that lasted for years in court. On 11/30/21, the Attorney Grievance Commission of Maryland filed a petition for disciplinary action against Pierre in Anne Arundel Circuit Court (case number C-02-CV-21-001655). The case made its way to the Supreme Court of Maryland, which filed its opinion on 8/16/23. The following account of the charges against Pierre and the findings of the Supreme Court are derived from the latter’s opinion.
The Supreme Court described the origin of the case this way:
The core allegations against Ms. Pierre arose from accusations made in an August 2020 campaign email. The email was sent by the campaign manager for a slate of four sitting judges against whom Ms. Pierre was running for a seat on the Circuit Court for Montgomery County. Sent just over two months before election day, the email was directed to Montgomery County attorneys and identified an “Urgent Need for Action.” The email alleged, among other things, that Ms. Pierre’s campaign had made false statements about the sitting judges, that Ms. Pierre had misstated her professional qualifications, and that she had engaged in unprofessional conduct in connection with a lawsuit more than two decades earlier.
Among the recipients of the email was the Bar Counsel of Maryland’s Attorney Grievance Commission, which oversees the conduct of those practicing law in the state. The Supreme Court wrote:
After completing its investigation, the Commission, acting through Bar Counsel, filed a petition for disciplinary or remedial action in which it alleged that Ms. Pierre violated the MARPC [Maryland Attorneys’ Rules of Professional Conduct] and the New York Code of Professional Responsibility Disciplinary Rules (“NYDR”) as a result of her: (1) misleading or false statements about the sitting judges in her 2020 campaign materials; (2) willful misrepresentations about her background on her 1999 Application for Admission to the Bar of New York (“New York Bar Application”); (3) willful misrepresentations about her background and career experience on her applications for various judgeships in Montgomery County between 2012 and 2017; and (4) false statements under oath and failure to timely respond to Bar Counsel’s investigatory demands…
The assigned hearing judge found by clear and convincing evidence that Ms. Pierre had violated each MARPC and NYDR alleged, although the hearing judge rejected several of the grounds on which Bar Counsel had relied for those violations. The hearing judge also determined the existence of seven aggravating and four mitigating factors.
Pierre appealed the hearing judge’s findings to the Supreme Court. After considering the case, the Supreme Court threw out many of the hearing judge’s findings but sustained two of them. Those two were:
Misrepresentations About Sitting Judges
The Supreme Court found that Pierre was responsible for the following misrepresentations of her opponents.
Pierre issued this tweet on May 20, 2020: “Also there are some sitting judges who are only English speakers send people to jail because they could not speak English and discriminate against people based on skin color, country of origins, religious backgrounds or sexual orientations. Moco is cosmopolitan & need more!” The Supreme Court wrote, “At the hearing, Ms. Pierre acknowledged that the statement was false.”
Pierre also issued this tweet on May 23, 2020: “The Sitting Judges are somewhat diverse in that they are black, Asian, gay, and straight, and men and women. But they are not really diverse. They are an in-group. Most of them have worked at the same law firm, go to the same church, and are related by marriage.” The Supreme Court upheld the hearing judge’s “factual findings that Ms. Pierre’s tweet about most sitting judges working at the same law firm, attending the same church, and being related (1) were false, and (2) were made knowing they were false or with reckless disregard for their truth or falsity.” However, the court also found that this tweet was protected campaign speech under the First Amendment.
Knowing and Intentional Misrepresentation by Omission in a New York Bar Application
The hearing judge found that Pierre made several misrepresentations in a 1999 application to the New York Bar. Following is the Supreme Court’s discussion concerning one question on the application:
Question 17(b) asked whether Ms. Pierre had “ever failed to answer any ticket, summons or other legal process served upon [her] at any time” and “[i]f so, was any warrant, subpoena or further process issued against [her] as a result of [her] failure to respond to such legal process?” Ms. Pierre answered “yes,” identified the student loan case, and explained that she had a court date related to nonpayment of student loans for which she was sent a summons and did not appear because she was hospitalized and forgot. She further stated: “A summons was sent to my house and I answered it to the Court’s satisfaction. No further action was taken on the summons since I have made arrangements to pay the student loan.” The hearing judge concluded that response was a knowing and intentional “misrepresent[ation] by omission that the court issued a writ of body attachment for her failure to appear in response to a show cause order, and that she was detained and brought to court by the Sheriff and charged.” Having made that finding, the hearing judge also “f[ound] that [Ms. Pierre] falsely swore that her answers were complete and truthful when she signed the Bar Application[.]”
The Supreme Court found, “Those statements constitute an affirmative, false representation that Ms. Pierre’s receipt of a summons at her house ended the matter. As a result, the record contains sufficient support for the hearing judge’s finding, by clear and convincing evidence, that Ms. Pierre’s answer to Question 17(b) contained a knowing and intentional misrepresentation by omission.” The Supreme Court threw out the hearing judge’s other findings with regards to the New York Bar application.
While the Supreme Court tossed most of the hearing judge’s findings, it did sustain charges that Pierre issued misrepresentations about her opponents and made a misrepresentation on a bar association application. Accordingly, the court wrote, “we conclude that Ms. Pierre violated MARPC 8.2(a), MARPC 8.4(a), (c), and (d), and NYDR 1-101 and 1-102(a)(1), (4), (5), and (8).” In plain English, the court found that Pierre violated rules for attorneys in both Maryland and New York. The court backed up its conclusion with this statement:
First, clear and convincing evidence supports the conclusion that Ms. Pierre demonstrated a selfish motive when she falsely stated that sitting judges send people to jail for not speaking English to bolster her campaign against the sitting judges and in her false and misleading response to Question 17(b) on her New York Bar Application in her attempt to gain admission to the New York Bar. Second, Ms. Pierre has substantial experience in the practice of law, although that was not true at the time of her New York Bar Application. Although Ms. Pierre is correct that her violations do not relate to her legal practice, her level of experience is nonetheless relevant to expectations of her conduct. Third, Ms. Pierre engaged in illegal conduct when she signed her New York Bar Application under oath and attested that she had “fully, truthfully and accurately” answered the questions in the application.
The Attorney Grievance Commission wanted Pierre to be disbarred. Pierre wanted no sanction. The Supreme Court chose to reprimand her. As part of its reasoning, the court stated, “Although Ms. Pierre’s violations, especially in connection with her New York Bar Application, would call for a more severe sanction under different circumstances, we cannot ignore the circumstances present here. We acknowledge that our rules do not contain any guidelines for how to handle allegations of misconduct by lawyers involved in elections generally or in judicial elections specifically.”
This may be the most astounding part of the court’s entire decision. There are sanctions available for lawyers who make misrepresentations in court, but the Supreme Court of Maryland here admits that there are no guidelines for how to deal with lawyers who make misrepresentations when they run for judge. So why on Earth do we elect judges?
I have reached out for comment about this reprimand to both Pierre and the sitting judges against whom she is running. If I receive on-the-record responses from any of them, I will follow up in the future.