Ballot Question #5 — The Orphans’ Court and the Trojan Horse

Melissa Pollitt Bright • October 11, 2022

If you are like most Maryland voters, you will pick up your ballot this year and towards the end of the local offices section you’ll see a category and say to yourself, “Oh yes, the Orphans’ Court — I meant to look that up.”

Don’t feel bad. You are far from alone. This quiet little court has been around since Maryland was a colony, with roots that go back centuries before that. And it remains the court with which more Marylanders will have dealings at some point in their lives than any other part of our state’s judicial system.

But it is apolitical, it generally has no public issues, and so it quietly goes about its work, far from headlines or social media attention. You will not come to, or submit papers to, the Orphans’ Court because you are accused of a crime, are filing suit or being sued, or even because you have a serious traffic ticket. You will come to get help with settling the affairs of someone dear to you, at one of the most difficult times of your life. And when your time comes, the Orphans’ Court is the court that will stand for you when you are no longer here to fight your own battles.

Let’s start with the name. It’s a tad misleading but makes sense when you know from whence it came. In the Middle Ages, children were “orphans” when their father died, because their mothers, being mere females, had no legal rights and were, themselves, property. In those times, family matters were handled by the ecclesiastical courts — the church. This included management and preservation of inheritances belonging to children. Eventually, the City of London established a secular Court of Orphans to take over those functions.

This concept migrated to the Maryland colony. During the Revolution, probate (administration of estates) was delegated to the County Courts, and then to the Orphans’ Court and Register of Wills for each county and Baltimore City. The system remains in place today.

So what does the Orphans’ Court do today? Property rights are so fundamental that the responsibilities have not changed much since the first recorded London case in 1276. When you die and the fruits of your life’s work are to be distributed, who will oversee this? The Orphans’ Court will. If you have a Will, the Orphans’ Court will enforce it. If you don’t have a Will, the Orphans’ Court will protect the rights of your heirs. It will also protect the rights of your creditors and oversee the legal fees and Personal Representative commissions.

If your heirs are feuding (even the nicest folks sometimes do over inheritance), the Orphans’ Court will help them sort it out. Often the tension arises from some event or perceived transgression having little or nothing to do with the inheritance. In those cases, the informality of the Orphans’ Court allows people to unburden themselves and feel heard. It often helps the parties arrive at mutual agreement, rather than having the court impose a judgement. If funds or property are left to a minor, they will be safeguarded until the child comes of age. An appointed guardian may petition the court for funds if needed for the benefit of the child in the meantime.

This is your court, the people’s court. You have the privilege of choosing the judges yourself from among your own community, then hiring and firing them every four years.

Now the Orphans’ Court’s existence is threatened. Ballot Question #5 is a referendum for a constitutional amendment that would require the Circuit Court of Howard County to sit as the Orphans’ Court, and would repeal the election of the Orphans’ Court judges. This question is not the local issue it appears to be — it is a Trojan Horse, cleverly designed to deprive Maryland citizens of a fast, inexpensive, and personal way to settle their loved ones’ estates, and to reduce their voting rights. It did not arise from the people of Howard County, and the Circuit Court, already overburdened statewide, was not consulted. The information provided by the proponents is almost entirely inaccurate; most is outright false.

What are they saying about the orphans’ court? The referendum sponsor has been attacking what she has multiple times referred to as a “lay court” (referring to Howard County’s Orphans’ Court) because she believes all judges should be attorneys, an opinion she has expressed in task force work sessions and in multiple recorded testimonies. Howard County’s court, for two of the last three terms, has been an attorney court by a two-to-one majority. This attack on the capability of lay courts has not been limited to Howard County.

The sponsor alleges that only 15 U.S. states have specialized probate courts. The senator who introduced this bill in the Senate hearing said that Maryland’s 19 lay judge Orphans’ Courts were the ONLY ones in the United States. The instigator of this attempt to abolish the Orphans’ Court has testified that only Maryland and Pennsylvania still have this “antiquated” system.

The truth is that only Maryland and Pennsylvania have something called the orphans’ court, but every state has a probate court, either stand-alone or merged into another court. At least six states have lay judges in some or all of their probate courts. Georgia alone has 132 counties where lay judges may serve on the probate court. Twenty-seven states — a majority of states — have lay judges serving in various specialty courts, including those handling criminal matters.

Lay judges have served in specialized jurisdictional courts under English law since the 14th Century. Lay judges typically display a strong knowledge in their particular area of the law, common sense, knowledge of their community, and experience. In Maryland’s rural counties, lay judges are the best choice for part-time courts, since attorneys would have to give up their practices for these positions where pay rates start at $1,600 per year. If the Circuit Court has to absorb the work, the need for an additional judge will cost the state six figures, not counting staff and office space, equipment, and operating expenses. Meanwhile, if any party prefers to take their case to the Circuit Court, there is a provision in the statutes for doing just that by transmitting issues.

The part-time nature of the Orphans’ Courts has been another area of attack on false premises. The sponsor and witnesses allege that Howard County’s approximately 250 cases per year would add less than 2% to the workload of the Circuit Court. To make this argument they have chosen the number of hearings, which is not synonymous with cases. A great deal of the work of the Orphans’ Courts is administrative, meaning the court reviews files and accounts, grants or rejects motions, and otherwise monitors the progress of the estate and provides court orders when needed for administrative purposes.

In Howard County, as in most of Maryland, the Orphans’ Court meets only once a week unless there are urgent matters in between. But they still handle approximately 2,000 cases per year. The allegation put forth that they do not meet weekly and therefore cause delays that would be avoidable in the Circuit Court is entirely false.

The referendum sponsor and her witnesses have accused the court in Howard County of unnecessary delays because unanimity of opinion is required for a ruling. That is not true. Two judges in agreement can rule, and have done so.

Another allegation is that the court’s failure to understand the law caused two families unnecessary and burdensome delays in resolving their loved one’s estates. These two cases had to do with an attorney claiming fees before performing any work. The Orphans’ Court denied the payments, and appeals of that ruling were filed during the pandemic, when courts were closed. Had the attorney been willing to do the work before being paid, the estate would have been settled long before the appeal was decided.

Another egregious allegation is that the Howard County Orphans’ Court is “the worst in the state,” said on social media by the official who has pushed this referendum, although no specifics could be provided. This same person told the legislature that Howard County had the worst appeal record of all but one other Orphans’ Court in Maryland. The truth is that of approximately 10,000 or more individual orders signed by that court in the last 12 years, only 45 have been appealed. That is pretty impressive. This is typical of all of Maryland’s Orphans’ Courts — the appeals are rare, and most of those are settled or dismissed before being heard. The appeal in many cases is merely a mechanism to provide time for legal maneuvers.

The proponents of this proposed constitutional amendment promise that the Circuit Court would be:

more efficient — it wouldn’t, it takes far longer to get on a Circuit Court docket;
more reliable — no, most current Circuit Court judges have no background in basic probate; and
more compassionate — no, the informality of the Orphans’ Court is specifically designed to permit families to work out their differences, even engage in something akin to mediation, in a more relaxed, friendlier environment than the Circuit Court.

This referendum was pushed through the legislature as a local bill to take advantage of legislative courtesy. Since most proposed amendments are unknown to the voters until they reach the polls, the proponents are counting on general ignorance of the truth to get this approved. The sponsor said, in her videotaped testimony before the House Judiciary Committee, “Today I am coming with the Howard County local bill. I think that what the state does in terms of Orphans’ Courts is a later issue that we should take up.” (House Judiciary Committee open hearing, March 2nd, 2022, 1 hour, 47 minutes, and 50 seconds into the tape.)

This proposed amendment is a Trojan Horse, designed to further personal agendas of a very few people at the expense of the citizens of Maryland. Please reject it. Vote AGAINST Ballot Question #5.

Melissa Pollitt Bright is the Chief Judge of the Wicomico County Orphans’ Court; the President of the Maryland Association of Orphans’ Court Judges (MAJOC); and the Past Chair of the Education Sub-Committee, Conference of Orphans’ Court Judges. She can be reached at truthabouttheorphanscourt@gmail.com.

< Older Post

Newer Post >

Mail

Common Sense for the Eastern Shore

Speak up for Eastern Neck and NWR System

By Friends of Eastern Neck Board of Directors • April 16, 2025

Let your elected representatives and business and cultural leaders know that our Refuge and others like it all over the country deserve to be protected. They deserve our stewardship for the natural wonders they shelter, and because they provide refuge for people, too.

Letter: These Republicans Are Right — Hogan is Responsible for Maryland’s Budget Deficit

By Elaine McNeil • April 9, 2025

The Budget Deficit In a recent debate on closing Maryland’s budget deficit, Minority Leader Jason Buckel, a Republican delegate from Allegany County, made an important point: “The man upstairs has only been there for two, three years. I don’t blame him for our economic failures of the last 10,” referring to Democratic Gov. Wes Moore, who was elected in 2022. Ahead of the 2026 gubernatorial elections, Buckel’s comments highlight a key reality that many of his Republican colleagues seldom admit: It isn’t right to blame Gov. Moore for a budget deficit that has been brewing for years. Now projected at $3.3 billion, Maryland’s structural deficit is a problem that started long before Moore took office. In fact, it was first projected in 2017, during the tenure of former GOP Gov. Larry Hogan. This isn’t an opinion — it’s a fact that Buckel and other lawmakers, including Republican Del. Jefferson Ghrist, have bravely acknowledged. During that same debate, Ghrist remarked that the Department of Legislative Services had warned about this deficit throughout Hogan’s administration, yet he did little to address it. Ghrist pointed out that during Maryland’s “good years,” when the state received a flood of federal covid-19 relief dollars, spending spiraled without regard for long-term fiscal health. Hogan used these one-time federal funds to support ongoing programs, which masked the true state of Maryland’s finances and created an illusion of fiscal stability. Hogan continues to take credit for the “surplus” Maryland had in 2022 — even though experts repeatedly note it was caused by the influx of federal dollars during the pandemic. As Ghrist correctly observed, the lack of fiscal restraint and slow growth during the Hogan years laid the groundwork for the $3.3 billion structural deficit the state faces today. Indeed, Maryland’s economy has been stagnant since 2017, especially in comparison to its neighboring states, well before Moore took office. Compounding these challenges are President Donald Trump’s reckless layoffs and trade wars with our allies. Thousands of federal workers who live in Maryland are losing their jobs, which will cost the state hundreds of millions of dollars in lost revenue. Trump’s tariffs will also put an enormous strain on local businesses, including Eastern Shore farmers, who are now subject to up to 15% retaliatory tariffs on chicken, wheat, soybeans, corn, fruits, and vegetables. FY2026 Budget Considering this grim reality, Maryland’s lawmakers are making difficult, but necessary, decisions to shore up the state’s finances. Gov. Moore and state legislative leaders recently agreed to a budget that prioritizes expanding Maryland’s economy without raising taxes on most residents. In fact, 94% of Marylanders should see either a tax cut or no change at all to their income tax bill under the proposed agreement. Lawmakers also plan to cut government spending by the largest amount in 16 years, while at the same time making targeted investments in emerging industries, such as quantum computing and aerospace defense, so the state is less dependent on federal jobs. While the richest Marylanders might see their income taxes go up, it’s reasonable to ask someone making over $750,000 a year to pay $1,800 more to support law enforcement, strengthen our schools, and grow our economy. As for the proposed tax on data and IT services, these products aren’t subject to Maryland’s sales tax under current law. Maryland leaders want to modernize our tax code by levying a 3% sales tax on these products. Because they don’t raise income taxes on the majority of Marylanders and because state leaders are also cutting spending by billions, these ideas are fair. They’re also necessary after Gov. Hogan chose to kick the can down the road instead of addressing Maryland’s long-predicted deficit and now that Trump’s policies will lay off thousands of Marylanders and his tariffs will hurt our state. By making responsible choices now, Maryland leaders are putting the state on a path to long-term economic stability. Their decisions will help Maryland thrive, create jobs, and invest in the vital services that every resident relies on — without burdening hardworking families. I’m confident Maryland will emerge stronger, more resilient, and ready to lead in the industries of tomorrow. Elaine McNeil is chair of the Queen Anne’s Democratic Central Committee.

Fighting the President’s Executive Orders

By John Christie • April 2, 2025

Among Donald Trump’s most recent targets is what he calls “rogue law firms.” At 6pm last Thursday, March 27, he issued an Executive Order (EO) aimed at my old law firm, WilmerHale, as one of those “rogue” firms. Approximately 15 hours later, the firm filed a 63-page complaint challenging the EO on multiple constitutional grounds. The EO is an “unprecedented assault on the bedrock principle that one should not be penalized for merely defending or prosecuting a lawsuit” and constitutes an “undisguised form of retaliation for representing clients and causes Trump disfavors.” And by 8pm on Friday, March 28, a little over 24 hours after the EO was first issued, a federal district court judge in Washington granted a request for a temporary restraining order, blocking key provisions of the EO from taking effect for now. In doing so, the Court found that “the retaliatory nature of the EO is clear from its face. There is no doubt that it chills speech and legal advocacy and qualifies as a constitutional harm.” The Executive Order The EO and a so-called “Fact Sheet” that went with it recites that the Administration is committed to addressing the significant risks associated with law firms, particularly so-called “Big Law” firms that engage in conduct detrimental to critical American interests. Wilmer Cutler Pickering Hale and Dorr LLP (WilmerHale) is yet another law firm said to have abandoned the legal profession’s highest ideals and abused its pro bono practice by engaging in activities that “undermine justice and the interests of the United States.” The specific examples offered in support of this conclusion: The EO asserts that WilmerHale “engages in obvious partisan representations to achieve political ends,” an apparent reference to the firm’s representation of Trump’s political opponents — namely the Democratic National Committee and the presidential campaigns of Joe Biden and Kamala Harris. The EO cites WilmerHale’s “egregious conduct” in “supporting efforts to discriminate on the basis of race,” an apparent reference to the firm’s representation of Harvard in the Students for Fair Admissions litigation. The EO accuses WilmerHale of “backing the obstruction of efforts to prevent illegal aliens from committing horrific crimes,” an apparent reference to the firm’s litigation related pro bono practice and successful challenges to immigration related policies. The EO accuses WilmerHale of “furthering the degradation of the quality of American elections,” an apparent reference to the film’s involvement in challenges to restrictive state voter-identification and voter-registration laws. The EO singles out certain current and former WilmerHale partners, including Robert Mueller, for special criticism by describing Mr. Mueller’s investigation as “one of the most partisan investigations in American history” and having “weaponized the prosecutorial power to suspend the democratic process and distort justice.” The EO then Revokes security clearances held by WilmerHale attorneys; Prohibits the federal government from hiring WilmerHale employees absent a special waiver; Orders a review and the possible termination of federal contracts with entities that do business with the firm; Calls for the withdrawal of government goods or services from the firm; and Calls for restrictions on the ability of WilmerHale employees to enter federal buildings (presumably including federal courthouses) and on their “engaging” with government employees. WilmerHale’s Complaint WilmerHale engaged Paul Clement, a former Solicitor General during the George W. Bush administration and a well-known advocate frequently representing conservative causes, to represent the firm in this matter. Assisted by some 15 WilmerHale litigators, the complaint names the Executive Office of the President and 48 other Departments, Commissions, and individual Officers in their official capacity as defendants. A variety of constitutional violations are alleged: The First Amendment protects the rights of WilmerHale and its clients to speak freely, and petition the courts and other government institutions without facing retaliation and discrimination by federal officials. The separation of powers limits the President’s role to enforcing the law and no statute or constitutional provision empowers him to unilaterally sanction WilmerHale in this manner. The EO flagrantly violates due process by imposing severe consequences without notice or an opportunity to be heard. The EO violates the right to counsel protected by the Fifth and Sixth Amendments and imposes unconstitutional conditions on federal contracts and expenditures. The complaint alleges that WilmerHale has already suffered irreparable damage in the 16 hours since the EO issued. The firm has been vilified by the most powerful person in the country as a “rogue law firm” that has “engaged in conduct detrimental to critical American interests. The EO will inevitable cause extensive, lasting damage to WilmerHale’s current and future business prospects. The harm to the firm’s reputation will negatively affect its ability to recruit and retain employees. Further Proceedings Temporary restraining orders constitute emergency relief upon a showing of likely success on the merits and irreparable harm were the temporary relief not entered. A later hearing will be held in order for the judge to determine whether a preliminary injunction should be issued preventing the government from executing the EO during the continued length of the litigation. Editorial Note: In light of the recent capitulation of several “Big Law” firms to the unreasonable and unconstitutional attacks by the Trump administration, WilmerHale is providing a blueprint for resistance as it fights back. More law firms need to be inspired by WilmerHale’s response to Trump’s demand for revenge on his so-called political enemies. John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.

Remembering Tom Timberman

By Bill Flook & CSES Staff • April 2, 2025

Tom Timberman was one of the founders of Common Sense for the Eastern Shore. Sadly, he died last month. He will be missed. Common Sense exists because of his leadership and inspiration. His vision was to provide factual and timely commentary and analysis on topics that concern people who live and work on Maryland's Eastern Shore, and to provide factual reporting to help readers shape their own lives. It was important to Tom, as it is today to the editorial board, for Common Sense to help voters to be aware of the effects — personal and local — of decisions made at the federal and state levels. Especially relevant now is this from our Mission Statement: “We seek an America responsive to its citizens and its constitution.” We reprint this tribute from Bill Flook, President of the Democratic Club of Kent County : Many of us were deeply saddened to learn of TomTimberman’s passing last week. It’s hard to believe that such a strong Democratic voice is gone. I worked with Tom for much of the past decade on many good projects promoting our values and activities, including helping on his campaign for County Commissioner, and I’ll particularly miss following his lead as Captain of the Dawn Patrol. Our group met most Saturday mornings for coffee and some good chat, before heading up to Dems HQ to set up the booth there. We’ll miss you, Tom!

The Truth About the FY2026 Md. Budget HB350

By Jared Schablein • April 2, 2025

After over 12 hours of debate over two days (and a whole circus from the other side), the Maryland House of Delegates has passed HB 350, this year's state budget, and sent it to the State Senate. This budget is a deal between House Democrats, Senate Democrats, and Governor Wes Moore. It faces our state's $3 billion deficit head-on not with fantasy math, but with real choices: smart cuts and fair new revenue. This is what grown-up governing looks like. How We Got Here: Maryland’s budget problems didn’t start overnight. Leaders began warning about a shortfall in 2017 when Governor Larry Hogan was in office. Hogan made our state budget bigger every year, but the legislature wasn’t allowed to move money around or make common-sense changes. By law, they could only make cuts. In 2020, Maryland voters changed that. Starting in 2023, lawmakers finally got full power to shape the budget, not just cut from it. Instead of fixing the problem, Governor Hogan used federal COVID relief to hide our fiscal instability. Then, before leaving office, he drained our state’s savings from $5.5 billion to $2.3 billion to boost his image. Today, we are facing a new fiscal arsonist. Donald Trump’s trade wars and cuts to federal programs hit Maryland hard. We have more federal jobs and agencies than any other state, so we felt it worse than most. A University of Maryland study says Trump’s tariffs alone could cost us $2 billion. Trump/Musk's policies caused over 30,000 people in Maryland to lose their jobs, offices to shut down, and promised investments to disappear. These federal cuts added another $300 million to our budget deficit. COVID relief gave us a short break and even created a fake surplus under Hogan, but that money is gone now. Meanwhile, housing, healthcare, and college prices have gone way up. The Trump–Musk White House is making it worse by cutting even more funding, eliminating research, and gutting the services we rely on. That’s why Maryland had to act. We needed a real plan to protect working people, fund our schools and hospitals, and keep our state strong. Why Cuts Were Needed Trump’s trade wars and cuts to federal agencies hit Maryland harder than any other state. A University of Maryland study says those tariffs alone could cost us $2 billion. That hurts real people: A chicken farmer on the Eastern Shore is paying 25% more for fertilizer. A dock worker in Baltimore has fewer ships to unload. A restaurant owner in Western Maryland can’t afford eggs and tomatoes. We’ve lost over 30,000 jobs. Offices have shut down. Promised investments disappeared. The decisions of the Trump/Musk administration added $300 million to our state deficit.

No, Mr. Trump, You Have No “Mandate”

By Jan Plotczyk • November 19, 2024

The 2024 presidential election was over swiftly. The Associated Press called it at 5:34 am on Nov. 6, and by 8 am, President-elect Donald Trump was crowing about the “ historic mandate ” given to him by the American people. A “mandate”? Turns out not. Trump jumped to an early lead on election night, but in the following days, his lead diminished as mail-in and provisional ballots were counted. A Baltimore Banner article on Nov. 6 highlighted the “Trump shift” that had occurred in every political subdivision in Maryland, even in counties where Democrat Kamala Harris won. This shift described the increase in Trump support since his loss to President Joe Biden in 2020 . As of Nov. 6, the biggest Trump shift was an 8.1% increase in his support in red Cecil County, but there were also shifts in the central Maryland counties that are the state’s Democratic strongholds — 4.3% in Montgomery and lesser amounts in other blue counties. Fourteen counties recorded shifts of 4% or more. On the Eastern Shore, every county had a shift over 4.5% except Talbot (2.7%), and the five largest shifts were Shore counties. For the state’s Democrats, it did not look encouraging. But as mail-in and provisional ballots were counted across the state, the Trump shift was reduced everywhere, and as of Nov. 16, disappeared altogether in Garrett (-1.2%) and Charles (-0.1%) counties. The shift dropped below 3% in all Maryland counties. Cecil’s shift became 2.1%. Montgomery’s shift dropped to 2.9%. Talbot’s shift declined to 0.2%, lowest of the Eastern Shore counties. Now, instead of five, only two of the highest five shifts were in Eastern Shore counties. The red bars in the chart below represent the Trump shift percentage values as of Nov. 16, in ascending order. The grey bars represent the misleading (and ephemeral) Trump shift percentage values as of Nov. 6. Please note the degree to which the Trump shift lessened and disappeared in the 10 days after the election. Another red mirage. But if you had only read the Nov. 6 article and not looked at the updated data, you would have been fooled into thinking Trump support is stronger than it is.