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Bad Faith Decisions and Nepotistic Bias
at the MD Court of Special Appeals (2007)
(Letter Written to then Chief Judge Joseph F. Murphy, Jr. on November 20, 2007)
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Your Honor (Chief Judge Joseph Murphy),
It goes without saying that you are viewed by your peers and constituents as a trustworthy, fair, hardworking, honest person, and most of all, possess a legal integrity that is above and beyond that of your judicial peers. I am sure that your expectations are very high of the Judges that work under your supervision at the Maryland Court of Special Appeals as well.
To get right to the point, there is a malignant cancer which has spread to your Court, and you deserve to be made aware of its location and its type, so that you may act quickly to first reduce any possible metastasis, then to mitigate its impact on the judicial body which you have invested so deeply in.
The judicial cancer that I am referring to is bad faith decision making, and it is being fed by nepotistic bias and partiality. This rare form of intellectual dishonesty is fatal to the proper administration of justice, and it is occurring within the MD CSA with the same blind ambition that only a malignant cancer possesses.
A symptom of this cancer has recently occurred in your Court with case 916, September Term/2006 (Zupancic v. Abbott), a textbook case of bad faith decision making. In this case, the factual findings made by a three judge panel (Krauser, Meredith, Moylan), took well established, undisputed material facts, and replaced them with clear fabrications, omissions, and a reconfiguring of the material chronology at the most pivotal points. The replacement of fact with fiction is so egregious in this case as to call into question the respect that the members of this panel have for the positions in which they have been entrusted.
Why would this panel risk losing the trust of the public in the judiciary, or abuse their power so openly?
The power of a double ego, bound by marriage and time, must be so exponentially powerful as to render its victim judicially impotent.
In other words, when a judge in the Maryland Court of Special Appeals is married to a Judge in a lower Court, whose decisions may at some time come under scrutiny by the Judge’s colleagues at the CSA, it is now proven that this is the perfect environment in which bad faith decision making, the cancer, can and does occur. This is no longer a hypothetical question. The evidence proving its presence is clear, unequivocal, and not ambiguous in the least.
In a nutshell, what happened in case 916/2006 (Zupancic v. Abbott) simply amounted to, in the minds of the three judge panel at the CSA, a problem that needed to be fixed. Unfortunately, the perceived problem had nothing at all to do with the legal case before them. The problem was that Judge Karen H. Abrams, the wife of Judge James A. Kenney III, made serious ethical, legal, and professional errors in her handling of case 05-85 at the Circuit Court for St. Mary’s County Maryland. These errors were so egregious as to call into question her ethical integrity, legal abilities, and her willingness to follow the MD Code of Judicial Conduct. What is even more unfortunate is that her husband, the honorable Judge James A. Kenney III, was the sitting Vice Chair of the Maryland Judicial Ethics Committee, before, during and after the trial. The inherent inability to adequately separate her conduct and his position make the appearance of impropriety that much more amplified and that much more significant.
A detailed complaint was filed in August of 2006, in response to Judge Karen H. Abrams’ clear violations of the Maryland Code of Judicial Conduct. One such violation related to Abrams renting her previous office space to a local attorney, Daniel J. Guenther, and then not disclosing this financial relationship to litigants and attorneys in her courtroom. In fact, it was later established that Guenther and she practiced a “don’t ask, don’t tell” policy with regard to their relationship. Case 05-85(St. Mary’s County) and its subsequent case at MD CSA 916/2006, was one such case in which disclosure and offer to recuse was not practiced despite Daniel J. Guenther being the attorney for the plaintiffs in the case. While investigating Abrams in the writing of our complaint, we uncovered the fact that Judge Abrams did not disclose her financial relationship with Guenther on her YR 2005 MD State Financial Disclosure Statement, as well as creatively claiming the rent money as being earned through her business, Karen H. Abrams P.C. Her YR 2006 statement disclosed Guenther’s rent money, as well as accurately stating that the money’s source was Guenther and not Karen H. Abrams P.C.
We found this to be odd, especially considering that the Judge Abrams’ husband, James A. Kenney III, was Vice Chair of the MD Judicial Ethics Committee, the body that “determines whether to allow a judge or judicial appointee to correct a deficiency as to a financial disclosure statement or to refer the matter, as to a judge, to the Commission on Judicial Disabilities” at the time. Oddly enough, our complaint filed against Abrams with the MD Commission on Judicial Disabilities was dismissed almost immediately and with no explanation. A year later, on September 25, 2007, the Maryland Judicial Ethics Committee issued Published Opinion 2007-10, mandating that when a judge has a landlord/tenant relationship with an attorney who practices in his/her courtroom, “A judge must disclose the nature of the relationship to the parties and their clients so that the parties may have a chance to object or waive their objections. If the parties do not agree to waive the judge’s disqualification, the judge should recuse himself/herself unless there are compelling circumstances to the contrary.”
http://www.courts.state.md.us/ethics/pdfs/2007_10.pdf
Coincidentally (or not), MD Judicial Ethics Opinion 2007-10 was published approximately 3 weeks before our CSA opinion came back, 10 months post oral argument. It has been agreed upon by all attorneys that were familiar with the case that when you analyze the content of the opinion versus the 10 month gestation period, it does not add up. It is also coincidental (or not) that Ethics Opinion 2007-10 came out approximately one and a half months after an online poll was initiated from within a St. Mary’s County internet forum, relating to the ethical question of whether Judge Abrams should disclose her financial relationship with Guenther to litigants and attorneys in her courtroom when Guenther is involved in a case before her.
http://forums.somd.com/life-southern-maryland/109621-judge-abrams.html
http://forums.somd.com/life-southern-maryland/117159-judges-cherry-pickers-fact.html
What is also quite disturbing is that the author of MD CSA unpublished opinion 916/2006 was Judge Peter Krauser, the only other Judge on the Court of Special Appeals who is also married to a Maryland Circuit Court Judge. How could a Judge whose wife is also Circuit Court Judge in Southern Maryland be chosen to write this opinion? If Judge Kenney is required to recuse himself from any activity in this case, wouldn’t it make sense that Krauser would be the last person whom would be chosen to write the opinion? The fabrication and omission of undisputed material fact and chronology in this “judicially sensitive” case, paired with the fact that Krauser’s wife Sherrie is also a Circuit Court Judge in Southern Maryland, creates a clear “appearance of impropriety” issue within your Court.
A reasonably prudent person would feel that the appearance of impropriety standard was breached in this instance by Judge Krauser, especially if this reasonably prudent person cross referenced Krauser’s factual findings against the trial transcripts and evidence. No reasonable person, judge or otherwise, could in good faith draw any other conclusion. Judge Abrams and Judge Krauser both chose to omit a $2500 retainer check that was placed into an escrow account from their factual findings, despite basing the gravamen of their legal conclusions on two other checks that were written at the same time, but were never negotiated or placed into any escrow account. All three checks were admitted into evidence and are part of the case file at the MD CSA. What also strikes me as odd is that the transcript of the last day of trial at the Circuit Court for St. Mary’s County, in which Judge Abrams gave her oral factual findings and conclusions of law(which make for a comical read), never made it up to Annapolis with the rest of the case file.
If one does decide to genuinely contemplate the three check issue as opposed to forming an opinion in “bad faith”, no logical person could come to any other conclusion than that the third check was absolutely material, and its existence under the circumstances creates a cloud over all of the testimony in the trial of the most material, key witness. In fact, the testimony of the real estate settlement attorney/witness who accepted the retainer check and then did not disclose this to the other party to the transaction, really cannot be given any weight at all. This is the reason that complete omission of this third check, the retainer check, was Abrams’ and Krauser’s only option if they were going to adequately conceal the ethical violations related to this case.
While putting intellectual dishonesty to the side and accepting this retainer check as impossible to exclude from any bona fide analysis and review of the case, a “bad faith” analysis becomes the only intellectually honest explanation for the fabrication, alteration and omission of undisputed facts in the MD CSA’s factual findings.
I am at a point now of deciding whether to spend my money and time on a gamble which I have already lost twice; whether a Maryland Court will make a decision based upon a good faith review and analysis of a case which consists almost entirely of undisputed facts or if the Court will simply omit that which is embarrassing to them personally, fabricate what is less than flattering, and rearrange the chronological sequence of events because the actual sequence defies logic and common sense when viewed alongside the multitude of fabrications.
On the other hand, would that very same money and time be better spent in the publicizing of the nepotistic disabilities which inflict two of the judges currently at the Maryland Court of Special Appeals? The blatant abuse of judicial power through bad faith decision making and opinion writing is a cancer that I will not sit by idly and watch from afar. Nor would I sit by and watch as an unethical real estate settlement attorney took advantage of an elderly widow. It is not in my nature, nor is it likely in the nature of most judges who take their job and their position of power seriously.
Please help to eradicate the cancer from the MD CSA and support those judges who look to their leader to guide them through murky backwaters, and correct problems like these before they become incurable. I am confident that you will take the necessary “measures” to keep Kenney and Krauser’s nepotistic disabilities from thwarting the proper administration of justice in your Court.
I have attached a scanned copy of the controversial retainer check, which I copied from the record extract of Case 916/2006. The check still exists, as does its past, present, and future ramifications.
John Martin Zupancic III
***Note: On November 6, 2007, a motion was filed by the appellees to have the unreported opinion (Case 916, September Term 2006), reported.
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