2007 Legislative
Preview
Politics Upside-Down
By Richard A. Montgomery, III
MSBA Director of Legislative Relations
Love, friendship, respect, do not unite
people as much as a common hatred of something.
- Anton Chekov
As many commentators noted during election night
news coverage, "all politics is local" (a quote often attributed to Thomas
P. "Tip" O'Neill, which O'Neill himself attributed to his father), except when
the nation is at war, and the manner of prosecution of that war is particularly
unpopular. Whether the electoral results in Maryland were a result of voters
acting out against Republican candidates locally as their way of sending
a message to the national party, we may never know.
Whatever the reason, however, election night
2006 certainly was a disappointment for the GOP locally, as well as nationally.
Governor
Despite election day polling numbers
describing the gubernatorial race as a statistical tie, the challenger, Democratic
Baltimore mayor Martin O'Malley defeated Governor Robert L. Ehrlich, Jr., by
approximately 100,000 votes – nearly 30,000 more votes than Ehrlich's
margin of victory over Lt. Governor Kathleen Kennedy Townsend in 2002. Not
since 1951 has Maryland failed to re-elect an incumbent Governor seeking a
second term. And this despite the fact that Governor Ehrlich had job-approval
poll ratings of greater than 50 percent throughout his four years in office.
Whether it was a case of national politics polluting
the local political environment for a seemingly popular Governor or the state
electorate having grown weary of perceived gridlock in Annapolis under divided
government, the voters were clearly ready for a change. Despite some successes
during his single term in office, one noteworthy element of the 2003-2006
term was that it featured two Special Sessions of the legislature – on
medical malpractice in 2004, and electricity regulation in 2006 – that
both resulted in bills being passed by the legislature, only to be vetoed
by the Governor. In both cases, the General Assembly overrode the Governor's
veto.
Clearly, the most significant of all the ramifications
for the legal community of the outcome of the gubernatorial election lies
in the area of judicial appointments. Although appointments to Maryland's
high court generally occur without the partisan acrimony associated with
appointments to the U. S. Supreme Court, both candidates for Governor knew
that a unique opportunity awaited the winner. With Court of Appeals Judges
Dale R. Cathell, Irma S. Raker and Alan M. Wilner all facing mandatory retirement
over the next 18 months, the incoming Governor has the opportunity to place
an imprint on the Court of Appeals that may last a generation.
As Governor Ehrlich noted in his concession speech
the morning after the election, his successor will inherit a state economy
that is strong, with low unemployment. Nevertheless, numerous immediate challenges
will await Governor-Elect O'Malley as the General Assembly prepares to open
the 2007 Session. Among the issues facing the new Governor and lawmakers
in January will be expanding health care coverage for Marylanders, tuition
affordability, public school governance and accountability, finding a more
long-term solution to stabilize electricity rates, managing growth in the
state, clean-up of the Chesapeake Bay and assuring a business community that
was very comfortable with a Republican governor that the new Democratic administration
will not pursue an agenda that will be perceived as hostile toward Maryland's
business climate. And yes, it is entirely possible that slot machines in
Maryland may return as a legislative issue. However, one factor that should
give Governor-Elect O'Malley a logistical advantage over his predecessor
is that his Lt. Governor, Anthony Brown, was a talented member of the General
Assembly. Those who witnessed then-Delegate Brown chair the House Judiciary
Committee's ad hoc Committee on Medical Malpractice Reform had to
be impressed by his ability to broker consensus among groups that felt little
empathy for one another.
U. S. Senate
When venerable Maryland Senator Paul
S. Sarbanes announced his intention to retire from the U. S. Senate at the
end of his current term, few observers imagined that there would be a meaningful
general election contest for that seat. Most observers were wrong. When Lt.
Governor Michael Steele made it clear that he intended to run for that Senate
seat against the winner of the Democratic primary between Congressman Benjamin
Cardin and former Congressman and NAACP head Kweisi Mfume, few gave Steele
a chance. Polls showed that Steele would face a double-digit poll deficit against
Rep. Cardin, and nearly the same against Mfume. Nevertheless, with the solid
financial backing of both the state and national Republican Party machinery,
Steele ran a spirited campaign that, by Election Day, had reduced a double-digit
Cardin lead to what pollsters described as a "dead heat." However, by the morning
after the election, it turned out that the projected 10+ point margin in favor
of Congressman Cardin was more accurate.
Attorney General
The retirement of J. Joseph (Joe) Curran
led to the first meaningfully-contested race for Attorney General in recent
memory. Unfortunately, this was perhaps the most-overlooked statewide race
during the 2006 election. The Democratic candidate, Montgomery County State's
Attorney Douglas Gansler, defeated his Republican counterpart from Frederick
County, Scott Rolle, in a race that will be remembered by the general public
more for challenges to the candidates' eligibility to serve than for the issues
debated by the candidates. Gansler's list of endorsements and impressive margin
of victory gives him the distinction of being the one successful statewide
candidate who can claim a truly legitimate mandate.
State Legislature
In the Maryland General Assembly, the
Republican Party had set a goal of gaining five seats in the Senate of Maryland,
and 14 seats in the House of Delegates (the "14 and 5"
plan). As of the time this piece was written, it appears that there will
be no change in the party affiliation composition of the Senate and that
the GOP is headed toward losing as many as six seats in the House. Notably,
a few of the losses for the GOP have come in Districts that had appeared
to be reliably Republican.
The most meaningful changes for the MSBA in the
wake of changes in the make-up of the General Assembly relate to the absence
of members who will not return for the 2007 Session. In the Senate Judicial
Proceedings Committee, Vice Chairman Senator Leo Green has retired, leaving
a leadership vacancy. Senator John Giannetti, who had been helpful to the
MSBA in the area of estates and trusts, was defeated in the Democratic primary,
and again in the general election in District 21 (after switching parties
to run as a Republican), by former U. S. Ambassador and former Delegate Jim
Rosapepe. However, most noticeable by her absence in the Senate will be Senator
Sharon Grosfeld, who retired after the 2006 Session. Senator Grosfeld had
worked very closely with the MSBA Family and Juvenile Law Section (in a well-coordinated
partnership with Delegate Kathleen Dumais) for many years. Her vigilance
and influence in the area of family law will be missed.
In the House Judiciary Committee, Delegate Robert
(Bobby) Zirkin has been elected to the Senate to represent District 11 in
Baltimore County. Delegate Zirkin had chaired the Juvenile Law Subcommittee
in Judiciary and had been that chamber's leader on matters related to juveniles.
Delegate Carol Petzold, chair of the Judiciary Subcommittee on Criminal Justice,
was defeated in her bid for a Senate seat. Similarly, Delegate Neil Quinter,
who had been a leader on gun control and technology-related crime issues,
was defeated in his bid for re-election.
Yet every challenge presents new opportunities.
Other members of the legislature will, no doubt, come to fill the aforementioned
roles.
Lawyers in the Legislature
Several attorney-legislators chose
to retire following the 2006 Session (Senators Leo Green, Sharon Grosfeld,
and Ralph Hughes) while others were defeated in primary elections (Delegates
Neil Quinter and Darrell Kelley). Yet as it turns out, two of the lawyers "lost" from
the House of Delegates will be serving as Maryland's Lieutenant Governor (Anthony
Brown) and Comptroller (Peter Franchot), respectively. Moreover, the General
Assembly is fortunate to have a fairly large number of attorneys in the incoming
Class of 2006. In the Senate, in addition to Bobby Zirkin moving across the
street from the House, consumer protection attorney Mike Lennett and law professor
Jamie Raskin, both of Montgomery County, will help ease the loss of legal experience
in the Senate. The House of Delegates will boast a net-gain of attorneys with
the addition of Delegates Todd Schuler and Dana Stein of Baltimore County,
Jeff Waldstreicher and Roger Manno of Montgomery County, Ben Barnes, Joseline
Pena-Melnyk, Gerron Levi and Aisha Braveboy of Prince George's County, as well
as Stephen Lafferty of Baltimore County.
Issues Likely to Appear
(or Re-Appear) in 2007
Veto
Overrides. None. A new legislature (i.e., the first year of a term)
may not override a veto issued by a Governor in the previous term.
Contested
Election of Circuit Court Judges. The contested election of circuit
court judges is as controversial an issue as any of interest to the legal
community. Circuit court judges are nominated by the two principal political
parties during the primary election. Because Maryland conducts primary
elections in which only members of a particular political party may vote
for that party's candidates, candidates for circuit court judge must register
and run as though they belong to both principal political parties in order
to appear on the ballot of both parties during the primary. Once candidates
reach the general election, they are listed on the ballot alphabetically,
and without notation to designate an incumbent judge. There is little dispute
that the current system of electing judges is tremendously confusing to
the public.
Although the debate as to the best method for
selecting circuit court judges has now reached
"perennial" status, any legislative proposal to meaningfully alter the election
process (especially to establish retention elections) must be accomplished
by amending the Maryland Constitution. Because the legislature only seriously
considers constitutional amendments in even-numbered (election) years, expect
no action on major changes to how judges are elected.
Nonpartisan
Judicial Elections. For the last several years, bills have been introduced
(most recently by Senator Alan Kittleman and Delegate Bobby Zirkin) to
provide for nonpartisan election of circuit court judges. The bills would
have allowed any voter, irrespective of party affiliation or lack of party
affiliation, to vote for the number of candidates for which there are offices
to be filled. The 2006 bill would have eliminated the current partisan
primaries and third-party nominations as well as nominations by petition.
Look for Senators Kittleman and Zirkin to bring this issue back in 2007.
Additional
Judgeships (Circuit Court and District Court). Now that the election
of 2006 has come and gone, we may see a more favorable reception by the
General Assembly for legislation creating additional judgeships for both
the Circuit Court and District Court.
Sex
Offenders. During the 2006 Regular Session, the General Assembly sought
to remedy the problem of substandard supervision, monitoring and counseling
of convicted sex offenders. The primary purpose of two omnibus bills (both
introduced by the Presiding Officers) was to establish extended supervision
of offenders. The bills provided for the use of tools such as global positioning
system (GPS) tracking and changes in local community notification and registration
requirements related to the sex offender registry. When those bills stalled
near the end of the Session, the legislature received a second chance to
examine issues related to sex offenders when it returned in June for the
Special Session, called principally to address electricity rates. During
the Special Session, the General Assembly passed a version of "Jessica's
Law," enhanced (mandatory) penalties for the most heinous sex offenses – those
with children as victims. Expect to see a refined version of the omnibus
tracking, supervision and community notification bill in 2007.
Expungement
of Arrest (without Charge) Records. An issue of great concern to the
Baltimore City Delegation during the 2006 Session was a reported practice
by the Baltimore City Police of arresting and detaining individuals without
ever issuing a criminal charge against the individual. In an attempt to
address this issue, a number of bills concerning the expungement of police
and court records were introduced during the 2006 session. The number of
individuals arrested in Baltimore City and released without being charged
with the commission of a crime also became an issue during this year's
gubernatorial campaign.
Under current law and practice, an individual
who wishes to have a court or police record expunged must petition the appropriate
court or law enforcement unit for expungement. Presently, those individuals
are not automatically entitled to expungement. The decision as to whether
to grant expungement is within the discretion of the court or local law enforcement
unit. Also, the jurisdiction may charge a fee to execute the expungement.
All of the expungement bills introduced during the 2006 session would have
made expungements automatic and free of charge. All of the bills failed.
Look for the Baltimore City Delegation to mount a cohesive effort to provide
for near-automatic expungement of arrest records of individuals who are arrested
but never charged with a crime.
Eminent
Domain. In the aftermath of the Supreme Court decision in Kelo,
et al. v. City of New London (June 2005), in which the Court essentially
allowed states to determine whether and how eminent domain may be used
for economic development purposes, states began to re-examine the concept
of condemnation for
"public use." During the 2006 Session, over 40 bills were introduced to either
clarify the concept of "public use" or to proscribe the exercise of eminent
domain for economic development purposes. None of the bills passed. In 2007,
expect introduction of similar legislation, as well as legislation that will
address the concept of "goodwill," the value of a business that is over and
beyond the value of its real property and fixtures.
