♦ President of the United States. Although not directly a Maryland legislative issue, it would be something of a disservice to the political process to ignore in this space the fact that recently there was a (rather historic) United States Presidential Election. One could argue that high turnout and intense interest in the outcome of that election may have affected the outcome of some of the “down-ballot” election races and referenda on the ballot across Maryland. After reviewing the election returns, as provided by the State Board of Elections, that appears not to be the case. Nevertheless, the results of the national election seem to indicate that the “mood” of the nation was a desire for “change.” However, it appears that at least for now, the form of change we experience may be driven more by external forces than the new philosophies coming to Washington on January 20, 2009.
♦ Referendum Issues:
♦ Question 1 – Early Voting (Passed by the Voters). During the 2008 Session, the legislature passed a bill in the form of a Constitutional Amendment that, if approved by the voters, would authorize the General Assembly to enact legislation to allow qualified voters of the State to vote at polling places inside or outside of their election districts or wards, and to vote up to two weeks before an election. The measure was soundly approved at referendum in November. The amendment also authorizes the General Assembly to enact legislation to allow absentee voting by qualified voters who choose to vote by absentee ballot, in addition to voters who are absent at the time of the election or who are unable to vote personally.
♦ Question 2 – Authorizing Video Lottery Terminals (Slot Machines) to Fund Education (Passed by the Voters). Also passed (finally!) during the 2008 Session was a Constitutional Amendment to allow a referendum of the voters to allow the State to issue up to five (5) video lottery licenses for the principal purpose of raising revenue for education of children in public schools, prekindergarten through grade 12, public school construction and improvements, and construction of capital projects at community colleges and higher education institutions. The measure specifies that no more than a total of 15,000 video lottery terminals may be authorized in the State, and only one license may be issued for specified location in Anne Arundel, Cecil, Worcester, and Allegany Counties, and Baltimore City. Moreover, any additional form of gambling or expansion of commercial gaming in Maryland is strictly prohibited, unless approved by an additional, future voter referendum.
♦ Congressional Elections. All of eight Maryland Congressional seats were up for grabs in the 2008 election. All of the incumbents running for re-election won handily. Only in the 1st Congressional District, where State Senator Andrew Harris defeated Congressman Wayne Gilchrest in the Republican Primary, was there a contested race. In the general election, Harris faced Queen Anne’s County State’s Attorney Frank Kratovil. After a fiercely fought campaign, and careful tally of the ballots, Sen. Harris conceded victory to Mr. Kratovil.
As I state in this space every year, it is simply impossible to predict in the autumn of the previous year what issues will become hot topics for the legal community going into a new legislative session – but here are a few of the subjects where I believe you will see a fair amount of legislative activity.
♦ State Budget for Fiscal 2010. When the Governor called the General Assembly into Special Session in November 2007 to address the State’s growing structural budget deficit, the legislature grudgingly agreed to raise the sales tax to six percent. No one could have imagined that less than a year later, not only Maryland, and the nation, but the entire world would be mired in the worst economic crisis in many generations. As the newly-elected President and the incoming 111th Congress craft legislation to stabilize the nation’s financial markets, and possibly lend additional billions of dollars to rescue America’s “Big Three” automakers, what can states expect during the year to come? Answer: little in the way of help from Washington.
As of mid-October, State budget analysts had determined that Maryland faces, at minimum, a $1.3 billion shortfall in the next fiscal year (fiscal year 2010). In October, the Administration and the Board of Public Works approved nearly $400 million worth of general fund cuts to make up for shortages in the current budget. Additionally, State agencies have been asked to identify additional potential cuts in anticipation of a worsening of the current economic climate.
♦ Taxation of Services. Despite the recent increase in the State sales tax, the current economic disaster demands that professional organizations representing interests in the service sector of the Maryland economy remain vigilant as the General Assembly begins to consider, once again, broadening Maryland’s revenue base (sales and use tax) to include additional services. In 2007 and 2008, the MSBA worked in concert with the Maryland Trial Lawyers Association and Maryland Defense Counsel on education of the legislative leadership in Annapolis as to the negative impact that a tax on legal services would have on access to justice in Maryland. Secondarily, the MSBA advised the leadership concerning the complexities that have caused other states to reject taxation of legal services. Nationally, legal services are taxed in only three (3) states: Hawaii, New Mexico and South Dakota. Taxation of legal services measures enacted in Florida (1987) and Massachusetts (1990) were repealed before a single tax dollar could be collected. In both Florida and Massachusetts, the legislatures realized that the legal services taxation provision impaired access to justice and was awkward to administer. We remain prepared to face the issue again in 2009.
♦ Contested Judicial Elections. During the summer of 2008, the MSBA participated in Judicial Elections Workgroup, chaired by Howard County Circuit Court Judge Diane O. Leasure. That workgroup, which includes the participation of a number of legislators interested in judicial selection reform, has examined a variety of judicial selection models.
The MSBA has historically supported legislation that would abolish contested elections for circuit court judges by replacing our current system with a retention election system, like the one in place for appellate judges in Maryland. During the 2008 Session, the MSBA supported House Bill 1275, sponsored by Delegate Barbara Frush. The bill, which would have abolished contested elections and established a retention election system, died in the House Judiciary Committee. The change to a retention election system requires an amendment to the Maryland Constitution. Therefore, even if such a bill is passed by the legislature, which remains a tall order, the measure would still have to be approved by voters. Because the General Assembly will usually only devote time to constitutional changes in an election year, and 2009 is not an election year, it is unlikely that there will be meaningful legislative activity in this area in the upcoming 2009 Session.
♦ Civil Jury Trials - Amount in Controversy. In 2008, legislation was introduced that would have proposed a constitutional amendment to increase – from over $10,000 to over $20,000 – the amount in controversy in a civil proceeding in which the right to trial by jury may be limited by legislation. The bill would have eliminated the availability of a jury trial for cases where the amount in controversy is less than $20,000; cases that would have been within the jurisdiction of the circuit courts for jury trials would remain in the District Court. The MSBA opposed the legislation, and the bill died in the House Judiciary Committee. I expect that the bill will be reintroduced in 2009.
♦ Foreclosure Process. During the 2008 Session the General Assembly passed an Administration bill (House Bill 365, Chapter 2, Laws of Maryland 2008) designed to clarify and simplify provisions of law governing residential real estate foreclosure in Maryland. Many of those provisions were procedural in nature, and the Maryland Department of Labor, Licensing and Regulation (DLLR) was charged with the responsibility of promulgating regulations to carry out those provisions. Concurrently, the Court of Appeals must develop court rules that are consistent with both the new law and regulations that spring from the law. During the summer deliberations of the Court of Appeals’ Standing Committee on Rules of Practice and Procedure it became clear that there were certain procedural possibilities where the law was silent, thus no regulation or Court rule could be created. One notable example related to the legal requirement under Chapter 2 to post a notice of intention to foreclose on the property in question. The question was raised as to how compliance could be achieved in a case where the property is situated in a gated community, where the property was inaccessible. The Rules Committee and DLLR determined that neither a regulation nor a rule could be crafted to address an inaccessible property, because the law was clearly silent on the subject. We expect legislation to be introduced to address some of the “how to” problems left unaddressed by the 2008 legislation.
♦ Office of the Public Defender - Funding for Panel Attorneys. In October, the Office of the Public Defender (OPD) announced that due to a preexisting budget shortfall, the office would no longer be able to provide funding to secure the services of panel attorneys in instances where OPD faces a conflict of interest in cases involving multiple defendants where each is deemed to be indigent. Compounding the situation is the requirement, set forth at the October 15th meeting of the Board of Public Works, that each State agency prepare to relinquish up to 5 percent of its current fiscal year budget as part of the Governor’s commitment to Executive Branch cost containment. As of the date of this article, negotiations remain in progress between the OPD, the Governor’s Office, the Maryland Association of Counties and the Department of Budget and Management on a solution to the problem. Stay tuned.
♦ Comparative Negligence. There has been a growing belief among many in Annapolis that one of the most controversial issues facing the business and legal communities may make a return in 2009. Back during the 2007 Session, legislation was introduced to take Maryland from its current fault system of contributory negligence to a modified form of comparative negligence. Under the provisions of those bills, a plaintiff, whose comparative fault for the injury that he or she incurred, would not be barred from recovery if his or her fault were less than that of the defendant, or the combined fault of multiple defendants.
Maryland is one of the five remaining jurisdictions that employ a contributory negligence system; the other four are Alabama, the District of Columbia, North Carolina and Virginia. Although the Maryland General Assembly has considered comparative negligence legislation many times over the past four decades, prior to the 2007 regular Session no comparative negligence legislation had been introduced since the 2002 session. In many of the past introductions, comparative negligence bills have been amended to include provisions of law relating to joint and several liability. Such was not the case in 2007. Both the House and Senate bills died quietly in Committee.
The MSBA did not take a position on the comparative negligence bill in 2007.
♦ Death Penalty. In mid-November, the 23-member Maryland Commission on Capital Punishment voted 13-7 to recommend that the Maryland General Assembly enact legislation to repeal the State’s death penalty statute. The Commission determined that the death penalty inherently allows for the “real possibility” of executing innocent people and may be biased against African-Americans.
The final report of the commission (which is expected to be available in December on the Commission’s website, http://goccp.org/capital-punishment/) is expected to provide additional support for Governor O’Malley’s long-held opposition to capital punishment, and will provide encouragement to death penalty opponents both Statewide and nationally, as capital punishment opponents in other states already have begun to cite the Maryland Commission vote in their literature and on their websites.
The Commission, chaired by former U. S. Attorney General Benjamin R. Civiletti, also determined that the trying of death penalty cases – with lengthy (and numerous) appeals – is a wasteful process, and that there is a lack of evidence to prove that the existence of the death penalty is at all a deterrent to murder.
Maryland has effectively had a moratorium on capital punishment since December of 2006, when the Court of Appeals ruled that the execution protocols used by the Department of Corrections to carry out executions were improperly developed. Since that time, the Department has been working to establish protocols that would meet criteria established by the Court.
Legislation to repeal Maryland’s death penalty has been introduced with regularity over the last several years. The bills have been unsuccessful, but with narrowing margins of defeat. The key stop along the road to passage of any repeal measure is Senate Judicial Proceedings Committee. Depending on the precise wording of the provisions of a repeal bill, the widespread belief is that repeal proponents remain one vote short in the quest to get a bill to the floor of the Senate.
(Although the Maryland State Bar Association takes no position on legislation related to capital punishment, we regard the likely legislative activity on the subject in 2009 to be newsworthy.)
