Bar Bulletin

December, 2004

 Legislative Preview

2005     

Unfinished Business
By Richard A. Montgomery, III
MSBA Director of Governmental/Legislative Relations

As the dust settles from the 2004 Presidential election, the 188 members of the Maryland General Assembly prepare to return to Annapolis for their 418th Session on January 14, 2005. Presidential election campaigns generally fail to involve much substantive spillover into Maryland’s state politics. Whether that proves to be true this time around remains to be seen. What is clear, however, is that the General Assembly will return to face several issues that many observers would regard as unfinished business.

Many observers of the General Assembly expected that the body would be called into a Special Session in 2004 to reach a compromise on legislation to legalize slot machines in Maryland or to address what many refer to as the medical malpractice “crisis.” To date, this has not occurred. The accepted rule-of-thumbs is that there must be consensus among the Governor and the legislative leadership on an issue before summoning the entire legislature. Such consensus has been elusive on both issues. Should there be a failure to reach agreement on either issue prior to the upcoming Regular Session of the General Assembly, the body faces having to deal with both complex, divisive issues all over again. Everyone agrees that it would have been desirable to have one issue or the other resolved before their January return. Although the slots issue is not directly meaningful to the bulk of the legal community, its presence as an issue is significant, at least in terms of the opportunity cost. Like the Thornton Formula education funding issue, the slots debate tends to be very time-consuming. In a 90-day session it is important to remember that every moment the legislature spends on one issue is a moment that is no longer available to spend on another.

Medical Malpractice

In the area of Civil Justice/Tort Reform, solution to the problem of incomprehensibly high medical malpractice insurance premiums has firmly taken center stage. During the 2004 Session, several bills were introduced to address the problem of soaring medical malpractice insurance premiums. The Ehrlich administration took the lead in the discussion by introducing a bill that served to open the debate on the issue. Key provisions of the Administration bill included: reduction of the cap on non-economic damages from $635,000 (with an “escalator” of $15,000 each year) to $500,000 for medical injuries; revision of the procedures for determining medical expenses; required the use of annuities for future economic and non-economic damages in excess of $250,000; and established procedures under which the defendant (only) could make an offer of judgment to the defendant and recover attorney’s fees and costs if the judgment entered is not more favorable than the offer.

Soon after the bill’s introduction, the House of Delegates convened a workgroup consisting of members of the Judiciary, Economic Matters, and Health and Government Operations Committees. That workgroup developed what was essentially a heavily-amended version of the Administration bill. The workgroup bill would have established a 12-member Task Force on Medical Malpractice, consisting of six members of the Senate and six members of the House of Delegates. The task force would have been required to (1) assess the extent to which the cost of medical malpractice liability coverage for health care providers increased in Maryland in recent years; (2) assess the causes of the premium increases; (3) study any aspect of the health care, insurance or legal systems related to medical malpractice liability; and (4) make recommendations to address the ever-increasing costs of medical malpractice liability coverage. The task force would have reported its findings and recommendations to the Governor and the General Assembly by December 15, 2004.

Both Governor Ehrlich and Senate President Mike Miller appointed study groups on the subject that have met through the summer and fall. Governor Ehrlich favors lowering the cap on non-economic damages in medical malpractice cases. Senate President Miller does not. The two study groups have taken different approaches to solving the medical malpractice insurance premium problem. Both groups are expected to craft legislation to address the problem. The questions at hand concerns how much common ground the two study groups will find going into the 2005 Session.

Contested Circuit Court Elections

“I voted for the names I could pronounce,” the Baltimore Sun quoted an Anne Arundel voter after voting in the election of the Anne Arundel County circuit court judges. That election is likely to bring about re-examination of the concept of contested election of circuit court judges.

Circuit court judges are the only judges in Maryland who must run in contested elections. Judges of Maryland’s appellate courts are appointed by the Governor, confirmed by the Senate and retained in office in elections based upon their records. District court judges are appointed by the Governor and confirmed by the Senate, but they are not subject to election.

In the Anne Arundel case, all three of the county’s sitting judges were appointed by former Governor Parris N. Glendening in 2002 and were required to run for election to a 15-year term. Two of the three sitting judges were defeated. It seems clear that the defeat of the judges was partly political in the sense that the judges were appointed by a liberal governor in a jurisdiction that is increasingly conservative. The current judicial selection process has turned sitting judges essentially into politicians. According to the aforementioned Sun article, the candidates spent a record amount for a judicial race in Anne Arundel County. That total approached a combined total of $400,000 in the primary and general elections. Political commentator James Carville once remarked that any change in the political process that makes politicians spend less time raising money is a change that is good for the system. I would submit that this principle is even more appropriate to the situation facing circuit court judges in Maryland.

The MSBA will continue to support legislation that will eliminate contested elections for circuit court judges. The present system poses a continued threat to the independence, integrity and competence of the circuit court.

Limits on Contingency Fees

During the debate over how to address the problems associated with medical malpractice insurance premiums, there is a growing belief in certain circles that the “profit” in the medical malpractice process lies in the contingency fees of attorneys who represent injured plaintiffs. Expect proponents of further limiting awards to plaintiffs to also support regulating contingency fees by statute. The MSBA opposed this concept. Regulation of the legal profession, including fees, is rightfully the domain of the Court of Appeals.

The Initiative

Much of the media coverage of the 2004 elections featured reports on high-profile ballot measures in states across the nation. State laws involving issues such as same-sex marriage and tort reform (related to medical malpractice) were either established or amended at the ballot box. Twenty-four states in the nation have some form of a provision that allows citizens to initiate legislative and/or constitutional change by petitioning a measure to voter referendum. Generally, there are two types of ballot initiatives. The “direct” initiative allows citizens to get a measure directly onto the ballot initiatives. The “direct” initiative allows citizens to get a measure directly onto the ballot (after meeting a certain signature threshold) with no involvement of the legislature. Under the “indirect” initiative scheme, proposals are typically submitted to the legislature, which would then have an opportunity to act on the proposed legislation. Although systems vary from state to state, the initiative question would go onto the ballot if the legislature rejects it, submits a different but related proposal or takes no action on the citizen proposal.

The MSBA opposes adding the initiative process to the Maryland Constitution as the issues are debated largely through the media. These debates are easily distorted by expensive mass media campaigns of special-interest groups intent on protecting or establishing narrow, self-serving concerns.

Taxing Legal Services

There were no proposals in the 2004 Session to establish a tax on legal services. Recently, the Comptroller’s Office reported that tax receipts in Maryland had begun to move upward by the end of the third quarter of 2004. Hopefully, this trend will continue and serve to forestall any legislative attempts to tax legal services.

Marriage

Maryland law defines a valid marriage in the State as being between a man and a woman. Nevertheless, the issue of same-sex marriage has been raised to a more prominent level of discussion across the nation, particularly in connection with potential future recognition of same-sex marriages performed in another state. To date, this has not been a significant issue in Maryland. However, expect the volume on this issue to amplify in the 2005 Session.

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Publications : Bar Bulletin: December, 2004

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