Maryland Bar Bulletin
Publications : Bar Bulletin : December 2006

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2007 Legislative Preview

Politics Upside-Down

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.

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