Maryland Bar Bulletin
Publications : Bar Bulletin : December 2010

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 Legislative Preview:  

As much of the United States turned from “blue” or “purple” to “red” in the aftermath of the 2010 election, the Maryland political landscape saw no meaningful change in terms of party majority either at the Congressional level or in the Maryland General Assembly. Barbara Mikulski was elected to a fifth term in the U. S. Senate, Governor Martin O’Malley won his rematch with former Governor Robert Ehrlich by an unexpectedly large margin, and the Democratic Party retained large majorities in both the Senate of Maryland and the House of Delegates. Perhaps the one bright spot for the Republican Party came in the 1st Congressional District, where State Senator Andy Harris defeated Democratic Representative Frank Kratovil in a rematch of 2008. While there are changes in elected personnel in both the Congressional delegation and the state legislature, expect no significant changes in policy from Maryland’s elected officials.

Governor

For most of 2010, many, if not most, Marylanders thought that the race for Governor between incumbent Governor Martin O’Malley and former Governor Robert Ehrlich would go down to the wire. All of the polls showed the race as being too close to call until mid-summer. However, by the middle of September the statewide polls tilted heavily toward an O’Malley victory. And by the final week of October it became clear that the incumbent would win a second term in office. Although Ehrlich won 19 of Maryland’s 24 jurisdictions, he failed to win any of the more populous counties. Governor O’Malley carried only five jurisdictions: Baltimore City, Montgomery, Prince George’s, Howard and Charles counties.  In fact, former Governor Ehrlich won in his former stronghold of Baltimore County by a razor-thin margin of 203 votes.

State Budget

Things could be worse – while Maryland retains its AAA bond rating, many budgetary challenges face the Governor and the legislature in 2011. According to the latest estimates by the General Assembly’s Department of Fiscal Services, the state’s projected budget deficit has grown to $1.6 billion. Despite increased revenue from tax receipts and fees, an upsurge in program costs, most notably the state’s Medicaid obligation and teacher pension commitments, negated the revenue gains. In previous years, the state has patched together a combination of federal aid, fund transfers, one-time cuts and, most recently, stimulus dollars to meet its constitutional requirement of passing a balanced budget. As unpopular as the tax increases and budget cuts passed during the General Assembly’s 2007 Special Session may have been, those actions have prevented the current projected deficit from being considerably larger than what legislators will face when they return to Annapolis.

Lawyers in the Legislature

For the first time in several election cycles, the General Assembly will see a net increase in the number of attorneys. In the Senate of Maryland, losses by Mike Lennett and Rona Kramer (both Democrats from Montgomery County) will be offset by the addition of Victor Ramirez (D), Prince George’s County, and Roger Manno (D), Montgomery County (both coming from the House of Delegates), as well as the election of Joseph Getty (R), Carroll County, who replaces the retired Larry E. Haines. In the House of Delegates, three attorneys will not return: Anne Marie Doory (D), Baltimore City; Todd Schuler (D), Baltimore County, and Gerron Levi (D) Prince George’s County. The incoming class of Delegates will include attorneys Sam Arora (D), Montgomery County; Geraldine Valentino-Smith (D), Prince George’s County; Tiffany Alston (D), Prince George’s County; C. T. Wilson (D), Charles County; Cathy Vitale (R), Anne Arundel County; Keiffer J. Mitchell, Jr. (D), Baltimore City; and Luke Clippinger (D), Baltimore City. The current total of lawyers in the legislature now stands at 44: 33 in the House and 11 in the Senate.

Ignition Interlock

During the 2010 session, Senate Bill 564 would have required the Motor Vehicle Administration (MVA) to establish an Ignition Interlock System Program. Under the provisions of the bill, any person convicted of driving while intoxicated (DWI), including first-time offenders, would be required to participate in the program, whereby a device akin to a standard breathalyzer would be affixed to a DWI offender’s vehicle. Under the bill, a person required to participate in the program would have to successfully complete the program or be subject to suspension of the driver’s license. Under the provisions of SB 564, a violator would have been required to participate in the program for six months for a first violation, one year for the second violation and three years for the third or subsequent violation, unless a court specified a longer period of program participation.

Senate Bill 564, which had 29 sponsors, passed the Senate by a margin of 44-0, but died in the House Judiciary Committee without a vote. The bill will be reintroduced in 2011.

Death Penalty

Prior to the 2009 session of the General Assembly, the Maryland Commission on Capital Punishment issued its final report which recommended passage of legislation to completely repeal the death penalty in Maryland. Despite growing sentiment in the legislature to repeal capital punishment, the General Assembly chose instead to pass legislation to limit the circumstances under which the death penalty may be imposed. Under the 2009 legislation, the death penalty may be imposed only in cases where the State presents: (a) biological evidence or DNA evidence that links the defendant with the act of murder; (b) a videotaped, voluntary interrogation and confession of the defendant to the murder; or (c) a video recording that conclusively links the defendant to the murder. Moreover, the legislation prohibited imposition of the death penalty in cases where a conviction for murder was achieved solely on the basis of eyewitness testimony.

In the 2010 session, legislation (Senate Bill 404) was introduced to expand the types of evidence that may be used to impose the death penalty to include fingerprint evidence or photographic evidence that conclusively links a defendant convicted of first degree murder. Although the bill failed in the Senate Judicial Proceedings Committee by a vote of 9-2, the bill’s sponsors have committed to its reintroduction in 2011.

Anti-Discrimination Legislation

Among the more controversial matters to come before the General Assembly in 2010 that will likely return before the body in 2011 is a measure that sought to prohibit discrimination in public accommodations, labor and employment and housing on the basis of an individual’s gender identity. House Bill 1022 – Human Relations – Sexual Orientation and Gender Identity – Anti-Discrimination defined “gender identity” as “a gender-related identity, appearance, expression, or behavior of an individual regardless of the individual’s assigned sex at birth.” The bill would have exempted the rental of rooms in a homeowner’s principal residence from the scope of the Act. The bill was patterned after existing local ordinances enacted in Baltimore City in 2002 and Montgomery County in 2007. Despite having over 50 sponsors, the bill died in the House Health and Government Operations Committee without a vote. The Senate cross-filed bill (Senate Bill 583) suffered a similar fate in the Senate Judicial Proceedings Committee.

Arizona Immigration

Perhaps one of the easiest predictions to make for the 2011 Session of the Maryland General Assembly is that we will see some form of Arizona’s controversial Senate Bill 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act”. The key Enforcement provisions of the Act are as follows:

Enforcement.

1.  Requires a reasonable attempt to be made to determine the immigration status of a person during any legitimate contact made by an official or agency of the state or a county, city, town or political subdivision if reasonable suspicion exists that the person is an alien who is unlawfully present in the U.S.

2.  Requires the person’s immigration status to be verified with the federal government pursuant to federal law.

3. Requires an alien unlawfully present in the U.S. who is convicted of a violation of state or local law to be transferred immediately to the custody of ICE or Customs and Border Protection, on discharge from imprisonment or assessment of any fine that is imposed.

4. Allows a law enforcement agency to securely transport an alien who is unlawfully present in the U.S. and who is in the agency’s custody to:

A. a federal facility in this state or

B. any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency.

5.  Allows a law enforcement officer, without a warrant, to arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the U.S.

6.  Prohibits officials or agencies of the state and political subdivisions from being prevented or restricted from sending, receiving or maintaining an individual’s immigration status information or exchanging that information with any other governmental entity for the following official purposes:

A.  determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state;

B.  verifying any claim of residence or domicile if that verification is required under state law or a judicial order issued pursuant to a civil or criminal proceeding in the state;

C. confirming a detainee’s identity; and

D.  if the person is an alien, determining whether the person is in compliance with federal alien registration laws.

7.  Disallows officials or agencies of the state or political subdivisions from adopting or implementing policies that limit immigration enforcement to less than the full extent permitted by federal law, and allows a person to bring an action in superior court to challenge an official or agency that does so.

8.  Requires the court, if there is a judicial finding that an entity has committed a violation, to order any of the following:

A.  that the plaintiff recover court costs and attorney fees;

B.  that the defendant pay a civil penalty of not less than $1,000 and not more than $5,000 for each day that the policy has remained in effect after the filing of the action.

United States v. Arizona. In July 2010, the United States Department of Justice (DOJ) filed suit in the U.S. District Court for the District of Arizona to invalidate and prevent enforcement of the provisions of the newly enacted Arizona immigration law. The DOJ action asserts:

“1. [i]n this action, the United States seeks to declare invalid and preliminarily and permanently enjoin the enforcement of S.B. 1070, as amended and enacted by the State of Arizona, because S.B. 1070 is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.

2. In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests. Congress has assigned to the United States Department of Homeland Security, Department of Justice, and Department of State, along with other federal agencies, the task of enforcing and administering these immigration-related laws. In administering these laws, the federal agencies balance the complex – and often competing – objectives that animate federal immigration law and policy. Although states may exercise their police power in a manner that has an incidental or indirect effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.”

Despite the federal government’s pending attempt to have the Court invalidate the Arizona immigration law, several states around the nation are witnessing introduction of similar legislation. Despite limited prospect for passage, expect Maryland to see a similar measure introduced in the 2011 session.

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Publications : Bar Bulletin: December 2010

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