Maryland Bar Bulletin
Publications : Bar Bulletin : December 2012

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Volume XXII   2013
Published annually by
The Maryland State
Bar Association, Inc.

520 West Fayette Street
Baltimore, Maryland 21201
(410) 685-7878
(800) 492-1964
TDD: (410) 539-3186
FAX (410) 837-0518
www.msba.org

Executive Director
Paul V. Carlin
Director of Legislative Relations
Richard A. Montgomery III
Legislative Assistant
Carol Tuohey
Editor
Bryan M. Nichols

As I begin my 10th year as MSBA Legislative Director, I have come to realize that there are certain legislative constants in working with the Maryland General Assembly, and there are also so many unforeseen issues that arise. There are court cases, new economic issues, headline news stories, and legislative issues that migrate from other states and arrive during the legislative interim – not to mention the many Special Sessions we have seen lately.

During a legislative session, there is very little you ever have control over, but there is much you can influence. That is always my goal – trying to influence for the good of the legal profession and the administration of justice.

State Budget

Making State budget projections is always a tricky proposition. However, this year budget projections are complicated by the current fiscal stalemate in the U. S. Congress. With the nation to the precipice of the so-called “fiscal cliff,” the widespread belief among business and legislative leaders in Maryland is that congressional failure to reach agreement over the extension or expiration of the Bush-era tax cuts could have dire consequences for Maryland. Should “sequestration” occur, which calls for $600 billion in tax hikes and cuts to defense and federal services and programs, roughly $150 million in grants to the state and local governments could be cut in federal fiscal year 2013.

Recently, The Daily Record reported that Maryland is disproportionately dependent on federal spending, in that 5.6 percent of the state’s jobs are federal, as compared to the 2.2 percent national average. On a positive note, the Maryland Department of Labor, Licensing and Regulation announced in mid-November that the state’s unemployment rate fell to 6.7 percent on the basis of the addition of 14,000 new private sector jobs added to the Maryland economy between September and October.  That increase marks the largest one-month job creation increase since 1996.

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 2013. That issue is comparative negligence.

With the Court of Appeals considering case of Coleman v. Soccer Association of Columbia, the issue before the Court is: “should this Court ameliorate or repudiate the doctrine of contributory negligence and replace it with a comparative negligence regime?” If the Court does decide that case either before or during the 2013 legislative session, one can expect legislation to undo whatever the Court decides.

Interestingly, joint and several liability is not at issue in the Coleman case.

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 the 2007 proposals, 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. 

More recently there has been legislation that would have established a contributory negligence standard by statute. Those measures have failed as well.

Maryland Legal Services Corporation

During the 2010 Session the General Assembly passed Senate Bill 248 – Civil Cases – Maryland Legal Services Corporation (MLSC). The bill was introduced to stave off the depletion of the MLSC Fund, which was due to decreased IOLTA funding to the MLSC brought about by the precipitous decline in interest rates. The IOLTA funding decline came at an inopportune time. The statewide need for civil legal services to the indigent was growing at an alarming rate. To address that growing need, bills were introduced in both chambers to attempt to address that funding gap.

Senate Bill 248 increased the surcharge on civil cases filed in Circuit Court from a maximum of $25 to a maximum of $55. In the District Court, the surcharge was increased from $5 to $8 for summary ejectment cases, and from $10 to $18 for all other civil cases. The proceeds of those fees have been directed to the MLSC Fund. However, the General Assembly added a “sunset” provision to SB 248, which would lead to expiration of the filing fee levels on June 30, 2013, unless the legislature removes the sunset or otherwise extends the law.

The legal services provider network considers it absolutely crucial that, at the very least, the legislature remove the 3-year “sunset” provision that it plugged into the statute in 2010.

Taxation of Professional Services

If there is one perennial in my little legislative garden, it would be standing in vigil against any effort to tax legal services. As the computer services industry discovered during the 2007 Special Session, if you are not paying close attention to tax legislation, you may become the newly taxed. It’s a constant game of musical chairs in Annapolis.

(Although, I must admit I did enjoy their protest. They had roughly 100 Geek Squad VW Beetles driving many, many laps around State Circle and Church Circle in Annapolis. That was clever.)

Despite the recent increase in the state sales tax, current economic conditions require that professional organizations representing interests in the service sector of the state’s economy remain observant as the legislature begins to consider broadening Maryland’s revenue base (sales and use tax) to include additional services. In recent years, the MSBA has worked in concert with the Maryland Association for Justice and the Maryland Defense Counsel in educating the legislative leadership in Annapolis on the negative impact that a tax on legal services would have on access to justice in Maryland. The MSBA has routinely advised the General Assembly’s leadership concerning the complexities that have caused other states to reject taxation of legal services. Legal services are taxed in only three 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 2013.

Pit Bulls

In the case of Tracey v. Solesky, the Court of Appeals ruled in April 2012 that “pit bulls” and “pit bull mixes” are “inherently dangerous” dogs, and that strict liability should apply to damages arising out of any bite or mauling by either “category” of dog. That liability would apply to not only the owner of the dog, or a person “in control” of the dog, but also any landlord that allows a tenant to possess a pit bull in any rental property. Later, the Court, after a Motion for Reconsideration, amended its ruling to exclude “pit bull mixes.”

The Court’s amendment of its decision had two bases. The first came from the trial where it had been stipulated to the “fact” that the dog involved in the mauling of a 10 year-old Baltimore boy was a pit bull. And the second is that even if addressing the issue of whether pit bull mixes were inherently dangerous had been within the Court’s proper purview, the Court realized that it did not provide instructive guidance in its characterization of what would constitute a pit bull mix.

The fact pattern of this case is a painful thing to read. Everyone realizes that the child who was severely mauled is fortunate to be alive. Yet, from a public policy standpoint, the issue of “dangerous dogs” has more moving parts than any of us in the Annapolis legislative community ever imagined. 

So, what is a pit bull? I once thought I knew, but I did not.  Many in the veterinary community will tell you that there is no such breed as “pit bull”.

Other questions include:

  • If pure-bred pit bulls are inherently dangerous, how would a dog owner, rescue shelter, veterinary office, dog-groomer, or anyone else in control of the dog know, with certainty, that the dog is a pit bull?
  • How are landlords/rental property managers expected to move forward, given their potential liability under the Court decision? Under the old “Mrs. Murphy” scenario (a landlord owning a rental property with four or fewer units, and living in the one of the units of that multi-family dwelling), that rental property owner certainly would know of the presence of a dog in one of the units. But what of property management firms overseeing 200+ unit properties? People often lie or simply neglect to inform landlords about the presence of a pet. How often would they provide detailed information of the breed of a pet?
  • Is a breed-specific dog bite liability advisable? The national trend is away from dog breed-specific liability.
  • Is it possible to refine what breeds of dog are to be classified “dangerous”?

The General Assembly attempted to address all of those questions during the second Special Session of 2012. The joint Senate-House Committee worked diligently over the spring and summer, but failed to reach agreement on a viable manner to modify the Court decision. This will be a major issue during the 2013 Session.

New General Assembly Website

Generally, I avoid criticism of the administration of the General Assembly. However, the idea of introducing a drastic overhaul of the legislature website one month before the legislature convenes simply cannot be a good idea. All of us in the lobbying community in Annapolis already face learning-curves going into the new legislative session. There are enough new policy issues to learn, so the last thing we need one month before Session begins is a whole new legislative website. We all depend on the General Assembly website to generate our internal reports. I hope this works out, yet I am skeptical.

Summation

No matter what happens during the 2013 Session of the Maryland General Assembly, I will find solace from the words of the great baseball philosopher, Mickey Rivers. As a teen, my favorite thing to watch on TV was the Saturday Major League Baseball Game of the Week. One day, color commentator, Joe Garagiola, was interviewing New York Yankees center-fielder, Mickey Rivers. Garagiola asked Rivers about his philosophy of life.  Here was Mickey’s response:

“There ain’t no sense in worryin’ about the things ya ain’t got no control over, ‘cause ya ain’t got no control over ‘em, so there ain’t no sense in worryin’ about ‘em. And there ain’t no sense in worryin’ about the things ya got control over, ‘cause ya got control over ‘em, so there ain’t no sense in worryin’ about them either…”

So I will not worry – at least not now. Somehow I have the belief that I will have a different outlook once the legislature convenes in early January.

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