Maryland Bar Bulletin
Publications : Bar Bulletin : December 2013


Quiet Summer in Annapolis

When I begin compiling my legislative preview, I am usually amazed how swiftly another legislative session comes upon us. Part of that may be due to the many Special Sessions Annapolis has hosted the past few years. However, this year, things feel different. Aside from the normal budget meetings, the legislative ad hoc workgroup activity, and the occasional Lawyer’s Mall protests over a few bills enacted in 2013, it was a fairly quiet summer in Annapolis.

Quick Start

One convention most in the legislative community have grown to consider normal is the very little of true policy significance to happen in the first two weeks of a legislative session. There is plenty of activity – including the elections of the Presiding Officers; the State of the State and the State of the Judiciary addresses; discussions of rule changes and gubernatorial vetoes of bills passed during the prior session – but relatively few bill hearings and, thus, virtually no floor activity relating to new bills. Those days may be coming to an end.

In an interview with last month, Senate President Thomas V. Mike Miller expressed frustration with the lethargic early pace of past legislative sessions. Seemingly of greatest concern was that many bills being introduced by the Administration are coming in late. The Senate has a longstanding rule that Administration bills being introduced in the Senate must be “read across the desk” by the 10th day of the session.  Bills that do not make the 10th day deadline are referred to the Senate Rules Committee for review, before approving referral to a Senate standing committee. 

Assignment to the Rules Committee can place a bill’s chance of passage in peril, for a number of reasons – most notably, time. Historically, the Senate Rules Committee has been fairly lenient in releasing Administration bills on to standing committees, where the bills can then be scheduled for public hearing. However, the Rules Committee does not meet every day, so the bill might sit for a while. Timely introduction of Administration bills is vitally important because they are often among the most complex policy matters before the General Assembly. So, in order to allow the legislature’s legal and fiscal advisers sufficient time to prepare for those hearings, the Administration bills often receive their first hearings fairly late in the session. Miller further stated that he would like to see the Administration “pre-file” its bills the way that local delegations and individual legislators often do.

Miller also expressed concern for Senate Bills that the Senate intends to pass on to the House not leaving in time to make the “crossover deadline”, the 75th day of session. Miller is proposing that the crossover date be moved up to the 69th day of the session.

But what of the House of Delegates, and this proposed, expedited calendar? I think House Speaker Michael E. Busch would meet the Senate halfway; however, because Busch is managing a chamber body three-times the size of the Senate, with two additional standing committees, I cannot imagine total agreement between the Presiding Officers. As of press time, there has been no public announcement concerning any change in the House of Delegates deadlines.

State Budget/Structural Deficit

A yoctosecond, or one septillionth of a second, is apparently the greatest length of time that Maryland’s budget is ever truly balanced. It’s as if the moment the General Assembly passes a balanced budget, talk begins of dealing with the next structural shortfall, which is what we face today. Shortfall projections heading into the 2014 legislative session range between $350 million and $500 million, depending upon which estimates you believe.

Turnover in the Legislature

I cannot remember an election year for the General Assembly like the one we have before us: the projected turnover level could approach 50 members departing from the House (albeit some are running for Senate seats), and that projection does not include the inevitable upsets of incumbents.

Unusually large numbers of members are retiring from public service, while others are seeking higher or local elected posts. The experience loss brought about by the 2014 exodus will put tremendous strain on the Presiding Officers in determining committee assignments for the new members in 2015. Generally, I avoid writing about specific election races in the Legislative Preview. However, the race for Attorney General is of particular significance to the MSBA. 

Incumbent Attorney General Douglas Gansler is running for Governor.  Announced candidates for Attorney General include: Sen. Brian Frosh (Montgomery Co.), and Delegates Aisha Braveboy (Prince George’s), Jon Cardin (Baltimore Co.) and C. William “Bill” Frick (Montgomery Co.). Obviously, all four are attorneys, so after one candidate is named Maryland’s new Attorney General, the legislature will have lost four total attorneys: by rule, the three unsuccessful candidates cannot return to their seats in the General Assembly – they are filed only as candidates for Attorney General. 

The MSBA has been pleased that the number of lawyers serving in the General Assembly had stabilized and then risen slightly over the past two elections, making the inevitable loss of four attorneys – all due to one race – disappointing.

Court Decisions

“The legislature’s job is to write law. It’s the executive branch’s job to interpret law.”
- President George W. Bush
November 22, 2000

As we all know, it is the Judicial Branch that interprets law. And there are at least three decisions rendered by the Court of Appeals that will inspire more legislation during the 2014 session. I believe that if the General Assembly intends to address any of these Court decisions any time in the near future, it would be advisable that they do so in 2014, before the “experience drain” of 2015.

• Office of the Public Defender: DeWolfe v. Richmond (II). The case of DeWolfe v. Richmond is a familiar topic for the Maryland General Assembly. Without recounting the extensive history of the case progression, the original class action involved 11 indigent arrestees who sought representation before a District Court Commissioner; all were denied representation, and the Commissioner set bail for each. The arrestees argued they were entitled to representation under the Maryland Public Defender Act (PDA), the Maryland Declaration of Rights, and the U.S. Constitution, as the bail review process constituted a criminal proceeding. After several pleadings in the District and Circuit Courts, the defendants, as a class, appealed to the Court of Special Appeals. However, before that Court could act, the Court of Appeals, on its own initiative, granted certiorari. 

The Court of Appeals decided that under the statutory language of the PDA, an indigent defendant is entitled to representation at both the Commissioner appearance and at a bail review hearing before a judge. The Court stressed that under the PDA language, as it then existed, an indigent defendant was entitled to representation at both stages. The Court did not address any constitutional claims under either the Maryland or the U.S. Constitutions. 

During the 2012 session, the Maryland General Assembly amended the PDA to specify that an indigent defendant is not entitled to representation before a Commissioner, but only at a bail review hearing before a judge. In August 2012,  the Court of Appeals ordered the parties representing the OPD and the Richmond class to submit supplemental briefings on the federal and state constitutional rights to representation, based on the PDA as just amended by the General Assembly. After reviewing the supplemental material, the Court opined in a separate ruling that an indigent defendant has a right to “state-furnished counsel” under Article 24 of the Maryland Declaration of Rights. This second ruling is commonly called Richmond II. The Court declined to address the federal constitutional issues raised by Richmond.

The dissent in Richmond II argued for a stay of the ruling in order to allow the state to gather the enormous resources necessary to implement the ruling for an already under-funded OPD. No stay was granted.

The OPD estimates their annual cost of implementation of Richmond II to be between $28 million and $32 million. Since many of the Commissioner appearances occur during the middle of the night, public defenders and panel attorneys may have to serve on an on-call basis. Additionally, there are costs, largely capital in nature, to the Judiciary, as well as State’s Attorneys, who may need additional space and personnel.

Among the many concerns of the MSBA arising from the Richmond II opinion are:

  • adequate funding for OPD in all jurisdictions of the state;
  • adequate funding for panel attorneys, where needed;
  • adequate funding and staffing in the Court Commissioner function statewide;
  • appropriate, voluntary assignment by the Court of attorneys qualified to represent criminal defendants;
  • that defendants are made fully aware at the Commissioner stage of their right to counsel;
  • provision of safe and appropriate protection of attorney-client communications after arrest, including safety for attorneys representing defendants.

The Judiciary, along with the OPD’s state and local law enforcement entities, and state and local correctional facilities are working on alternative pretrial release options. Additional options include expanded use of citation in lieu of arrest for nonviolent crimes. Most of the legislative deliberations related to Richmond II will be budgetary in nature.  However, the entire pretrial detention system will be open to review by the General Assembly.

• Pit Bulls / Dog Bite Liability:  Tracey v. Solesky. In its opinion in Tracey v. Solesky, the Court of Appeals deemed “pit bulls” to be “inherently dangerous” dogs. (The original decision included “pit bull mixes”, but after reconsideration the Court removed “mixes”.) The decision applied a “strict liability” standard to owners of pit bulls for injuries suffered from an attack by the owner’s dog. The decision went further. It applied the strict liability standard to third parties, including landlords or any other party with a right to “control” the dog. Moreover, veterinary authorities firmly maintain that there is no such “breed” as “pit bull” – rather, there is merely a collection of breeds that resemble one another in size, strength, and stature.

While not banning ownership of pit bulls, the Solesky decision was roundly criticized as being unnecessarily harsh. The ruling caused fear of strict liability to spread among pit bull owners, landlords, animal shelters, veterinary offices, and dog grooming and dog day care businesses. Additionally, uncertainty grew as to whether pit bull owners and third party individuals would be able to acquire or maintain liability insurance against dog bites by a pit bull.

After the Solesky opinion, the General Assembly unsuccessfully sought to overturn the decision. A substantial number in the General Assembly believed there was an insufficient legal foundation for breed-specific liability, and, furthermore, that liability should not extend to veterinarians, landlords, dog shelters, dog grooming businesses, etc.; however, all of the proposals designed to either modify or overturn Solesky failed.

Going into 2014, there seems to be consensus that third parties should be removed from under the strict liability umbrella, and that breed-specific dog bite/attack liability standards are undesirable in Maryland. Among the key stakeholders in further discussions will be the representatives of the insurance industry. At this point, the insurance industry may become the key player in the inevitable amendment process.

Bills seeking to overturn or modify Solesky will be introduced early. The broad coalition of parties that worked tirelessly on Solesky-related legislation during the summer of 2013 seems to have closed in on a compromise legislative solution. Despite the failure of previous attempted legislative cures, I believe that the stakeholders will be successful in crafting compromise legislation in 2014.

• Comparative Negligence: Coleman v. Soccer Ass’n of Columbia.This was the Court of Appeals opinion that the General Assembly had so anxiously awaited. Yet, the decision came with little fanfare and was not the firm, decisive edict that either the comparative negligence or the contributory negligence proponents had hoped to receive.

As brief background, Coleman was involved with soccer activities organized by the Columbia Soccer Association (CSA). He was injured when, after swinging from the crossbar of a soccer goal, the soccer goal fell on top of him. Coleman sustained multiple facial injuries, which resulted in the placement of metal plates in his face. The soccer goal was unanchored, and Coleman sued CSA in Howard County Circuit Court. The jury found CSA negligent for not having the goal anchored, but also found Coleman negligent for swinging on the goal. Using Maryland’s common law doctrine of contributory negligence, the Court found in favor of CSA, since Coleman had contributed to his own injury. Coleman appealed.

Before the Court of Special Appeals could entertain briefings and oral arguments, the Court of Appeals granted certiorari. The Court determined that it had the ability to abrogate the contributory negligence standard, but felt that any change in the fault standard was a matter for the General Assembly to decide. The Court determined that since the legislature had declined on numerous occasions to replace the common law contributory negligence standard with a statutory negligence standard, the implied intent of the legislature was that the common law prevail. The Court rejected Coleman’s contention that it should judicially establish the comparative negligence fault standard.  The dissenting opinion expressed the notion that because the Court created the doctrine of contributory negligence, it should be the Court that abolishes it. Both the majority and concurring opinion (which concluded comparative negligence to be a more equitable system) expressed that if the common law were to be abrogated, it should be done by an Act of the General Assembly.  

In 2008, the General Assembly considered one bill to convert to a comparative negligence fault system. That bill failed. Since then, four bills have tried to establish in statute the common law doctrine of contributory negligence. Each of those bills failed. There has been no groundswell of support in favor of establishing either doctrine in statute. It is highly improbable that any bill moving in either direction will be successful. In fact, the 2013 bill to establish a Commission to Study Maryland’s Fault System also failed. There may be bills introduced to go in either direction, establishing comparative negligence or contributory negligence as Maryland’s statutory fault standard, but I do not foresee those passing into law.

State Prison and Local Correctional Facility Oversight

“Love, friendship, respect, do not unite people as much as a common hatred of something.”
-Anton Chekhov

If I had to pick one issue in 2014 where there will be incredible bipartisan cooperation in the legislature, it will be the legislature’s examination of the activities of the  “Black Guerilla Family” (BGF) plaguing the Baltimore City Detention Center (BCDC).

The news accounts from the Baltimore Sun, Washington Post, and the Baltimore City Paper on the exploits of the BGF, and the correctional officers who “guard” them, were uncommonly disturbing. In April 2013, nearly two dozen federal indictments were handed down, charging inmates and 13 correctional officers with a variety of offenses, including drug smuggling and distribution, witness intimidation, and money laundering. Additionally, the correctional officers were charged with assisting BGF leaders with bringing drugs and cell phones into the BCDC.

In the wake of the indictments, the Presiding Officers appointed the Special Joint Commission on Public Safety and Security in State and Local Correctional Facilities to review gang activity at BCDC, as well as personnel policies, procedures, and oversight. This Commission has held numerous meetings since April and is scheduled to report its findings to the Legislative Policy Committee before the General Assembly convenes in January.


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Publications : Bar Bulletin : December 2013

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