2018 MSBA Legislative Preview

 

Introduction

Just let Maryland go on being Maryland. That is my one wish for the 2018 Maryland General Assembly session. That’s it.

More than I’ve ever seen, daily reports concerning federal government activity seem to range from extreme drama and near-chaos. Currently (as of this writing), there are rapidly changing measures before both chambers of Congress proposing tax reform or tax cuts, depending upon who’s speaking, and hints of yet another pass at health care reform. And then, there’s perhaps the most controversial proposed Executive administrative action in recent memory – with the rescission of the FCC’s “net neutrality” rules, moving closer to becoming reality.

 

As a result, state and local governments across the nation must be prepared to respond nimbly, yet decisively in cases where functionally non-preemptive federal policies differ dramatically from policies and goals of the respective states and locales. Such an endeavor is somewhat more complicated in states like Maryland where there is a “citizen” (as opposed to a full-time) legislature.

Despite the simultaneous turmoil/gridlock on Capitol Hill, and the fact that 2018 is an election year, I have the utmost confidence that the Maryland General Assembly will remained focused on the policy matters at-hand and have another productive Session.

 

Election 2018

In 2018, not only are the Governor, Attorney General, Comptroller, and the entire General Assembly up for election, next year will mark the most closely watched Congressional mid-term election for quite some time.

As of this writing, the fields for each of the statewide offices are reasonably manageable. In fact, it is so early that many certain candidates have not filed for their intended offices. The General Election will be held on November 8, 2018.

Governor

• Republican.Not surprisingly, given his high job approval ratings throughout his term, Governor Larry Hogan will not have a primary election challenger. In fact, at one point during the summer of 2017, Gov. Hogan had the second-highest approval rating of any governor in the nation (62 percent overall, 82 percent among Republicans), behind Gov. Charlie Baker of Massachusetts. Oddly, Baker is also a Republican governor in a heavily Democratic state.  

Interestingly, in the September 2017 Goucher College poll that found that Governor Hogan held an 82 percent approval rating among Maryland Republicans, 20 percent of those Republicans polled felt that Governor Hogan was “putting too much distance” between himself and President Trump. Yet, one could deduce that it is that very distance that has preserved the Governor’s favorable ratings among non-Republicans polled.

 

• Democratic. On the Democratic side the following individuals have declared their candidacies:
  • Rushern Baker, Prince George’s Co. Executive
  • Sen. Richard Madaleno, Montgomery Co.
  • Benjamin Jealous, former CEO and President of the NAACP
  • Kevin Kamenetz, Baltimore County Executive
  • Maya Rockeymoore Cummings, policy consultant and spouse of MD Congressman Elijah Cummings
  • Alec Ross, tech entrepreneur and former adviser to Sec. of State Hillary Clinton
  • Jim Shea, Baltimore attorney
  • Krishanti Vignarajah, former Policy Director to former First Lady Michelle Obama.

At this stage, it is far too early to make any sort of prediction as to which candidates will emerge as frontrunners going into the June 26, 2018, Primary Election.

Attorney General

At this point, no candidates have filed. However, Attorney General Brian Frosh is expected to run as a heavy favorite for reelection, unless he should choose to run for Governor instead.

Comptroller

Democratic incumbent Peter Franchot has filed for reelection, where he will be challenged on the Republican side by Anjali Reed Phukan, an auditor with the Maryland State Lottery. They are the sole entrants at this point.

State Budget

It dawned on me recently that in past years I have devoted too much time in this space to fluctuating State revenue estimates, possible threats to federal funding, and various other budget worries that I read about in the General Assembly’s Spending Affordability Report. I’m willing to bet that if you ask members of the Budget Committees, Senate Budget & Taxation, and House Appropriations (House Ways & Means handles taxation matters in the House), they’ll tell you that there’s no such thing as a “good” budget year – only varying degrees of bad budget years.

In any case, I did check the latest estimate for the structural operating budget deficit going into the 2018 legislative session. That figure stands at $380 million. At least once in the last decade, that figure stood near $1 billion. So, generally speaking, if you hear that the State has a persistent structural deficit, but that number is under $500 million, things could be worse.

Additionally, in each Legislative Preview, I try to bring attention to a more obscure aspect of Maryland’s budget process that is rarely seen outside of Annapolis. Because not all policy actions come in the form of an actual “garden variety” bill, it’s important to be aware of the fact that the General Assembly can issue directives to the Judiciary, or to Executive Branch agencies that do not appear anywhere in the statute.

Joint Chairmen’s Report (JCR)

One of my goals in each year’s Legislative Preview is to give the reader a bit of “inside baseball,” by explaining some facet of the legislative landscape in Annapolis that even somewhat regular followers of legislation may not know.

Last year I devoted that effort to a brief explanation of the Budget and Reconciliation and Financing Act – The “BRFA” (pronounced ‘Burfa’). This year, there are two issues of interest to the legal community that appear in what is known as the Joint Chairmen’s* Report (JCR). The JCR is a document issued by the Chairmen of the Senate Budget & Taxation Committee and the House Appropriations Committee (*one of these days, the gender designation will disappear), and published by the Department of Legislative Services. The JCR covers every budgetary action, large and small, and gives a brief explanation of every budget cut, or suggested action to either the Executive Branch Agency or the Judiciary.

Below are the two JCR items expected to take place during 2017 Session budget deliberations, to which I will direct your attention.

• Item 1. Impact of Bail Rule.During the 2017 General Assembly session, the MSBA’s most pressing legislative activity in the area of criminal law was the preservation of the Court of Appeals’ newly-crafted Rule 4-216.1, which was to have a delayed effective date of July 1, 2017, instead of new legislation. It is a basic tenet of the MSBA’s advocacy in Annapolis that while the legislative and judicial branches share jurisdiction over the court system, there are certain processes of court governance that are best left to the Judiciary.

Please note the concerns of the Budget Committees going forward. Answers to Budget Committee questions and concerns have a strong impact on future actions by the General Assembly. When the General Assembly adjourned in April, their belief that the key indicator of the effectiveness of the new rule would lie in the “failure to appear rate” (FTA) under the new rule. (see the highlighted next-to-last bullet) While I have not seen the Judiciary’s formal response on this point, my understanding is that the FTA rate under the new rule is favorable to assessing the effectiveness of the new rule. As a result, the General Assembly may be favorably inclined to allow the rule to stand, and not attempt to displace the rule with new legislation superseding the rule.

Preservation of Rule 4-216.1 will remain a top priority of the MSBA during the 2018 Session.

From the Joint Chairmen’s Report (JCR):

Italicized passages are from the actual JCR Report. (Bold added).

1. Judiciary of Maryland

“Committee Narrative: Impact of Changes to Pretrial Release Rules:

The committees are interested in the impact of recent changes to the Maryland Rules regarding the pretrial release and the use of cash bail across the State. As the General Assembly continues to consider statutory changes to the pretrial system, it will be especially important to understand the impact of the decreased utilization of cash bail likely to occur under the new rule. Therefore, the committees request a report on the implementation of the new rule from its effective date, July 1, 2017, to September 30, 2017. The report should provide an update on pretrial release practices, including any guidance on the new rule issued by the Judiciary, a preliminary evaluation of the rule’s impact on reducing the number of individuals held because they cannot afford to pay their set bail, an explanation of how affordable bail amounts are determined for individual defendants, and recommendations for General Assembly action that would be beneficial to the implementation of the new rule. In addition, the Judiciary should provide the following data with the report:

• • a statewide accounting, by month and jurisdiction, of all pretrial dispositions from July 2016 to September 2017, including the number of defendants, held on cash bail, released without conditions or on recognizance, released with non-monetary conditions, and held without bail;
  • failure to appear rates from July 2016 to September 2017 by jurisdiction; and
  • the number and percentage of defendants held in custody more than five days after a bail is set from July 2017 to September 2017.”

• Item 2. Office of the Public Defender (OPD) – Agency Staffing Levels. There is a widespread notion outside of Annapolis that all the Budget Committees do is go “budget cut crazy.” Sometimes it feels that way, but it really isn’t true. While the General Assembly can cut from, but can never add money to an Agency’s appropriation, there are times when the Budget Committees send notice to the Governor that they believe an Agency is being underfunded in certain areas. In the example below, the Budget Committees are expressing concern that attorneys at OPD are “performing an increasing number of functions that should be performed by non-attorney support staff.  

2. Office of the Public Defender

Committee Narrative: Attorney Work Functions and Agency Staffing:

The committees are concerned about the impact of support staff shortages in the Office of the Public Defender (OPD) and the potential impact of understaffing on attorney workloads. While the committees are already aware that attorneys perform case – related functions that could be assigned to support staff if they were available, including intake, investigations, and general research, the committees would like more information on other support functions attorneys might be required to conduct in understaffed offices. Therefore, the committees request that OPD submit a report detailing any non-managerial, non-case related functions performed by agency attorneys. The report should detail what non-case functions are being performed by attorneys, identify the jurisdictions, and estimate the amount of time attorneys have to devote to non-case functions.

Vetoed Bill – Paid Family Sick Leave

In the Chambers of the State House, nothing gets the party started at the beginning of a Session faster than a veto override. In terms of order of procedure, one of the very first Agenda items is Bills Vetoed by the Governor. Governors and their legislative staff go into ‘battle stations’ mode to preserve In fact, there are few things that a Governor hates more than having a veto overridden by the General Assembly. A veto override by the General Assembly, especially on a high-profile piece of legislation, is regarded by a governor as an act of war, irrespective of whether the Governor is a Republican or a Democrat.

In 2017, after several unsuccessful attempts, the General Assembly passed House Bill 1 – Labor and Employment – Maryland Healthy Working Families Act, otherwise known as that Paid Family Sick Leave bill. The bill passed by “veto-proof” majorities in both the Senate and House. After 90 days of sparring between Governor Hogan and the Democratic leadership, the legislature passed a bill that provided for 5 mandatory paid sick leave days to be provided by employers that have 15 or more employees. The Governor felt that provisions of the bill were unduly burdensome to small businesses. During the Session, the Governor had proposed a 50 employee threshold, but that offer was rejected by the General Assembly.

On November 27, 2017, Governor Hogan offered to introduce his own “compromise” Paid Family Sick Leave bill as a featured measure in his 2018 legislative package, in exchange for the General Assembly not overriding his veto of the 2017 bill. The Legislative Leadership has signaled that it intends to decline the Governor’s offer and proceed with a plan to override his veto of House Bill 1. So, after all the Opening Week greetings and handshakes, the sausage-making will begin.

Violence in Baltimore City

As is constantly reported in the news, Baltimore City, in 2017, is having a year of seemingly unprecedented violence. The city has exceeded 300 murders in each of the past three years. Violence in the city has taken its toll on tourism. Aside from murder, other violent crimes, such as carjacking, armed robberies, and aggravated assaults are on the rise.

The Mayor’s Office, the Greater Baltimore Committee, and the Baltimore City Police are expected to work closely with the Baltimore City Delegation and Legislative Leadership to devise new legislative strategies to stem the rising tide of violence, which continues to tarnish Baltimore’s reputation, locally and nationally.

Net Neutrality

Perhaps the fiercest looming battle between the federal government and the states will be over the Trump administration’s Federal Communications Commission (FCC) decision to rescind Obama-era rules governing so-called “net neutrality.” Net neutrality is the concept that internet service providers (ISPs) are required to give consumers equal access to all online content, and may not create “fast” and “slow” lanes of internet traffic, by way of creating “basic” and “premium” speeds and access to the internet. The FCC is scheduled to vote (at about the time this article will appear) to eliminate the current rule, which the Obama administration instituted in lieu of seeking Congressional statutory support.

FCC Chairman Ajit Pai recently stated that the rescission of the current net neutrality rule will ensure that “the federal government will stop micromanaging the internet.” Pai went on to state that the FCC will go to great lengths to ensure that state and local governments cannot enact their own internet regulatory schemes that run counter to new FCC rules. Several states, most notably New York and California, have expressed an intent to pursue action through the courts (with others likely to follow) if the FCC proceeds with the proposed new rules.

Despite Chairman Pai’s pronouncement, the federal preemption with respect to internet governance will prevail, I fully expect that there will be at least a few pieces of legislation introduced during the 2018 session aimed at preserving equal access to the internet for all Maryland residents.

In all likelihood, the widespread state and local opposition to the impending shift in internet regulation by the FCC is likely to end up in court very quickly.

Rape Survivor Family Protection Act

For nearly a decade, legislation has been introduced before the General Assembly which sought to establish a hearing process for terminating the parental rights of rapists. In each instance, the legislation has died. For two of those years, 2015 and 2016, the MSBA opposed the bill on the basis of certain due process concerns. Because the bill did not require a rape conviction or even the filing of criminal charges, the MSBA had concerns about a hearing process that employed a civil preponderance of the evidence standard of proof and did not contain an expressed statute of limitations.

During the summer of 2016, the MSBA worked with the lead Sponsor of the bill, Del. Kathleen Dumais, as well as the sexual assault victims advocacy community, to reach agreement on a revised version of the bill. The MSBA supported the Rape Survivor legislation in 2017, which died in Conference Committee, in the waning hours of the session.

Going into the 2018 Session, Senate President Mike Miller has stated that the Rape Survivor bill will be among his top priorities, which meshes nicely with the support already expressed by House Speaker Michael Busch. Given that level of early support from the Presiding Officers, 2018 should finally be the year of passage for this legislation.

Contested Judicial Elections

Among the many Constitutional Amendments likely to be introduced this upcoming election year will be measures to eliminate contested elections for circuit court judgeships. For nearly three decades, the MSBA has supported the elimination of contested judicial elections, in favor of a retention election system, such as that which applies to District Court and appellate judges in the State.

Judicial Performance Reviews

Several recent news articles have highlighted public reaction to undesirable judicial conduct from the bench and led to call for a new, “transparent” evaluation and disciplinary process for judges in Maryland. At least one of the news accounts cited the length of circuit court judicial terms (15 years) and appointed District Court term (10 years) as an added reason for a formal, periodic evaluation system. The most recent article, which appeared in the Baltimore Sun, stated that 17 states and the District of Columbia have systems in place for periodic performance reviews of judges.

The general public is largely unaware of the existence and function of the Commission on Judicial Disabilities (perhaps the name is misleading to most). The same could be said for much of the legislature. The MSBA will closely monitor any legislative discussions concerning judicial performance reviews and work closely with the Maryland Judiciary, partnering in any educational activities that may be developed to address the current awareness gap.

Gun Control

While the MSBA generally does not become actively involved in matters relating to gun regulation, it is important to address the likelihood of significant legislative activity in 2018 relating to the subject. With two recent mass shootings reigniting the debate over access to certain types of firearms, who may possess them, and the legality of firearm modifications, the General Assembly is almost certain to revisit this familiar debate.

Maryland Assault Weapons Ban

On Monday, November 27, 2017, the U.S. Supreme Court declined to review or comment upon the U. S. Court of Appeals for the 4th Circuit’s decision which upheld the constitutionality of Maryland’s 2013 law banning military-style assault weapons, and high capacity magazines.

In declining to hear the appeal of the gun-rights advocates, the court did not delve into the merits of the arguments of any of the parties to the appeal.

Now that judicial redress has been forestalled, it is possible that gun-rights advocates may seek legislation to undo the 2013 law. However, recent high-profile, rifle-related mass shootings may lead the advocates to wait until 2019.

Mass Shootings

The shootings at the Mandalay Bay Hotel in Las Vegas, and at the First Baptist Church in Sutherland, Texas, and the ensuing news accounts, sparked familiar discussion involving eligibility for gun ownership, personal limits on the number of firearms owned, the shortcoming of gun-related registries, and what types of modifications to a firearm should be permitted. The Las Vegas incident introduced much of the world to the term “bump stock,” a replacement stock that when attached to a semi-automatic rifle, allows the gun to perform more like a fully-automatic rifle. In the Mandalay Bay event, 58 concertgoers were killed, and approximately 500 others were injured. After the Sutherland mass shooting, in which 26 were killed, and 20 others injured, it was determined that the perpetrator should never have been eligible to have purchased the weapons he used in his crimes, based upon his court-martial and “bad conduct” discharge from the Air Force for assaulting his wife and child. Unfortunately, in this instance, the circumstances of the shooter’s discharge were never conveyed from the Air Force to the FBI. Had the information been entered into the FBI background check database, theoretically, he would not have been able to legally purchase the military-style rifle used to carry out his assault on the church.

In reaction to the Las Vegas shooting, which involved a high-powered rifle, modified with a “bump stock,” several legislators have expressed interest in banning that rifle modification part in Maryland.

Court Decisions: Wrenn v. District of Columbia and Matthew Grace and Pink Pistols v. District of Columbia

Additionally, in July 2017, the U.S. Court of Appeals for the District of Columbia invalidated significant provisions of the District of Columbia’s handgun law that required a registered owner of a handgun have a “special need” to carry a handgun outside the home. Those provisions are remarkably similar to Maryland’s concealed-carry law, so it will be interesting to see if the legislature attempts to forestall court challenge by amending the State’s concealed-carry statute.

Historically, the Democratically-controlled General Assembly has been strongly pro-gun control. However, Republican Governor Larry Hogan has been opposed to extending regulation of firearms in Maryland. The Governor has stated that he would vow to uphold laws currently on the books. It will be interesting to see how the political dynamics of any new gun control legislation play out in a gubernatorial election year.

Task Force Legislation

The MSBA had representation on two Task Forces that were created by 2017 legislation. On the Task Force on Tax Sales in Maryland, the MSBA was represented by Michael Cantrell, and on the Task Force on Long-Term Care Education and Planning, the MSBA was represented by Morris Klein.

Other policy matters that may generate significant legislation this session include: Opioid-related education and Treatment Funding; Task Force on Exoneration; Sexual Assault; Sexual Harassment in the Workplace; Judicial Compensation; Attorney’s Fees in Cases of Violation of a Constitutional Right; Elective Share; Asbestos Litigation; and, Cameras in the Courtroom.

Richard A. Montgomery III is MSBA’s Director of Legislative and Governmental Relations.