By Richard A. Montgomery III

~ MSBA Director of Legislation ~

 

~ With an Introduction by MSBA President Judge Keith R. Truffer ~

 

Election 2018 – Massive Transition

WITH ALL 188 GENERAL ASSEMBLY SEATS on the ballot every four years, there are always going to be a few surprises here and there. And as is generally the case, there were several surprises in this year’s Primaries, but relatively few in the General Election. At every election, there is always a certain degree of turnover in representation. But add to that reality an inordinate number of retirements, and incumbents seeking higher office, and the 2018 election cycle had a much higher degree of turnover than most would have anticipated two years ago. The result is that the legislative halls and committee hearing rooms of Annapolis will have a drastically different look and feel come January 9, 2019. For that reason, in this edition of the Legislative Preview, I will focus more than usual on new players in Annapolis, and their likely impact upon the legislative process in 2019.

Governor

This may have been the quietest Maryland gubernatorial contest of my adult life. By final tally, Governor Hogan was re-elected by a margin of 12 points. Frankly, the race didn’t feel even that close. This race for governor felt as though it was over before it began. As much as I hate political advertising, I read it, watch it, and listen to it very closely. To unseat a remarkably popular incumbent governor, a lot of breaks have to fall your way. But there’s an adage in sports that sometimes you have to make your own breaks. Ben Jealous failed to do that.

As I mentioned in this space last year, as election season was truly just getting underway, Governor Hogan had an approval rating in the mid-to-high 60 percent range, placing him behind only Gov. Charlie Baker (R-Massachusetts) in the ranking of most popular governors in the US. (Interestingly, both are Republicans in overwhelmingly Democratic states.) Additionally, Gov. Hogan has managed one other feat, which could be considered “dancing on the head of a pin”, in that he is a Republican who has occasionally criticized President Donald Trump publicly without becoming a presidential Twitter target.

Other factors in the demise of Mr. Jealous’s hope of winning the Governor’s Mansion were that he was never able to make a case that the current governor failed in his first term, or how he would address the many problems facing Maryland in a more effective way than the current governor. These problems were exacerbated by the fact that neither Mr. Jealous nor his running mate for lieutenant governor, Susan Trumbull (of Montgomery County), had any prior government executive or legislative experience between them. Thus, neither could point to any track record of problem-solving in the public sector.

Even with unusually high turnout for this gubernatorial election in this heavily Democratic state, the fact is that much of the turnout was driven not by interest in the race for Governor, but the most eagerly anticipated midterm Congressional election in perhaps a generation. The electorate’s overall satisfaction with the performance of Governor Hogan likely could not have been overcome by any challenger in 2018.

County Executives

One surprising outcome of the 2018 Maryland general election was that the remarkable popularity of Governor Hogan did not sustain Republican candidates in major county executive races across the State. However, I do not believe that the lack of GOP success at the county executive level would be attributable to any dissatisfaction with the GOP at the national level.

In Howard County, popular incumbent Allan Kittleman was defeated by Calvin Ball III, the two-term Chair of the Howard County Council. Ball, long regarded as a rising star in Democratic Party circles, defeated Kittleman by a 53-47 margin. In Baltimore County, after an intense primary election battle with State Senator Jim Brochin, and two-term County Councilwoman Vicki Almond, former Delegate John Olszewski (“Johnny O”) defeated Republican Al Redmer, Jr., the current Insurance Commissioner, by a margin of 58-42. In Anne Arundel County, Democratic challenger Steuart Pittman upset incumbent Steve Schuh by a 52-48 margin.

Attorney General

In terms of recent history, all of the “action” in the race for the office of Attorney General tends to occur in the primary election. However, the 2018 primary election for the office was not nearly as suspenseful as the 2014 primary, where then-State Senator Brian Frosh narrowly defeated then-Delegate Jon Cardin and went on to win the general election.

This time around, Attorney General Frosh ran unopposed in the primary, and faced off against Republican challenger, Craig Wolf, a former prosecutor, and wholesale wine and spirits executive. Much of the discussion in the debate between the two candidates seemed to focus upon the participation by Mr. Frosh’s office in a number of lawsuits against the federal government, more specifically against certain actions by the Trump administration. Mr. Wolf argued that Maryland participation in these lawsuits was unnecessary, because other states had joined the federal court actions. However, AG Frosh countered that the decision to act in concert with other states was based on the need to protect the interest of Marylanders.

More widely known is the Attorney General’s participation in multi-state court actions relating to preservation of provisions of the Affordable Care Act (ACA), and allegations that President Trump has violated the Emoluments Clause of the US Constitution, by not divesting of his business interests that are profiting from continued business with foreign governments.

In another recent federal lawsuit, the State prevailed in a case where a panel of judges determined that the US Environmental Protection Agency (EPA) had failed to require the disclosure of dangerous chemical storage to first responders and communities near the storage sites in question.

However, a lesser-known action involves the Attorney General’s involvement on behalf of the citizens to block a Trump administration settlement in an action involving the international distribution of downloadable schematics for the manufacture and distribution of untraceable 3D-printed guns. The suit further alleges that the settlement violates the 10th Amendment to the Constitution by abridging a state’s right to regulate firearms. The attorneys general of Massachusetts, Connecticut, New Jersey, Pennsylvania, Oregon, New York, Washington, and the District of Columbia joined the suit.

(In the 2019 Session of the General Assembly, 3D-printed guns will be a hot topic.)

General Assembly

Senate

It will be a very long time before the Maryland Senate looks as different to begin a new term as it will come this January. With the stunning primary election defeat of two standing committee chairs, Thomas “Mac” Middleton (D-Charles Co. – Finance), and Joan Carter Conway (D-Baltimore City – Education, Health & Environmental Affairs), and the retirement of Budget & Taxation chairman, Senator Ed Kasemeyer, Senate President Thomas V. Mike Miller has had to replace 75 percent of his key leadership team.

Senate Judicial Proceedings Committee

While many of the legislatively-active MSBA Sections follow bills that may be assigned to virtually any of the 10 Standing Committees of the General Assembly, the bulk of the bills acted upon by the MSBA Board of Governors tend to be assigned to two Committees – the Senate Judicial Proceedings Committee (JPR) and the House Judiciary Committee (JUD). The JPR will have five new members this year, although only one of those new members is new to the General Assembly – Senator-Elect Katie Fry Hester, of District 9 in Howard County. One distinct ratio change is the proportion of Democrats/Republicans, and that of lawyers/non-lawyers. Last session, both of those ratios were 6/5, while in 2019, those numbers will become 7/4. That may not seem like a colossal difference, except for the reality that in JPR, a fair number of key bills previously passed or failed in the Committee by a vote of 6-5.

Senator Robert A. (Bobby) Zirkin (D- Baltimore Co.) returns as Chair of JPR, with Senator Will Smith (D – Montgomery) being elevated to serve as Vice-Chair of the Committee (last year’s Vice-Chair, Senator Delores Kelley, has been appointed as Chair of the Senate Finance Committee). Of the new lawyer-legislator members on the Committee, Senator Jill Carter (D-Baltimore City) previously served for four terms, all as a member of the House Judiciary Committee. Senator-Elect Jeff Waldstreicher (D-Montgomery) served two terms on the House Judiciary Committee before moving over to the Economic Matters Committee. Senator-Elect Chris West (R-Baltimore Co), a former member of the MSBA Board of Governors, served on the House Health & Government Operations Committee.

So, while at first blush it might seem as though JPR might be slowed a bit from nearly half the Committee being “new”, I would expect that the Committee will congeal quickly under the leadership of Chairman Zirkin and Vice-Chair Smith.

Senate Judicial Proceedings Committee (JPR) Roster

• Senator Robert A. Zirkin (D-Baltimore County), Chair
• Senator William C. Smith Jr. (D-Montgomery), Vice-Chair
• Senator Jill P. Carter (D-Baltimore City) *
• Senator Robert G. Cassilly (R-Harford)
• Senator-elect Katie Fry Hester (D-Howard) *
• Senator Michael J. Hough (R-Frederick)
• Senator Susan C. Lee (D-Montgomery)
• Senator Justin D. Ready (R-Carroll)
• Senator-elect Jeff Waldstreicher (D-Montgomery) *
• Senator-elect Mary L. Washington (D-Baltimore City) *
• Senator-elect Christopher West (R-Baltimore County) *

* denotes new member of JPR

House of Delegates

As of this writing, it is difficult to assess the overall outlook for the Maryland House of Delegates, given that Standing Committee assignments of the 141-member body have not yet been completed. But as was the case with the Senate, primary election upsets and retirements (proportionately fewer than in the Senate) have led to uncommonly high turnover again in the House.

House Judiciary Committee

Perhaps the most notable difference in Annapolis in 2019 – at least in legal circles – will be the absence of Delegate Joseph F. Vallario, Jr. as House Judiciary Committee Chairman. Delegate Vallario was first elected to the House of Delegates in 1974, and has served continuously in that Chamber ever since. He was appointed Chairman of the House Judiciary Committee going into the 1993 Session, by then-Speaker Clayton Mitchell. Delegate Vallario was defeated in the 2018 primary election by Ron Watson, a business management and IT consultant in Prince George’s County.

On a personal level, I remember the emergence of Chairman Vallario’s style in 1993 quite vividly. Joe’s first year as Chairman was my first year in the Legislative Office of Governor William Donald Schaefer, and all of the bills for which I was responsible were going to have to pass through the House Judiciary Committee. Some days went better than others, but by Sine Die the Chairman was no longer speaking to me. By the time the next Session rolled around, all was good again between us, and we had a productive, respectful relationship for the remainder of his long tenure.

One of the two most notable characteristics of Chairman Vallario’s tenure as Chairman was his unofficial phasing out of the Judiciary Committee’s Subcommittee system. While on paper those Subcommittees – Civil Law, Criminal Law, Family Law, and Juvenile Law – nominally existed, the Chairman tended to rely upon a trusted group of advisers on the Committee that came to be known as the “back room”. Although not as nefarious as it might sound, it gave the Committee an informal structure, to which many advocates had difficulty adjusting.

The second most notable feature of his time as Chairman was “The Drawer” where bills go to die. The Maryland General Assembly has a very strong Chairman/Chairwoman system, under which the Presiding Officers give great deference to their Committee Chairs by allowing them to kill bills by keeping certain bills not to their liking “in the drawer.” Joe had perhaps the deepest drawer of any Chairman in a generation in Annapolis.

Enter Chairman Luke Clippinger

After the defeat of Chairman Vallario in the primary, the House Speaker selected Delegate Luke Clippinger (D-Baltimore City) as Chairman-Designee of the Judiciary Committee. Del. Clippinger serves as a prosecutor in Baltimore City. One of Delegate Clippinger’s very first pronouncements was that, as Chairman, he would restore a Subcommittee system to the House Judiciary Committee. Also, after having served previously on the Judiciary Committee where a fair number of members felt their votes didn’t really matter under Chairman Vallario’s system, Del. Clippinger, I believe, will find an approach that will perhaps foster greater Committee morale.

Subcommittees

In the late ‘80s and early ’90s, the Subcommittees of House Judiciary met after the morning floor sessions, but before Committee bill hearings. Often, the Subcommittees would invite stakeholders to the Subcommittee work sessions after the bill had received its public hearing. Occasionally, those work sessions resolved disagreements among stakeholders and led to compromise that might save a bill that might otherwise have died. Even if the new Subcommittee system is not quite as open as the old system, subcommittees, generally, provide an added layer of transparency that should enhance public and stakeholder confidence in the Committee process.

Lawyers in the Legislature

When the 2018 Session of the General Assembly convened, there was a total of 39 lawyers among the body – nine in the Senate of Maryland and 30 in the House of Delegates. When the 2019 Session commences there will be an overall increase of four in the number of attorneys. There will remain nine lawyers in the Senate, but there will be 34 in the House.

Here is some very basic information about the new lawyers joining the General Assembly in 2019:

Lawyers Who Previously Served in the General Assembly

• Senator Jill Carter: Served four terms in the House of Delegates, through 2014, all on the House Judiciary Committee; served as Chair of the Judiciary Committee Subcommittee on Juvenile Law; left the legislature to serve in the administration of Mayor Catherine Pugh of Baltimore City, as Director of the Office of Civil Rights and Wage Enforcement.
• Delegate Jon Cardin: Served in the House of Delegates from 2003 through 2010, including his service as Chairman of the Ways & Means Election Law Subcommittee.

Lawyers Newly Elected to the General Assembly

House of Delegates

• Dalya Attar, Baltimore City: Assistant State’s Attorney, Baltimore City; previously in private practice
• J. Sandy Bartlett, Anne Arundel County: Intellectual property attorney, and professor
• Dan Cox, Frederick County: Private practitioner and agricultural advocate in Frederick County
• Brian Crosby, St. Mary’s County: Sr. Consultant Booz Allen Hamilton; MD National Guard, Infantry
• Charlotte Crutchfield. Montgomery County: Former Assistant State’s Attorney; employment law practitioner
• Debra Davis, Charles County: Charles County Commissioner; private practitioner
• Wanika Fisher, Prince George’s County: Prosecutor, and former legislative staffer
• Sara Love, Montgomery County: Former Chair of the Board of ACLU-Maryland and Law Enforcement Action Partnership (LEAP)
• Emily Shetty, Montgomery County: Former Senior Director of Federal Legislative Affairs for the Leukemia & Lymphoma Society
• Stephanie Smith, Baltimore City: Assistant Director, Baltimore Department of Planning
• Vaughn Stewart, Montgomery County: Served on Montgomery County Community Development Advisory Committee
• Jen Terrasa, Howard County: 12-year member of the Howard County Council; Howard County Planning Board; mediator

Issues for 2019

Juvenile Justice Reform

In 2019, the General Assembly will attempt to reform Maryland’s juvenile justice systems and structures in a manner consistent with their groundbreaking work over the past three years on the Justice Reinvestment Initiative (JRI), principally aimed at the adult offender population. The JRI was a truly bipartisan effort, whose broad goal was to enhance public safety by reducing corrections spending and reinvesting those savings in proven public safety strategies.

Maryland’s juvenile services/juvenile justice system has been “reformed” many times in the State’s history. The most recent wide-sweeping effort commenced in 1995, when both major political parties had become adherents of the “get tough on crime” approach. States around the nation, including Maryland, at least partially abandoned the “services” model of dealing with acute juvenile delinquency, opting instead for a more straightforward punishment model. (Maryland even renamed the Department of Juvenile Services to become the Department of Juvenile Justice.) The unfortunate result, in Maryland and elsewhere, was that more juveniles than ever before were being tried as adults, as were younger juveniles than ever before. This was the era that gave rise to “Scared Straight” programs throughout the nation.

Although the 2019 Session marks the start of a new term of the General Assembly, with many new members, I am optimistic that the bipartisan effort that led to the passage of the JRI will encourage and motivate the new legislature to lay a foundation for meaningful reform of the juvenile justice system in a manner that values the precepts of the JRI.

In past years, legislation related to juvenile offenders has been of great interest to Senate JPR Chairman Bobby Zirkin. Going into the 2019 Session, newly selected House Judiciary Vice-Chair-Designee Delegate Vanessa Atterbeary has stated that juvenile justice reform will be one of her key priorities, as well.

Contested Judicial Elections

For anyone operating under the notion that the departure of Joe Vallario, a longtime opponent of attempts to abolish contested circuit court judicial elections (the MSBA supports such legislation), means that such a bill will suddenly sail through the General Assembly, think again. Although Chairman Vallario was the most vocal (and most public) opponent of such legislation, I am certain that there are probably many other members of the judicial committees in Annapolis who also oppose such legislation. Because bills to convert Maryland to a retention election state remained in the Chairman’s aforementioned “drawer”, many legislators were allowed to remain silent as to their position on the issue. Then again, perhaps with the high degree of turnover in the legislature, perhaps abolition of contested elections is an idea whose time has come. However, because any legislation to abolish contested judicial elections for circuit court judges requires an amendment to the Maryland Constitution, it’s possible that no such legislation would be introduced in 2019, because, generally, the legislature acts on constitutional amendments in election years – which 2019 is not. Nevertheless, I’m guessing that at least one bill will be introduced this session in this area.

Sexual Assault

Given the recent history of failure of so many bills relating to sexual assault in the House Judiciary Committee, I strongly predict that 2019 will be a groundbreaking year for legislation addressing sexual assault, generally, but also toughening laws relating to sexual assault in the workplace and in educational institutions. Delegate Kathleen Dumais, who previously served as Vice-Chair of the House Judiciary Committee, has been selected to serve as House Majority Leader, beginning in 2019. I am certain that Majority Leader Dumais will continue to champion that cause, as will Senator Susan Lee in Senate Judicial Proceedings.

Body Attachments

If there was one issue that the General Assembly had “surrounded” in 2018 it was the issue of (civil) body attachments. There were many, many bills on the subject, but because there was insufficient consensus on rejecting what many regard as an archaic process, there will be more legislative activity in this area in 2019. Look for Senator Will Smith and Delegate Sandy Rosenberg to play lead roles in this area.

3D-Printed Guns

Gun regulation and control is an area that the MSBA almost invariably avoids, because of the controversial nature of the subject within our membership. However, the issue of undetectable 3D, home-manufactured guns is one that the MSBA will examine more closely. Due to the manner of distribution of necessary manufacture components via the internet, no ostensible quality control requirements, and the lack of a means to require registration, this phenomenon goes beyond traditional gun control. There is pending federal litigation to block a Trump administration settlement which would have eased oversight of distribution of software necessary for the manufacture of 3D-printed guns. Senator Will Smith has stated an intention to introduce legislation addressing Maryland’s authority to regulate 3D-printed firearms.

Other Likely Issues for 2019

• Marriage – Permissible Age
• Combating the Opioid Crisis
• Divorce – Mutual Consent
• Parole Reform
• Access to Maryland Courts Act
• Hate Crimes
• Health Care Mandate
• University of Maryland Governance
• Redistricting

Additional Information

• Maryland General Assembly – Senate
• Maryland General Assembly – House of Delegates
• Lawyers in the Maryland General Assembly
• 2019 Legislative Session Key Dates
• 2018-2019 MSBA Committee on Laws

Richard A. Montgomery III is MSBA Director of Legislative Relations. He may be reached at richard@msba.org.