Maryland Bar Bulletin
Publications : Bar Bulletin : December 2007

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 Legislative Preview:  

As I state in this space every year, it is simply impossible to predict in the autumn of the previous year what issues will become hot topics for the legal community going into a new legislative session, but here are a few of the subjects in which I believe you will see a fair amount of legislative activity.
 

  • Tort Reform (Medical Malpractice – Noneconomic Damages). One of the provisions of House Bill 2 of the Special Session of 2004 – the Maryland Patients’ Access to Quality Health Care Act of 2004 – dictated that for a medical malpractice award involving an action filed on or after January 1, 2005, noneconomic damages were limited to $650,000. HB 2 imposed the $650,000 cap for four years, through the end of calendar 2008, and then the statute reverts back to the annual escalator by allowing the noneconomic damage ceiling amount to increase by $15,000 annually. The cap on noneconomic damages expires on December 31, 2008.
     
  • Contested Judicial Elections. The MSBA has repeatedly supported legislation that would abolish contested elections for circuit court judges by replacing our current system with a retention election system, like the one in place for appellate judges in Maryland. Despite uncertain prospects for passage, the MSBA will support similar legislation in 2008. The change to a retention election system requires an amendment to the Maryland Constitution. The General Assembly will usually only devote time to constitutional changes in an election year, and 2008 is an election year.
     
  • Drug Sentencing Reform. One action likely to stir significant debate in Maryland, and nationwide, is the U. S. Sentencing Commission’s action in crafting an amendment to revise the federal guidelines for crack cocaine sentencing. The amendment, which sought to address the disparity in harshness for sentences connected with crack cocaine as opposed to powdered cocaine, became law on November 1, 2007. The question is whether new guidelines lowering recommended sentences for crack possession should apply retroactively. According to the Drug Policy Alliance, the federal change lowers the bottoms of the recommended sentencing ranges for crack cocaine-related crimes so that they are no higher than the mandatory minimum sentences required by law. The change is expected to impact around 3,500 people each year. This may be the most controversial issue of all in 2008.
     
  • REAL ID. In May of 2005, Congress passed the REAL ID Act as part of supplemental appropriations bill. Under the Act, a state must implement new federal standards for the issuance of drivers licenses and identification cards by May 11, 2008, or the federal government will not recognize the state’s driver’s license or identification card for federal purposes (such as positive identification for air travel). The United States Department of Homeland Security (DHS) is responsible for administering the Program, and has recently developed draft regulations to implement the Act. The Motor Vehicle Administration of the Maryland Department of Transportation is the agency responsible for administering compliance with the Program. By virtually all accounts, Congress has failed to provide adequate guidance or funding to the states to implement the Act.
    Although the state compliance deadline is rapidly approaching, recent news reports have indicated that DHS has considered scaling back some of the technological requirements of the Act, as well as extending the deadline for state compliance.
     
  • Sex Offenders. Similar to REAL ID, Maryland finds itself attempting to comply with the provisions of the federal Adam Walsh Child Protection and Safety Act of 2006. Congress passed the Act in 2006, and it was signed into law by President Bush on July 27, 2006. The bill was designed to increase protections for children by providing for development of a nationalized set of monitoring and registration requirements for sex offenders.

    Partially due to turnover in leadership at the U. S. Department of Justice (DOJ), guidance for the states in seeking to comply with the Act has been delayed. However, according to the Department of Legislative Services, Maryland may need to amend certain statutory provisions concerning the registration of sex offenders. Some of the possible areas of Maryland law that may require amendment to comply with the Act include deadlines for offender registration, length of registration for specific offenders, frequency of re-registration, application of registration requirement to certain juvenile offenders, and penalties for failure or refusal to register.
     
  • Comparative Negligence. During the 2007 Session of the General Assembly, legislation was introduced to convert Maryland from its current fault system of contributory negligence to a modified form of comparative negligence. Under the provisions of HB 110 / SB267, 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. The MSBA did not take a position on the legislation in 2007.

    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. That did not occur during the 2007 Session. Although HB 110 was withdrawn, and SB 267 died in the Senate Judicial Proceedings Committee, we expect to see comparative negligence again in 2008.
     
  • Death Penalty. On Wednesday, October 17, 2007, the United States Supreme Court issued an order staying the execution of a Virginia death row inmate. The Court is assessing the constitutionality of whether the most common method of lethal injection (generally a three-chemical cocktail of sodium thiopental, pancuronium bromide, and potassium chloride) violates the Eighth Amendment protection against cruel and unusual punishment, because of the extreme pain associated with this form of execution and whether that degree of pain constitutes “unnecessary pain” since other chemical combinations are available for use.

    Governor O’Malley has stated his support of the repeal of Maryland’s death penalty law, referring to it in his 2007 State of the State speech as “ineffective.” The General Assembly has considered death penalty-repeal legislation almost annually. And in each instance, the bill has received a public hearing and then died in committee.
     
  • Same-Sex Marriage. In September, the Court of Appeals upheld the 1973 Maryland law defining marriage as being between a man and a woman, when it reversed the Circuit Court decision that declared the law unconstitutional, in the matter of Deane, et al v. Conaway.
Recent Sessions of the General Assembly have seen legislation to authorize same-sex marriages in Maryland. All have failed. Nevertheless, in 2008 there will be renewed interest in legislation in this area.
 
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Publications : Bar Bulletin: December 2007