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2002 FINAL STATELEGISLATIVE PROGRAM CORE ISSUE ISSUE: RETROACTIVE LEGISLATION SUMMARY: During the 2000 and 2001 legislative sessions, several major disputes arose over the issue of retroactive effective dates of laws passed by the General Assembly. Up until the 2000 General Assembly, it had been generally accepted that legislation should be prospective, not retroactive. Bills that were passed during any annual session, which constitutionally must begin on the second Wednesday of January and conclude on the second Monday in April, in most circumstances went into effect on three future dates: June 1st (constitutional date), July 1st (customary date for budget items) or, October 1st (customary date for all other legislation). Exceptions to these effective dates were vetoed bills (do not go into effect unless the General Assembly overrides the veto), emergency legislation (effective at the date of signing by the Governor), and constitutional amendments (effective upon approval by registered voters on election day and certification of the results). The General Assembly’s reluctance to pass bills with retroactive effective dates was breached in 2000 with the passage of two pieces of legislation designed to nullify decisions by the Court of Appeals. In the first case (Burch v. United Cable et al.) late fees charged by cable television companies were permitted back to 1995. In the second instance, (Riemer v. Columbia Medical Plan) Health Maintenance Organizations were granted rights of subrogation back to 1976. A third bill designed to roll back the clock on an opinion (David Migdal et al. v. State of Maryland) that the Court of Appeals determined to be a violation of the single subject rule, did not pass, primarily because it would have caused a conflict with a retroactive provision in the Annual Curative Bill that reached back to 1998 in an attempt to address the item thrown out in the Migdal case. The success of the bills with retroactive effective dates in 2000 prompted those who would profit by using this technique to file legislation of this nature in 2001. For the third time in four years, proponents of a measure to protect directors of some investment companies from shareholder lawsuits passed a bill to provide a January 30, 1998, effective date. Advocates of this legislation, fearing that a court challenge on the single subject rule would void the previously-passed statutes thereby allowing federal suits aimed at the directors filed in February, 1998, to go forward, wanted a free-standing law to accomplish their goal. Another retroactive bill also passed in 2001, one that would void a Maryland Court of Appeals case (Housing Authority of Baltimore City v. Crystal Bennett) concerning the Local Government Tort Claims Act. A third retroactive proposal designed to protect two business owners who had shot three suspects breaking into their establishment was filed too late in the session to have a chance of approval. While the Constitution of the United States bans states from passing ex post facto laws for crimes, there is no similar prohibition on the civil side. During the debate over retroactivity in the 2000 session, proponents of the concept cited an Assistant Attorney General’s opinion which stated that the bills in question would be constitutional because they would not violate any vested rights. Foes of retroactivity countered with an analysis by a University of Baltimore School of Law professor who argued that the legislation did indeed deprive a group of consumers of their property rights. The MSBA chose to defer judgement on these constitutional issues, deciding instead to focus its attention on the public policy concerns raised by retroactivity. In the Association’s view, having a floating date for when laws become effective could lead to confusion for both lawyers and their clients, especially if the practice of having laws apply retroactively became widespread. Only by establishing a firm principle that statutes would become effective at some predetermined date in the future could this problem be avoided. Given the uncertainty over the constitutional issues raised during the 2000 session on the retroactivity issue, many of those involved in the battle over the legislation anxiously awaited a court decision on litigation challenging the statute. In July 2000, a circuit court judge in Baltimore County ruled that the law concerning late fees charged by cable company could be applied retroactively because the penalties were covered by contracts with subscribers. The Maryland Court of Appeals heard oral arguments on this case in January 2001, but a decision has not been rendered. MSBA 2002 POSITION: Oppose legislation that provides for retroactive implementation dates. SAMPLE LEGISLATION:
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