Advocacy

Maryland relies upon recommended guidelines that have a range of sentences depending upon the severity of the offense and the offender’s criminal history. This method of using voluntary guidelines was approved by the General Assembly in 1983 (Criminal Procedure Article, § 6-216), and applies the Maryland Sentencing Guidelines as developed by the Sentencing Guidelines Advisory Board, which consists of circuit court judges, criminal justice agency officials, and members of the Bar.

The key elements of Maryland’s policy with regard to sentencing are:

• training for judges, court personnel, public defenders, state’s attorneys, and parole and probation officers in the application of the guidelines;
• a Maryland Sentencing Guidelines Manual with matrices to aid judges in the application of appropriate sentences; and
• a data collection unit within the Administrative Office of the Courts that maintains statistics to track sentencing patterns, inconsistent sentencing, and compliance rates.

These elements are intended to be flexible to accommodate changing circumstances.

See SB 222 (1996), HB 1143 (2002), HB 918 (2004)

Sentencing guidelines should remain references, but should not become mandatory requirements.

Critics of the present system claim that requests for jury trials often are used to obtain delays, to inconvenience unfavorable witnesses, to wait until a more lenient judge is available, or to improve the defendant’s plea bargaining position. Several jurisdictions have used “instant jury trials” to reduce the number of jury trials in their courts. The “Settlement Week” concept also has been implemented with a high success rate in those cases considered. Changes to the dollar thresholds for the amount in controversy within the jurisdiction of the circuit and district courts also have been made.

See HB 614 (2004), SB 796 (2006), HB 1108 (2007)

The MSBA has an interest in protecting the integrity of the jury trial system without overburdening either the district or circuit court systems.

Dollar thresholds and ceilings for determining the jurisdiction for hearing cases and the right to demand a jury trial are a topic of discussion in many sessions of the Maryland General Assembly. Currently, the claim must exceed $15,000 to establish jurisdiction for a jury trial.

See HB 413 (2006), HB 427 (2006), HB 1109 (2007), SB 403 (2008), SB 404 (2008), SB 474 (2015), SB 475 (2015)

The MSBA has an interest in the jurisdictional thresholds that apply to district court and circuit court matters, especially when they affect the constitutional right to a jury trial.

The burgeoning growth in the amount of information received and stored in the judicial system, and calls for greater public access to this data, has prompted the Courts and the Maryland General Assembly to review policies on how these records are disseminated. The pivotal issue in the debate over the openness of court records pits the right of the public to obtain access to information against the right of individuals to privacy. Courts in Maryland acquire and maintain extensive files on individuals and entities involved in the judicial system—extremely personal information may be collected for criminal investigations, civil cases gather details about individual lives that the general public does not need to see, and corporations need to protect confidential financial information and proprietary information.

Some situations may appear reasonable, such as releasing criminal records to employers who are hiring applicants for positions of trust, but they present questions concerning the range of information actually necessary for distribution or review. Increasing electronic storage of information brings with it unauthorized access issues. Protecting against security breaches compounds the difficulty of balancing access to public information with protection of individuals from identity theft. The ability to seal court records provides some relief but is not a routine practice except in matters involving minors.

Recent changes to the Maryland Rules and State laws have tried to address these concerns. See Md. Rules 16-1001 through 16-1011, which prohibit certain personal information from being included in documents filed with the court. For example, social security numbers must be redacted from all documents submitted to the court. The Maryland Public Information Act identifies specific personal proprietary information that must not be disclosed when that information is held by a government entity. As recently as July 1, 2014, the State Gov’t Article began protecting certain combinations of personal information when held by a government or a contractor working for the government as a means of reducing the threat of identity theft.

Recognition that, while most court records are and should be available to the public, some personal and proprietary information requires protection, especially when a risk of identity theft exists.

Some tort reform advocates have suggested that one of the ways to curb the filing of non-meritorious lawsuits is to place strict percentage limits on lawyer contingency fees. This idea is based on the belief that the open-ended contingency fee method encourages plaintiffs’ attorneys to inflate the size of settlements and awards in order to collect higher fees. Critics of the present system also contend that allowing contingency fees in the punitive damages context creates a windfall for both the plaintiffs and the plaintiffs’ attorneys and should be handled differently than the fees for compensatory awards.

See HB 1215 (2005), HB 673 (2011)

The Court of Appeals—not the Legislature—should discipline attorneys who charge excessive fees, and the Court has shown a willingness to limit abuses.

Many injured parties cannot afford to pay legal expenses prior to a settlement, making contingency fees useful to enable poorer clients to receive competent legal assistance on complicated cases that involve months of preparation and research. A flexible contingency fee system allows attorneys to assume responsibility and take the risks in deserving cases. Imposing strict percentage formulas to limit lawyer fees would not recognize that some cases require enormous amounts of research and preparation, while others need only minimal effort.

Maryland employees asserting claims and employers defending discrimination charges face a collection of sometimes contradictory procedural avenues and substantive remedies depending upon the jurisdiction where the complaint is filed and the size of the employer’s workforce. Over the years, the General Assembly has considered a number of bills designed to authorize the Maryland Human Relations Commission the authority to grant additional remedies in employment discrimination cases, but none were enacted into law.

The MSBA has supported an anti-discrimination bill if it would include the following elements:

• A private right of action in the state courts;
• The right to trial by jury;
• Meaningful compensatory damages;
• The right to private counsel;
• The right of a prevailing party to recover attorney’s fees, expenses and costs; and
• Elimination of provisions in the bill requiring administrative hearings at the Office of Administrative Hearings.

In 2007, the General Assembly addressed these elements in legislation enacted to allow an individual to file a civil employment action in circuit court alleging that an employer has committed an unlawful act of employment discrimination. The legislation also provided for remedies that may include:

• compensatory damages based on the size of the employer;
• punitive damages, if the respondent is a non-governmental entity and was found to have engaged in an unlawful practice with actual malice; and
• reasonable attorney’s fees, expert witness fees, and costs.

Moreover, when compensatory or punitive damages are sought, under the provisions of the bill, any party may demand a jury trial.

See SB 2 (2001), HB 314 (2007), HB 283 (2015), HB 393 (2016)

The 6 elements noted above reflect the MSBA’s interests.

Advocates of mandatory sentencing provisions for various crimes contend that criminal activity will decline if potential offenders are convinced that they will serve time in jail if they break the law. Support for this concept was strong in the Maryland General Assembly during the 1970’s and 1980’s when statutes were approved containing provisions for mandatory sentencing for a number of criminal offenses.

The types of crimes in Maryland that require a minimum mandatory sentence, with no provisions for suspended sentences, fall within five general categories:

• violent crimes involving use of a handgun (Criminal Law, § 4-204);
• use of a firearm in relation to drug trafficking (Criminal Law, § 5-621);
• drug “kingpin” offenders (Criminal Law, § 5-613 and § 5-905);
• drug distribution offenders in the vicinity of schools (Criminal Law, § 5-627); and
• third conviction for a violent crime (Criminal Law, § 14-101 and § 14-102).

The American Bar Association has opposed mandatory minimum prison sentences not subject to parole or probation since 1974. The Maryland State Bar Association for the first time opposed all mandatory sentencing provisions in any legislation introduced in the 1993 General Assembly.

See HB 2 SB 1005 (2016), HB 1312 & HB 1313 – Justice Reinvestment (2016)

Mandatory sentences should apply to some crimes, but not all of them.

The MSBA believes that mandatory sentences should exist for those offenses where adequate diversion or rehabilitation programs are available, and the MSBA opposes mandatory sentencing for other crimes based on several key points:

• Mandatory sentencing does not deter crime, because offenders either do not know of the mandatory sentence or are confident that they will elude capture.
• The prospect of a mandatory sentence may lead a jury to find a defendant innocent to avoid a mandatory sentence.
• Mandatory sentences remove and interfere with judicial discretion in sentencing.
• Mandatory sentences exacerbate the overcrowding in correctional institutions.

Since the early 1980’s, Congress and state legislatures throughout the United States have struggled to change tort law in a way that would satisfy the concerns of some that the system had become too concerned with compensating plaintiffs at the expense of the larger societal goals, and at the same time provide a forum for deserving plaintiffs to obtain adequate compensation. Most of the attention with regard to torts focused on the following topics: collateral source; comparative negligence; immunity for some categories of defendants; joint and several liability; limits on awards (especially punitive damage awards); “loser pays”; and standards of proof.

The 1987 General Assembly devoted considerable time and effort to discussion of torts and ways to deal with the dramatic increase in liability insurance rates in the 1980’s. Unlike other states, Maryland legislators did not respond to the “crisis” by passing a complete overhaul of the tort system, but instead, chose to pass some limits on awards while examining the underlying factors that led to the rapid rise in insurance premiums.

Although the General Assembly has not adopted a general comparative negligence provision, nor any of the other modified systems, it has made some modest adjustments in immunities for particular groups. In particular, liability issues have been modified for medical malpractice and patients’ access to quality health care.

The tort system should not unduly restrict individual rights or unreasonably disrupt traditional common law concepts of tort law.

To the extent change is needed, the MSBA encourages expansion of the alternate dispute resolution programs, rather than decreasing access to the court system.

The comparative negligence theory of law provides that a plaintiff may recover damages in a tort
action even if the plaintiff shared the blame with the defendant. This differs from contributory negligence, which completely bars recovery by a plaintiff who did not exercise reasonable care and contributed to the harm suffered.

Maryland remains one of a few states that has not adopted some form of comparative negligence. The types of comparative negligence range from the pure type, in which a plaintiff may recover damages regardless of the amount of negligence, to those with tighter standards (requiring 50% or 49% negligence). Maryland adheres to a contributory negligence standard, which may preclude recovery by a plaintiff except when the defendant’s conduct is willful or wanton. The most recent affirmation of the principle by the Court of Appeals occurred in 2013, when the Court applied contributory negligence to preclude recovery by a plaintiff who suffered serious injuries when he grabbed a soccer goal that was not secure. In Coleman v. Soccer Association of Maryland, the Court emphasized that the change in this principle needs to occur through the Legislature, and not through the courts. Although the General Assembly has proposed a legislative change, many details have not been resolved, so the law remains unaltered.

See HB 110 (2007), HB 1156 (2013), SB 465 (2018)

The change from contributory negligence to comparative negligence affects the parties in ways that do not yield a single answer to a decision to support or oppose.

Supporters of adopting comparative negligence in Maryland explain that contributory negligence unjustly bars a plaintiff from recovery of any kind even when his or her responsibility for the damage was minimal. Opponents of comparative negligence contend that the change would unnecessarily disrupt a common law concept (contributory negligence) that has evolved over centuries and would lead to greater uncertainty as courts sorted out the new method. The change also would affect the related legal doctrines of joint and several liability, assumption of the risk, and strict liability.

Maryland follows the American Rule for recovery of attorney’s fees, which requires a statute or written agreement for a prevailing party to obtain attorney’s fees from the non-prevailing party. Some Maryland statutes and court decisions define when attorneys’ fees and costs are available, and Maryland Rule 1-341 provides sanctions that may include an award of attorney’s fees when actions are brought or pursued in bad faith.

See SB 188 (1995), SB 362 (2016), HB 902 (2017)

Providing fee shifting in all cases might deter meritorious cases for fear of losing and having to pay the other party’s legal fees.

The measure overlooks the fact that wealthy parties can afford to pay legal costs and large businesses can hire in-house counsel, while the poor and middle-class parties often cannot pay for their own attorneys, much less those court costs and fees incurred by the other side.

The Health Claims Arbitration Office (HCAO) was established in 1976 as a means of arbitrating claims against health care providers for damages exceeding $10,000. Once a claim has been filed, the Director of the Office must notify all affected parties and supply a list of categorized qualified arbiters (attorneys, health care providers, interested lay persons) from which a three-person arbitration panel is chosen. The panel is responsible for determining liability and, if appropriate, assessing damages. Parties that disagree with the panel’s findings may appeal the decision to the circuit court for a reversal or modification of the award. In 2005, the Office was renamed the Health Care Alternative Dispute Resolution Office, as part of medical malpractice reform.

See HB 1263 (1995), HB 2 (2004), HB 547 (2015), HB 992 (2016)

Medical malpractice issues involve varying positions within the bar association and often do not lead to a unified position.

Legislation designed to expand current law to provide for structured payments that would itemize verdicts and annuities for life care and future loss of earnings were considered by the Maryland General Assembly in the mid-1980’s.

Proponents of the structured payments approach claimed that legitimate awards are supposed to care for plaintiffs on a long-term basis, and that lump-sum payments do not encourage the victims in disability cases to protect their future well-being. Advocates of structured payments believe that their solution to this problem would provide a stream of income to injured parties, while stabilizing the liability insurance market.

Opponents of structured payments contend that, while structured payments may be useful in certain cases, a mandatory approach would be an improper restriction on judgments where flexibility for investment or income tax purposes may be useful. Mandatory structured payments also would deprive injured parties of the interest payments that may accrue as a result of a lump-sum payment and, instead, go to the insurance companies.

HB 832 (2003), HB 734 (2016)

The MSBA opposes mandatory structured payments as an improper restriction on the injured party.

Title companies provide consumers with title insurance, conduct examinations to find defects or failure of titles to particular parcels of realty, and serve as escrow and settlement agents in real estate closings. Among the membership of the MSBA, especially those lawyers who practice real property law, there are those who believe that many of the activities of title companies constitute the unauthorized practice of law. Of specific concern is that the title company services include:

• conducting real estate closings without representation by attorneys;
• preparing deeds and other documents affecting the title to real estate;
• preparing lien instruments, such as mortgages; and
• advising parties of their contractual rights under a contract of sale.

Unlike the legal profession, which is regulated extensively through the Court of Appeals (Attorney Grievance Commission, State Board of Law Examiners, Client Protection Fund, Rules of Practice and Procedure), title companies and title agents fall within the scope of the Insurance Commissioner and, before 1995, had few specific regulations covering their activities.

The general provisions relating to all insurers contained in the Insurance Article of the Maryland Code govern the activities of the title insurance companies. As such, title companies that do business within Maryland must receive authorization from the State, and their accounts, records, transactions, documents, and offices are subject to examination by the Insurance Commissioner. There are requirements concerning the type and amount of assets and risk that must be retained by insurers, and they must comply with certification qualifications common to all insurance agents. Ultimately, this means that the interest on title company reserves are distributed to the Maryland Affordable Housing Trust, in accordance with the Insurance Article, rather than the IOLTA provisions applicable to practicing attorneys.

The MSBA supports the proper enforcement of the IOLTA statute.

Over the years the General Assembly and the Courts have provided immunities from civil liability for torts to a wide variety of specific interest groups. During the interim between the 1988 and 1989 sessions of the Maryland General Assembly, the Judiciary Committee staff concluded that no fewer than 75 special interest groups enjoyed some form of immunity from civil liability. In 1990, the array of immunity provisions concerning immunity from liability, limitations on liability, and prohibited actions were consolidated into the Courts and Judicial Proceedings Article.

See HB 113 (2005), HB 700 (2006), SB 664 (2006)

The MSBA opposes any law that would decrease access to justice in civil matters.

Whenever a bill is proposed that expands or adds immunity, the MSBA participates in narrowing the scope and refining the language of the new statutes.

The doctrine of joint and several liability, developed over centuries by English and American courts, provides that, when a person suffers an injury as a result of the negligence of two or more defendants, each defendant becomes liable for the entire injury and the total amount of damages. Thus, a defendant whose wrongful conduct has injured the plaintiff cannot avoid liability for the total damage award by showing that some other wrongdoer also was responsible for causing the injury.

Supporters of continuing joint and several liability argue that, without it, plaintiffs would be required to identify every potential wrongdoer, prove the misconduct of each that caused the injury, provide a reasonable basis for apportioning the damages against the defendants, and recover a separate judgment against each defendant. The retention of joint and several liability increases the probability that injured parties will receive adequate compensation for their damages, thereby ensuring one of the primary goals of tort law.

Proponents of abolishing joint and several liability contend that it is unfair to require defendants who may be liable for a small part of an injury to pay, in some cases, the entire amount of the award. As a consequence, impecunious defendants, or those beyond the jurisdiction of the court where the action is filed, may escape responsibility, while those who are able and available to pay may be disproportionately affected.

The MSBA recognizes the validity of both sides of the issue and has remained neutral regarding this legislation.

In liability cases, damages ordinarily are awarded to compensate a victim or surviving family member for medical expenses, lost wages, pain and suffering, and the mental anguish caused by needless death or injury. Punitive damages, designed to punish a defendant and to deter others from similar conduct, may be imposed as well.

There is little disagreement within the General Assembly that victims should be compensated for economic losses (wage loss, medical expenses), which can be documented and quantified. Non- economic losses (pain and suffering, mental anguish) are more difficult to determine because of the subjective nature of those damages. Punitive damages are highly controversial and have been the subject of extensive debate in the courts, state legislatures throughout the country, and in Congress.

Current law provide limits on the amount of damages for certain State and local governments. Usually, they do not include a limit on punitive damages. While the purpose of those limits often is to protect entities that rely on public funds to pay judgments, along with protections available through qualified and public official immunity, the laws result in lower compensation for victims of negligence in circumstances where the actual damages may be much higher.

See HB 2 (Sp. Sess. 2004), HB 606 (2008)

The MSBA promotes justice for all individuals, and the limit on damages is inconsistent with this position.

In 1987, the Local Government Tort Claims Act was enacted to address the insurance and liability issues that were facing local governments. The definition of “local government” under the Act includes all counties and Baltimore City, municipal corporations, community colleges, county libraries, special taxing districts, nonprofit community service corporations, and local housing authorities. The Act retains the immunity otherwise enjoyed by local governments but requires the local government to provide a legal defense for its employees who act within the scope of their employment and to pay any judgment entered against their employees. The law also requires a claimant to comply with a notice provision, so that the local government may investigate the claim promptly and set appropriate reserves.

The Local Government Tort Claims Act differs from the Maryland Tort Claims Act in two significant ways. First, the LGTCA does not waive governmental immunity, while the MTCA waives the State’s sovereign immunity. Second, in light of the immunity status, a local government employee remains a necessary party to the lawsuit but is entitled to a defense and payment of any judgment by the government employer. Under the MTCA, however, a State employee has immunity and is not a necessary party to the suit—only the State need be named. Both laws set limits on the liability of the government for damages.

Any expansion of the Act that would limit access to civil justice conflicts with the MSBA’s protection of access to the courts.

The Maryland Tort Claims Act was enacted in 1981, and amended several times thereafter, to provide citizens injured by the State with a remedy for compensation, while at the same time protecting State employees from the threat of a multitude of lawsuits. Prior to enactment of this legislation, a tort victim could not sue the State, because of its sovereign immunity, leaving no recourse but to sue the State employee responsible for the tortious act.

The Act waives the State’s sovereign immunity when a claimant provides notice within one year of an injury and limits awards up to a specific monetary ceiling. State employees are specifically protected from suit when they act within the scope of their employment.

The MSBA promotes access to justice and opposes laws that would limit a person’s ability to sue.

The expansion of manufacturers’ and suppliers’ liability for harm caused by unreasonably dangerous products has been one of the most dramatic developments in tort law. The debate illustrates the irreconcilable interests of consumers and businesses.

Supporters of legislation to restrict the liability of the makers and sellers of dangerous products have sought to limit the ability of the courts to favor plaintiffs by:

• Abolishing or severely limiting punitive damages;
  Adopting a “state of the art defense” that would not hold manufacturers liable if they could not have known of potential dangers, or if there was not a practical or technically feasible alternative design that would have prevented harm;
• Requiring victims to discover and prove what was “knowable” and feasible” about a product’s design;
• Barring recovery to victims over a specific age;
• Establishing a less stringent standard of negligence; and
• Reducing awards by any benefits paid through workers’ compensation.

Because Maryland products liability law has been established primarily in the courts, supporters of limits have indicated that legislation may be appropriate to specify the rights of consumers and manufacturers. Proponents of this approach believe that, once legislation has been passed, the number of product liability lawsuits will decrease, because both plaintiffs and defendants will have a clear understanding of what to expect from litigation, and that competition and product innovation will be encouraged. Most legislative changes to products liability have occurred at the federal level.

Any change to the common law regarding product liability should be made uniformly.

Punitive or exemplary damages are designed to punish a defendant and to deter others from similar conduct. In 1991, the United States Supreme Court focused attention on punitive damages when it announced that punitive damage awards must be based upon articulated standards, and a reasonable relationship must exist between the amount of compensatory and punitive damage awards, so that punitive damages are “reasonable in amount and rational in light of their purpose.” See Pacific Mutual v. Haslip, 499 U.S. 1 (1991).

Following the directives of the Court, supporters of changes in the law of punitive damages proposed legislation during the 1992 Session of the General Assembly in an effort to bring Maryland law into line with the principles espoused in the decision. Others argued that changes were unnecessary, because Maryland already conformed to the points made by the Supreme Court. In 1992, the Court of Appeals established the standard in Maryland as requiring clear and convincing evidence of actual malice for an award of punitive damages. See Owens-Illinois, Inc. v. Zenobia, 325 Md. 665 (1992).

HB 459 (2001), SB 836 (2017), SB 5 (2018)

The MSBA has remained neutral on this issue.

The Maryland Constitution requires that all bills passed by the General Assembly embrace only one subject. (Article III, Section 29) Over the years, there have been numerous court challenges to various statutes that have resulted in a significant amount of case law on the Single-Subject Rule. In general, these opinions have held that this constitutional provision was designed to be interpreted liberally so as not to thwart the will of the Legislative Branch.

The United States Constitution and a few state constitutions do not have a Single-Subject Rule. As a consequence, certain legislative tactics, such as the use of “riders” to attach amendments unrelated to, or only marginally associated with, the primary purpose of particular bills are employed frequently in Congress and the legislatures of these other states. Conversely, efforts to employ these same techniques are rare in Maryland and, up until the 2000 Legislative Session, there was little interest in abolishing the Single-Subject Rule in the Maryland Constitution.

The move to repeal the Single-Subject Rule was prompted by a Court of Appeals decision that was issued in the middle of the 2000 Legislative Session, which invalidated a bill from the 1998 Legislative Session on the basis that it violated the one-subject constitutional provision. (Migdal v. State, 358 Md. 308 (2000)) The issue involved the attempt to add provisions from a bill that was defeated earlier in the 1998 Session (addressing the independence of directors of some investment companies) to another piece of legislation (concerning the process for designating resident agents). The Court reaffirmed the single-subject rule and chastised the Legislature for its attempt to circumvent the requirement.

The single-subject rule for State legislation is appropriate.

Although the MSBA opposes a repeal of the single-subject rule, no activity has occurred since the 2000 Legislative Session.

The Maryland Constitution empowers the Governor to appoint appellate court judges (subject to Senate confirmation and retention elections), Circuit Court judges (subject to a contested election), and District Court judges (subject to Senate confirmation only). Judicial Nominating Commissions were established by Executive Order in 1970 to propose nominees for appointment to the judiciary by the Governor. In 1995, the Executive Order was revised by the Governor with the intention of adding greater diversity in the composition of the Commissions. The composition of the Commissions changes periodically based on updated Executive Orders by the Governor.

Between 1989 and 1995 there were several unsuccessful legislative attempts to alter the judicial nominating process by either codifying the commissions into statute, or by giving the State Senate the right to confirm appointments to the Commissions. The Office of the Attorney General issued opinions on these proposals that declared them to be unconstitutional violations of the separation of powers, even though the State Senate generally supported the bills. Since 1995, there have been no legislative efforts to change the Commission process.

The MSBA supports the use of Judicial Nominating Commissions along with significant attorney participation to ensure that qualified individuals are appointed to the Maryland courts.

The best method of selecting judicial candidates uses a system where power is shared within a constitutional framework and minimizes political pressure inherent in the appointment process by limiting the influence of any one power center. By specifying the respective roles of the Governor, the Legislature, lay and lawyer members of the Commissions, and the lawyers within each judicial district, adequate safeguards have been created to discourage abuse of the judicial appointment process and to ensure racial, ethnic, and gender diversity of Maryland’s judiciary. Any attempt to alter this balance by legislation should be opposed.

The method of appointing and confirming judges periodically receives scrutiny from the General Assembly. When a vacancy occurs in Maryland courts, the Administrative Office of the Courts notifies the appropriate Judicial Nominating Commission (a statewide Appellate or regional Trial Court) of the opening, which in turn advertises the vacancy and solicits applications from members of the bar. Applications for the position are distributed to Commission members in advance of a meeting at which the filings are reviewed along with recommendations of bar associations and other interested parties. Each candidate for the opening is interviewed by the full Commission or by panels of the Commission. Once these interviews are completed, the Commission prepares a list of the candidates whose legal and professional qualifications make them suitable for judicial appointment. This list contains the names of those candidates who have received a favorable vote from a majority of the Commission present at a voting session. Votes are taken by secret written ballot. The approved list is then sent to the Governor, who must select the appointment from the names on the list or from a previous list submitted within the 24 months prior to the vacancy.

Once the Governor appoints a judge, he or she may serve on the bench immediately. Appellate and District Court judges are subject to Senate confirmation, while Circuit Court judges must run in contested elections. If an Appellate or District Court judge is not confirmed by the Senate during the regular session of the General Assembly, he or she may continue to sit until the end of the session and then leave the Bench.

See SB 150 (2002)

The MSBA supports the Commission system for appointing judges.

In 2004, the Court of Appeals amended Maryland Rule 4-345, Sentencing – Revisory Power of Court, to provide that the court has revisory power over a sentence, except that the court may not revise the sentence more than five years after the date the sentence originally was imposed on the defendant and the court cannot increase the sentence. The revised Rule applied to violent and non-violent crimes.

Legislation to place a time limit on the court’s revisory power arises periodically. It has generally been unnecessary, because most judges consider the revisory power as a tool to ensure rehabilitation of those convicted of crimes, and that motions of this sort should be filed within the one- to two-year range.

See HB 495 (2005), HB 464 (2004), SB 333 (2004)

The MSBA respects the Court’s rulemaking authority regarding a judge’s ability to revise a criminal sentence and opposes any change that does not occur through a Court Rule.

The Board of Law Examiners was created by law and includes a sunset provision to evaluate the law from time to time. The MSBA follows the evaluation process to ensure that responsibility for the Board remains with the Judiciary and that funding is adequate to maintain high standards.

See SB142 (2003)

The MSBA has an interest in the manner of continuing the Board of Law Examiners that evaluates applicants to the Maryland Bar.

Proposals to grant immunity from civil liability to defendants in an action described as a strategic lawsuit aimed at public participation (SLAPP) suit were filed in the 1992 General Assembly. The stated purpose of the these bills was to protect citizens who exercise their First Amendment right of free speech from suits by developers, waste disposal companies, landlords, and other organized special interests who often seek to intimidate critics into silence. Under the provisions of these measures, citizens subjected to a SLAPP suit would be permitted to petition the court to dismiss a “suit brought for the purpose of intimidation or harassment.”

A SLAPP suit has the following characteristics:

• a civil complaint or counterclaim for monetary damages and/or an injunction;
• filed against non-governmental individuals or groups;
• results from communications to a government body or official, or to the public; and
• addresses an issue of some public interest or concern.

Alternatives to a legislative ban on SLAPP suits include strengthening court rules pertaining to bad faith litigation or legislation that would allow defendants in SLAPP suits to file a countersuit against plaintiffs (i.e., they could SLAPP back).

Statutes have been enacted providing protection to those who raise complaints regarding false claims and other matters that encourage whistleblowers to voice their concerns.

See HB 930 (2004), HB 134 (1997), HB 113 (2003), SB 221 (2012)

The MSBA supports free speech, but opposes bad faith litigation.

No-fault automobile insurance is the type of coverage in which a driver’s own insurance company pays for the injuries or damages of the insured party, regardless of fault. The critical provision in some no-fault insurance laws is the “verbal threshold”—a concept in which lawsuits are permitted only for drivers who die or suffer serious injuries. By limiting the number of categories within the “verbal threshold,” proponents of no-fault insurance seek to deprive large numbers of injured parties of their right to sue. Other states with no-fault insurance laws use a “monetary threshold,” under which claimants are required to submit medical expenses over a certain amount prior to initiating litigation.

Proponents and opponents of no-fault insurance have basic disagreements over issues involving individual responsibility, the relative importance of a driver’s right to sue, the impact of litigation on insurance premiums, and the experience of states that have enacted no-fault statutes.

Supporters of no-fault insurance seek to lower automobile insurance costs, to obtain faster payment of benefits to accident victims, and to set up a more efficient insurance system by lessening the amount of litigation. In addition, they consider increased litigation to be the primary cause of increased auto insurance premiums, and cite estimates prepared by the Insurance Information Institute that legal fees add up to approximately 11% of all premium dollars.

Critics of no-fault insurance argue that the statistical evidence prepared by the insurance industry is spurious, and cite examples where no-fault insurance has failed to decrease premium costs. They also emphasize the importance of maintaining a person’s right to seek compensation for injuries, and the necessity of making drivers responsible for their actions. Requiring drivers to have insurance that pays for damages to others serves as a deterrent, while no-fault insurance blames the victim, whose premiums will increase as a consequence of payment for damages arising out of accidents that were caused by reckless drivers.

No-fault insurance legislation alters victims’ rights, without correcting abuses and fraud within the tort system.

Personal Injury Protection (PIP) insurance for Maryland drivers was created in 1976 as a limited form of “no-fault” insurance. Prior to the 1989 Legislative Session, this law mandated that every driver in the State buy a minimum of $2500 worth of PIP insurance to cover medical costs, lost wages, and funeral expenses for the policyholder and others in the driver’s car, regardless of blame. In 1989, the Legislature passed a measure allowing policyholders to select an optional form of PIP that excludes adult residents in the household. Under the provisions of the law, drivers are still required to purchase PIP for all of those living in the household under the age of 16, and for all pedestrians.

No additional proposals to restrict PIP have been introduced since 1989, as proponents and foes of the optional approach have been content to monitor premium rates of both those who selected options and those who continued to maintain full PIP coverage.

See SB 637 (1988), HB 841 (2000), SB 139 (2002), SB 784 (2016)

Changes that impact victims’ rights or access to justice may trigger a need for an MSBA position.

The Office of the People’s Counsel was established in 1922 as a representative of the interests of residential consumers of gas, electric, telephone, sewer and water services, and non-commercial users of regulated transportation industries. The primary duty of the People’s Counsel is to appear before the Public Service Commission, courts, and federal and state agencies, to protect the interests of residential and non-commercial utility users. The People’s Counsel must be an attorney licensed to practice law in Maryland, and the Governor appoints the People’s Counsel with the advice and consent of the Senate.

Efforts to expand the duties of the People’s Counsel (or to establish a public advocate within the Insurance Division of the Department of Licensing and Regulation) to include insurance matters have failed. While the insurance industry has opposed the effort based on its position that self-regulation is adequate, the MSBA supported the People’s Counsel on Insurance late in the 1989 session, because the industry had failed to provide adequate safeguards for consumer interests and the threat of litigation could help lower insurance rates.

See HB 542 (1989), SB 546 (2004), HB 144 (2010)

The MSBA encourages adequate safeguards for consumers.

In 1998, the MSBA opposed legislation that would have authorized substituted service of process in civil actions upon resident agents of insurance companies when defendants could not be located. The problem arises when plaintiffs cannot locate a party for service of process. If passed, the bill would have placed resident agents of insurers in the place of defendants in order to allow litigation to move forward.

The MSBA opposed the measure, because it would have unfairly burdened the counsel for the defense without providing compensation to deserving plaintiffs. Lawyers who are unable to find their clients face significant handicaps in defense of any matter, and insurance carriers likely would refuse to pay in these cases, leaving plaintiffs no better off than before the substituted service of process.

In 1999, legislation was approved to require a defendant’s insurer to provide plaintiffs with information about the defendant’s last known home address when previous efforts to locate the defendants have failed.

The MSBA supports meaningful substitution of process, but not options that impose a significant burden on one party without providing a noticeable benefit to anyone.

Both the federal and state constitutions expressly limit condemnation authority of government entities by establishing two requirements for taking property through the power of eminent domain. First, the property taken must be for a “public use,” which Maryland courts have broadly interpreted. Second, the party whose property is taken must receive “just compensation,” which often requires payment of the land’s “fair market value,” as defined by statute.

Historically, State and local governments have used the condemnation authority primarily for the construction of roads and highways. Recently, however, its condemnation authority has been used for commercial redevelopment, including the construction of sports stadiums and theaters. The United States Supreme Court acknowledged the ability of the State to establish the reach of the condemnation power, when it ruled that New London, Connecticut, did not violate the United States Constitution when the town relied on State law allowing use of the condemnation authority to require several homeowners in an economically depressed area to vacate their properties to make way for mixed-use development. See Kelo v. City of New London, 545 U.S. 469 (2005).

In Maryland, bills were introduced in 2006 that tried to nullify the effect of the Kelo decision or to clarify its holding. Several concerns arose from the proposals:

• A constitutional amendment eliminating eminent domain for economic development might prove to be unwise, because eminent domain may be appropriate in some instances.
• There should not be any special rules governing just one county.
• Any bill providing for legal fee shifting must be carefully examined.
• Any bill should require a clearer computation of damages than is provided under the present law.

While some revisions may be appropriate, they must promote uniformity and consistency throughout the State.

Developments in the United States Supreme Court, the Maryland Court of Appeals, and the Maryland General Assembly led the MSBA to call for a review of forfeiture statutes in 1994. Drug forfeiture laws were enacted as a means of punishing and deterring illegal narcotics activity (Criminal Procedure Article, Title 12). Maryland also permits forfeiture of cash seized for illegal gambling activities (Criminal Procedure Article, Title 13, Subtitle 1), as well as many seizures of property that are established in common law.

Although the seizure of personal property and assets are authorized when obtained through certain arrests, it remains a fundamental principle of due process that the owner of the seized property has a right to notice and the opportunity to be heard. Current statutes and the Maryland Rules include adequate due process protections.

All forfeitures must include adequate judicial review and protect due process rights.

Legislation was filed in the 1996 Legislative Session to require a certificate of a qualified expert to be filed in any malpractice claim against a licensed professional. The professional groups specified in the bill included architects, interior designers, landscape architects, engineers, and land surveyors.

Current law provides for filing a certificate of a qualified expert for health care malpractice claims (Courts and Judicial Proceedings Article, § 3-2A-04). In addition, Maryland Rule 5-702 allows the court to admit expert testimony to assist the trier of fact to understand evidence or determine a fact in issue. This Rule allows the court to decide whether a witness is a qualified expert, whether the expert’s testimony is appropriate, and whether a sufficient factual basis exists to support the testimony.

When legislation is proposed, the MSBA will review it.

The collateral source rule holds that a plaintiff is entitled to any and all benefits resulting from successful litigation and prohibits the introduction of evidence that the plaintiff has received benefits from other sources. Proponents of the principle usually argue that a person injured by the wrongful or unlawful acts of another is entitled to the full value of that injury from those who perpetrated the wrong and that to enable a wrongdoer to avoid payment by demonstrating that the injured party has already received benefits for the injury would allow some of those responsible for the injury to avoid paying for their actions. Opponents of the collateral source rule contend that, except where subrogated interests exist by law, a flat prohibition on introduction of collateral sources means that an injured party may be “overcompensated” for the injury by receiving benefits for the same injury from two different sources: the collateral source and the defendant in a tort action.

Attempts to modify the collateral source rule peaked in 1987. The primary focus of the original bills introduced that year was to require courts or health arbitration panels to consider the total amounts paid from collateral sources in civil actions for personal injury or wrongful death. In those instances where a collateral source of benefit payment was available, the court or panel would be required to reduce the award equal to the amounts obtained from other sources. The result of the attempts were changes that permit modification or remittitur of damages in medical malpractice awards if modification is supported by evidence, although it excludes workers’ compensation, life insurance policies, and employee benefits from consideration in the calculations. A similar effort sought to reduce automobile insurance rates in Baltimore City in 1996.

The MSBA supports the continued effect of the collateral source rule.