2020 Early Adjournment and Path Forward
As surreal as the early adjournment of the 2020 Maryland General Assembly due to COVID-19 may have seemed on March 16, 2020, no one knew at the time how the spread of COVID-19 would transform the manner in which the legislature would conduct business in the months ahead. By virtually all accounts, Senate President Bill Ferguson, House Speaker Adrienne Jones, and the rest of Legislative Leadership made the right call in adjourning the 2020 session early, and by conducting almost all legislative business during the spring and summer remotely. While there had been some discussion of a possible Special Session of the legislature to convene in May 2020, the Presiding Officers concluded that, based upon the growing pool of knowledge on the transmissibility of the virus, whatever possible value there may have been in convening a spring or summer session of the legislature was greatly outweighed by the health risks to the members and staff.
The Presiding Officers established the Joint COVID-19 Workgroup, which in conjunction with Governor Larry Hogan’s efforts at combating the disease, relied upon the expertise of as many of Maryland’s top communicable disease and workplace safety experts available to guide their decision-making on how to conduct the State’s necessary business safely over the summer, as well as looking ahead to the 2021 General Assembly session. The results of the expert guidance was the almost complete closure of the Annapolis legislative complex over the summer, as well as development of a strictly limited-access policy for the conduct of legislative business when the General Assembly convened on January 13, 2021.
During the summer of 2020, not only was the COVID-19 Workgroup heavily active, most other Standing Committees of the General Assembly, as well as other ad hoc committees developed their own manner of conducting regular business remotely. For the most part, these Open Meetings involved notice to the public via the General Assembly website, with links to pertinent documents. As for Committees which held public hearing with testimony by advocates and members of the public, a two-track system of participation was established: individuals wishing to testify on draft bills and other matters signed up electronically to testify via Zoom; and individuals merely wishing to watch the proceedings were provided an access link to watch a simulcast of the meeting via YouTube. The summer trial run of remote proceedings provided basic guidance for the legislature on how to continue business effectively during a continuing pandemic.
Planning for the 2021 Session
By fall 2020, the Senate and House of Delegates, in consultation with a wide array of stakeholders, had developed plans for the conduct of legislative business for the 2021 session of the General Assembly, which will involve limited in-person meetings and floor proceedings of both Chambers, as well as remote-only participation by the advocacy community and the general public. The Senate, comprised of 47 members, will meet in their regular Chamber (for limited debate), with greater spacing of members and separation of members’ desks. Meanwhile, the House of Delegates, with its 141 members will be physically divided, with a large portion of the membership remaining in the (socially distanced) Chamber, and the remainder of the body convening in a “Chamber Annex,” fashioned from Delegation Rooms on the first floor of the House Office Building.
Both Chambers of the General Assembly adopted Rules in early January to allow broadened authority to conduct not only debate on legislation remotely, but “Floor” voting on bills remotely as well. Accordingly, the buildings of the Annapolis legislative complex will generally be accessible only to members of the General Assembly, legislative staff, and visitors by appointment with a legislator.
Key components of COVID safety plans of the General Assembly will feature:
- Weekly COVID Testing
- Robust Contact Tracing system
- Enhanced Air Flow Sanitation
- Rigorous Disinfecting of Buildings
The continued COVID-19-related restrictions will pose significant challenges for registered lobbyists, other advocates, and the general public, who have become accustomed to face-to-face interaction with legislators, either in their offices, the hallways of legislative buildings, or the lobby of the State House. With the closure of the buildings of the legislative complex, the only potential for face-to-face meetings with legislators would be via the office appointment route, or perhaps walking the public streets between buildings of the legislative complex with legislators. My belief is that most legislators will be reluctant to entertain either in-person option.
Aversion to Controversy
A number of factors affecting the conduct of legislative business in Annapolis in 2021 are likely to combine to reduce the number of new controversial issues undertaken by the General Assembly. First, the Presiding Officers have stated that they would like to do as much as possible to protect the health of their members and legislative staff. Both Senate President Bill Ferguson and House Speaker Adrienne Jones have committed to limiting in-person floor debate to 2-hour stretches at a time in order to reduce the chance of a Floor Session becoming a “Super Spreader” event, despite separation by Plexiglass. Second, to the extent that the 141-member House conducts Floor proceedings with half the Chamber participating remotely from the House Floor Annex, the numerous House members wishing to be heard on a controversial issue may overwhelm the remote participation technology. Anyone who has viewed past House Proceedings on a controversial bill has seen how difficult it can be for the Speaker to determine which Delegates to call upon to speak, and in what order. That chore would become even more onerous with half the House participating electronically from the Annex.
Finally, I’m reminded of the words of then-Senate Judicial Proceedings Chair, Brian Frosh on the floor of the Senate, urging against Committee bill hearings immediately following the “Snowmageddon” storm of February 2010: “You really can’t call these public hearings if the public can’t get here to participate.” While those of us in the advocacy community may find the electronic testimony sign-up process, and testifying on bills via Zoom to be a moderate adjustment/inconvenience, the general public is likely to find the process highly confusing. I believe that the General Assembly’s trial run of hearings on draft bills over the summer went very smoothly, that process involved only a very small number of bills, and a relatively small number of witnesses. Legislative bodies tend to be reluctant to pass landmark measures when they believe that their constituents have not been adequately heard on the measures being proposed.
Key 2021 Legislative Issues
Veto Overrides: Kirwan Education Plan and Historically Black College and Universities (HBCUs) Funding
Among the very first substantive actions the 2021 General Assembly will undertake will be a likely override of Governor Hogan’s Policy Veto of the House Bill 1300 of 2020, Blueprint for Maryland’s Future – Implementation. This sweeping multi-year K-12 education funding plan was the dominant issue of the 2020 legislative session. Key feature of HB 1300 included:
- Expanded prekindergarten to all 4-year-olds, as well as 3-year-olds from economically disadvantaged families.
- Elevated standards for becoming a teacher and raising teacher salaries.
- Reimagined high school curricula to offer students training for well-paying jobs right after graduation.
- Establishment of more “community schools” with enhanced services for students and their families.
- Greater support for special education students and schools with higher concentrations of disadvantaged families.
- Create accountability programs to ensure that funds for education are applied as designated.
The bill passed by 37-9 in the Senate and by a margin of 96-38 in the House.
Similarly, the General Assembly passed House Bill 1260, Historically Black Colleges and Universities – Funding. The bill was crafted to address historic funding inequities affecting HBCUs in Maryland. HB 1260 would have required the Maryland Higher Education Commission to establish a new unit to assist in evaluating and reviewing certain proposals for new programs and substantial modifications of existing programs. Additionally. The bill would have required the Governor, in fiscal years 2023 through 2031, to include in the annual State operating budget $57,700,000 to be allocated to certain historically black colleges and universities in the newly established the Historically Black Colleges and Universities Reserve Fund. House Bill 1260 passed the House by a margin of 129-2. In the Senate, HB 1260 passed unanimously, 45-0.
The Governor’s vetoes of both the Kirwan bill (in conjunction with an expanded school construction package) and the HBCU bill are likely to be overridden in the early days of the 2021 session.
Even without the funding pressures that enactment of the Kirwan and HBCU measures will bring to the state budget formulation equation, the impact of COVID-19 will present previously unimaginable challenges to crafting a budget for state fiscal year 2022. Toward the end of the 2020 session of the General Assembly, Governor Hogan had made additional funding cuts, and after the session he imposed a hiring freeze. Although Maryland survived the drastic reduction of revenue brought about by the pandemic during the final quarter of FY 2020, a continued absence of relief assistance from the federal government may lead the Governor and General Assembly to pursue more drastic budgetary constraints during the 2021 session. However, the Fall 2020 revenues estimates for the State were less bleak than expected.
The General Assembly is likely to conduct its budget deliberations more expeditiously than in past sessions, just in case the legislature encounters spread of the coronavirus within its ranks. It is important to remember that the General Assembly’s one true responsibility is to pass a balanced budget by the 83rd day of the session, which in 2021 falls on April 5, 2021.
Taxation of Legal Services
In 2020, the MSBA was confronted with proposed legislation – House Bill 1628 Sales & Use Tax – Rate Reduction and Services, which posed a major threat to one of our Core Principles, that legal fees paid by clients should not be subject to taxation. The bill was introduced only in the House of Delegates.
Taxing legal services threatens access to justice in multiple ways. First, sales taxes are regressive, and negatively affect lower-income taxpayers. Secondly, taxation of legal services functions as a “misery tax” in that the average citizen hires an attorney most often when facing a personal or familial crisis. Often, people facing a crisis situation may seek what may appear to be the least expensive solution to a problem, not realizing that the back-end cost of not utilizing adequate expertise may lead to a disastrous outcome. Additionally, imposition of a tax on legal services is unduly burdensome to solo and small firm practitioners, due to lack of clarity of when the tax would be assessed and paid. Finally, a sales tax applied to services provided by Maryland lawyers would serve to place Maryland law firms at a competitive disadvantage with out-of-state firms.
In response, the MSBA initiated and spearheaded a coalition of legal practice organizations, in an unprecedented alliance to defeat a bill before the Maryland legislature, which would have imposed the state sales tax upon legal services provided by Maryland attorneys. The coalition consisted of the MSBA, the Maryland Association for Justice (MAJ), and Maryland Defense Counsel (MDC). Ultimately, the bill was soundly defeated in the Revenue Subcommittee of House Ways & Means, before reaching the full committee.
While early indications are there will not be a taxation of legal services bill that would gain traction in the 2021 session, fiscal conditions could change, prompting the legislature to seek new revenue from the service sector. As always, opposition to taxation of legal services remains the MSBA’s top legislative priority, and we will remain vigilant on that front.
Not surprisingly, many of the issues that will dominate the 2021 session of the General Assembly will be COVID-related proposals. Among those areas of law, expect significant activity relate to:
- Funding for state government operations & local governments
- State Court Funding – Projected Case Backlogs for 2021
- MD Legal Services Funding – Providing a stable source of funding
- Tenants – Right to Counsel
Criminal Justice Matters
- Pretrial Release under COVID
- Police – Use of Excessive Force
- Police – Duty to Intervene / Report Misconduct
- Police – Law Enforcement Officers’ Bill of Rights
- Police / Judges – No-knock Warrants
- Expanded Telemedicine
- Estates & Trusts – Remote Ink Notarization – Execution of Estate Planning Documents
- Liability Issues: Health Care Providers, Employers; public accommodations
- Employment Law Issues – Family Leave; social distancing requirements and compliance; vaccination requirements.