The task force is directed to review “the common law of Maryland, the [court] decision, the common law and statutes in other states, the viability and definition of breed-specific standards in Maryland, a dog owner or landlord’s ability to secure property insurance, as well as existing breed-specific prohibitions in local jurisdictions in Maryland.”

Members of the task force include Senate Judicial Proceedings Chairman Brian Frosh, Sens. Lisa Gladden, Joseph Getty, Jamie Raskin and Norman Stone. From the House, members include: Delegates Curtis Anderson, Eric Bromwell, Ben Kramer, Heather Mizeur and Michael Smigiel.

Legislative leaders have indicated a willingness to take up this issue during a special session that may be July 9.  In the meantime, the Court of Appeals has been asked to reconsider its decision or to delay it to give the General Assembly time to address the issue.

This post summarizes the final status of various government liability and courts bills that MACo either considered or took a position on.

Use of Public Defenders at Bail Review: HB 112,  HB 261, and SB 422 are emergency bills that were introduced to address the recent Maryland Court of Appeals decision in DeWolfe v. Richmond, which held that indigent defendants were entitled to public defenders at District Court Commissioner bail hearings and bail reviews before the court.  Without a legislative remedy, counties and States’ Attorneys would face significant new costs and logistical challenges to comply with the Court’s ruling.  MACo supported the bills, arguing that the General Assembly should attempt to fix the problem legislatively given the ruling’s local costs, particularly concerning Commissioner bail hearings.  FINAL STATUS:  After engaging in a debate over the broader role of Commissioners and the bail process, the General Assembly passed HB 261 and SB 422 with amendments making the bills identical.  As amended, the bills would require that a public defender represent indigent individuals at court bail reviews but not at Commissioner bail hearings.  The bills would also limit the ability of a Commissioner to issue an arrest warrant based solely on an application for a statement of charges by an individual, prohibit a statement by a defendant made during the course of an initial appearance before a Commissioner from being used as evidence against the defendant,  and require a defendant who is denied bail by a Commissioner to be presented before a District Court Judge if the District Court is in session, or if not, at the next session of the District Court within 48 hours.  The bills would also require a police officer to issue a citation for a violation of various misdemeanors and local ordinances rather than arrest an individual.  Officers must submit information regarding the issuance of citations similar to what is submitted for traffic stops in order to prevent racial profiling.  Finally, the bills would create a Task Force to Study the Laws and Policies Relating to Representation of Indigent Criminal Defendants by the Office of the Public Defender.  The Task Force will include county government and local public safety and corrections representatives.  The House did not take action on HB 112.

MACo HB 112 Testimony

MACo HB 261 Testimony

MACo SB 422 Testimony

Workers’ Compensation Presumption for Firefighters:  HB 1101 / SB 949 is a bill sponsored by the Administration that would expand the workers’ compensation cancer presumption for firefighters to include esophageal, brain, testicular, bladder, urethral, and digestive cancers.  The minimum length of service requirement before the cancer presumption applies is increased from 5 to 10 years.  The bill also establishes that the cancer presumption would apply for 20 years after a firefighter leaves service and the presumption for heart disease, stress, and lung disease would apply for 15 years after a firefighter leaves service.  Finally, the bill establishes a “rolling cap” on non-medical expenses for the cancer presumption, meaning that a county’s total benefit payout in a given year may not exceed 110% of the county’s highest annual payout for such benefits.  MACo opposed the bill based on its cost and MACo’s longstanding assertion that the public safety presumptions should be truly rebuttable.  FINAL STATUS:  The House amended HB 1101 to include the following new cancers:  multiple myeloma, non-Hodgkin’s lymphoma, brain, testicular, and breast.  The 10 year service requirement was also kept.  All other provisions of the original bill were removed.  As part of an agreement between MACo and the firefighters, the Senate further amended HB 1101 by removing pancreatic cancer and delaying the effective date of the cancer changes until June 1, 2013.  In the meantime, a study of the linkage between various cancers and firefighting will be undertaken by a medical expert for the purposes of informing the General Assembly which cancers should be subject to the presumption.  MACo and the firefighters must also create a record keeping system related to the presumption.   A separate letter, signed by Committee Chairs from both Houses, requires a study on how rebuttable the presumption is in Maryland and the cost impact on the counties.  The House accepted the Senate amendments, including the separate letter.  The Senate did not take action on SB 949.   

 MACo HB 1101 Testimony

Letter Calling for Rebuttability Study

Workers’ Compensation Presumption for Law Enforcement Officers:  HB 615 would create a would create a new workers’ compensation public safety occupational disease presumption for State and local law enforcement officers who are required to wear a duty belt and suffer a lower back impairment resulting in partial or total disability. A law enforcement officer must have been a full-time employee for at least 5 years in order for the presumption to apply. The presumption applies for up to 5 years after the officer’s retirement.  MACo opposed the bill, citing the common occurrence of back impairments throughout the population, the cost to counties, and the already generous presumptions for officers.  FINAL STATUS:  The bill’s sponsor withdrew the bill, citing both the bill’s opposition and the need to rework the bill.  The sponsor indicated the bill would be reintroduced next year.

MACo HB 615 Testimony

Service of Process Fee Increases:  SB 413 would increase the various service of process fees collected by sheriffs for service of process by $10 and transferred the extra money into a Rental Allowance Program Fund within the Department of Housing and Community Development.  Monies from the Fund would be use to support the Rental Allowance Program, which helps low-income individuals find or maintain housing by providing housing assistance payments.  MACo opposed the bill, citing the inadequacy of the current fees to cover service of process costs incurred by the sheriffs and the unrelated nature of the Rental Allowance Program.  FINAL STATUS:  The Senate passed SB 413 with technical amendments but the House gave the bill an unfavorable report.

MACo SB 413 Testimony

In a somewhat surprising move, the House Economic Matters Committee offered floor amendments, which were accepted to expand the bill’s reach to cover both multiple myeloma and non-Hodgkins lynmphoma.

MACo has consistently argued that broad medical presumptions are inappropriate, as they virtually compel the Workers Compensation Commission to declare a disease as compensible (often meaning large settlement amounts) even where there is no evidence of any link to on-the-job exposure. When diseases that are increasingly common among the general population become subject to these presumptions, the fact-finding ability of a compensability hearing is undermined. Further, Maryland laws explicitly prohibit any ability to rebut the presumption — unlike similar laws in most other states, which offer the employer at least an opportunity to argue that the matter.

Read MACo’s opposition testimony to HB 1101 here.

Founded in 1996 by lawyers David Funk and Bryan Bolton, Funk & Bolton, P.A. is a Mid-Atlantic-based law firm specializing in local government law, government relations, commercial litigation, insurance regulation, and creditors’ rights.   Within these practice areas, the firm’s attorneys provide counseling, litigation, and legislative services to counties and other government, business, and trade groups.

To best serve local governments, the Firm’s Local Government Practice Group, headed by Charles D. “Chip” MacLeod, provides representation in numerous matters that involve Maryland governmental entities including litigation, municipal law, and public finance.  Additionally, Funk & Bolton has a Government Relations Practice Group, which represents businesses, trade and professional associations, non-profit corporations, coalitions and advocacy groups before the Maryland General Assembly, as well as, counties and municipal corporations.

Funk & Bolton offices are located in Annapolis, Baltimore, and Chestertown, Maryland.

Funk & Bolton, P.A. Attorneys

For more information please contact Charles D. “Chip” MacLeod at cmacleod@fblaw.com

Workers’ Compensation Presumption for Firefighters:  HB 1101 / SB 949 is a bill sponsored by the Administration that would expand the workers’ compensation cancer presumption for firefighters to include esophageal, brain, testicular, bladder, urethral, and digestive cancers.  The minimum length of service requirement before the cancer presumption applies is increased from 5 to 10 years.  The bill also establishes that the cancer presumption would apply for 20 years after a firefighter leaves service and the presumption for heart disease, stress, and lung disease would apply for 15 years after a firefighter leaves service.  Finally, the bill establishes a “rolling cap” on non-medical expenses for the cancer presumption, meaning that a county’s total benefit payout in a given year may not exceed 110% of the county’s highest annual payout for such benefits.  MACo opposed the bill based on its cost and MACo’s longstanding assertion that the public safety presumptions should be truly rebuttable.  STATUS = PENDING.  The House Economic Matters Committee heard HB 1101 on February 29 and are considering various amendments to the bill.  The Senate Finance Committee will hear SB 949 on March 22.

MACo HB 1101 Testimony

Workers’ Compensation Presumption for Law Enforcement Officers:  HB 615 would create a would create a new workers’ compensation public safety occupational disease presumption for State and local law enforcement officers who are required to wear a duty belt and suffer a lower back impairment resulting in partial or total disability. A law enforcement officer must have been a full-time employee for at least 5 years in order for the presumption to apply. The presumption applies for up to 5 years after the officer’s retirement.  MACo opposed the bill, citing the common occurrence of back impairments throughout the population, the cost to counties, and the already generous presumptions for officers.  STATUS = FINAL.  The bill’s sponsor has withdrawn the bill, citing both the bill’s opposition and the need to rework the bill.  The sponsor indicated the bill will be reintroduced next year.

MACo HB 615 Testimony

As early as Friday, lawmakers could vote on identical amended bills in the House and Senate, although a vote is more likely to come early next week.

The consensus amendments call for a bail hearing before a commissioner within 24 hours, but would not require a bail review hearing before a District Court judge until the court’s next regular session.

The previous Senate version of the bill would have required a bond review before a judge within 72 hours of arrest, a move that would have opened courts throughout the state on weekends.

Another aspect of the Senate bill, which requires police officers to issue written citations instead of jailing suspects for nearly all misdemeanors for which the maximum penalty of imprisonment is 90 days or less, is included in the consensus bill.  …

The consensus bill also protects statements made by defendants to the commissioner from being used as evidence at trial.

In addition, the bill would create a 25-member Task Force to study the Office of the Public Defender’s representation of indigent suspects, which would submit a report by Nov. 1, 2013.

MACo has testified in support of legislation to address the issue, although further litigation appears likely.  The Task Force would include a MACo representative, as well as representatives from the Maryland Chiefs of Police Association, the Maryland Sheriffs’ Association, and the Maryland Correctional Administrators Association.

A February 27 MarylandReporter.com article discusses recent Senate deliberations:

A Senate vote on an emergency bill to amend the Maryland Public Defender Act was postponed for a second day Monday so lawmakers could hear from judges unhappy with a provision to open courts on weekends for bail hearings.

MACo was prepared to testify in opposition to HB 615.  MACo has traditionally opposed expansion of the presumptions because they not based on current medical science, are practically impossible to rebut, and are extremely costly to many local jurisdictions.  MACo will also be opposing another presumption bill that has been introduced by the Administration, HB 1101 / SB 949, which would expand the cancer presumption for firefighters.  The bill hearing for HB 1101 is scheduled for February 29 in the House Economic Matters Committee.  SB 949′s hearing has not yet been scheduled.

See the bill’s Fiscal and Policy Note, with further background and explanation.

Read MACo’s testimony on SB 422 here.

The early work session suggests the Committee’s interest in seeking a resolution to the important issue, and MACo will continue to follow the developing matter in Annapolis.

A February 17 Gazette.net article reported on the Maryland’s Court of Appeals decision to delay its final holding until March 5.

At its conference, the Court of Appeals decided to consider responses, due March 5, to motions filed by the Baltimore City District Court Commissioners and state Public Defender Paul B. DeWolfe Jr. before issuing a mandate to enforce its Jan. 4 decision.

DeWolfe, whose office would need an estimated $28 million more annually to make public defenders available at initial bail and bail review hearings, told the court in asking again for a stay of at least 180 days that his office does not have and is unlikely to quickly obtain the resources to comply.

As previously reported on Conduit Street, the recent Maryland Court of Appeals decision in DeWolfe v. Richmond held that indigent detainees have a right to representation for bail hearings or review before a District Court Commissioner or District Court Judge.  The holding poses potentially significant logistical and cost challenges to local law enforcement and correctional facilities, the Office of the Public Defender, State’s Attorneys, and the court system.  On January 26 the House Judiciary Committee held a 4-plus hour briefing on the issue.

District Court Commissioners, who determine the initial status of an arrestee, are active 24 hours a day/7 days a week, including holidays, at 41 sites across the State.  Bail hearings before a District Court judge, on the other hand, generally happen during the 5-day work week and during normal working hours.  A prisoner must be given a bail hearing during the next hearing session (which could be immediately if one is occurring at the moment).

The Public Defender’s Office was supportive of the Court’s decision but did state that the Office could not meet the requirements with current staffing and budget levels.  Citing reduced staff, high caseload levels, The Office estimated that it would need a deficiency request of $28 million for FY 2012 to hire panel attorneys to handle short-term compliance.  For long-term compliance, the Office estimated it would need 260 more attorneys (approximately 50% increase) plus support staff, information technology, and supplies.  The Office complimented the help of local correctional facilities in helping to develop a compliance plan.

Judiciary Chairman Joe Vallario noted that the State’s Attorneys must also have a presence.  Representatives from the State’s Attorneys Association confirmed his assessment.  While also supportive of the case holding, they put compliance costs at $83-$100 million for them, with a similar number for the Public Defender’s Office.  They proposed a statutory fix to the issue, with language that would require indigent representation before a judge but not before a District Court Commissioner (who are typically not attorneys).