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).

During Session, Buddy Alerts are sent via email when a vote on a specific bill is crucial. The alert will provide a brief overview of the legislation, MACo’s position, and a some quick talking points.  MACo encourages elected officials to sign up to participate in this effort by selecting  Delegate(s)/Senator(s) from the lists below. Prior to selecting your “buddies” take into consideration those with whom you have the best rapport and feel most comfortable conveying a position on a bill.

Please send buddy requests to Emily Hollis at ehollis@mdcounties.org.

2012 Maryland State Senators

2012 Maryland State Delegates

For more information contact SLLC Executive Director Lisa Soronen.

The credit, which is given as a percentage of the total county property tax assessed on the residence, will only be given to homes with a silver rating or higher under the U.S. Green Building Council’s Leadership in Energy and Environmental Design rating system.

The property owner is only eligible to receive the credit for four years; the credit percentage will decrease each year. The bill originally gave the same credit amount — 100 percent in the first year, decreasing to 25 percent by the fourth year — to all qualifying residences, but an amendment passed with the bill decreases the amount of the credit for residences rated lower than LEED platinum.

The Council also approved a gender identity bill which “protects transgender or gender nonconforming persons from discrimination with regards to housing, employment and public accommodations. “

The amendments primarily are focused on carry-out alcohol sales, not on-site consumption at restaurants and hotels. Most pre-existing alcohol dispensaries in the county would be grandfathered and not subject to the proposed regulations.

The proposal is subject to a public hearing that is scheduled for December 6.  To read the full proposal, click here.

“It’s important for us to ensure a safe and comfortable environment for all of our residents,” council Chairman Calvin Ball, a Columbia Democrat, said. “In a world where there are people who because of their gender identity are being discriminated against, we need to take action.”

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Council member Courtney Watson, an Ellicott City Democrat, said members of the local chapter of the national advocacy group Parents, Families and Friends of Lesbians and Gays approached council members with the idea for the legislation.

“We felt that they made a convincing case that this population needed protection from discrimination,” she said.

Currently only two jurisdictions in Maryland  (Montgomery County and Baltimore) list gender identity as  protected classification.  A public hearing is scheduled for November 21.

Artesian of Maryland is part of Artesian Resources, which is based near Newark. The utility has expanded into Cecil County in hopes of tapping into a growing population. The court decision also triggers a prior agreement with Artesian that the pending sale must go to settlement within six months of the court decision. Despite the green light from the courts, the sale still hinges on approval from the state Public Service Commission, the appointed board responsible for regulating public utilities in Maryland.

The court’s ruling essentially indicates the  Cecil County Board of Commissioners acted properly when they made a decision to sell a county water and wastewater treatment facility to  a private entity (Artesian Water) that had been granted a franchise to provide water services to county residents.

Court of Appeals Opinion in Appelton Regional Community Alliance vs. Cecil County Board of Commissioners

The settlement, apparent validation of (City Solicitor George) Nilson’s campaign to pursue “affirmative recovery litigation,” is slated for approval by the city’s spending panel on Wednesday and will surely be welcome news to the Board of Estimates, which passed the city’s lean Fiscal Year 2012 budget on Monday.

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According to a summary contained in this week’s board agenda, the remaining proceeds “will be distributed as in the case of other hotel tax proceeds” and approximately $700,000 could make it to the city coffers.

Forty percent of the Priceline settlement went to Visit Baltimore, the city’s tourism arm; 18 percent went to Davenport and Crongeyer, and the rest went to the city.

“They’ve had to work for their cut,” Nilson said of the outside lawyers. “The [online travel company’s] defenses tend to be rigorously pursued here and everywhere.”

Baltimore’s suit, which joined a national trend and started a movement in Maryland when it was filed in December 2008, claims the hotel booking companies must pay room taxes on the rates charged to customers, not on the lower rates they actually pay to the hotels for the rooms.

The defendant companies claim they are simply providing a booking service, not operating the hotel.

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Worcester County, which contains the popular beach destination of Ocean City, settled a similar suit for $150,000 a year ago. Like Baltimore, Worcester cannot sue the defendants again until 2012.

Nationally, the defendant companies have succeeded in dismissing many municipalities’ cases, including a victory in North Carolina that was affirmed at the 4th U.S. Circuit Court of Appeals. But others have succeeded by way of settlement or verdict.

Everywhere, the issues are “hotly contested,” according to the Board of Estimates agenda, and the result can turn on slight differences in the language of municipalities’ ordinances.

The city tax rate increased a year ago from 7.5 percent to almost 9.5 percent, with enhanced penalties, Nilson said, providing strong incentives for the defendants to settle.

He believes the companies have struck deals through 2014 to give themselves time to seek change legislatively. He expects “furious efforts” to that end. Nilson said neither Travelocity nor Orbitz has entered settlement discussions yet but that Travelocity began to make monthly payments in January.

The request prompted concern from various business and governmental groups, including MACo and legislation was introduced during the 2011 Session to adopt the current common law contributory negligence standard prior to the release of the Committee’s report.  Conduit Street summary of the legislation.  While MACo did not take a position on the legislation, it restated its long-held opposition to moving to a comparative fault system.

Ultimately, the report concludes that the Judiciary lacks the power to change the contributory negligence standard through its rule making process:

The only separation-of-powers constraint on the Court’s general rule-making power is that the scope of that power is limited to matters affecting practice, procedure, and judicial administration.  Respectfully, the Committee believes that the doctrines of contributory negligence, comparative fault, and at least some of the various associated doctrines and legal principles associated with those doctrines are matters of substantive law that do not fall within the ambit of practice, procedure, or judicial administration.  To the extent they are common law doctrines, they can be changed by judicial decision, as they have in several other States, but not, in the Committee’s view, by Rule.  A particular impediment would be an attempt, by Rule, to alter the provisions of the Uniform Contribution Among Joint Tortfeasors Act or the third-party action provision of the Workers’ Compensation Act.

The report also summarizes the comparative fault and contributory negligence standards used by other states, how those standards were adopted, and how related legal doctrines like joint and several liability were treated.

Joint Committee on Workers’ Compensation Benefit and Insurance Oversight Membership:  HB 40 / SB 1 adds a self-insured local government representative to the Joint Committee on Workers’ Compensation Benefit and Insurance Oversight.  The duties of the Joint Committee involve examining the condition of workers’ compensation benefit and insurance structure in the State, including the adequacy and appropriateness of all workers’ compensation benefits.  MACo supported the bill, arguing that self-insured county governments have unique concerns and issues, such as the statutory occupational disease presumptions for public safety employees, that are not shared by existing Joint Committee members.  Status:  Both HB 40 and SB 1 passed.

Workers’ Compensation Dependent Death Benefits:  HB 417 / SB 212 and SB 805 alter the existing workers’ compensation dependent death benefits system.  The bills remove the distinction between a “wholly” and “partially” dependent, set a 12-year cap on benefits subject to certain exceptions, provide benefits for dependents who are not spouses or children, and raise the allowance for funeral benefits.  SB 805, which was introduced at MACo’s request, also contains an “opt-in” provision for counties.  MACo supported SB 805 and supported HB 417 and SB 212 with amendments that would add the “opt-in” provision found in SB 805.  MACo argued that the “opt-in” provision was necessary because of the way the new benefits system would interact with the public safety occupational disease presumptions, potentially imposing an unfunded mandate on certain counties.  Under the “opt-in” provision, dependents of public safety employees subject to a  presumption would remain under the current death benefits system unless a local government decided to cover them under the new system by making a one-time election.  All other county employees are under the new system.  Status:  Both HB 417 and SB 212 passed with the MACo “opt-in” amendments.  SB 805 was withdrawn once the bill was no longer necessary.

Termination of Workers’ Compensation Temporary Total Disability Benefits:  HB 889 / SB 413 requires an employer to pay compensation for temporary total disability (TTD) to the end of the period during which the covered employee is temporarily totally disabled, as determined by the employee’s treating physician unless the Workers’ Compensation Commission (WCC) has ordered an earlier termination date.  MACo opposed the bill, arguing that the bill would impose a significant fiscal impact on self-insured local governments and remove the existing ability of an employer to terminate TTD benefits if the employee refuses to submit to an independent medical evaluation, is found to be working for another employer, is not following a doctor’s treatment plan, or is collecting the benefits fraudulently.  Status:  Both bills failed.

Comparative Fault:  HB 1129 codifies the existing Maryland common law doctrine of contributory negligence.  The bill was a preemptive response to a request by Maryland Court of Appeals Chief Judge Robert Bell to have the Judiciary undertake a study of comparative fault and determine whether the standard could be adopted in Maryland via a judicial rule.  MACo did not take a position on the bill pending the outcome of the study but did submit a letter restating its long-standing opposition to the comparative fault standard.  Status:  The bill failed.

Civil Cases Challenging Constitutionality of Local Statutes:  SB 363 provides the State and local governments with notice and a chance to respond when a law is alleged to be unconstitutional in a civil proceeding.  The bill’s provisions replace similar law relating solely to declaratory judgments.  MACo supported the bill with amendments to preserve a local government’s existing right to receive notice and respond in a declaratory judgment action where a local government’s law is being challenged as invalid (which is a different standard than constitutionality).  Status:  The bill failed based on concerns over the significant number of notices the Attorney General’s Office would receive were the bill passed.