Attendees to the MACo 2019 January Winter Conference learned about three key legal issues that will likely factor into upcoming Session, including: (1) local preemption; (2) access to justice/attorney fees; and (3) comparative fault. The panel, Legislation, Litigation & Legitimacy: Key Legal Issues for the 2019 Session, was held on Thursday, January 3.
Montgomery County Attorney’s Office Government Operations Division Chief Edward Lattner discussed the challenges counties have been having with the court doctrine of implied preemption – where a court decides that the Maryland General Assembly has preempted local governments from regulating in an area by substantially occupying that field. Lattner discussed the court’s test for implied preemption and how that test has been applied in various holdings, including a recent Montgomery County pesticide decision.
Local Government Insurance Trust Executive Director (LGIT) Timothy Ailsworth discussed a longstanding legislative proposal to require the recovery of attorney fees in certain cases involving violations of the Maryland Constitution. Ailsworth discussed that while this is allowed under federal courts, there are also protections for defendant governments such as the Offer to Settle and less restrictive summary judgment standards that make the system balanced. Ailsworth cautioned that Maryland lacks these equalizing factors. Ailsworth also noted that LGIT found the Maryland proposal went far beyond what is allowed in other states.
Gaithersburg City Attorney N. Lynn Board discussed the differences between comparative fault and contributory negligence. Board noted that Maryland has retained the contributory negligence doctrine and if it was to move to a comparative fault system, would have to chose between a pure comparative negligence standard and some version of modified comparative negligence. Broadly, a plaintiff who is partially at fault cannot recover under a contributory negligence system whereas under a pure comparative fault standard a judge or jury can apportion blame and recovery is limited accordingly. Under a modified comparative fault standard, the plaintiff must be less than 50% at fault in order to recovery.
MACo Legal and Policy Counsel Les Knapp explained that Maryland has adopted many ancillary legal doctrines, such as joint and several liability and the Last Clear Chance Doctrine that make the contributory negligence system balanced for plaintiffs and that any move to a comparative fault system should include eliminating those ancillary policies. Otherwise, Knapp noted, Maryland could end up with a system that is unbalanced against defendants and local governments in particular.
St. Mary’s County Commission President James “Randy” Guy moderated the panel.