Supreme Court: Exonerated Defendants Deserve a Refund

The Supreme Court ruled 7-1 in the case of Nelson v. Colorado that individuals who have had wrongful convictions overturned are entitled to a refund of fees, court costs and restitution from the state.

As reported on Governing:

“They are entitled to be presumed innocent” once their convictions are thrown out, said Justice Ruth Bader Ginsburg, and the state “has zero claim” to their money.

The 7-1 decision orders the state of Colorado to refund several thousand dollars to two defendants, a woman and a man, who were convicted of sex crimes but had their convictions reversed. Shannon Nelson, who was charged with abusing her children, was acquitted in a retrial, and the prostitution-related charges against Louis Madden were dropped.

In both instances, the state insisted on keeping the restitution they had paid.

Colorado had adopted an Exoneration Act that allowed “an innocent person who was wrongly convicted” to file a civil suit to seek refunds, but only if they could prove they were innocent of the crime. Most states allowed exonerated people to file a motion with a trial judge seeking a refund.

Ginsburg said Colorado’s scheme violates the 14th Amendment’s protection for due process of law because it presumes the exonerated defendants are still guilty.

For more information:

Wrongfully Convicted Entitled to Refunds, Rules Supreme Court (Governing)

Supreme Court Voids Colorado’s ‘Presumption of Guilt’ (Washington Post)

Opinion Analysis: States Can’t Keep Money They Collect Pursuant to Subsequently Overturned Convictions (SCOTUS Blog)


2017 End of Session Wrap-Up: Government Liability & Courts

This post summarizes the status of various government liability and courts bills that MACo took a position on for the 2017 Regular Session.

Attorney’s Fees for Constitutional Violations: HB 903 / SB 705 authorizes a court to award a prevailing party attorney’s fees in a civil action against the State or a local government for a violation of a right secured by the Maryland Constitution or Declaration of Rights. A court may only award attorney’s fees to a prevailing defendant if the court finds the action brought by the plaintiff was maintained in bad faith or without substantial justification. Any award of attorney’s fees does count towards the Local Government Tort Claims Act liability caps.

MACo PositioPush Icons-DEFEATEDn: MACo opposed the bill, citing concerns over increased litigation, incentivizing plaintiff’s attorneys to push cases rather than settle, unequal treatment of plaintiffs and defendants, lack of certain defendant protections found at the federal level, and increased costs to local governments.

FINAL STATUS: The House passed HB 903. The Senate Judicial Proceedings Committee heard HB 903 but took no further action on the bill. The Senate Judicial Proceedings Committee gave a report of favorable with amendments to SB 705, listing which constitutional and Declaration of Rights claims the bill affected. MACo engaged in a floor fight to stop SB 705 from moving out of the Senate The Senate adopted the amendments and moved the bill to third reader but ultimately recommitted the bill to Judicial Proceedings after continued resistance by MACo. The Judicial Proceedings Committee moved the bill out again with two additional amendments that: (1) explicitly stated that attorney fees did count against the Local Government Tort Claims Act liability caps; and (2) removed Article 19 of the Maryland Declaration of Rights (remedy for injury to person or property) from the bill. The bill was special ordered until Sine Die with no further action taken on the Senate floor.

MACo Testimony on HB 903

MACo Testimony on SB 705

Workers’ Compensation – Disability Benefits and Offsets: HB 344 / SB 751 would: (1) remove the current offset for an ordinary disability (non-line of duty) injury where an individual is receiving both a disability retirement benefit and a workers’ compensation benefit; and (2) shifts the costs of paying for an accidental or special disability (line of duty) injury from the State Retirement and Pension System to workers’ compensation.

The bill was introduced partly in response to a Maryland Court of Special Appeals holding, Zakwiewa v. Baltimore County Board of Education, 2492 Md. (2017), which reaffirmed the offset for ordinary disability benefits.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill based on the potentially significant costs the bill would place on local governments through their workers’ compensation policies and the “double-dipping” policy the bill would allow (being compensated twice for the same injury).

FINAL STATUS: HB 344 was withdrawn by the bill’s sponsor. The Senate Budget and Taxation Committee heard SB 751 but took no further action on the bill.

MACo Testimony on HB 344

MACo Testimony on SB 751

Workers’ Compensation – Average Weekly Wage for Volunteer Firefighters: HB 1267 would alter the wages used to calculate the average weekly wage for a covered employee who is a member of a volunteer fire and rescue company, setting the minimum calculation amount at 2/3 of the State average weekly wage. (The State average weekly wage is determined by the Department of Labor, Licensing, and Regulation annually and for 2017 the wage is $1,052.)

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, arguing that for a volunteer firefighter who has no prior work history, it would “create” a salary where one never existed, undermining a basic premise of the State’s workers’ compensation system. MACo also noted that the bill could create an inequitable situation where a volunteer firefighter with no work history could earn more in workers’ compensation than a salaried professional firefighter first year cadet.

FINAL STATUS: The House Economic Matters Committee gave HB 1267 an unfavorable report.

MACo Testimony on HB 1267

Local Government Tort Claims Act – Liability for Artificial & Synthetic Turf Fields: HB 1353 would exempt injury claims caused by artificial or synthetic turf playing fields from the 1-year notice requirement and damage caps under the Local Government Tort Claims Act (LGTCA). The bill also creates similar exceptions for the State under the Maryland Tort Claims Act.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, arguing that the LGTCA’s notice and damage caps acknowledge the unique role local governments play in providing important services to their residents and that creating an exception to the notice and damage caps would establish a precedent for the creation of other exceptions in the future. MACo also cited the increased financial risk and uncertainty the bill would create for county governments and that current research has countered claims that artificial or synthetic fields increase the risk of injuries or other health concerns.

FINAL STATUS: The House Judiciary Committee gave HB 1353 an unfavorable report.

MACo Testimony on HB 1353

Speed Cameras & Red Light Cameras – Repeal: HB 536 repeals red light camera programs, local speed camera programs, and the State’s work zone speed camera program.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, arguing that both red light camera and speed camera programs have been shown to be effective in altering driver behavior and increasing public safety. MACo also noted that in counties with older speed camera programs, tickets and revenue have declined over time and additional safeguards and necessary clarifications were made to the speed camera program in 2014 (HB 929 and SB 350).

FINAL STATUS: The House Environment and Transportation Committee gave HB 536 an unfavorable report.

MACo Testimony on HB 536

Collective Bargaining – Time Limits on Actions for Agreement Violations & Breach of Duty of Fair Representation: HB 852 and SB 1027 (identical but not cross-filed bills) alter the time limit in which a complainant must bring an action for injunctive relief or damages for a violation of a collective bargaining agreement or a breach of duty of fair representation of an employee of the State or a political subdivision. The action must be commenced within six months after the later of: (1) the date on which the claim accrued; or (2) the date on which the complainant knew or should reasonably have known of the breach.

MACo Position: MACo initially opposed the bills out of concern that the bill’s setting the threshold to the date on which the complainant knew or should reasonably have known of the breach could create a more open-ended standard that could ultimately increase litigation over the current law (3 years to bring an action). After further research and input from stakeholders, MACo dropped its opposition after being convinced that a court would likely apply the “knew or should reasonably have known” standard to the existing time limits.

FINAL STATUS: The General Assembly passed HB 852 and SB 1027 with clarifying amendments acceptable to MACo. As amended, the bills alter the time limit in which a complainant must bring an action for injunctive relief or damages for a violation of a collective bargaining agreement or a breach by an exclusive representative of the duty of fair representation owed to an employee of the State or a political subdivision. The action must be commenced within six months after the later of: (1) the date on which the claim accrued; or (2) the date on which the complainant knew or should reasonably have known of the breach.

MACo Testimony on HB 852

NOTE: There is no MACo written testimony on SB 1027

Click here for a round-up of the wrap-ups for all policy areas

2017 MSBA Land Use Institute Tackles Takings, Medical Cannabis, Recent Land Use Case Law

The Real Property Section of the Maryland State Bar Association (MSBA) is hosting its 2017 Land Use Institute on May 5, from 8:15 AM – 4:15 PM at the Columbia Sheraton (10207, Wincopin Circle, Columbia, MD 21044). From the event webpage:

8:15 a.m. – 9:00 a.m.
Check-in and Continental Breakfast

9:00 a.m.
Opening & Welcome

9:10 a.m.
Discussion of Recent Maryland Land Use Appellate Opinions
Hon. Glenn T. Harrell, Jr., Maryland Court of Appeals, (ret.)
Hon. Lynne A. Battaglia, Maryland Court of Appeals, (ret.)
Hon. James A. Kenney, III, Maryland Court of Special Appeals, (ret.)
Hon. Donald E. Beachley, Maryland Court of Special Appeals

10:05 a.m.
Q & A with the Judges panel

10:15 a.m.

10:30 a.m.
Challenging or Defending Land Use Related Decisions, Development Rights and Responsibilities Agreements after Cleanwater Linganore v. Frederick County
Sagar Williams, Esq., Law Office of Sager A. Williams, Jr.
William Wantz, Esq.
Joseph Stevens, Esq., Stevens Palmer, LLC

11:30 a.m.
Greatest Hits From the Supremes: New Takings and Wetlands Cases in the Supreme Court
Gus Bauman, Esq., Beveridge & Diamond, PC

12:20 p.m.

1:30 p.m.
Tales from the Swamp – New State Environmental Initiatives and Issues Important to Land Use
Ben Grumbles, Secretary of Maryland Department of the Environment

2:00 p.m.
The Latest in Subdivision and Other Very Scary Tales
Jeffrey Zyontz, Esq., Senior Legislative Analyst, Montgomery County Council

3:00 p.m.

3:15 p.m.
Land Use Regulation of Medical Canabis
Joseph A. Stevens, Esq., Stevens Palmer, LLC
Joseph F. Devlin, Esq., Director, Council, Baradel, Kosmerl & Nolan, P.A.
Stan Kosick, Senior Planner for Queen Anne’s County

3:45 p.m.
Legislative Roundup – Summary of Land Use Legislation in 2017 Legislative Session
Lori Graf, CEO, Maryland Building Industry Association

4:15 p.m.

CLE credits will be offered for both attorneys and planners. Non-MSBA members are welcome to participate. Depending on your MSBA membership status and whether you want a hard-copy of the materials, attendance costs range from $185 to $255.

Useful Links

2017 Land Use Institute Webpage

Attorney’s Fee Bill Back To Senate Floor

SB 705, legislation providing plaintiff attorneys fees on numerous constitutional claims against governments, has been passed again by the Senate Judicial Proceedings Committee, and will be debated in the days ahead on the Senate floor.

Local governments have opposed the bill, citing its effects far beyond the stated desire to provide “access to justice” for non-monetary cases. The fiscal note suggests the bill would have a substantial fiscal cost to state and local governments, as it would trigger more expensive lawsuits and does not contain numerous balancing provisions that exist in federal courts.

The bill will be on “second reader” and open to amendments for the Thursday morning session.

Update: Following another motion to delay consideration of the bill, it will be on the Senate floor agenda again for Monday, April 10 – the last day of session.

Attorney’s Fee Bill Sent Back to Committee

Following nearly two weeks of floor debate, involving multiple delays and subsequent amendments, SB 705 was re-referred back to the Senate Judicial Proceedings Committee. Local governments had opposed the bill, citing its potential to trigger a wave of costly lawsuits against governments, far beyond the proponents’ stated goals of affording access to justice for non-monetary claims.

MACo had testified against the bill in Committee, but was surprised when the bill passed in a voting session – following four straight years of defeat before the same committee. Citing deep concerns over the unintended consequences from the bill’s broad language, local governments aggressively reached out to Senators across the State, seeking assistance in fending off the costly legislation.

MACo and MML’s final “floor paper” distributed on Tuesday, March 28, urged Senators to recommit the bill to Committee, with a final urging: “Bring it back when it’s truly a compromise!”

The Committee may convene a working group before the end of session to seek a compromise. MACo, MML, and local government attorneys have expressed willingness to engage in a productive resolution – with an opportunity to withdraw opposition to a more focused proposal without the same wide unintended consequences.

Sanctuary Cities, Maryland Could Lose Federal Justice Grant Dollars

The Attorney General announces that sanctuary cities could lose federal Department of Justice funding, with a specific mention of legislation pending in Maryland.

The Attorney General released a statement today, available on the Department of Justice website. In part, he states,

DUIs, assaults, burglaries, drug crimes, gang crimes, rapes, crimes against children and murders.  Countless Americans would be alive today – and countless loved ones would not be grieving today – if the policies of these sanctuary jurisdictions were ended.

Not only do these policies endanger the lives of every American; just last May, the Department of Justice Inspector General found that these policies also violate federal law.

The President has rightly said that this disregard for the law must end.  In his executive order, he stated that it is the policy of the executive branch to ensure that states and cities comply with all federal laws, including our immigration laws.

The order also states that “the Attorney General and the Secretary [of Homeland Security] . . . shall ensure that jurisdictions that willfully refuse to comply” with the law “are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”

According to The Hill, state and local governments seeking Justice Department grants must certify they are not “sanctuary cities.”

Sessions also called on Maryland to scrap any movement toward becoming a sanctuary state. Legislation is making its way through the state legislature.

“That would be such a mistake,” he said.

“I would plead with the people of Maryland to understand this makes the state of Maryland more at risk for violence and crime, that it’s not good policy.”

The Maryland bill in question, HB 1362, set explicit parameters limiting state and local agencies and officials from cooperating with federal immigration efforts. As introduced the bill broadly prohibited government agents from assisting federal agents, releasing information, and responding to notifications so long as those actions were taken for immigration enforcement purposes.

HB 1362 passed out of the House with amendments that significantly curtailed a number of provisions within the bill. As amended the bill prohibits government participation in federal immigration efforts unless there is a judicial warrant. The bill now sits within the Senate Judicial Proceedings Committee which has not yet taken any action on it or its crossfile SB 835. Governor Hogan has stated he would veto the bill. MACo opposed HB 1362 as its stringent limitations would create logistical and public safety challenges that have far-reaching and significant consequences for local governments.

For more information, see Sessions says grants to be withheld from sanctuary cities from The Hill, Attorney General Jeff Sessions Delivers Remarks Announcing Sanctuary Jurisdictions from the Department of Justice, and Revised immigration Trust Act moves forward in House from The Baltimore Sun.

Attorney Fee Legislation Stalled in Senate – Vote Set for Monday

Throughout this week, SB 705 has been stalled on the Senate floor, with a variety of questions and objections delaying its passage. MACo, MML, and individual local governments have raised objections to the costly and unfair nature of the pending bill. On Thursday, the bill — currently on “third reader” and awaiting its final Senate up-or-down vote – was delayed until Monday for its further consideration.

Proponents argue that the bill seeks to expand access to the judicial system for multiple claims, but governmental attorneys have illustrated many scenarios where the bill would simply add costs to existing litigation, reduce the likelihood of reasonable early settlements, and trigger more lawsuits in search of easy payouts. Counties have pointed out numerous ways that SB 705 fails to create a true parallel with federal law – one of the stated goals of the bill’s proponents. Rather, the bill creates an easier avenue to attorney fee recovery, without other balancing elements present in federal litigation.

The effort on the Senate floor is atypical, as a very small share of items that pass from Committee become similarly entangled.

Read MACo’s testimony on SB 705.

For a discussion of the bill’s policy and fiscal effects, read the DLS fiscal note.


Senate Debates Bail Bill, House Wait-And-See

Bail bills hit barrier as reform advocates and bail bondsman clash over whether court rules should stand or legislative changes should be made. The Senate is debating one of the bills (SB 983) on the floor, while the House has not taken action on either set of bills(HB 1390/SB 880  or HB 1215/SB 983).

Advocates who previously supported a bill (HB 1390/SB 880) introduced to codify the new Maryland judiciary rules on the use of money bail, have switched gears and are now advocating that no bills be passed. Inaction by the General Assembly would let the court rule change, which goes into effect July 1, stand. The Maryland Legislative Black Caucus voted last Thursday to take no action on any of the bail reform bills in order to let the court rule stand.

However, bail bondsman stand by their bill (SB 983) which would make changes to the bail process and, if passed, would supersede the court rule before going into effect. The Senate Judicial Proceedings Committee voted SB 983 out of committee. It is on the Senate floor and has been subject to vigorous debate.

Prior coverage on Conduit Street:

Sun Weighs in Cautions Against Pro-Bail Legislation

Court of Appeals Unanimously Approves Changes to Bail Rule 

MACo Supports Criminal Pretrial Reform


MACo Opposes Open-Ended Synthetic Turf Liability Bill

MACo Legal and Policy Counsel, Les Knapp, testified in opposition to legislation (HB 1353) that would exempt injury claims caused by artificial or synthetic turf playing fields from the 1-year notice requirement and damage under the Local Government Tort Claims Act (LGTCA). The bill would create an unwarranted legal exception for these playing fields and increase litigation and liability exposure for local governments. Delegate Jeff Waldstreicher is the sponsor of this bill.

MACo’s testimony states,

HB1353 would hinder the ability of a local government to properly conduct investigations in its defense. For most claims, a lack of timely notice would impede a local government’s ability to collect information about the alleged injury, putting the local government at an evidentiary disadvantage.

By creating a unique exception to the LGTCA’s provisions, the bill establishes a precedent that would invite the creation of additional exceptions in the future. Such a “slippery slope” undermines the entire purpose of the LGTCA.

The bill also exposes a local government to increased financial risk and uncertainty by excepting artificial and synthetic turf field injury claims from both the notice requirement and the damage caps.

Bill Jorch from the Maryland Municipal League also testified in opposition alongside Mr. Knapp.

Follow MACo’s advocacy efforts during the 2017 legislative session here.

MACo Raises Concerns Over One-Sided Attorney Fee Legislation

MACo Associate Director, Natasha Mehu, testified in opposition to legislation (SB 705) that would likely impose an increase in litigation and costs for the State and local governments and create an unbalanced system that favors plaintiffs over defendants. The bill was sponsored by Senator Anthony Muse.

The bill would authorize a court to award a prevailing party reasonable attorney’s fees and expenses in a civil action to enforce a right secured by the Maryland Constitution or Declaration of Rights. This includes claims such as due process, seizure of goods or property, right to an adequate education, and freedom of the press. However, while a prevailing plaintiff can collect attorney’s fees based on a variety of factors and considerations detailed in the bill, a prevailing defendant is only allowed to recover fees if the court determines that the plaintiff’s suit was made in bad faith or without substantial justification. Attorney’s fee awards in local government cases are subject to the liability cap of the Local Government Tort Claims Act (LGTCA).

MACo’s testimony states,

The bill would result in an increase in claims brought against the State and local governments. While attorney’s fees in county government cases would be subject to the LGTCA cap, the bill still incentivizes plaintiff attorneys to bring cases against county governments so long as they are not made in bad faith or without substantial justification (a deliberately high threshold for enforcement).  …

The fiscal note for the bill correctly states that “[l]ocal expenditures increase for (1) payments for claims filed under the Local Government Tort Claims Act (LGTCA) and other eligible claims and (2) higher assessments for local governments if the Local Government Insurance Trust (LGIT) incurs losses from payments authorized by the bill.”

Since many of the cases that would be brought under SB 705 involve nonmonetary damages, county costs would increase due to payment of attorney’s fees if the plaintiff prevails (where currently no fees would be paid). Additionally, counties will see increased costs to their law departments to defend against the additional claims and potentially higher assessments if the Local Government Insurance Trust (LGIT) incurs losses from payments authorized by the bill.

Joining MACo in opposition to the bill on a panel were the Maryland Municipal League, Local Government Insurance Trust (LGIT) and Montgomery County.

The cross-file to the bill, HB 903, was heard by the House Judiciary Committee on February 22.

Follow MACo’s advocacy efforts during the 2017 legislative session here.