Legal changes go beyond same-sex marriage
Posted: 7:26 pm Thu, April 12, 2012
Daily Record Legal Affairs Writer
ANNAPOLIS — History will remember the 2012 Maryland General Assembly session as the year the state permitted same-sex couples to legally marry, a controversial law that will likely have to survive a referendum in November if it is to go into effect Jan. 1.
But there was plenty of action on other legal fronts as well. In response to a court ruling, legislators stripped indigent criminal defendants of their statutory right to an attorney at initial bail hearings. They also extended to private mediation proceedings the same guarantee of confidentially as communications with an attorney or a physician.
In addition, the legislature passed ground-rent reform that would penalize leaseholders who fail to register their property with the State Department of Assessments and Taxation, and it signed off on the first pay raise for Maryland’s judges since 2008.
The same-sex marriage debate was long and intense, and a vigorous challenge to the new law is already taking shape.
Sen. Jamin B. “Jamie” Raskin, chief Senate sponsor of the measure, is confident the referendum effort will fail.
“We are going to have a fantastic mobilization … in defense of equal rights for all,” said Raskin, D-Montgomery. “This is the Free State and we have the chance to live up to it.”
But Del. Emmett C. Burns Jr., who is helping to mobilize the petition drive against the Civil Marriage Protection Act, SB 241, said “people are just so much against this that I foresee a great victory” on Election Day, Nov. 6.
“People don’t want to be around that situation day in and day out,” added Burns, D-Baltimore County, in discussing Marylanders’ attitudes toward same-sex marriage.
An independent poll by the Annapolis–based firm OpinionWorks in March found Marylanders are closely divided on the issue.
According to the poll, 43 percent of registered voters oppose legalizing same-sex marriage while 40 percent favor the new law. The results fell within the poll’s margin of error of 4 percentage points.
Eleven percent of Marylanders expressed no opinion or said they might not vote on the issue. Five percent said they will vote but are as yet undecided, according to the poll of 601 randomly selected registered voters conducted from March 16 to 19.
Defendants’ right to counsel
The General Assembly removed defendants’ statutory right to an attorney at initial bail hearings before a District Court commissioner, with the reluctant support of State Public Defender Paul B. DeWolfe, who acknowledged that providing counsel at that early stage would be prohibitively expensive.
Legislators attempted to soften the blow to indigent defendants by giving them the right to counsel at the bail-review hearings before a judge, which generally occur within 24 hours of the initial hearing. The new law will also bar prosecutors from using against defendants at subsequent court hearings anything they had said at that initial appearance without an attorney.
DeWolfe praised this legislative compromise as “a huge move forward for the right to counsel,” with attorneys now guaranteed at bail-review hearings.
The new law, HB 261, an amendment to the Public Defender Act, was passed in response to a Jan. 4 Court of Appeals decision that had affirmed the right under the act to an attorney at an initial bail hearing. The high court delayed issuing an order to implement its decision in DeWolfe v. Richmond while the judges waited to see what action the legislature would take.
DeWolfe told lawmakers in January that, while he favored providing counsel at initial bail hearings, satisfying that requirement would cost the state $28 million annually.
“The logistical challenge of staffing [initial bail hearings] was going to take more than just an act of the legislature or a decision of the court,” DeWolfe said in explaining why counsel at bail-review hearings is a welcome compromise. The high court’s decision would have imposed “a financial and a logistical shock to the system,” he said.
The law goes into effect June 1.
Confidentiality in mediations
The Maryland Mediation Confidentiality Act prohibits discussions, including admissions and apologies, made during private mediation sessions from being disclosed in court by the parties to a dispute, except under very limited circumstances, such as if someone’s safety were at stake from non-disclosure.
Under prior law, only court-ordered mediation proceedings had a guarantee of confidentiality. The new law, SB 856, goes into effect Oct. 1.
Veteran mediator David A. Simison said the law’s guarantee of confidentiality will make mediation more effective and reduce the likelihood of subsequent litigation.
“If people cannot speak freely in mediation, then it’s very difficult to have a resolution,” said Simison, a solo practitioner in Annapolis. “It really freezes the discussion.”
Simison, an attorney, added that often a person who believes he or she was harmed seeks only an apology, not financial compensation from the other party. Confidentially enables that apology to be given during mediation without fear that it will be used in court against the person expressing regret, he said.
“There’s a lot to be said about the power of apology,” added Simison, chair-elect of the Maryland State Bar Association’s Alternative Dispute Resolution Section. “That’s the kind of thing that can happen in mediation, especially with confidentiality.”
Ground rent reform
The ground rent reform law, HB 177, would compel registration by barring unregistered leaseholders from obtaining a lien on the property, collecting any ground rent payments due or suing the leasehold tenant for money owed.
“We had to put some teeth into it,” said Sen. Lisa Gladden, D-Baltimore, of the legislation she sponsored to ensure ground rents are recorded with the state.
In October, the Court of Appeals struck down earlier reform legislation that had permitted the state to strip leaseholders of their property interest and give it to the tenant if they failed to register with the state.
Gladden, a sponsor of the old law, said she accepted the court’s conclusion that the ground rent holders’ interest in the property was “a fundamental right” that could not be taken away without just compensation. The new law, which goes into effect July 1, protects “the spirit” of the old law by compelling registration, she added.
The high court, in its Muskin v. SDAT decision, said the 2007 law’s stripping of a ground lease holders property interest for failing to register by Sept. 30, 2010 was an unconstitutional taking without just compensation. The invalidated reform measure had also called for the property interest to convert to the tenant if the registration was not made.
Maryland’s ground rent laws were changed after a 2006 series of articles by The Baltimore Sun which reported on people who lost their homes for delinquencies that were as low as $24 in one instance.
Most prevalent in Baltimore City and Anne Arundel County, ground leases require homeowners to pay fees of around $50 to $100 on the land beneath their homes once or twice a year.
The judicial pay raise, of about 3 percent, will not kick in until July 1, 2013, with similar increases in each of the following two years.
The measure, as proposed by the Judicial Compensation Commission, would raise the salary of Court of Appeals Chief Judge Robert M. Bell, the state’s top jurist, from $181,352 to $185,908 in fiscal 2014, which begins July 1, 2013, and then by 3 percent annually to $195,433 in fiscal 2016.
The salaries of his six Court of Appeals colleagues would climb from $162,352 to $166,908 in 2014 and reach $176,433 in 2016.
Court of Special Appeals Chief Judge Peter B. Krauser’s salary would rise from $152,552 to $157,108 in 2014 and hit $166,633 in 2016. His 12 colleagues would see their pay increase from $149,552 to $154,108 in 2014 and reach $163,633 in 2016.
Circuit Court judges’ salaries would rise from $140,352 to $144,908 in 2014 and hit $154,433 in 2016.
Chief District Court Judge Ben C. Clyburn’s pay would climb from $149,552 to $154,108 in 2014 and reach $163,633 in 2016. District Court judges’ salaries would rise from $127,752 to $131,808 in 2014 and hit $141,333 in 2016.