On the Record

If this Maryland Senate gig doesn’t work out for him, Jamie Raskin might try stand-up comedy.

The Montgomery County Democrat delivered a string of laugh lines last Thursday while speaking at the University of Baltimore School of Law. Raskin had been invited to discuss how legislation to permit same-sex couples to marry in Maryland failed to win approval in the House of Delegates after clearing the Senate this past General Assembly session.

The unabashed liberal began his talk by quoting from “our last great Republican president, Abraham Lincoln.”

He then recounted a conversation overheard in the General Assembly between an opponent and supporter of same-sex marriage.

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Good Monday morning. If you’re still tired after losing an hour of sleep over the weekend, look at the bright side: it may be light outside when you leave your office tonight. If that doesn’t do it for you, perhaps the law links below will.

• A lawyer reviewing claims that chemical testing at Fort Detrick has caused a cancer cluster says it ain’t so.
• Law firms are doing better, but it’s mostly because of cost-cutting measures.
• Maryland’s failed gay marriage bill exposed religious fault lines.
• When all it takes is “I’m sorry.”
• Ag art lovers: better get out there and get snapping soon. A Florida bill could make it illegal to take photos of farms there.
• The National Law Journal has a comprehensive package on Legal Aid.
• A Philadelphia public school teacher has been yanked her from the classroom for publicly opposing a plan to turn her school into a charter school. The union expects her to be fired today.
• L’Affaire Renault.

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Saying Baltimore had the right idea, Senate President Thomas V. Mike Miller Jr. is seeking a constitutional amendment that would require the judges on the Prince George’s County Orphan’s Court to be Maryland attorneys.

“Life is so complicated and estates are so large,” Miller told a Senate panel Wednesday in explaining why judges who hear probate cases in one of Maryland’s most populous counties should be learned in the law.

“You need somebody sharp on the orphans’ court,” Miller, D-Prince George’s and Calvert, told the Senate Judicial Proceedings Committee. “You need somebody trained in the law.”

But Sen. Jennie M. Forehand, a committee member, appeared unconvinced. “A wise and compassionate CPA” who understands the financial implications of wills, trusts and estates would make a fine orphans’ court judge, said Forehand, D-Montgomery.

Miller disagreed, saying certified public accountants are better suited at providing expert testimony in orphans’ court cases than at making the ultimate legal conclusion.

If the General Assembly approves the amendment — Senate Bill 281 — Maryland voters will be asked in November 2012 if orphans’ court judges in Prince George’s County must be Maryland lawyers.

Miller’s testimony followed the ratification by Maryland voters last November of a constitutional amendment requiring that judges on the Orphans’ Court of Baltimore City be Maryland attorneys. The amendment made Baltimore’s Orphans’ Court the only one in the state whose judges must be members of the bar.

Ratification also led Gov. Martin O’Malley to refuse to seat Ramona Moore Baker, a non-lawyer, on the Baltimore court — even though she had won election to the bench the same day as the statewide vote. O’Malley said he was following the advice of Maryland Attorney General Douglas F. Gansler, who concluded that seating Moore would violate the newly amended constitution.

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The Senate Judicial Proceedings Committee will vote next Thursday on legislation to permit same-sex marriage in Maryland.

Sen. Brian E. Frosh, D-Montgomery, the panel’s chairman and a supporter of the measure, told the committee late Wednesday he will not accept any requests to delay the vote on the most contentious issue of this General Assembly session. Committee approval of the legislation, Senate Bill 116, appears certain, as six of the 11 panel members are sponsors of the bill.

A marathon hearing on the same-sex marriage legislation Tuesday filled the committee room and an overflow room, as more than 140 people signed up to testify. The intensity of that hearing might seem quaint compared to the rancor expected when the bill gets to the Senate floor.

“It’s family-involved, it’s kids-involved, it’s religion-involved, it’s best friends-involved,” said Senate President Thomas V. Mike Miller Jr., D-Calvert and Prince George’s. “You can’t question anybody’s vote on this issue.”

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During this holiday season, Marylanders can perhaps rejoice in the fact their top court is a “point of light” and not a “judicial hellhole,” according to a national organization that seeks to rein in what it considers runaway jury awards.

In its annual report, the American Tort Reform Association praises the Maryland Court of Appeals for its Sept. 24 decision upholding the state’s statutory cap on noneconomic damages. By contrast, ATRA scorns the Illinois and Georgia supreme courts for striking down their state laws limiting awards for pain and suffering.

In contrast to the “reasonableness” of Maryland’s high court, justices in those two “judicial hellholes” replaced “the policy judgments of elected legislators and governors with their own,” ATRA’s report says.

The Maryland Court of Appeals, in DRD Pool Service Inc. v. Freed, said the state legislature had a”rational basis” for enacting the cap on noneconomic damages. The General Assembly limited awards for pain and suffering to achieve the “legitimate legislative objective” of keeping insurance costs down for companies and individuals, as the cap enables insurers to better predict their financial exposure in litigation, the court said.

“In our view, the cap continues to serve a legitimate government purpose,” Judge Clayton Greene Jr. wrote for the court’s 6-judge majority.

Judge Joseph F. Murphy Jr., the sole dissenter, argued for a stricter standard. He said the cap’s defenders should have to show that it is substantially related to an important legislative objective.

Maryland’s noneconomic damages cap, which increases by $15,000 every Oct. 1, is currently $740,000.

Do you regard the court’s decision as a point of light?

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My cover story in Monday’s Maryland Lawyer about the Sunnyside church talks about state law governing corporate and property rights of religious entities. There was one question I could not answer before my deadline: where did this 1976 law come from?

(Unfortunately, there is no quick link to the statute. If you want to see it, click here, then “Maryland Code”, “Corporations and Associations,” “Title 5. Special Types of Corporations,” “Subtitle 3. “Religious Corporations.”)

I had heard that former Gov. Marvin Mandel testified in the General Assembly on the law’s history this past session. Mandel told me Monday the same thing he told the House Committee about the law.

“I still think it’s unconstitutional,” he said. “The state shouldn’t get involved in religion.”

Yet it was Mandel who introduced the legislation at the request of the Episcopal Church, which was having an “internal battle over its assets.” He said he made his reservations about the bill known, but ultimately signed it into law because the factions had decided the bill was best the way to solve the problem. (For what it’s worth, Mandel is Jewish.)

The Sunnyside case is the first time in 35 years legislators looked at a law Mandel thought would have been long gone from the books by now.

“No one’s questioned it up until this time,” he said. “I was surprised no one stepped forward and contested it.”

The former governor added that he would be keeping an eye on the Sunnyside case as it makes its way through the courts.

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A beaming Sen. Lisa A. Gladden took her seat in the Senate chamber this morning. The source of the Baltimore Democrat’s delight became apparent about one hour into the session.

Senate President Thomas V. Mike Miller Jr., D-Calvert and Prince George’s, urged the lawmakers to take notice of “the vice chair” of the Judicial Proceedings Committee. Gladden revealed that under her dark-blue suit jacket she was wearing a light-blue shirt emblazoned with the name of her undergraduate alma mater: Duke University.

Yes, that Duke University — the school which defeated Butler University 61-59 last night to win the NCAA Men’s Basketball Championship. And the school dubbed “The Evil Empire” in College Park and environs for its heated rivalry with the University of Maryland in the Atlantic Coast Conference.

“I don’t have anything to say today because I think everybody knows,” Gladden told her colleagues. “I don’t want to gloat. It was a great game and a great victory for the ACC.”

But Sen. James N. Robey, a University of Maryland alumnus, declined to let Gladden off so easy.

“Can you name one player on the Duke team?” Robey, a Howard County Democrat, asked in an effort to put Gladden on the spot.

Gladden was silent for about, er, one shining moment before responding, “Johnny Dawkins.”

Dawkins played for Duke but not last night. He was the team’s starting point guard in the mid-1980s — when Gladden was also a student at the Durham, N.C., school.

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Those expecting fireworks between Attorney General Douglas F. Gansler and Del. Don H. Dwyer Jr., R-Anne Arundel, when the two met before a House Judiciary Committee hearing Wednesday were sadly disappointed.

Dwyer, who said he plans to call for Gansler’s impeachment this month, extended his right hand and greeted the attorney general before the committee session. Gansler accepted the handshake and returned the greeting.

Gansler appeared before the House Judiciary Committee to testify in favor of a constitutional amendment to eliminate contested elections for circuit court judges. (Read all about it here.)

Dwyer, a member of the Judiciary Committee, wants to oust Gansler over the opinion he issued last month on same-sex marriage. The opinion supports Maryland’s recognition of same-sex marriages legally performed in other jurisdictions, even though such marriages are illegal here.

Dwyer says the opinion violates Gansler’s oath to uphold Maryland law, which defines marriage as the union between a man and a woman. Gansler counters that Maryland is required under the federal Constitution’s Full Faith and Credit Clause to accept legally binding contracts — including marriage contracts — from other states.

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Happy Monday! Here are some law links to start your day:

• Did you know it’s legal to marry your first cousin in Maryland? Legislators, including the powerful head of the House Judiciary Committee, want to change that.
• The ever-fiery Page Croyder says district court judges are handsomely compensated for doing not much work. Anyone want to respond to her allegations?
• It was really tough to get a job as an associate at a top law firm in 2009, even if you were graduating from an excellent law school.
• It’s four years to the day since Clarence Thomas’ last question at oral arguments. A new paper argues that his silence hurts the court and his own reputation.
• Last Wednesday, an Iowa prosecutor returned from a lunch break in a murder trial with ash on his forehead. The defense attorney objected, saying it might sway the jury, the judge agreed, and the prosecutor wiped it off. Thoughts?
• The lady who crusaded against dog poop on the streets of New York, leading the city to enact a pooper-scooper law, has died at age 99. Sounds like she was a real pistol.

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I wrote in November about a law change that resulted in hundreds of car salespeople not getting manufacturers’ incentives for their sales. Those connected with the law called it an unintended consequence that they promised to address as soon as possible when the General Assembly reconvened in January.

An amendment to the law is now Senate Bill 18, and a hearing will be held Jan. 21 before the Senate Judicial Proceedings Committee. Aides to Sen. Jamie Raskin, D-Montgomery, the bill’s sponsor, are confident it will ultimately pass through both the Senate and House of Delegates with little problem.

You can see a copy of the proposed legislation here; the new law would allow manufacturers to directly give incentives to salespeople, but the incentives must be disclosed to the dealerships.

The dealer and manufacturer associations have signed off on the changes, according to Raskin’s office. Also supporting the bill is Honda, the only manufacturer not to adopt an interim solution to the incentive problem.

Stay tuned for more news next week following the hearing.

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