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Session’s over, but lawmakers already gearing up for next year

Steve Lash//Daily Record Legal Affairs Writer//April 25, 2010

Session’s over, but lawmakers already gearing up for next year

By Steve Lash

//Daily Record Legal Affairs Writer

//April 25, 2010

Sen. Delores G. Kelley’s 15-year effort to protect mentally disabled individuals from exploitation by those with power of attorney finally succeeded this year. She attributes the bill’s passage to patience, respect for her colleagues’ views and a willingness to share ownership with co-sponsors.
Sen. Delores G. Kelley’s 15-year effort to protect mentally disabled individuals from exploitation by those with power of attorney finally succeeded this year. She attributes the bill’s passage to patience, respect for her colleagues’ views and a willingness to share ownership with co-sponsors.

Click here to read the related sidebar: Legislation in limbo, a.k.a. ‘summer study.’

Wait ’til next year!

This rallying cry from fans of woe-begotten sports teams also applies to Maryland legislators whose bills failed this past session.

Sponsors of legislation to permit marijuana use for patients in severe chronic pain and to require ignition locks for convicted drunk drivers said they will try again in 2011 — and for years after that, if necessary — until their measures are passed (or, to preserve the sports metaphor, they are no longer in the game).

The same is true for lawmakers who tried, and failed this year, to get laws passed that would end judicial elections and get teenagers out of gangs by having them declared “children in need of supervision.” Legislation will also be reintroduced next year to enable fingerprint evidence and still photos to form the basis for a death-penalty conviction.

What drives these lawmakers to continue their fight is not only confidence in the merits of their legislation but the realization it can take several General Assembly sessions before a bill is passed.

“Politics is the art of doing the exact same thing over and over again until one day it works,” said Sen. Jamin B. “Jamie” Raskin, D-Montgomery, who sponsored medical-marijuana and ignition-interlock legislation this year. “Sometimes the legislature will move in paradigm shifts and sometimes it moves incrementally.”

The Senate passed the medical marijuana bill, SB 627, 35-12 and the ignition interlock measure, SB 564, 44-0. But both measures died in the House without receiving floor votes.

Raskin, however, said he believes “we have established excellent groundwork” this session, referring to the Senate’s approval of the legislation.

For inspiration, Raskin need look no further than fellow senator Delores G. Kelley, whose 15-year effort to protect mentally disabled individuals from being exploited by those given power of attorney finally succeeded this year.

The Maryland General and Limited Power of Attorney Act, SB 309, requires that the individual, his or her legal guardian, estate representative, or a state agency have access to the records of transactions made by the person given power of attorney.

Her fight for the power-of-attorney legislation began after her father’s death in 1994. As personal representative of the estate, she discovered that he had given power of attorney to someone he met in a 7-Eleven. That person sold 50 acres the father had owned in Somerset County for $39,000, a fraction of its worth, Kelley said.

Kelley unsuccessfully challenged the sale in court, which ruled the power of attorney was valid despite the fact that her father suffered from dementia.

“He was just no longer the person he had been,” said Kelley, D-Baltimore County.

Still, it took several legislative sessions for her to convince former opponents of the measure to become co-sponsors.

Her strategy included hosting luncheons for committee chairs in hope of garnering support. She also named the bill “Loretta’s Law” at the request of her main Senate co-sponsor, Republican Sen. Bryan W. Simonaire of Anne Arundel County.

Loretta Soustek, an elderly woman with dementia, had given power of attorney to her niece Patricia Skrzesz, who subsequently withdrew $449,000 from her aunt’s account, built a house for herself and paid off her own bills. Though Skrzesz was convicted of felony theft in 2007 and ordered to pay $214,000, the sponsors were concerned that the theft had occurred with little oversight of Skrzesz’s activities.

Kelley said the bill’s passage resulted from patience, respect for her colleagues’ views and a willingness to share “ownership” of the legislation with co-sponsors.

“It’s about politics, it’s about people’s perspective, it’s about ownership,” Kelley said. “We were more interested in the issue and getting the policy changed than in who ultimately would receive the credit.”

Is this bill necessary?

Del. Samuel I. “Sandy” Rosenberg, D-Baltimore City, who sponsored the medical marijuana bill in the house, added one more item to Kelley’s ingredients for getting a bill passed.

“The obligation is on the bill sponsor to answer the question, ‘Why do we need this bill?’” said Rosenberg, vice chair of the House Judiciary Committee.

Following this mantra, Attorney General Douglas F. Gansler — though not a legislator — said he will try against next year to convince lawmakers to approve and send to the voters a proposed constitutional amendment to end contested judicial elections in the state.

This past session, Gansler enlisted the help of retired Supreme Court Justice Sandra Day O’Connor, who said judicial independence is compromised when judges must engage in the politicians’ task of raising campaign contributions and running to stay in office.

Though the measure never made it out of committee in either the Senate or House, the issue of judicial elections became part of a “mainstream dialogue” in the General Assembly that will continue, Gansler said.

“There’s an educational process for the people in the legislature,” Gansler said.

In other failed legislation, Sen. Lisa A. Gladden, D-Baltimore City, tried in vain to amend proposed anti-gang legislation and permit the state to classify teenagers in gangs as “children in need of supervision.” The classification would enable the state to take steps to rescue the child from the gang.

“I would love to see that come back next year with some real focus and commitment,” said Gladden, vice chair of the Senate Judicial Proceedings Committee. “We have to do what we need to do to get them out.”

The proposed amendment failed in Gladden’s committee.

Gladden is no stranger to fighting for legislation in successive sessions, having battled for repeal of Maryland’s death penalty in past years.

“There’s nothing new in Annapolis,” said Gladden, referring to the host of legislation reintroduced each session. “The question is, how do we do it better next year?”

Wisdom vs. wearing them down

Sen. Brian E. Frosh, who chairs the Senate Judicial Proceedings Committee, said he knows the value of being a patient legislator.

The General Assembly this year passed the Maryland False Health Claims Act, SB 279, which enables citizen suits against medical facilities that filed fraudulent claims under state health plans, costing the Maryland government millions of dollars. The bill, which Frosh sponsored, had been before the General Assembly for several years.

Frosh, D-Montgomery, said passage has renewed his hopes for a measure he introduced about 10 years ago that would allow citizens to sue any contractor who submits a fraudulent invoice to the state of Maryland. Frosh said that, if re-elected this fall, he will reintroduce the proposed Maryland False Claims Act next session.

“People are afraid that it will be an assault on small business,” Frosh said. “[But] it is an assault on fraud. You don’t get in trouble unless you try to defraud the state.”

Frosh will have a co-sponsor in Raskin, who said he will use passage of the Maryland False Health Claims Act to argue for expanding its provisions to all state contracts.

“If we can do this in the health care sector, why can’t we make criminals pay [for fraud] in other areas of government contracting?” Raskin said.

But Raskin said getting the bill passed will not be easy due to concerns from the business community.

“There will be a whole new set of opponents who will be lured into opposition, no doubt,” Raskin added. “Every bill creates its own political dynamic.”

Despite their agreement on false claims legislation, Frosh agreed only in part with Raskin’s view that oft-introduced legislation passes because legislators eventually see the wisdom of the proposal.

“Sometimes the General Assembly gets worn down and passes something that perhaps it shouldn’t,” Frosh said, declining to cite specific legislation. “After a while it gains a kind of legitimacy just by being introduced repeatedly.”

Taking time to get it right

With regard to capital punishment, Baltimore County State’s Attorney Scott D. Shellenberger said he will press lawmakers next session to enact legislation that would add to the list of evidence required for a death-penalty verdict a fingerprint or still photograph conclusively linking the defendant to the slaying.

That measure, SB 404, failed in the Senate Judicial Proceedings Committee amid concern that fingerprints and still photographs are not as definitive as the biological and videotaped evidence now required in capital cases.

“I understand fully why the legislature wants to be cautious,” Shellenberger said. “Sometimes, it’s good to take a little bit of time to make sure you get it right.”

But he added that fingerprints and still-photograph evidence are “logical extensions of the current death-penalty statute” and should be passed next session.

In the war on drugs, Del. Luiz R.S. Simmons, D-Montgomery, said he will reintroduce legislation, House Bill 518, to amend Maryland’s law aimed at catching drug dealers when they use their ill-gotten gains to make lawful purchases.

Current law makes it a felony for the dealers to spend more than $10,000 in criminal proceeds on a lawful purchase. The bill would reduce the felony threshold to exactly $10,000, and make it a misdemeanor to spend lesser amounts of ill-gotten gains.

“Maryland has become a magnet for drug dealers who want to fence proceeds … as long as they remain below the $10,000 threshold,” Simmons said.

The felony punishment would remain the same: imprisonment for up to five years and a fine of up to $250,000 or twice the purchase amount, whichever is higher, for a first violation. The newly created misdemeanor would be punishable by up to three years in prison and a $20,000 fine.

Simmons said his bill will make it easier to prosecute dealers, as it is easier to catch someone making a lawful purchase than it is to nab them selling drugs.

He added that he is no fan of waiting until next year.

“I think being an effective legislator means being impatient,” Simmons said.

“You have to bring a certain calculated impatience,” he added. “More people should be responsibly impatient.”


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