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Measure would expand right to attorneys’ fees

ANNAPOLIS – Plaintiffs who successfully sue under the Maryland Constitution or state law to force a defendant to change its ways would be entitled to attorneys’ fees under legislation backed by the state judiciary.

Pamela Ortiz testified as executive director of the judiciary’s Access to Justice Commission.

The measure would provide a financial incentive for private attorneys to represent low-income plaintiffs in civil rights actions for injunctive relief, as opposed to an award of damages that could be used to pay counsel, said Pamela Ortiz, executive director of the judiciary’s Access to Justice Commission.

“This is designed to help people who are not on equal footing with large institutional defendants,” Ortiz told the Senate Judicial Proceedings Committee Wednesday afternoon.

Low-income plaintiffs now have a difficult time finding private attorneys to take these cases because of the expense of litigation, and legal aid lawyers are often stretched thin because of limited funds, she said.

Current law permits prevailing plaintiffs to get attorneys’ fees only for claims brought under the U.S. Constitution or a few state laws, primarily wage-and-hour statutes, Ortiz added.

Thus, low-income plaintiffs are at a disadvantage if they want to bring a claim under the Maryland Constitution, which often provides broader rights than its federal counterpart, she said.

“We should be proud of the robustness or our own constitution,” Ortiz said. “[But] Marylanders are not benefiting under their own constitution.”

For example, Article 19 of the Maryland Constitution’s Declaration of Rights gives Marylanders a right to remedy “for any injury done to him in his person or property.” The federal Constitution contains no similar right.

By its terms, the legislation would not alter the statutory $200,000 cap on damages that a plaintiff can recover against state and local governments. However, the measure would entitle plaintiffs to a recovery of attorneys’ fees in addition to the cap.

Joining Ortiz in support of the measure were Debra Gardner, legal director of Public Justice Center, and Maryland Court of Appeals Judge Glenn T. Harrell Jr., a member of the commission, which examines ways to foster legal services for low-income Marylanders.

But Sens. Bobby A. Zirkin and Joseph M. Getty voiced concern that the measure would be unfair to victorious defendants, who still would not be entitled to attorneys’ fees unless a judge finds the civil rights suit was “frivolous.”

“The plaintiffs have all the cards on their side,” said Zirkin, D-Baltimore County.

“I don’t see a balancing out of the potential award in fees,” said Getty, R-Baltimore and Carroll counties.

Harrell said the commission was “not trying to balance it out” when drafting the proposal.

Enabling defendants to get attorneys’ fees if they prevail would have a “chilling effect” on plaintiffs’ lawyers bringing claims on behalf of low-income plaintiffs, thus defeating the measure’s goal of promoting representation, he said.

Gardner said the financial resources of the defendants in constitutional and civil rights cases, often state agencies or large companies, are greater than those of the plaintiffs.

“We have this gap that we are trying to fill with this bill,” she said. Enacting the measure would be “leveling the playing field for those who cannot afford an attorney,” she added.

Hypothetical plaintiffs who would benefit from the measure include a small farmer who seeks to challenge a state agency’s action as a regulatory taking under the Maryland Constitution or a homeowner alleging her home was foreclosed upon by a bank without notice under state law, Gardner said.

Under the legislation, judges would have discretion to award attorneys’ fees based on the plaintiff’s financial burden and whether the ruling conferred a “significant benefit” on the public or on a large class of people.

In calculating the award, the measure directs judges to multiply the number of hours reasonably worked by a reasonable hourly rate, taking into consideration the novelty and difficulty of the legal issue.

Senate Judicial Proceedings Committee Chairman Brian E. Frosh, D-Montgomery, and House Judiciary Committee Chairman Joseph F. Vallario Jr., D-Prince George’s and Calvert, are expected to introduce the measures soon in their respective chambers at the Maryland Judiciary’s request.