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Del. Jill P. Carter, D-Baltimore City, is the chief sponsor of House Bill 283, which would make government agencies liable for attorneys’ fees and legal costs, in addition to damages, if a plaintiff prevails on a state constitutional claim.

Maryland lawmakers weigh attorneys’ fees for constitutional violations

ANNAPOLIS – A Maryland high court judge joined civil rights attorneys Thursday in urging the General Assembly to pass legislation enabling people whose state constitutional rights are violated by a government agency or employee to collect attorneys’ fees, saying the measure is needed to provide indigent Marylanders greater access to state courtrooms.

But defense attorneys and lawyers for local governments assailed the proposal, saying it would spur dubious litigation from fee-seeking lawyers and add to the court costs of cash-strapped municipalities.

The legislation mirrors U.S. civil rights laws that allow federal courts to award attorneys’ fees to victims of federal constitutional violations, an authority that Maryland courts do not have in cases of victims of violations of the Maryland Constitution.

Speaking in support of the bill, Court of Appeals Judge Glenn T. Harrell Jr. said Maryland law permits recipients of email spam to collect attorneys’ fees from senders of the unwelcome messages but bars state courts from ordering attorneys’ fees for people who were denied a Maryland constitutional right.

“There’s something wrong with those priorities,” Harrell told a House Judiciary Committee hearing on the legislation, House Bill 283.

If enacted, the measure would apply to civil cases filed on or after Oct. 1, the effective date of the legislation.

Del. Jill P. Carter, D-Baltimore City, is the chief sponsor of House Bill 283. Sen. C. Anthony Muse, D-Prince George’s, cross-filed the measure as Senate Bill 319.

Debra Gardner, legal director at the Public Justice Center, called the awarding of attorneys’ fees essential to enabling low-income Marylanders to vindicate their state constitutional right to due process if they are denied a benefit, such as health insurance, without notice and an opportunity to be heard.

Without the chance to collect fees, private attorneys are often unwilling to take these time-consuming cases that, at best, result not in a damages award but in a court order for the agency to act, Gardner said.

“The people who have the means to hire an attorney can get in the courthouse doors,” she told the committee.

‘The courthouse doors are closed to low-income people whose rights have been violated,” Gardner added. “This bill levels the playing field in our courts.”

Virginia Knowlton Marcus, executive director of the Maryland Disability Law Center, said indigent disabled Marylanders are dependent on state and local agencies and must turn to the courts when they believe they are being confined or restrained unconstitutionally.

Enabling private attorneys to get court-ordered fees would “help vulnerable Marylanders have access to justice,” Marcus told the committee.

Baltimore lawyer William H. “Billy” Murphy said “the bill is just what the doctor ordered” for victims of police abuse who lack the resources to afford a lawyer.

“Without this [bill], we are just giving lip service to the poor,” said Murphy, of Murphy, Falcon & Murphy. “When there is no access to the courts … there can be no justice.”

Maryland law caps recovery for tortious acts by government employees at $200,000, of which no more than 25 percent, $50,000, is permitted to go to attorneys. These fees are not ordered by the court but rather are negotiated with the client and taken from the capped award, making the client less than whole, said the bill’s supporters.

But Thomas Curtin of the Maryland Municipal League assailed the bill, saying it would spur attorneys to litigate claims of constitutional violations rather than bring the allegation to the agency’s attention first.

“I don’t think it takes a large payout of attorneys’ fees to get good governance done in Maryland,” Curtin told the committee.

Under the legislation, government agencies and their employees who prevail in court as defendants would also be able to collect attorneys’ fees, but only if the court finds the claim of a constitutional violation was brought “in bad faith or without substantial justification.”

Maryland Defense Counsel and the Maryland Chamber of Commerce assailed as unfair the more difficult hurdle agencies and employees face to collect attorneys’ fees. Like the plaintiffs, defendants should be entitled to reasonable attorneys’ fees if they prevail in court, said Christopher Boucher, of MDC, and Mathew Palmer of the chamber.

The legislation follows the Maryland Access to Justice Commission’s 2009 report in which it recommended fee shifting in state constitutional-rights cases brought in state courts as a way to encourage private attorneys to take on this often expensive and time consuming litigation on behalf of low-income Marylanders. Harrell, the judge, served on that commission.

About Steve Lash

Steve Lash covers federal and Maryland appellate courts and the General Assembly’s judiciary committees for The Daily Record. He joined the newspaper in 2008 after spending nearly 20 years covering the U.S. Supreme Court and legal affairs for several publications, including the Houston Chronicle, Cox Newspapers, Chicago Daily Law Bulletin and West’s Legal News. Lash, a graduate of American University’s Washington College of Law, is a member of the U.S. Supreme Court and Maryland bars.