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Legal aid groups, Hogan spar over funding protective order, custody cases

ANNAPOLIS – Groups providing free legal aid to indigent Marylanders battled the Hogan administration Thursday, arguing in favor of legislation to provide state-paid lawyers to low-income litigants in protective order proceedings and to parents in contested custody and visitation litigation.

The bill is “an important measure in ensuring that fundamental rights of low-income family law litigants in protective-order and child custody and visitation cases are protected,” C. Shawn Boehringer, chief counsel of Maryland Legal Aid, wrote in testimony to the Senate Judicial Proceedings Committee.

“It effectively begins to shift the civil legal services paradigm from one delivered through charity to one delivered as it should be, as a matter of right,” he added. “By utilizing the existing infrastructure of staffed legal services programs … it provides an efficient way to ensure the effective delivery of services.”

But the state Department of Budget and Management opposed the proposed legal aid, saying the goal “may be laudable” but is ill-advised in an inclement economic climate.

Gov. Larry Hogan is “intent on addressing the state’s structural budget problems, and we must continue to act judiciously until revenue growth outpaces ongoing spending,” DBM stated in written testimony to the Senate committee. “Mandates such as this have contributed to our budgetary problems and exacerbate the ability of the governor to allocate scarce resources among the many equally deserving and competing needs of the state. Therefore, the department consistently opposes legislation that would dedicate state funds to one specific initiative.”

Sen. Robert Cassilly, a member of the Senate committee, expressed similar concerns about the expenditure. He noted that the state Office of the Public Defender has told the committee that OPD’s attorneys are overworked due to insufficient funding for additional staff.

“We can’t even pay for the [representation of] criminal defendants,” said Cassilly, R-Harford. “Unless we discover big time oil in the Chesapeake Bay, I don’t see this going anywhere.”

In light of these economic concerns, Sen. Richard S. Madaleno Jr., D-Montgomery, the bill’s chief sponsor, said he pared the bill significantly in advance of its consideration by the Senate committee.

As originally drafted, Senate Bill 468 called on the state to spend $3.2 million in fiscal year 2017 for the provision of legal counsel to low-income litigants in protective-order proceedings statewide and to low-income litigants in contested custody and visitation proceedings in Baltimore and the counties of Prince George’s, Dorchester, Somerset, Wicomico and Worcester.

As amended before the hearing, the bill calls for spending of $250,000 for a pilot program to provide free legal aid in protective-order proceedings in Washington, Frederick and Allegany counties and limit the state sponsored legal aid in contested custody and visitation proceedings to Dorchester, Somerset, Wicomico and Worcester counties. Clients would pay a one-time fee of $25.

The legislation drew praise from Debra Gardner, legal director of Baltimore-based Public Justice Center.

“There is little question that the counsel provided by SB 468 would make a significant difference in the outcome of domestic violence protection and custody cases,” Gardner stated in written testimony to the Senate committee. “Parties without lawyers simply do not know how to navigate litigation on their own, so they default at much higher rates, conduct discovery at much lower rates, file motions less frequently and settle less frequently and on less favorable terms. All of these lead to poorer outcomes, regardless of the merits of the case.”

But Sen. Robert A. “Bobby” Zirkin, the committee’s chair, expressed concern about the state’s cost of representation because child custody cases often do not end until the son or daughter reaches adulthood. These costs could increase as both parents would be represented by counsel if they are both indigent, added Zirkin, D-Baltimore County.

The two pilot programs would be monitored by an eight-member workgroup, which would issue its findings to the governor and General Assembly by Dec. 1, 2020. The workgroups would consist of three gubernatorial appointees; three members named by Court of Appeals Chief Judge Mary Ellen Barbera; a senator chosen by Senate President Thomas V. Mike Miller Jr., D-Prince George’s, Charles and Calvert; and a delegate selected by House Speaker Michael E. Busch, D-Anne Arundel.

Del. Samuel I. “Sandy” Rosenberg, D-Baltimore City, is chief sponsor of the cross-filed House bill, HB 348.