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Frosh panel seeks right to counsel in evictions, end to body attachments

Baltimore City Solicitor Andre Davis. (Maximilian Franz/The Daily Record)

Andre Davis, a former judge and Baltimore city solicitor, was a vice chair of the panel. (Maximilian Franz/The Daily Record)

A task force created by Maryland’s attorney general urged the General Assembly Monday to provide a right to counsel for low-income tenants in eviction proceedings and outlaw the courts’ statutory authority to order the arrest and possible jailing of people who fail to comply with court-ordered debt payments.

The COVID-19 virus has “laid bare the fault lines” in Maryland’s civil justice system, which places those who cannot afford an attorney at a severe disadvantage with opposing litigants who can, Brian E. Frosh said. On Monday he released the report of the panel he formed in June to develop recommendations for ensuring legal representation for indigent Marylanders amid the pandemic-spurred economic downturn.

This disadvantage is especially apparent in landlord-tenant cases, in which landlords can initiate an eviction proceeding by paying a $15 filing fee in Maryland district court – an amount far below the national average of $122, Frosh said. Citing his task force’s recommendations, Frosh called on lawmakers to raise the landlords’ filing fee to $120 and to put that money toward the cost of providing lawyers for the tenants.

The Attorney General’s COVID-19 Access to Justice Task Force also recommended that lawmakers prohibit the eviction of tenants for owing $600 or less and require landlords to provide an affidavit explaining why they are seeking the eviction and permit tenants to rebut the affidavit either before or during trial.

Frosh’s panel, however, passed on recommending that low-income Marylanders be given a general statutory right to counsel in civil matters other than landlord-tenant disputes, such as consumer debt collection actions.

Frosh said the state’s cost of providing such broad legal aid in civil matters would be prohibitively expensive, particularly with lawmakers now focused on addressing the pressing demand of funding the state’s recovery from the pandemic.

“Our (task force’s) work was based in reality and the understanding that revenues are not limitless,” Frosh said. “We’re looking for targets we can hit.”

The task force does, however, recommend that the governor and General Assembly add a line in the state’s budget to support free civil legal aid services.

Retired federal judge Andre M. Davis, a vice chair of the task force, said Monday that Maryland’s low filing fee and lack of a required affidavit has made the state “a landlord-favored jurisdiction” for decades in which eviction has too often been used as “a collection mechanism” for landlords.

“It is time for that to change,” said Davis, who served as a U.S. district judge in Baltimore and on the 4th U.S. Circuit Court of Appeals. “This is an area that really cries out for reform.”

Davis also explained the task force’s recommendation that the General Assembly abolish “body attachments,” in which debtors can be arrested and possibly jailed for civil contempt of court for failing to comply with a judicial order to pay a debt.

“This has echoes from medieval debt prisons,” Davis said. “People should not be arrested when they are facing financial difficulty.”

The former judge, who also served as Baltimore city solicitor, added he hopes the task force’s recommendations “make equal justice under law a reality in Maryland in the civil sphere.”

Toward that end, the attorney general’s report calls on the General Assembly to designate a state agency to report on the number and communities of Marylanders affected by “civil legal issues, including evictions, foreclosures, consumer debt actions, protective orders, probates in small estates, and public benefits.”

The report – “Confronting the COVID-19 Access to Justice Crisis” — also calls on the Maryland judiciary and bar, including the attorney general, to participate in “a coordinated call to action to increase pro bono services to respond to the spike in civil legal needs arising from the COVID-19 pandemic.”

Task force members included Vice Chair Reena K. Shah, executive director of the Maryland Access to Justice Commission; Maryland Public Defender Paul B. DeWolfe; University of Baltimore School of Law Dean Ronald Weich; University of Maryland Francis King Carey School of Law Dean Donald Tobin; Senate Judicial Proceedings Committee Chair William C. “Will” Smith Jr., D-Montgomery; House Judiciary Committee Chair Luke Clippinger, D-Baltimore City; Maryland District Court Judge Stacy A. Mayer of Baltimore County; Robin Murphy, executive director of Disability Rights Maryland; Former Maryland Court of Appeals Chief Judge Robert M. Bell; former Maryland Attorney General Stephen H. Sachs; and Wilhelm H. Joseph Jr., executive director of Maryland Legal Aid.

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