Brown seeks litigation authority to fight bias, law enforcement misconduct

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ANNAPOLIS – Maryland Attorney General Anthony G. Brown pressed lawmakers Tuesday for the authority to investigate and litigate instances of widespread unlawful discrimination in housing, employment, public accommodations and leasing of commercial property, a power he said would send a strong message to companies that bias is not tolerated in the state.

“Give us the civil rights authority and we’ll show you what we can do to protect Marylanders,” Brown told the Senate Judicial Proceedings Committee in support of Senate Bill 540.

Brown also urged the Senate panel for the authority to investigate and bring lawsuits against state and local law enforcement agencies engaged in a pattern or practice of civil rights violations, such as excessive force. The attorney general should be able to seek court orders that these agencies refrain from the unlawful practices, he said.

“The goal is to uncover widespread abuses within an agency,” Brown added in support of SB 658. “Pattern or practice (investigations) improve the safety of communities in which they occur.”

The two bills were introduced this session at Brown’s request.

SB 540 would enable him to investigate allegations that a private entity discriminated in violation of the U.S. or Maryland constitution or of federal or state law. The attorney general could bring suit if the investigation provides reasonable cause to believe discrimination has occurred.

Brown testified that his District of Columbia counterpart has the authority to bring civil rights suits against private entities and that then-D.C. Attorney General Karl Racine wielded it last year to reach a $10 million settlement with three real estate firms that were allegedly unwilling to rent to low-income individuals who receive governmental assistance.

“We don’t have the authority to do that in Maryland,” Brown told the Senate committee.

He added that enabling the attorney to sue private entities in cases of widespread discrimination would complement the Maryland Commission on Civil Rights’ ability to sue on behalf of individual victims.

MCCR General Counsel Glendora Hughes agreed, telling the Senate panel that the commission would work cooperatively with the attorney general’s office and refer cases when an investigation of an individual’s claim of discrimination reveals that the bias is widespread.

Vicki Schultz, executive director of the Maryland Legal Aid Bureau, said the bill would give the attorney general “critical tools” to fight widespread discrimination that private counsel cannot do. The attorney general’s office can conduct “complex investigations” and bring “complicated cases” such as housing bias cases that afflict low-income residents whom the bureau represents, Schultz added.

“Our clients need the protection of civil rights laws,” she told the committee.

The attorney general’s lawsuit would have to be brought where the alleged violation occurred or where the alleged violator has its principal office, under the bill.

The attorney general would be able to seek economic damages to victims of the discrimination; a $10,000 civil penalty for an entity’s first violation and $25,000 for each violation thereafter; and reimbursement for the office’s costs of investigation and litigation. The attorney general could also seek a court order enjoining the violator from engaging in future discrimination.

Money received via civil penalty would be placed in a Civil Rights Enforcement Fund to enable the attorney general and MCCR to enforce civil rights and engage in education and outreach regarding corporate responsibility and individuals’ rights regarding illegal discrimination.

The bill would also give the attorney general authority to intervene in a pending civil rights suit if the matter is of public importance beyond the litigants.

The Maryland Coalition Against Sexual Assault and the Maryland Women’s Law Center testified in favor of the bill, saying widespread instances of sexual harassment would hopefully no longer go unchecked if the attorney general could investigate and sue.

Law enforcement entities potentially subject to investigation and suit under the pattern and practice legislation include police departments, prisons and detention centers, parole and probation departments and juvenile services.

The Maryland State’s Attorneys’ Association voiced concern that the legislation would apply to local prosecutors and enable an attorney general to interfere with their prosecutorial independence by threatening to bring a frivolous claim of pattern or practice of discriminatory prosecutions.

“This power has the potential for great harm,” Howard County State’s Attorney Rich H. Gibson Jr. told the Senate committee.

But Sen. Charles E. Sydnor III said prosecutors should be included in the bill because of a checkered history nationwide of meritless prosecutions being brought against Black defendants.

“What makes you all special?” said Sydnor, D-Baltimore County.

Brown said the bill does not cover prosecutors but said he would be willing to consider amending the measure to make their exclusion clear.

In his testimony, Brown noted the attorney general’s duty to defend state agencies would necessitate his office’s recusal from investigating and litigating pattern and practice cases against them. Thus, the bill provides that complaints against state agencies would be investigated and litigated by a State Agency Accountability Counsel whom the attorney general would nominate with the advice and consent of the Senate and would serve five-year terms to ensure his or her independence, Brown said.

But Sen. Chris West, R-Baltimore County, asked how the counsel can be truly independent if his or her reappointment is dependent on renomination by the attorney general.

“I don’t think that works,” West said. “The person is ultimately accountable to the attorney general.”

To avoid the conflict, West suggested the counsel be nominated by the governor rather than the attorney general.

Brown said he would be open to such an amendment.

“Our goal is to establish a truly independent agency,” Brown said. “There is no pride in appointmentship here.”

The Department of Legislative Services estimated that the expansion of the attorney general’s authority to sue private entities and law enforcement agencies would require the hiring of 15 additional staff, including two principal counsels, seven assistant attorneys general, four investigators and two paralegals at a cost of about $1.8 million in salary and fringe benefits.

SB 540 is crossfiled as House Bill 772; SB 658 is crossfiled as HB 771.