Bill enabling attorney general to fight bias in court clears House hurdle

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ANNAPOLIS – The House of Delegates on Tuesday gave preliminary approval to Senate-passed legislation that would empower the attorney general to investigate and litigate instances of widespread unlawful discrimination in housing, employment, public accommodations and leasing of commercial property.

The House could vote as early as Wednesday on passage of the bill, which was amended in the House Judiciary Committee to mirror legislation the Senate passed March 17 on a vote of 36-9.

The Democratic-led House’s voice vote on House Bill 772 followed the defeat of a Republican-backed amendment that would have enabled defendants found not liable at trial to be awarded reasonable attorney’s fees from the state.

Attorney General Anthony G. Brown has pressed for the litigation authority, saying it would send a strong message to companies that bias is not tolerated in Maryland.

“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 last month in support of Senate Bill 540, which was introduced at his request.

HB 772, and SB 540, would enable Brown 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 told the Senate panel 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 said.

During House floor debate Tuesday, Del. Matthew Morgan, R-St. Mary’s, characterized the bill as a governmental power grab that should be restrained by permitting victorious defendants to move for attorney’s fees against the state that unsuccessfully sued them.

“As a Republican, I am always apprehensive of these bills that really expand government and authorize different agencies to be, I guess, more active because I know that nobody infringes on civil rights or individuals or businesses quite like the government has the ability to do,” Morgan said.

Enabling victorious defendants to seek attorney’s fees would be “more than fair, its completely reasonable and completely moral,” Morgan added.

But House Judiciary Committee Chair Luke Clippinger, D-Baltimore City, said Morgan’s amendment could discourage attorneys general from bringing discrimination lawsuits in good faith for fear of a defense verdict.

Clippinger said defendants would still be entitled to seek attorney’s fees for lawsuits brought in bad faith.

“The attorney general’s office … is going to have limited resources to bring these kinds of suits in the first place so they’re going to have to pick the ones that they believe are the ones that are the biggest and most substantial ones,” Clippinger said.

“We don’t want to stop the attorneys general from bringing cases in good faith,” Clippinger added. “That’s what we want the attorneys general to do. We want them to do their due diligence.”

But House Minority Leader Jason C. Buckel, a civil attorney, said courts would likely never find that the attorney general brought a lawsuit in bad faith in light of processes in place to prevent the office from bringing frivolous claims.

Thus, an award of fees would be the only way to protect small companies who successfully defend themselves against the well-financed attorney general’s office, added Buckel, R-Allegany.

“When you are the state of Maryland, the $63 billion leviathan, the largest law firm in the state of Maryland – by a wide margin – is the attorney general’s office,” Buckel said.

“And when you (the attorney general) come after ‘Joe’s Body Shop’ or ‘Sally’s Local Hotel’ or ‘Pete and Jamie’s Hair Dressing Salon’ … and you allege something as severe, as significant, as devastating in modern life in many ways as a civil rights violation  is today,” you could drive these companies into bankruptcy trying to defend themselves, Buckel added.  “All the… amendment tries to do is provide an opportunity for these small businesses and the lawyers who represent them to say, ‘If we are right and we are successful, there is recourse for you so you will not be bankrupted.”

The House rejected the amendment, as only 37 delegates voted for it compared to 98 against.

Under the legislation, a lawsuit by the attorney general would have to be brought where the alleged discrimination occurred or where the alleged violator has its principal office.

The attorney general would be able to seek economic damages for 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 the Maryland Commission on Civil Rights to enforce the law 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 Department of Legislative Services has estimated that the expansion of the attorney general’s authority to sue private entities would require the hiring of seven additional staff, including one principal counsel, three assistant attorneys general, two investigators and one paralegal at a cost of about $924,000 in salary and fringe benefits.