Field Notes By Delegate Mike McDermott

Observations and Reflections on Legislative Activities

By Delegate Mike McDermott

February 21st-25th 2011

• Monday prior to session, I received a nice visit from folks from the Catholic Conference all hailing from northern Worcester County. Mondays is a big afternoon for various groups to come by and meet with their respective legislators for lobbying purposes. It is always a pleasure for groups to come by from back home. We exchanged a few ideas on pending legislation while agreeing to disagree on capital punishment.

• Monday the House TEA Party Caucus held a meeting prior to session and was visited by a large number of patriots from Queen Anne’s County. We were addressed by the President of the Maryland AFP, Charles Lollar, who encouraged the membership for taking a stand on fiscal restraint in the House of Delegates. Pres. Lollar agreed to do all he could to insure that the AFP joined the effort by showing up once a week to take a stand in the House Galleries. We also reviewed a short legislative list which we will vote on next Monday.

• Monday night we had a special presentation from Delegate Frick (D) in honor of Washington’s Birthday. In the House, the Black Caucus gets to pick the speaker for Martin Luther King Day, the Republican Caucus picks for Lincoln’s Birthday, and the Democratic Caucus picks for President’s Day. The delegate made an attempt to infuse some sarcastic humor into his speech on President Washington, -but it fell flat. It seemed like a time that could have been used to lift and inspire was wasted.

• Tuesday morning, some of the first bills starting trickling onto the floor for Second Reader. This process starts slow, but it will build to a fever pitch in time. The first few bills are ones where there is general agreement on both sides of the isle. Often they are technical bills which only seek to clarify provisions in the law, and they usually move forward quickly with little or no debate. During Second Reader, amendments are often offered to the bills. Each one of these must be offered by a delegate or by the Chairman if the amendment was added by the Committee hearing the bill in the first place.

• Tuesday in Judiciary, the following bills were reviewed:
1. HB-135: This bill seeks to increase the court fines and costs to be utilized to fund victim service organizations. This is an interesting bill, but there was some concern that one organization would be getting preferential treatment through the creation of this funding source, while other organizations would have to continue competing for available grant funds through the Governor’s Office of Crime Control and Public Safety. Many victims of crime came forward to support this legislative effort. Their stories can be heart wrenching, and it can be difficult to hear these tragedies told by heartbroken family members.
2. HB-353: This bill seeks to repeal Mandatory Minimum Sentencing in Maryland for drug related offenses. Supporters of the bill want judges to have more ability to sentence criminals to treatment facilities or other similar sentencing arrangements by providing much more latitude in sentencing. Ironically, this bill was created to help us get tough on drug crimes and was a means of dealing with many liberal judges from the western shore who would not provide lengthy incarceration for even repeat offenders. I hope this bill never moves out of the Committee.
3. HB-359: Would make it a crime if a person sells drugs to a minor which leads to the minor’s death. While this seems strange, this proposed law mimics current Federal Law and is not currently a crime in Maryland. There was compelling testimony from a family regarding the tragic death of their 17 year old son due to drug abuse. This bill made sense and appears to fill several loop holes currently on the books.
4. HB-454: This bill would provide for the ability of a judge to order specific restitution in cases involving Identity Theft. We heard testimony from several professionals detailing the costs often associated with this crime and the burden it places on the victims.
5. HB-458: This bill would prohibit the release of a person’s arrest record to anyone outside of the criminal justice system for any non-violent offenses which occurred more than 10-years prior to the request for information. This bill stirred debate as it could potentially limit the ability of an organization to screen for someone previously convicted of theft or embezzlement. The idea behind the bill was to limit the exposure people face due to previous criminal history so their employment opportunities would not be limited. The committee sees many bills of this nature which seek to codify the idea of a “second chance” by diminishing, eliminating, or otherwise hiding the history or previous actions of an individual. They are well intended, but fraught with problems.
6. HB-504: This is a straight forward bill which seeks to limit the amount of time a person may be sentenced to do local time in a county jail. Currently a person can serve up to 18-months locally. This bill changes that to 12-months. Several wardens testified about the cost associated with the extra time and the failure of the state to continue their reimbursement program based on a set per diem amount. As this would further burden the Department of Corrections in Maryland, this bill is probably not going anywhere. In fact, I could envision the state trying to extend local time as this would reduce that same burden borne by the state.
7. HB-599: This bill would require law enforcement officers to secure a Search Warrant prior to utilizing any type of GPS tracking device on a vehicle or a person. Traditionally, courts have held that the use of limited GPS style tracking is an acceptable practice as it merely enhances an officer’s ability to follow a vehicle as if the officer were in a vehicle tailing the suspect. Extended use of these systems generally requires a warrant. This bill would put an undue burden on law enforcement’s ability to watch the bad guys.
8. HB-606: This bill would decriminalize the possession of small amounts of marijuana by making possession of less than an ounce a Civil Infraction punishable by a fine of $100.00. There are strong arguments on both sides and the marijuana lobby is really pushing hard in the General Assembly this year. While this sounds like a small amount of marijuana, when packaged for sale and distribution, an ounce is the equivalent of about 26-“dime” ($10.00) bags on the street. This was clearly demonstrated by the law enforcement community who attended the hearing. I think the bill has some significant problems. The amount was clearly too much and there was thought that this limitation may limit the arrest of major players who have small amounts of the drug coupled with the elements of a large scale operation.

There was an argument put forward that these small amount arrests are a waste of law enforcement resources and officer’s time could be put too much better use. I have no argument there, but the answer could be found in simply allowing officers to issue a ticket instead of arresting the individual. This was also discussed as a way to improve the process. This bill spawned a good discussion and which may result in a modified bill being offered or some other targeted legislation.
9. HB-801: This bill would apply and extend victim rights to the victims of all crimes and not just those affected by violent crimes. This is a good idea, but the costs associated with the fiscal note may make it difficult to implement at the present time.

• Wednesday, in Judiciary, the following bills were reviewed:
1. HB-351: This bill would return the limited duty of assigning guardianship of a person to the jurisdiction of the Orphan’s Court in certain instances. The law was modified in recent years with the assumption that the judges were all attorneys. This change would merely take the law back to its original form.
2. HB-363: This bill seeks to modify the standard by which the charge of Manslaughter by Vehicle or Vessel could be applied. The bill presenters believe the burden of proof is too high and, therefore, the law cannot be applied in cases of clear gross negligence. We heard from many family members tell of the tragic loss of their loved ones brought on by, in many cases, the apparent gross negligence of an individual who received little or no punishment for their offense due to the standard of criminal negligence being applied in Maryland.

These folks have been trying to see this standard changed for years. Their frustration with Chairman Vallario was quite apparent and they pleaded with him to allow the bill to be voted on by the committee. Up till now, the bill has always stayed “in the drawer” and the committee has never had a chance to vote.
3. HB-523: This bill creates a new tax on out of state attorneys who are allowed to take on a case in Maryland. It would place a $100.00 charge per case that would be utilized to fund the Janet L. Hoffman Loan Assistance Repayment Program. This is a fund set up to provide help in paying back student loans for law students who agree to practice law in underserved areas. Taxing lawyers may be the only tax that receives my support.
4. HB-779: The bill seeks to redefine the definition of “operator” as it relates to the crime of Manslaughter by Vehicle. It would allow that person would still be considered an “operator” for the purpose of being charged if they failed to secure a load properly or failed to clean up or mark a road hazard they created. If they failed to secure a trailer hitch properly and the load came detached and caused a death they could be charged under this proposed bill.

I saw some problem with this bill in the way it may affect commercial trucking interests and liabilities. Of course, nothing keeps one from being held civilly responsible in these cases, but the issue of seeking criminal charges is another matter. In many of these types of cases, there are certainly charges on the books which apply to the violations, but the punishment is often limited to a fine or very limited jail time. In some of these cases, there is a reckless disregard which ends a life and no sense of justice for the families who remain. Again, we heard compelling testimonies highlighting the need to address this issue.
5. HB-834: This would change the name of the Orphan’s Court to Estate Court. It was said that the name of the court is often a source of confusion for the public and no one is quite sure about what services the Orphan’s Court provides. The Orphan’s Court Judges I have spoken with have no issue with the name change.
6. HB-839: This bill would allow for certain operations of a motor vehicle to be included under the charge of Reckless Endangerment. Currently, vehicle operation is not included in this charge. Several prosecutors testified about the need for this charge and how it would help them label specific conduct that is often difficult to prosecute under existing charges. I agree with the premise, but the wording in the bill was a little confusing and may need to be cleaned up or amended to make it better.
7. HB-930: This bill would require that anyone seeking to hold office as an Orphan’s Court Judge for Baltimore County would need to be an attorney in good standing with the local Bar Association. We recently saw this change in Baltimore City. Currently in Baltimore County, the Orphan’s Court judiciary is fully comprised of attorneys; however this would clearly affect future elections. Generally, these types of bills for one specific jurisdiction are considered “local courtesy” bills and are moved along if the full delegations from that district (or districts affected) are in agreement. That appears to be the case with this bill.

• Thursday, a special joint session was held in the House for the election of the State Treasurer. This is done by secret ballot with everyone in attendance, including the Governor and Lt. Governor. The ballot had two names, Nancy Kopp and William Campbell. Kopp (D) being the current Treasurer and Campbell being the recent Republican nominee for State Comptroller. The vote should have been a no brainer for the Democrats. The ballots are marked and turned into the Clerks who deliver them to the Chief Clerk to be counted in front of the Assembly with all of the officials looking on. It became very interesting as the votes were read, aloud by the Chief Clerk and she started calling out votes for “Chuck Brown” and a few other write-in candidates. It seems many of my democratic colleagues were making a joke of the voting without realizing they were risking the election of Kopp in the process. She had to receive 95 votes to secure her election, and, as the voting progressed, the laughter died down to an eerie quiet as their joke looked like it just might backfire. If they did not have a clear 95 votes for Kopp, she could not be elected. After some time, she eventually reached the magic number and the Democratic leadership breathed a collective sigh of relief. I have to say, they were a true embarrassment today in plain view of the public. We are there to serve the public, and playing games with the voting process does not send the right message. Watching them sweat for awhile…priceless!

• Thursday we voted for the first time on Third Reader Bills. All but one of the bills was pretty much unanimous. The one bill that caused some stir dealt with continuing the funding for a commission to study the effects of immigration on the State of Maryland. Funding for the commission has a cost of 25 thousand a year and the questions they are charged with answering are anything but critical of illegal immigration. There is not even a mention in the study criteria to find out about the cost to our Criminal Justice system or the adverse economic impact on our local, county, and state government entities. These questions were raised on the floor, but ultimately the bill passed. Here is a list of the other bills which passed today:
• Thursday afternoon, the Judiciary Committee met for an extended meeting and late voting session. Hearings were conducted for the following bills:
1. HB-402: This bill would reduce the time tables and grounds for Absolute Divorce. It would change the requirements on cohabitation and reduces the time frame from 12-months to 6-months period of separation prior to a divorce being granted.
2. HB-423: This bill would enhance the penalties associated with Criminal Nonsupport and Desertion of a deadbeat parent.
3. HB-424: This bill would provide an extension of Child Support payments for kids who are still in high school but have not reached 19 years of age. Currently, support ends at age 18 regardless of whether or not a child has completed high school.
4. HB-653: This bill would define the way medical payments are handled in custody situations involving child support. The custodial parent would assume responsibility for the first $250.00 of medical expenses not reimbursed by insurance with the balance being worked out between both parents by decree.
5. HB-770: This bill actually attempts to give certain pets a different standing in the eyes of the court when it comes to them being parceled out as community property in divorce settlements. The bill outlines potential visitation rights, etc. We had a judge testify in this case and asked the Committee to not approve this bill. He was concerned at the time that would need to be spent dealing with a pet custody hearing. I think the judge is right. Pets hold a special place in our hearts, particularly if we do not have children; but giving them this type of status before the courts is dangerous.
6. HB-835: This would change the statute of limitations on Child and Spousal Support Contempt Proceedings. Instead of a contempt order being good for 3-years, they would remain active for up to 12-years.
7. HB-837: This is an interesting bill that would provide that a deadbeat spouse could not shelter a windfall settlement from their Child Support demands. It would allow for the courts to require the parent to provide support funding from the windfall.
8. HB-1052: This bill seeks to level the field between a man and a woman before the court when it comes to custody arrangements. The bill provides for a presumptive assumption that joint custody arrangements are generally in the best interest of children. There was much debate on this bill. The testimony lasted for a couple of hours with story after story of men who indicated that they had been denied proper custody rights by a judge. There were good points made on both sides of the argument.

• On Thursday following the hearing session, the Judiciary Committee held a voting session on several bills previously heard. The following is a synopsis of the bill status. A ruling of “Unfavorable” means the bill is dead having been voted down in committee. A ruling of “Favorable” indicates that the bill garnered sufficient support to move it out of committee and onto the whole House for a vote.

Bills Voted Favorable:
HB-136
HB-178
HB-302
HB-349
HB-351
HB-523
HB-626
HB-799

Bills Voted Unfavorable:

HB-304

HB-325

HB-426

HB-434
HB-458

HB-471

HB-483

HB-504
HB-834
HB-885

• Friday, the Judiciary spent long hours hearing testimony from both sides of the Gay Marriage bills. These are HB-55, HB-175, and SB-116 (having passed out of the Senate yesterday on a vote of 25-22). The chamber was packed out and the overflow stood in the hallways and in the large caucus room with a live broadcast. Panels rotated in and out, pro and con, every hour going long into the evening. The best arguments have been made against the bills by a law professor who addressed the bills purely from a civil law perspective. Looking at the historical nature of marriage between one man and one woman is so ingrained in our law, changing the definition will cause great destruction in many aspects too numerous to calculate. For that reason alone, these are poorly crafted bills.

I do not believe there are enough votes to defeat these bills in the Judiciary Committee. They may well get out with the minimum 12 vote count and find the battle moving to the floor of the House. In the House right now, it is a 50-50 proposition, but there is a lot of vote counting going on by the ruling party whips.

I will be working with others to submit amendments to any approved bills to make them about Civil Unions as opposed to the redefinition of marriage. This will be a difficult task.

I would imagine that we will vote on this sometime next week. I encourage folks to make phone calls and emails to my Democratic colleagues on the Judiciary Committee. The Republicans are not in dispute.

Reflections on the Governor’s State of the State Address

By Delegate Mike McDermott
2.3.11

Today, the full body of Maryland’s General Assembly heard from Governor O’Malley about his vision for Maryland, and his interpretation of the past year. The Governor stated in his speech, “Everything has a cost…” Well, the question Marylander’s are asking is, “How much?”

His proposed budget holds our deficit at $1.2 billion while actually increasing spending by over $2 billion. There are several fund raids conducted from the Transportation Trust Fund ($120 million) and the Chesapeake Bay Trust Fund ($90 million) with additional tax increases to replace the raided funds. At the same time, the governor plans to increase our debt through the issuance of bonds. This will further push our debt ceiling to the edge.

We cannot afford bonuses for all state employees ($750.00), nor the five additional paid holidays he is offering. We cannot afford to continue cutting Medicaid reimbursements while, at the same time, taking our enrollment up over a million Marylander’s (20% of our population). We simply cannot afford to extend ourselves at a time when the revenues from our citizens are contracting.

Today the governor spoke about the state creating winners and losers when it comes to business and industry. If you are about “green” jobs, you’re a winner; if not, you’re a loser. When the state predicates tax incentives and government backed funding sources to favored industry, it is akin to the king extending the scepter to whomever he wishes. Wind farms may be a great idea, but they need to stand on their own as a business endeavor. When the governor talks about “investments”, he should be talking about the private sector, not tax dollars.

We heard about the governors desire to place a moratorium on septic systems in rural developments, with no regard of the chilling effect this could have on land values, private property rights, and development on the Eastern Shore. He stated that “where we eat, sleep, and live…” is affecting our environment as if this, too, is something the government should control.

The governor stated we were “moving forward”, while his budget anchors us to our indebtedness. He called us a grand “experiment in self government”, while he offers only additional regulations, fees, and taxes on the business community. He says, “It’s all about jobs”, as if the government is the one who creates those jobs. The “ghost of disconnect” continues to haunt Maryland policy.

The bottom line is the governor expressed more visible outrage over the recent power outages in Prince George’s County than he did about the dismal state of our economy, and our failure to address critical budget areas when time was of the essence.

Governor O’Malley wants us to move toward a “knowledge based” economy. Well, that begins with a wisdom based budget, and that was sorely missing from the State of the State Address I heard today.