The Different Worlds of the Legislature and the Judiciary Collide

“Busy, Busy, Busy” has been Maryland’s highest court, the Court of Appeals this summer and early fall, identifying issues and problems for the other two branches of government to attend to on or before 2014 and perhaps beyond.

The first of those issues was created by the deference that a majority of the combination of retired and current Court of Appeals judges sitting on the case of James Coleman v. Soccer Association of Columbia chose to pay to the legislative branch state government by ruling that notwithstanding the judges’ individual and collective belief that “a system premised on comparative negligence for apportioning fault appears to be a more equitable system of determining liability and a more socially desirable method of loss distribution, “ if Maryland’s judge-made common law doctrine of contributory negligence is to be replaced by a system of comparative negligence, The Maryland General Assembly, not the Court of Appeals should do so.

Legislators and other disciples of “judicial restraint” are often heard complaining about “activist judges” including on occasion some on Maryland’s highest court.  Well now, the legislative branch of government has received on probably the most hot-button issue in our civil justice system the deference they so vociferously demand on occasion, thereby giving new dimension to the cliché – “Be careful what you ask for –you might get it.”

The question therefore is what the Maryland General Assembly is going to do with the issue now that it has been placed squarely in their lap.  The conventional wisdom is that the answer is “nothing” because the votes are not present to make any change.  The reason for that, is as I noted in my last column, the “uncertainty bordering on apprehension” of some legislators and their constituents as to how a change of the common law to either a pure or modified comparative negligence standard would generally affect tort liability and insurance law in Maryland.  This uncertainty and apprehension when it coalesces with the hostility and resulting opposition of legislators whose constituents see any change to any form of comparative negligence as a direct threat to their economic interests is more than sufficient to block any legislative initiative to replace the doctrine of contributory negligence with a comparative negligence system.

Where all this comes from are two unalterable facts.   One is that since 1950, when only five states had adopted “comparative fault” systems, 41 states have changed from “contributory negligence” to some form of “comparative fault.”  If that change was occurring without any other change accompanying or linked to it, then the economic interests would be clear and the impact of the change on those interests would be comparatively simple to determine and therefore easy to calculate.   Perhaps then a legislative compromise could be reached based on economic fairness and certainty.

But as is often the case, the price we pay for living in a democracy, particularly one where there is a bicameral legislature,  the election to which is not publicly financed, is that economic interests intrude on purely philosophical debates about what is fair and what isn’t.  That question often gets reframed in the halls of the legislature into “whose economic ox is being gored and whose side are you on.”

The second unalterable fact is that between 1950 and 1995, 34 of the now 46 “comparative fault” jurisdictions amended or completely eliminated their law on “joint and several liability” through legislative action or, in two states, case law.  So, if you are a betting person, aren’t those good enough odds for you to base your financial planning and political energy on the assumption that any change from “contributory negligence” to “comparative fault” is likely to come with at least a modification, if not the elimination, of “joint and several liability?”

By shifting the venue of the debate over what is fair and economically efficient and how to balance the two from the Robert C. Murphy Courts of Appeals Building on Rowe Boulevard to the State House to downtown Annapolis, the Court of Appeals shifted the context of the debate from philosophy and law to economics and politics. So be it!

Civil justice reform is not however as urgent as the criminal justice system change which was mandated by the Court of Appeals recent ruling dramatically expanding the right to counsel in our criminal justice system.  Here the contrast in the context of the debate and the tension between fundamental fairness, i.e. the due process that all of our citizens are entitled to constitutionally and the economic reality and budgetary constraints within which this state’s legislative and executive branches of government must legislate and administer the institutions of government was starkly illustrated.  A narrow 4-3 majority interpreted the Maryland Constitution to require that a person appearing initially before a Maryland District Court Commissioner after being charged with a crime must be provided with counsel in any case where he or she could be incarcerated.  The $28 million dollar price tag estimated by Maryland Public Defender Paul DeWolfe to be the cost of this implementing this ruling was not a factor even considered by the Court.  Rather the majority opinion relied exclusively on the express language of the Maryland Constitution, which for the court, arguably of necessity, trumped any fiscal or economic concerns.

No such constitutional, statutory or philosophical limits are likely to be observed as the Governor and the General Assembly grapple with how to implement this ruling which the Court of Appeals left with them after sending the ruling forward from Rowe Boulevard to be applied in every one of the 130 Commissioner Stations in the state within 30 days.

At the risk of sounding like a broken record  — “All the more reason for a Top-to-Bottom critical examination of the institutions of our criminal justice system including our system of Commissioners, the Grand Jury and other as hoc responses to issues now cascading on top of each other to create new crisises in our corrections and now our criminal justice systems’ management on a monthly basis.

Whether these institutions should be maintained on their current form and configuration and what the fair and efficient allocation of fiscal and human resources to these institutions should be in a 21st Century Criminal Justice System can only be comprehensively and credibly examined by a Blue ribbon “Futures Commission” dedicated to studying the management and structure of the whole system.  The reasons for this study have been apparent for some time, but the urgency has neither been clear nor compelling until now. The recent mandate of the Court of Appeals has made it so. Let’s get on with it!

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