The most recent Presidential election took place about 90 days ago. Seems like it has been longer than that. The Maryland General Assembly began its 90 day session less than a month ago with “big issues” on its agenda. The backdrop for those events is the continuing sharp division of both our political class and the people who elect them both nationally and in our “Free State”.
The dramatic, and at times, comic backdrop preceding this year’s 2013 Session of the Maryland General Assembly was the political and ultimately, legal fight involving an eclectic cast of characters which only a creative genius could have produced for this show. This star-studded cast included (1) former Delegate Tiffany Alston who was, by operation of statutory law, removed from her position as a member of the Maryland House of Delegates as a result of her conviction for partially paying for her wedding expenses and legal secretarial support with taxpayer generated funds, (2) Mr. Gregory Hall, the initial choice of the Prince George’s County Democratic Central Committee to replace her after her removal, (3) the Speaker of the Maryland House of Delegates, Michael Busch and his counsel, Assistant Attorney General Daniel Friedman, who pronounced Ms. Alston “Removed”, (4) the Governor of Maryland, Martin O’Malley, who refused to appoint Mr. Hall to replace Ms. Alston under the theory that Maryland’s Governor was not legally required to appoint anyone with a criminal record even if the Democratic Central Committee of Prince George’s County felt that the House of Delegates was an appropriate forum for Mr. Hall to demonstrate his rehabilitation and redemption from his previous life and criminal conviction, as well as the even more serious allegations of violent and drug related criminal behavior, which accompanied the original charges.
The Governor thought otherwise, as no doubt, he and his political advisors calculated, would the voters around the state and perhaps the nation, when he ran for public office in the future with that appointment hung around his neck in a 30 second ad.
Ultimately, a Prince George’s County Circuit Court Judge, C. Philip Nichols, Jr., cheered on by key editorial kudos, (“He gets it”) from the Baltimore Sun and other op-ed commentators, judicially approved the Governor’s decision and in doing so, confirmed the Governor’s wide discretion notwithstanding what was previously viewed as the mandatory express (“shall”) language of the statute limiting that discretion.
The highest court in our state, the Court of Appeals, shortly thereafter, (particularly for them) affirmed the trial court’s decision reserving their reasons for a later day.
The Democratic Central Committee, in the meantime, withdrew their nomination of Mr. Gregory Hall, at the Governor’s request and recommended three other names. None of these persons were chosen by the Governor, who appointed someone not suggested by the Democratic Central Committee or any other entity legally charged with the responsibility of nominating a candidate.
All of this political, legal and even constitutional intrigue made this writer, who labored in Prince George’s County and Maryland politics in another era (1970-1986) before going on the Bench and thereby forever forsaking any further partisan thoughts, to yearn for someone, anyone, who was seeking the Office of Maryland Delegate in this story to demonstrate a modicum of humility and perhaps a sense of humor by stepping forward to renounce their ambition and candidacy by echoing the legendary comedian, Groucho Marx when he famously said, “I would not want to be a member of any club which would have me as a member”.
Alas! – That did not occur.
The General Assembly is now however fully constituted and prepared to address serious issues. These issues include the repeal of the death penalty, the possible substitution of a system of comparative negligence for the current judicially crafted contributory negligence system, along with the historically concomitant and arguably inevitable modification of the concept of joint and several liability. This could and will, if history is any guide to the future, occur whether the Court of Appeals mandates the change from contributory negligence to comparative negligence judicially or the change is legislated by the General Assembly.
These issues along with the annual debate about the budget with particular emphasis on transportation, as well as important issues for trial lawyers and Maryland’s “Business Community” will occupy our attention for the next 90 days. The various bills produced as a result of the work and recommendations of the “Access to Justice Commission” have already divided the trial lawyers, public interest lawyers and the business community. Many of these bills involve “fee shifting”. The issues created by this proposed legislation will occupy the attention of legislators, their staffs, lawyers and lobbyists.
All of these debates will no doubt entertain us before they affect us. They will also reinforce the clear vision we have of the price we pay for living in a democracy, particularly one where there is a bicameral legislature, the election to which is not publically financed. That price is that economic interests inevitably intrude on purely philosophical debates about what is fair and what isn’t. That question often gets reframed in the halls of the Maryland General Assembly into “whose economic ox is being gored and whose side are you on?” In the next four columns, I will track the debates on these issues with emphasis on the intersection of law, politics and economics in their resolution.