Tricia Bishop, The Baltimore Sun
5:21 PM EDT, May 26, 2012
As lawmakers and lobbyists gird for another special session that the governor called this summer to debate an expansion of gambling — an issue that has led to pitched battles for years — dog lovers are hoping to get their pet issue some attention that could prove just as divisive.
In a 4-3 decision in April, the Maryland Court of Appeals held that pit bulls are "inherently dangerous" for liability purposes. Several legislators have vowed to reverse the ruling, spurred by letters from concerned pet owners and advocates who say meddling by the court could have broad consequences.
It would be at least the fourth time this year that lawmakers have moved to modify a ruling by the state's highest court. The tug of war between the legislative and judicial branches is age-old and has inflamed the national political scene in recent years. In Maryland, that conflict has intensified with recent rulings, as some accuse judges of overstepping their bounds and lawmakers of standing in the way of progress.
"This court definitely is revealing that it has some very strong views about shaping Maryland law, and to that extent, some people will criticize [the judges] as being activist," said Del. Luiz R.S. Simmons, a Montgomery County Democrat on the Judiciary Committee. The "court will defend itself by saying it's moving the law of Maryland incrementally forward. It all has to do with where you stand."
For its part, the court is not weighing in on the debate. Requests for an interview with Chief Judge Robert M. Bell were denied. A judiciary spokeswoman issued a statement saying, "The Court of Appeals rulings and subsequent debate by members of the General Assembly exemplifies our democratic form of government in action."
While it's typical for a court decision to not sit well with lawmakers, the number of rulings being challenged this year and the range of topics covered — public defenders at commissioner hearings, damage caps for victims of lead-paint poisoning and rules for ground rent holders — was unusual, legislators and legal scholars said.
Kathleen Dachille, a professor at the University of Maryland's Carey School of Law, said the public defender issue "is pretty significant and would have had a rather profound financial impact." The high court interpreted a Maryland statute to require public defenders for indigent defendants at thousands of initial bail hearings held before court commissioners each year, which would have cost millions of dollars to staff. Dachille said the legislature's swift action to reduce the impact of the January ruling was not surprising.
However, Dachille called it "stunning" that lawmakers would react to some of the other, smaller issues.
"This is our system," she said. "We learned it in fifth grade, the checks and the balances, and this is the way it's supposed to work — unless it gets to the heightened situation where you don't have consistency in the law, where you have two branches who are kind of bickering with each other at all times."
Some in the legislature say that's precisely where they are.
At times the legislature "plays with" the court's budget, which it controls, said Del. Michael D. Smigiel, an Eastern Shore Republican on the Judiciary Committee. In turn, the courts test lawmakers' patience, he said.
"A rift between the courts and the legislature" has been building for a decade, he said.
Bad blood can be traced to 2002, when Senate President Thomas V. Mike Miller reportedly asked the Court of Appeals to uphold a redistricting plan. Miller was reprimanded for abusing his power by calling judges. And the high court declared the plan unconstitutional and drew its own map.
Five years later, Smigiel submitted a bill based on concerns that judges were doing something similar, calling to lobby lawmakers. The bill sought the creation of a task force to "identify inappropriate judicial interference," but it died in committee.
Tensions have risen over the past year, said Smigiel, who contends that judges are trying to reinvent state law. He referred to a recent high-court ruling allowing same-sex divorce in Maryland even though the state does not allow gays to marry. A law passed this year by the General Assembly legalizing same-sex marriage is scheduled to go into effect next year, but opponents are gathering signatures to place the measure before Maryland voters on the November ballot.
"I have a problem with what I call judicial activism," he said.
The pit bull ruling in particular has raised legislators' hackles. Under the ruling, attack victims do not need to prove that the owner knew the animal had a history of being dangerous to make a claim, they just need to show that the owner or landlord knew that a dog is part pit bull.
Smigiel and Simmons — who are typically not on the same side of an issue — say they know of no scientific reason that the judges would find the breed to be any more dangerous than another, and that the April opinion has caused some head shaking about judicial thinking.
The ruling is expected to be a topic of discussion at a special session tentatively scheduled to begin July 9.
"The pit bull decision epitomizes how idiosyncratic these decisions have become," Simmons said. "Some legislators are very concerned."
Another ruling that raised eyebrows was an October decision that removed a legal requirement that ground-rent holders, who own the land under thousands of homes in the state, register or face losing ownership of the leases. Lawmakers responded with legislation, signed into law last week, that prohibits lease holders from collecting payments until they register.
In October, the court struck down a 1994 law that capped damages in lead-poisoning lawsuits and protected law-abiding landlords of older homes. Many feared that the ruling would put responsible landlords at risk of huge liability judgments. The General Assembly failed to come up with an acceptable compromise, however, and wound up passing a bill that created a study group to examine the issue.
"I think that the court had been very consistent in a number of rulings over the years, but when you look at [some] of the rulings they've made in the last couple of years, they just seem to be curious," Simmons said. There's "a great deal of concern about the center of the court. … Does it really have an intellectual center or is it prone to kind of lurch?"
In her statement, judiciary spokeswoman Angelita Plemmer said the judges are just doing their jobs, and no more.
"Judges are vested with the responsibility of reaching difficult decisions in matters that are, by nature, adversarial and often controversial, and they must render fair and impartial decisions based on law," Plemmer said. "The court interprets current laws, the legislature alters the law where it sees fit."
One court decision the General Assembly grappled with this year was widely viewed as correct, if inconvenient, according to legislators.
The January decision that defendants deserve representation, including by public defenders, at initial bail hearings before a court commissioner caused a scramble among legislators, who largely believed that indigent defendants have a right to counsel but needed to figure out how best to make that possible. They quickly passed emergency bills changing the law to expressly state that representation is not required at commissioner hearings but is required at follow-up review hearings before a judge.
Smigiel said the quick fix will probably not stand up to scrutiny, however, if the courts are asked to decide whether the new law satisfies a constitutional right to representation at the various stages of the court process.
"We'll be back" dealing with it again, he said.
Del. Kathleen M. Dumais, a Montgomery County Democrat and vice chair of the Judiciary Committee, said the process is working as it should, and that she hasn't heard any murmurs about tension between the court and the General Assembly.
"I personally don't believe that that's the case," Dumais said, commending the court on its entire record. "It just sort of happens that there were more [questioned decisions] this year than others."
It's largely a matter of perception, she said, echoing Simmons' interpretation.
"It's a careful balance," Simmons said. "The legislature does the legislating and the courts do the interpreting, and in my opinion, both institutions should act with restraint."
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