Gov. Martin O'Malley has revived a simmering political dispute over the University of Maryland law school's role in a lawsuit accusing an Eastern Shore farm and the Perdue poultry company of polluting a tributary of the Chesapeake Bay.
In a letter that became public Thursday, O'Malley wrote to law school Dean Phoebe Haddon this week to complain about the "ongoing injustice" of the environmental law clinic pursuing "costly litigation of questionable merit" against Alan and Kristin Hudson, who raise chickens for Perdue on their Worcester County farm.
Haddon could not be reached for comment, but in a brief reply Thursday wrote that she believed there were "good grounds" for the lawsuit and chided O'Malley, who is also a lawyer, about the ethics of expressing his views on a case that's in active litigation.
The clinic is representing the Waterkeeper Alliance, a New York-based environmental group with 18 chapters in Maryland. The group filed suit in March 2010 against Perdue and the Hudsons, who raise more than a half-million chickens a year on their 293-acre farm, after spotting water running into a drainage ditch from a pile of what was later identified as treated sewage sludge. The group also measured high levels of bacteria from waste in the ditch, which ultimately drains into the Pocomoke River.
The case is scheduled for trial March 5, and both sides filed motions and supporting documents Thursday in U.S. District Court in Baltimore laying out their cases.
O'Malley voiced his concern last year about the clinic's lawsuit, when rural legislators unhappy with the case threatened but eventually backed off from withholding funds for the law school. Raquel Guillory, his communications director, could not pinpoint what prompted O'Malley to write the letter now, saying only that he has been following the case for some time.
"He just thinks it's gotten to the point of being a misuse of resources," Guillory said.
O'Malley wrote that the Hudsons, whose farm has been in the family for four generations, face possible bankruptcy and loss of their land because of their mounting legal bills. He suggested the case against them was weak, noting that the state Department of the Environment had investigated and found "no strong evidence conclusively linking" the farm to waste found in a ditch that drains much of the farm. The state did fine the Hudsons $4,000 for piling treated sewage sludge too close to the ditch. The fine was reversed on appeal, though the violation was upheld.
O'Malley recalled that as a student at the law school, he had worked in one of its clinics representing battered women and others who couldn't afford a lawyer. But he called it unfair that the farmers can't match the taxpayer-funded clinic's "unlimited litigation resources" and suggested the law students should be representing the Hudsons instead against the Waterkeepers, who he said were "deep-pocketed litigants."
"This is a matter of fundamental fairness and the ongoing and significant injustice and economic harm being done to a decent, hard-working Maryland family by the continued pursuit of this very questionable suit," he wrote.
Haddon countered that the governor's letter contained "some inaccuracies," though she did not cite any. She noted that a judge had denied an early motion by the Hudsons and Perdue to dismiss the case. She told O'Malley that the state's rules of professional conduct bar the clinic from dropping its client, and she warned that his views, which have now become public, could prejudice the case and interfere with the student lawyers' relationship with their clients.
"I urge you to let the judicial process resolve this matter," she concluded.
O'Malley's spokeswoman said he would not go beyond voicing his unhappiness to try to limit the law clinic's funding or activities, but at least one lawmaker has vowed to take that step.
Del. Patrick L. McDonough, a Republican representing Baltimore and Harford counties, said he plans to introduce a bill in the next General Assembly to bar any publicly funded university law clinic from suing a private citizen or business, especially if the prospective client can afford to hire a lawyer.
"It's like piling on, and it's piling on with taxpayers' money against another taxpayer," McDonough said.
Sen. James N. Mathias Jr., a Democrat representing the lower Shore, said he was gratified that the governor had heeded complaints from him and other supporters of the Worcester County farmers about the law clinic.
Patricia Langenfelder, president of the Maryland Farm Bureau, also welcomed the governor's letter, as did a spokeswoman for Perdue. Langenfelder said farm group leaders had voiced their unhappiness with the clinic's suit against the Hudsons when they met with the governor several months ago.
But state Sen. Brian E. Frosh, a Montgomery County Democrat who's one of the General Assembly's leading environmental voices, called O'Malley's letter "unfortunate." While saying he believes the clinic has a strong case in the pollution suit, Frosh, also a lawyer, said he believed it is wrong for anyone to try to get a lawyer to drop a client, particularly in the middle of a case.
"This is between an attorney and a client, and it's an academic issue," Frosh said. "I just don't think it's the government's business to meddle in that."
O'Malley isn't the first to complain about the law clinic squaring off against farmers. Shortly after the clinic filed suit against the Shore farmers and Perdue, lawmakers in both the Maryland House and Senate threatened to withhold funds from the University of Maryland, Baltimore, of which the law school is a part. They relented but demanded information from the school about its clients and how they are chosen.
Last month, state Sen. Richard F. Colburn, a Republican who represents mostly rural mid-Shore counties, wrote UMB President Jay A. Perman to sharply criticize the law clinic for representing the "cash-rich" Waterkeeper Alliance in the pollution suit and in another legal dispute with the farm bureau. Perman defended the clinic, noting that the alliance is a nonprofit that has more than 5,000 members in Maryland. He suggested both cases should be left to a judge and jury to decide.
Robert R. Kuehn, associate dean of the Washington University School of Law in St. Louis and immediate past president of a national association of legal clinics, called O'Malley's letter "stunning" and said he was "disappointed" that the governor would use his political position to try to influence the case by getting the law school to drop out.
Amid the furor Thursday over the governor's letter, the two sides in the pollution suit outlined the evidence they believed supported their positions.
The clinic, in its filing, argued there was evidence the farm was the source of high bacteria counts found in the drainage ditch, noting that a drainage swale and a previously undisclosed pipe carried runoff from between the farm's two chicken houses to the ditch. The clinic also argued that Perdue shared culpability because it effectively controlled the farm's chicken-rearing, made frequent inspections and gave the farmers detailed directions.
Perdue and the Hudsons, in turn, argued that the lawsuit should be dismissed because, despite the bacteria found in the ditch, "no one saw" chicken manure or any runoff from the houses going into it. The only manure-tainted runoff seen by a state inspector was from a herd of cows grazing in another part of the farm, the defendants' lawyers say. Perdue's lawyer also argued the clinic can't prove the Salisbury-based poultry company controlled pollution-related operations on the farm.
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