Maryland
2015 Legislative Review
Eric Blitz summarizes the legislation relevant to libertarian issues from Maryland’s 2015 General Assembly session, such as ballot access, marijuana legalization, police conduct, access to public information, civil asset forfeiture, regulatory impact review, expungement, and many other topics. Any opinions expressed are those of the author and not official positions of the Libertarian Party of Maryland. Eric is an attorney and the Vice Chairman of the Libertarian Party of Maryland.
Ballot Access
HB626, sponsored by Delegate David Moon (D-Montgomery), with co-sponsors Delegates Brooke Lierman (D-Baltimore City) and William Smith, Jr. (D-Montgomery), sought to replace the current standard of 1% of all registered voters necessary to maintain ballot access (the other method is receiving 1% of the vote for the highest statewide office) with a flat 10,000 registered voters affiliated with a party. This makes sense because for a petition to re-establish the party you need 10,000 signatures of registered voters. Currently, the Libertarian Party of Maryland has over 15,000 registered voters affiliated as Libertarians, thereby establishing that we meet the minimum threshold of support for ballot access in Maryland. If the law had passed, we would automatically qualify for continued ballot access so long as we maintained 10,000 registered voters. This would have ended the potential for expensive, time-consuming, and ultimately wasteful efforts in ballot access petitioning for both the Libertarian Party of Maryland and the Green Party of Maryland (if they increased their registrations from their approximately 8,500 affiliations). While we had a much more receptive response before the House Ways and Means Committee, like last year’s bill it failed to receive a vote from the committee. We’ll keep on trying each year until we get this bill passed.
Enforcement of Maryland Constitutional Rights
SB319 provided for awarding reasonable attorneys fees and expenses to prevailing plaintiffs claiming violations of Maryland constitutional rights or the Maryland Declaration of Rights by the State and local governments. The statutory cap in damages against governments would not apply to such awards, nor would the cap on contingent fees. This would have been an important mechanism in holding the state and its political subdivisions accountable to abide by the Maryland Constitution and Maryland Declaration of Rights. The bill was cross-filed in the House as HB28 but neither the House nor Senate Committee gave it a vote.
Marijuana Legalization
SB531/HB911 sought to legalize the use, possession, growth and distribution of marijuana in Maryland, similar to the Colorado law. The Libertarian Party of Maryland and the Marijuana Policy Coalition of Maryland worked hard to build support for these bills, including: organizing and sponsoring a legislator’s only forum on marijuana policy; an advocacy training event for volunteer advocates; a lobby night; testimony before committees; email, letter and phone call contacts to representatives; and legislative lobbying. For a detailed summary of the bill, please review this document produced by our coalition partner, MPP. MDT&RBillSummary 2015. Sadly, the bills did not receive a vote from either of the respective House or Senate committees. We hope to have a better result in 2016, with the expected increase in public support for legalization and focus on the issue through the presidential campaign. There is a possibility of six other states passing legalization bills in 2016, including California, which may increase momentum for passage in Maryland.
The bill we did get passed is generically known as the paraphernalia fix bill. SB517 legalizes the use and possession of paraphernalia associated with the use of marijuana. The bill also made it a civil violation to use marijuana in a public place, with a fine not to exceed $500. There were provisions with respect to use in a vehicle and a relaxation of police search rules included in the original bill which we opposed and were stricken via amendments. The bill was passed by both the House and the Senate. UPDATE: The bill was vetoed by the Governor. It is unclear whether the legislature will vote to overturn the veto.
Other Bills Relating to Marijuana
HB803 Hemp legalized! This bill legalizes the growing, harvesting, possession, sale, etc. of industrial hemp. It was passed by both houses and was signed by the Governor. UPDATE: Federal law may still limit hemp production in Maryland. No brave 10th Amendment language from the General Assembly.
SB456 provides a small fix to the medical marijuana law. It requires a court to dismiss the charge (rather than give a $100 fine) for possession of marijuana and/or paraphernalia for medical necessity in certain circumstances. The bill was passed and signed by the Governor.
HB433 Marijuana Disclosure requirements-state outreach campaign on the purported health hazards of marijuana, that a person is still subject to arrest by the federal government (especially on federal property, parks, military bases, etc.) and that it is illegal for banks to do business with marijuana businesses (proceeds of marijuana) and a few other subjects. This bill, sponsored by Impallaria (R), was filed last year as well, went nowhere in committee, and received the same fate this year. Thankfully, this bill was dead on arrival.
HB121 revised the mandatory minimums for specified drug-related offenses. The bill was passed by both the House and Senate. UPDATE: The bill became law. The Governor did not sign or veto the bill, so it became law by operation of the Maryland Constitution.
HB393 sought to make marijuana use and possession in a vehicle a separate crime and thereby carve out an exception to decriminalization of possession of less than 10 grams of marijuana. The bill received an unfavorable report by the House Judiciary Committee which was a win for us.
SWAT Teams
SB173/HB338 sought to limit the deployment of a SWAT team to instances where there is a significant imminent threat to human life, welfare, and safety and the use of regular patrol officers is insufficient to meet that threat. It required a supervisor to create a written report supporting the determination that these factors exist (and whether pregnant women, children or the elderly are suspected of being present) before deploying a SWAT team, except when doing so would substantially endanger the lives of civilians or police personnel. The bill also imposed substantial reporting requirements on police forces that use a SWAT team, which should help with the transparency problems associated with such deployments. Those reporting requirements used to exist, but the law expired via a sunset. The bills did not receive a vote in either of the respective House and Senate committees.
Police Body Cameras
SB482 was first passed by the Senate while its companion bill failed with an unfavorable vote in the House Judiciary Committee (chaired by Joseph Vallario). The House then took up the Senate bill and it was passed. The bill has been signed by the Governor. The bill is emergency legislation, meaning that it went into effect upon the Governor’s signature on April 28, 2015. The bill authorizes the use of digital recording devices (including body cameras) by police and makes it legal for such cameras to record oral communications of citizens by regular police officers if they are in uniform and is prominently displaying their badge or insignia, the officer is reasonably complying with standards (yet to be developed) for use of such devices, the officer is a party to the communication, and law enforcement notifies the individual of the recording as soon as it is practicable to do so (unless it isn’t, or is otherwise impossible). The bill sets up a Commission to develop the standards for use of body cameras to be reported by October 1, 2015 and then used by the Maryland Police Training Commission to develop and publish (online) the standards that will be applicable. The bill also sets forth 17 issues the MPTC must address in developing the standards. The party will be monitoring this Commission’s work. I share some of the concerns of the ACLU of Maryland that there are insufficient privacy protections with respect to the recordings. This issue will likely be addressed by the General Assembly in 2016, after the report from the Commission is presented.
Other Police Conduct Bills
HB954 was passed and signed by the Governor. It requires annual reporting (due March 1st of each year) of all officer-involved deaths (those resulting directing from an act or omission of a law enforcement officer who is on duty or while off-duty but within the scope of their official duties, as well as all deaths of police officers, to the Governor’s Office of Crime Control and Prevention. The reports must, at a minimum, identify the age, gender, ethnicity and race of the deceased and the officer involved, a brief description of the circumstances, the date/time/location of the death. Sadly, what was removed from the bill was language which would have included within the report a description of the disposition of any investigation, inquiry or disciplinary proceeding resulting from the death. The reports are then made to the General Assembly by October 15th of each year (with a description of the past three years’ information required by such reports).
HB363 provided that the commission of a misdemeanor or felony (that have an incarceration penalty of a year or more) by law enforcement officers while in the course of their duties constitutes misconduct in office. That misconduct in office is a separate offense that can lead to up to a 10 year sentence, to be served consecutively and not concurrent to the underlying offense. The bill was filed by Delegate Curt Anderson at the request of the Baltimore City Administration and received an unfavorable report by the House Judiciary Committee.
HB365 sought to shift all felony prosecutions of police officers (both state and federal) for violations during the course of their duties from the local office of the States Attorney to the office of the Attorney General. The bill was filed by Delegate Curt Anderson and received an unfavorable report by the House Judiciary Committee.
HB112 provided that the State Prosecutor may investigate the death of an individual who dies as a result of an action or omission of a police officer (while on duty or for off-duty, if the activities are within the scope of the officers duties) if the State’s Attorney for the jurisdiction in which the death occurred does not file an information or seek a grand jury indictment in the case. This would have provided an important secondary review in these cases. This bill was cross-filed in the Senate as SB653, but both bills received unfavorable reports by the House Judiciary Committee and the Senate Judicial Proceedings Committee.
Note that Delegate Rosenberg introduced a similar bill, which would apply to any use of force by a police officer, which was HB438. The bill granted the State Prosecutor the authority to investigate immediately, concurrent with the authority with State’s Attorneys. That bill received an unfavorable report by the Judiciary Committee and was withdrawn.
SB413 requires police departments to report information for traffic stops that track race and requires the development of a model policy against race-based traffic stops. An amendment added a sunset after 5 years. The bill was passed by both the House and the Senate and has been signed by the Governor.
SB882 provides small enhancements to the Baltimore City Civilian Review Board (applicable only in Baltimore City) by expanding the scope of its jurisdiction to police forces of the Baltimore Watershed, the Baltimore City Community College, and Morgan State. It is unclear why the addition of the University of Maryland and the Maryland Transit Authority police forces (while acting in Baltimore) were struck by amendments, but they were. The bill improves the definitions of abusive language and harassment by police officers and adds two new non-voting advisory members to the Board, representatives of the ACLU of MD and the Baltimore City branch of the NAACP. The bill was passed and signed by the Governor.
HB771, another Baltimore-only bill is, requires the public reporting on “community policing” information (on the BPD website). One part of the bill will assist in the reporting of the instances of the use of force that resulted in the admission to a hospital, when the injury occurred as a direct result of an officer’s actions. It also requires the reporting of citizen complaints about the use of force by officers. It was passed and signed by the Governor.
Public Access to Government Information
The Libertarian Party of Maryland is a coalition partner in Marylanders for Open Government. The coalition had amazing success in getting three bills passed and signed by the Governor this session. Because the changes to these laws are more comprehensive than can be reasonably described here, a separate article will be published describing the details of the bills, but here is a summary:
SB695/HB755 amends the Maryland Public Information Act to establish the State Public Information Act Compliance Board, an Office of the Public Access Ombudsmen, revisions to speed up the disclosure of public information and improvements to the denial of records process, The bill also adds statutory damages (not to exceed $1,000) if the custodian knowingly and willfully fails to disclose documents available under the MPIA. As important, there is an uncodified section of the bill that sets up a reporting process for findings and recommendations for further improvements to the Public Information Act, including a review of the statutory duties of the Compliance Board, the merits of merging the state open meetings law compliance board with the new board, the use of fee waivers, an analysis of the denial process used by custodians, an analysis of the kinds of records requested, and the State law exemptions outside the Act.
HB674 was passed and signed by the Governor and simply requires all government units (agencies, counties, municipalities, etc.) that are subject to the Maryland Public Information Act to identify their custodian(s) of records and provide their contact information publicly, on websites if they have them, and report them to the Attorney General’s Office so that office can put them on their website and in their public information act manual. This is an attempt to relieve some of the ambiguity that citizens have in identifying who they should make their requests to and how to reach them.
SB444 was passed and signed by the Governor. Prior to this law, official custodians should have considered (as a best practice) whether to designate certain types of records as immediately available (because they clearly fall within the scope of the MPIA) and to create a list of such types of documents. With this law, that is mandatory, all custodians must make those determinations and create such a list. This is an important bill because not all custodians were doing this and failing to do so unnecessarily slows down the process and increases costs to both the government and the applicant requesting records.
Expungement
SB651 allows expungement of any record of a criminal conviction for a crime which is no longer a crime. This would also apply to prior convictions of marijuana possession of less than 10 grams. This will help in our future efforts to reduce the over-criminalization problem in Maryland, by prospectively addressing the expungement issue. This bill was supported by the Libertarian Party of Maryland through testimony before the House Judiciary Committee (HB124) and both bills were passed by both the House and the Senate. SB651 was signed by the Governor and HB124 vetoed as duplicative.
Civil Asset Forfeiture
SB528. There was quite a tug of war between the Senate and House on the two cross-filed bills and the Senate ultimately prevailed. This is a bill reforming civil asset forfeiture laws relating to controlled dangerous substances (CDS) offenses. The party program calls for ending pre-conviction asset forfeitures. The bill does not end abusive asset forfeiture, but nonetheless provides some good (if minor) reforms. The bill provides:
- Currently the owner of property bears the burden of proving that they had no knowledge of the CDS violation in certain CDS asset forfeitures. The bill shifts that burden back to the State with respect to “innocent owner” claims involving CDS violations when the assets involve vehicles, real property and assets used in the purchase of CDS (or traceable to the exchange).
- The exclusion of a minimum of $300 on many CDS asset forfeitures, removing some of the small money claims.
- Removes a provision that allowed forfeitures when assets are in close proximity to CDS, paraphernalia, and a few other items, which should require prosecutors to prove asset forfeiture authority under other more relevant indicia of a relationship to a CDS offense.
- Property must be immediately returned to the owner if the owner is not charged with a CDS violation in connection with the property within 90 days of the seizure. Removed by amendment.
- Seized property cannot be transferred to federal law enforcement unless the case is prosecuted in federal court under federal law or by consent.
- Changes the burden of proof by removing a rebuttable presumption that the property can be forfeited, if the state meets a burden of establishing, by clear and convincing evidence, certain CDS offenses.
- The reporting requirements were struck by amendment.
The bill was passed in the House on an 85-53 vote and 47-0 in the Senate. UPDATE: The bill was vetoed by the Governor. It is unclear whether the legislature will vote to overturn the veto.
Proposed Regulations-The Impact on Small Businesses
HB939 establishes an Advisory Council on the Impact of Regulations on Small Businesses in the Department of Business and Economic Development; requiring the Advisory Council to take evaluate and report on the impact of proposed regulations on small businesses. The bill was passed and signed by the Governor. While this sounds good in theory, it is not clear that such regulatory impact statements have a significant effect on the content or passage of regulations. It would be useful for someone from the Libertarian Party to volunteer to monitor this council and report on its effectiveness in reducing regulatory burdens.
Electronic Cigarettes
HB026 added electronic cigarettes (vapor included) to the prohibition against indoor smoking that applies to regular cigarettes under the Clean Indoor Air Act. This bill died after receiving an unfavorable report from the House Economic Matters Committee. This is the second year in a row this proposed law failed with an unfavorable report.
HB489 Prior law made it a criminal misdemeanor to sell electronic cigarettes to minors. SB007 changed the offense to a civil infraction and reduced the fine from $1,000 to $300, unless the offense follows a prior violation within 2 years, in which case the fine is $500. The bill also added “components” of electronic cigarettes (and products to refill or re-supply them) to the general prohibition on sales to minors. The bill passed and was signed by the Governor. (The Senate’s companion bill (SB007) was also passed by both houses, but was vetoed as duplicative).
Abortion
Both HB492 and SB511, which attempted to outlaw abortions over 20 weeks, failed to get votes in their respective committee hearings and went nowhere.
Medically Assisted Death with Dignity
SB676 allowed medical professionals to provide medicines to terminally ill patients (those with a terminal condition that is likely to result in death within 6 months), after a competency evaluation, so that the individual may end their life (through self-administration). The bill had a very significant set of procedural protections, both for the patient and doctors. It defined a medically assisted death as a death from natural causes and prevents exclusions of coverage under insurance contracts which could define such a death as a suicide (or otherwise non-coverable). The bill failed to get a vote in the Judicial Proceedings Committee.
Religious Exemption to Vaccination Mandate
HB687 sought to remove the religious exemption from the vaccination mandates of the state. The current exemption is already limited if there is an epidemic or emergency. The bill received an unfavorable report from the Health and Government Operations Committee and was withdrawn.
Draft Registration through MVA
SB72 and HB196 sought to change the conditions of driver’s license pass-through registration for the Military Draft (Selective Service) by making registrations information sharing applicable to both females and males (currently it only applies to males) and most importantly, removing the right of all applicants for a driver’s license to opt-out. Currently there is a protection under current law that if you refuse to consent to your information being shared with the Selective Service, that refusal cannot be used as a reason to deny a driver’s license. Neither bill received a vote in their respective committees.
Drinking Age
SB213 sought to lower the drinking age to 18, but only for active military. It received an unfavorable report from the Education, Health and Environmental Affairs Committee.
Motor Vehicle Checkpoints-Motorcycles
HB917 prohibits police officers from targeting only motorcycles at motor vehicle checkpoints. Sponsored by Senator Raskin, this bill was passed and signed by the Governor.
Restoration of Voting Rights after Felony Disqualification
SB340 removes parole and/or probation from the period of disqualification so that citizens are only disqualified from registering to vote because of a felony conviction during their period of incarceration. A substantial amount of procedural requirements to facilitate offenders being registered after completing their sentence were struck from the bill by amendments. The bill also makes it illegal for a person who is currently incarcerated and disqualified from voting to vote or attempt to vote, punishable as a felony with imprisonment for not less than 1 year not more than 5 years. The bill has been passed by both the House and the Senate. UPDATE: The bill was vetoed by the Governor. It is unclear whether the legislature will vote to overturn the veto.
Segregated Confinement
HB301 requires state correctional facilities to file detailed annual reports on segregated confinement in excess of 22 hours per day. It builds transparency with respect to the use of segregated confinement. The bill received an unfavorable report in both of the respective House and the Senate committees.
Charter Schools
SB595 provides substantial amendments to the public charter school system. This bill was requested by the Governor and passed after many amendments and legislative maneuvers. It was signed by the Governor). The bill provides moderate improvements but those interested in the details should read the bill directly, as it is too complex to describe in this forum.