Part F
COURTS AND CIVIL PROCEEDINGS
JUDGES AND COURT ADMINISTRATION
CREATION OF JUDGESHIPS
In 1979, the Chief Judge of the Court of Appeals began an annual procedure of formally certifying to the General Assembly the need for additional judges in the State. This certification process was suggested by the Legislative Policy Committee prior to the 1979 session. The annual certification is prepared after a statistical analysis of the workload and performance of the circuit courts and the District Court of Maryland and consideration of the comments of the circuit administrative judges and the Chief Judge of the District Court.
For fiscal year 2000, the Judiciary certified the need for seven additional circuit court judges and four additional District Court judges, but submitted legislation, Senate Bill 303/House Bill 473 (both passed), requesting only two new District Court judgeships - one in Prince George's County and one in Frederick County. The request was constrained in light of other budget priorities, including the expansion of family law services. The judgeships are created effective July 1, 1999.
JUROR INFORMATION
Senate Bill 278/House Bill 208 (both passed) allow a jury commissioner or court clerk who manages the juror selection process to disclose to the State Board of Elections information indicating that a prospective juror moved outside the county where the circuit court is located, is not a citizen, or died.
Any such disclosures must be made in the manner provided in the applicable juror selection plan and in accordance with confidentiality regulations required to be adopted by the State Board of Elections.
The information provided to the State Board of Elections is intended to assist in maintaining accurate voter rolls.
STATE BOARD OF LAW EXAMINERS
Senate Bill 82/House Bill 35 (both passed) extend the termination date for the State Board of Law Examiners from July 1, 1999 to July 1, 2004, and increase the cap on the examination fee paid to the Board by each applicant for admission to the Bar from $100 to $150. The legislation also requires the Board to report to the Senate Judicial Proceedings Committee and the House Judiciary Committee by October 1, 1999 on what, if any, actions the Board has taken in response to the recommendations of the Department of Legislative Services contained in the sunset evaluation report, on the State Board of Law Examiner dated October 31, 1998.
COURTS - EFFICIENCY AND EQUITY
Senate Bill 133/House Bill 181 (both failed) would have provided that, beginning in fiscal year 2001, the State take over from the local governments the payment of the salaries, benefits, and operating expenses of the following circuit court personnel:
The legislation would also have increased the juror per diem required to be paid by the State beginning in fiscal year 2000 from $5 to $15 per day.
CIRCUIT COURT FOR BALTIMORE CITY
In response to a crisis concerning the adjudication of criminal cases in the Circuit Court for Baltimore City, which resulted in the dismissal of cases against murder and armed robbery suspects, the General Assembly appropriated $4.0 million and authorized 51 new permanent positions specifically targeted to assist State agency operations in the Baltimore City criminal justice system. The appropriations and personnel will be used to: (1) expand utilization of the courtroom at the Central Booking and Intake Facility; (2) construct, operate, and staff three additional trial courtrooms to address the backlog of criminal cases; (3) implement a Baltimore City pilot project that will provide representation to indigent clients during bail review hearings; and (4) support the activities of the newly reconstituted Baltimore City Criminal Justice Coordinating Council.
In addition, the General Assembly adopted budget language that withholds $17.8 million in State appropriations for the Judiciary, Office of the Public Defender, Department of Public Safety and Correctional Services, and Local Aid Law Enforcement Grants. The appropriations will be released when the criminal justice system, including State and Baltimore City agencies, submit a plan to the General Assembly that addresses the substantive policy and management reforms to be implemented to resolve the criminal case processing crisis in the Circuit Court for Baltimore City. The restrictive language further provides that the newly reconstituted Baltimore City Criminal Justice Coordinating Council, composed of various participants in the criminal justice system, assist in the development of strategic plans and recommendations to improve the system.
One of the major issues confronting legislators during the 1999 Session was the so-called "Y2K" or "Year 2000 Problem" that threatens computer systems beginning on January 1, 2000.
Most computer programs designed more than five to ten years ago stored dates on a day/month/year format, using only two digits. For example, January 1, 2000, translates as 01/01/00. Without rewriting current codes to include the next millennium, computers will interpret 01/01/00 as January 1, 1900, or completely shut down. If not corrected, this problem could affect government, private sector, and home computer operations. Also affected could be machinery that contains process control equipment and imbedded chips, like elevators and traffic control systems. Over the past five years, a global effort has been underway to correct the Y2K problem. However, it is becoming apparent that the private sector will not fully correct the Y2K problem by the start of the year 2000.
Early estimates predicted that Maryland would need to spend between $55 and $120 million to achieve readiness of its entire information infrastructure. This estimate included both out-of-pocket costs and in-house resource utilization. In the fiscal 1998 through fiscal 2000 budgets, the State has allocated over $125 million to support the management and correction of its Y2K program. The fiscal 2000 budget stipulates that up to $300,000 of State general funds may be distributed to municipalities to assist in Y2K remediation and replacement efforts.
In recognition of the seriousness and urgency of the Year 2000 problem the administration, by executive order, established the Governor's Year 2000 Readiness Task Force in April, 1999. The Task Force has the primary responsibility for monitoring Year 2000 mitigation, preparedness, response, and recovery activities. The task force is required to produce a report highlighting significant mitigation, preparedness, response, and recovery activities by March 31, 2000, or ninety days following the completion of recovery activities, whichever comes first. As of March 15, 1999, the administration has determined nearly half of the State's most critical computer systems are assessed Year 2000 compliant. About a third of the critical systems have been repaired and are being tested, while about a fifth are either being repaired or replaced.
Private Sector Remedies
In an attempt to induce businesses to alleviate Y2K problems and help them avoid the costs of numerous claims for damages resulting from Y2K problems, House Bill 8 (passed) provides various protections for private entities and persons from liability for damages or losses proximately caused by the failure of information technology systems and products in Year 2000. The bill establishes exclusive remedies and an affirmative defense to any action brought by a plaintiff against any person based on the failure of information technology in year 2000.
House Bill 8 establishes that the exclusive remedies for recovering damages caused by the failure of a product or service provided by a person to be Year 2000 ready are:
(1) under any provision of a contract with the person that provides specific remedies for the failure of the product or service to be Year 2000 ready; or
(2) in all other cases, as provided under the bill.
The entity or person may only be liable if the failure of a service or product to be Year 2000 ready is the proximate cause of the damages.
For a person whose product or service is not Year 2000 ready, it is an affirmative defense that the person determined and implemented in good faith actions necessary to become Year 2000-ready in a manner that would be exercised by a reasonably prudent person under the same or similar circumstances.
In determining whether a person has met the standard of care for the affirmative defense, the trier of fact is required to consider whether the person completed the following items in the person's Y2K compliance plan:
(1) inventorying information technology systems and products;
(2) identifying critical information technology systems and products;
(3) obtaining information from its critical suppliers regarding their Y2K compliance plans;
(4) assessing potential Y2K date data problems and testing, if practicable, its critical information technology systems and products;
(5) initiating reasonable efforts to remediate Y2K date data problems in its information technology systems and products;
(6) reasonably remediating Y2K date data problems in its critical information technology systems and products; and
(7) developing a contingency plan that specifies actions to be taken if remediation fails.
House Bill 8 also exempts from State antitrust laws governmental entities and persons in the course of the exchange of information concerning measures that have been taken or are to be taken in order for products or services to become Year 2000 ready.
State and Local Government Immunity
Even though the State, counties, and municipalities have been working to solve the Y2K problem, even the most prepared governmental agencies may encounter problems and be faced with lawsuits as a result of Y2K failures. The purpose of Senate Bill 232/House Bill 901(both passed) is to keep governments out of court and encourage government action to address the Y2K problem. The immunity granted by the bills only applies if the government has taken specific actions to become Y2K compliant.
Specifically, the bills give the State or a local government or an official or employee of the State or a local government qualified immunity from suit and liability for damages arising out of a Y2K date data problem (that is, the failure of an information technology system, product, or process to accept correctly date data). The bills do not provide immunity in wrongful death, survival, or personal injury actions. The bills also do not apply to intentionally tortious, wanton, reckless, or grossly negligent acts or omissions.
To be eligible for the immunity provided under the bills, the State or local government must have taken the following steps:
(1) published and made available for public comment a compliance plan;
(2) before October 1, 1999, adopted a compliance plan; and
(3) before December 31, 1999, completed the following items in its compliance plan:
(i) inventoried information technology systems and products to assess whether they are Year 2000 ready;
(ii) identified critical information technology systems and products;
(iii) assessed potential Y2K date data problems;
(iv) initiated efforts to remediate Y2K date data problems in its information technology systems and products; and
(v) developed a contingency plan of action that specifies actions that shall be taken if remediation fails or is not completed by December 31, 1999.
These immunities do not affect any immunities or limits on liability otherwise provided by law to the State or a local government or an official or employee of a local government.
Senate Bill 232/House Bill 901 are emergency bills that apply to causes of action arising out of a Y2K date data problem that occurs on or before June 30, 2001.
COMPARATIVE NEGLIGENCE
For the past several sessions, attempts to change Maryland from a contributory negligence state to a comparative negligence state have been unsuccessful.
House Bill 551 (failed) would have established comparative negligence as the method for awarding damages in negligence actions, prohibited contributory negligence of the claimant from barring all recovery, and altered the rule of joint and several liability, except in certain categories of cases.
Specifically, the bill would have provided that in an action for damages based on negligence resulting in death or injury to person or property, contributory negligence of the plaintiff or, in a wrongful death action, the decedent does not bar recovery if the contributory negligence was less than the combined negligence of:
(1) the persons against whom recovery is sought; and
(2) all persons with whom the plaintiff has entered into a release, covenant not to sue, settlement, or similar agreement.
Damages would have been diminished in proportion to the percentage of negligence attributable to the plaintiff or, in a wrongful death action, the decedent.
EVIDENCE
Health Care Records and Writings
House Bill 582 (passed) makes records and writings of additional health care providers admissible, without the oral testimony of the health care provider, in specified civil trials in the District Court and circuit courts by expanding the definition of "health care provider" to include: (1) an ambulatory surgical facility; (2) an inpatient facility that is organized primarily in the rehabilitation of disabled persons; (3) a home health agency defined in § 19-401 of the Health - General Article; or (4) any health institution, service, or program for which a certificate of need is required under Title 19 of the Health - General Article.
House Bill 582 also makes health
care provider writings or records admissible without the testimony of the health care
provider in a civil action filed originally in a circuit court, if the amount in
controversy does not exceed $25,000. However, the bill also clarifies that the finder of
fact may attach whatever weight to the writing or record that the finder of fact deems
appropriate. The bill further provides that the current statute does not apply to claims
filed in the Health Claims Arbitration Office. House Bill 582
applies only to cases filed on or after October 1, 1999.
House Bill 216 (passed) alters the requirements that must be met by a party who intends to introduce in evidence, without the support of a health care provider's testimony: (1) a writing or record of a health care provider; or (2) a paid bill for goods or services. Currently, a party must file a copy of the writing, record, or paid bill with the clerk of the court when a copy is served on the other parties. Instead, this bill simply requires that a party file a notice of service with the court that all other parties have been notified of the party's intent and that they have been served with copies of the writing or record or paid bill, together with a list of the writings, records, or bills, within the required time frame.
House Bill 216 also requires a list of the health care writings and records and a list of the paid bills of providers of goods or services to be served on all the other parties. The notice requirement is patterned on the current procedure for filing notice of discovery with a court under the Maryland Rules.
Paid Bills for Goods or Services
House Bill 544 (passed) establishes that a paid bill for goods or services is admissible as evidence of the authenticity of the bill and the fairness and reasonableness of the charges without the testimony of the provider of the goods or services in any civil action filed originally in a circuit court, if the amount in controversy does not exceed $25,000. The bill also clarifies that the finder of fact may attach whatever weight to a paid bill that the finder of fact deems appropriate. The bill applies only to cases filed on or after October 1, 1999.
IMMUNITY AND LIABILITY
Maryland Tort Claims Act
House Bill 466 (passed) increases, from $100,000 to $200,000, the limit on the liability of the State and its units for injuries to a claimant arising from a single incident or occurrence. This limit applies only prospectively to causes of action arising on or after October 1, 1999.
Under House Bill 466, any increase in expenditures for claims resulting in a settlement or judgment would depend upon the number of cases and the amount of the claim. Approximately 25 tort claims each year against the State are paid out at the maximum monetary limit of $100,000. Assuming this number of cases remains constant and plaintiffs seek the full amount available under the bill, State expenditures would increase by $2.5 million each year. The State Treasurer's Office advises that increasing the limits of liability could create more third-party suits.
Local Government Tort Claims Act
Senate Bill 711 (passed) extends
the immunity granted to local government employees under the Local Government Tort Claims
Act to employees of a regional library resource center or a cooperative library
corporation. Under the Act, a person may not execute against a local government employee
on a judgment rendered for tortious acts or omissions committed within the scope of the
employee's employment with the local government, unless the employee acted with actual
malice.
Currently, a local government is prohibited from indemnifying a law enforcement officer for a judgment for punitive damages if the officer has been found guilty in a disciplinary hearing under the Law Enforcement Officers' Bill of Rights as a result of the act or omission giving rise to the judgment. Senate Bill 380/House Bill 217 (both passed) limit this current prohibition against indemnification, making it apply only to an act or omission that constitutes a felony under State law.
Senate Bill 380/House Bill 217 apply only to judgments for punitive damages that are entered after October 1, 1999.
House Bill 449 (passed) establishes that the interest accrued on a judgment is excluded from the monetary caps on the liability of a local government for the tortious acts or omissions of its employees. A local government's liability is capped at $200,000 per an individual claim and $500,000 per total claims arising from the same occurrence.
Volunteer Health Care Providers and Physicians
Senate Bill 431/House Bill 610 (both passed) establish that volunteer physicians and other health care providers who render health care services "through", as well as "at", certain organizations, institutions, associations, societies, or corporations are immune from civil liability for ordinary negligence.
The bills also specifically add medical societies that are exempt from income taxation under § 501(c)(6) of the Internal Revenue Code to the types of charitable organizations through which volunteer physicians and other health care providers who render health care services are immune from civil liability for ordinary negligence.
Managed Care Entities - Health Care Treatment Decisions
Senate Bill 261 (failed) would have established that a carrier or managed care entity for a health benefit plan has the duty to exercise ordinary care when making health care treatment decisions and is liable for damages for harm to an insured or enrollee proximately caused by its failure to exercise ordinary care.
HEALTH CARE MALPRACTICE
Neutral Case Evaluation
House Bill 801 (passed) allows courts to refer health care malpractice claims to the Health Claims Arbitration Office within 6 months after the case is filed for a neutral case evaluation if the parties mutually agree. The director of the office must appoint an evaluator after a screening of candidates by the parties. Upon appointment, the evaluator must schedule a neutral case evaluation within 45 days to pursue the neutral case evaluation of the claim or to resolve any issues to which the parties agree to stipulate before trial. The evaluator is required to make a written report to the director and the court within 10 days after the results of the neutral case evaluation.
Claims for Children - Limitations
House Bill 640 (failed) would have altered the time at which the statute of repose begins on filing a health care malpractice claim for a child who was under the age of 11 at the time the injury was committed. The bill would have established that time limitations on filing a malpractice claim begin when the child reaches the age of 16. Beginning at that time, an action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider would have been required to be filed within the earlier of: (1) five years of the time the injury was committed; or (2) three years of the date the injury was discovered.
AWARDS, DAMAGES, AND OTHER PAYMENTS
Personal Injury Claims - Subrogation
Senate Bill 653/House Bill 91 (both passed) allow the amount that may be recovered by a payor (i.e., subrogee) in certain subrogation claims to be reduced by up to one-third. The bills apply to claims against an injured person for health care benefits or services paid or payable by a payor on behalf of the injured person who recovers in a claim for personal injury against a third party. The amount due to the subrogee is reduced only if the injured person voluntarily pays the subrogee's claim from the injured person's recovery in the third-party claim for personal injury.
Senate Bill 653/House Bill 91 apply to any right of subrogation for payment of health care benefits paid or payable by a payor under a policy of health insurance or any system of self-insurance or indemnification for health care expenses. However, the amount due to the subrogee is not reduced if the subrogee files a petition to intervene in the personal injury action and is independently represented by counsel in that action.
Under the bills, a payor has no obligation to advise an injured person or an attorney for the injured person of the injured person's right to a reduction of the subrogation claim for attorney's fees. Also, if an injured person or an attorney for the injured person demands a reduction of the subrogation claim, the injured person must provide to the payor, if requested by the payor, a certification that states the amount of the attorney's fees incurred by the injured person for services rendered in connection with the injured person's claim.
The amount of the subrogee's claim is reduced according to the injured person's attorney's fees (i.e., a percentage) that applies to the recovery for personal injury against the third party. The percentage used to reduce the subrogee's claim may not exceed one-third.
Injury or Death of Pet
Senate Bill 288/House Bill 214(both passed) increase the cap on the amount of damages that may be recovered for the cost of veterinary care, from $2,500 to $5,000. Additionally, the bills expand current law establishing the measure of damages for tortious injuries to a pet to include damages for death of a pet.
Wrongful Death of a Child
House Bill 1100 (passed) bars a parent from being a beneficiary in a wrongful death action for the death of the parent's child or inherit through intestate succession if: (1) the parent committed or is convicted of child abuse, incest, rape, or sexual offense; (2) the other parent of the child is the victim of the child abuse, incest, rape, or sexual offense; and (3) the other parent of the child is a child of the parent.
The bill is an emergency bill and applies retroactively to all claims for damages in an action for wrongful death or for rights in an intestate estate of a child whose death occurred on or after August 1, 1998.
Structured Settlements
House Bill 1171 (failed) would have established that a direct or indirect transfer of structured settlement payment rights is not effective unless: (1) the transfer is authorized in a court order based on a finding that the transfer is necessary, reasonable, or appropriate; (2) the transfer is not expected to subject the payee, the payee's dependents, or both to undue or unreasonable financial hardship in the future; (3) the payee received independent professional advice regarding the legal, tax, and financial implications of the transfer; and (4) the transferee disclosed to the payee the discounted present value.
Limitation on Awards for Noneconomic Damages for Occupational Exposure
Senate Bill 626/House Bill 1060 (both failed) would have lifted the current cap on noneconomic damages in an action for wrongful death or personal injury based on occupational exposure that occurred before July 1, 1986.
"Noneconomic damages" means: (1) in an action for personal injury, pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury; and (2) in an action for wrongful death, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education, or other noneconomic damages authorized under the wrongful death statute.
SERVICE OF PROCESS
House Bill 603 (passed) requires a defendant's insurer, or a person who has a self insurance plan, on written request of a party to a civil action, to provide the party with the defendant's last known home address. This requirement applies only if the plaintiff certifies that: (1) the defendant had applicable insurance coverage at the time the alleged liability was incurred; (2) the plaintiff made a reasonable effort, in good faith, to locate the defendant; and (3) the defendant evaded service of process or the whereabouts of the defendant are unknown to the plaintiff. House Bill 603 does not place any duty on the insurer to investigate the defendant's whereabouts or discover any new information.
In addition, the bill allows a party to effect service of process by: (1) delivering a copy of the summons and the complaint to a defendant personally; (2) leaving copies at the defendant's dwelling house or usual place of abode with a person of suitable age and discretion residing there; or (3) delivering a copy to an agent.
ADMINISTRATIVE APPEALS
House Bill 659 (passed) concerns administrative appeals in the circuit courts from boards of appeal decisions in home rule counties. The bill allows a party to seek a three-judge in banc appeal at the circuit court level, as an alternative to an appeal to the Court of Special Appeals. In 1998, in the Circuit Court for Prince George's County sitting in banc, the court dismissed a case stemming from a County Board of Appeals decision because it lacked jurisdiction. An in banc appeal generally allows a case to proceed faster and more economically than an appeal to the Court of Special Appeals.
DOMESTIC VIOLENCE
The Maryland Attorney General's and Lieutenant Governor's Family Violence Council, which was created in 1995 to prevent and reduce family violence and break the cycle of violence between generations, endorsed several proposals in the 1999 Session intended to increase the legal protections for victims of domestic abuse.
Dating Relationship
The most significant proposal sought to extend the protections of the domestic violence statute to those in a "dating relationship". Senate Bill 146 (failed) would have defined a "dating relationship" as a social relationship of a romantic nature which may or may not be a sexual relationship. The legislation would have authorized a court to grant a temporary ex parte order or a protective order on behalf of a person in a dating relationship, after considering the length of the relationship, the nature of the relationship, or the frequency of interaction. Currently, persons eligible for relief under the domestic violence statute include only: (1) a current or former spouse of the respondent; (2) a cohabitant of the respondent; (3) a person related by blood, marriage, or adoption to the respondent; (4) a parent, stepparent, child, or stepchild of the respondent or person eligible for relief who resides or resided with the respondent or person eligible for relief for at least 90 days within one year before the filing of the petition; (5) a vulnerable adult; or (6) an individual who has a child in common with the respondent.
Definition of "Home"
Senate Bill 202/House Bill 149 (both failed) would have altered the definition of "home" in provisions of the domestic violence law to remove the requirement that "home" be property located in Maryland. By repealing the requirement that a home be in this State, the legislation would have allowed a person who cohabitates with an abusive partner outside Maryland, and who subsequently moves to Maryland, to be eligible for relief under the Maryland domestic violence statute.
As originally introduced, House Bill 233 (passed) was identical to Senate Bill 146 and attempted to expand the protections of the domestic violence statute to include those individuals in a "dating relationship". Citing problems with the application of the definition of "dating relationship" and limitations in eligibility under the current domestic abuse laws, the General Assembly rewrote the measure to create a new form of civil relief that is significantly broader than that proposed by the original domestic violence legislation. House Bill 233 allows any individual who is not eligible for relief under the domestic violence statute and who can show a legitimate reason to fear harm from another individual to apply for a civil order, called a "peace order" requiring that other individual to stay away. The legislation is modeled on both the current domestic violence statute and the former legal remedy in Maryland known as the "peace bond", which fell into disuse and was repealed in 1973. In addition to protecting people in a "dating relationship", the legislation addresses some of the issues raised by Senate Bill 202/House Bill 149 by authorizing people who move to Maryland after being in an abusive relationship in another state to seek a peace order.
Under the legislation, an individual may file a petition in the District Court for protection from another individual who has committed any of the following acts against the petitioner, if the act occurred within 30 days of the filing of the petition: (1) an act that causes serious bodily harm; (2) an act that places the petitioner in fear of imminent serious bodily harm; (3) assault in any degree; (4) rape or sexual offense; (5) false imprisonment; (6) harassment; (7) stalking; (8) trespass; or (9) malicious destruction of property.
If the court finds that there are reasonable grounds to believe that the respondent has committed, and is likely to commit in the future, one of the specified acts, the court in an ex parte proceeding may issue a temporary peace order, (which is similar to a temporary ex parte order under the domestic violence statute), to protect the petitioner. The temporary peace order is effective for seven days after it is served on the respondent. At the expiration of the seven days, the court is required to hold a peace order hearing. If the court finds by clear and convincing evidence that the respondent has committed, and is likely to commit in the future, one of the specified acts, the court may issue a peace order, (which is similar to a protective order under the domestic violence statute), on behalf of the petitioner. A peace order may be effective for up to six months.
A peace order may order the respondent to refrain from committing or threatening to commit any of the specified acts against the petitioner, refrain from contacting, attempting to contact, or harassing the petitioner, refrain from entering the residence of the petitioner, and remain away from the place of employment, school, or temporary residence of the petitioner. Unlike a protective order, a peace order may not require a party to vacate the home, pay emergency family maintenance or child support, or make child custody or visitation arrangements.
An individual who fails to comply with the provisions of a temporary peace order or peace order is guilty of a misdemeanor and on conviction is subject, for each offense, to a fine not exceeding $1,000 or imprisonment not exceeding 90 days or both. Additionally, an individual who violates a temporary peace order or peace order is subject to an immediate warrantless arrest.
Under current law, the only remedy available to an individual who does not fall within one of the familial relationships specified in the domestic violence statute and who is being assaulted, harassed, stalked, or otherwise threatened with harm, is through the criminal system. House Bill 233 provides civil relief that is intended to deter abusive criminal conduct before it escalates.
Surrender of Firearms
Under current law, a protective order may require a respondent to surrender any firearm in the respondent's possession for the duration of the order. The proposals backed by the Family Violence Council, Senate Bill 407/House Bill 264 (both failed), would have extended this authority to provisions of law concerning temporary ex parte orders. The bills also would have broadened the current law by authorizing a court to order a search and seizure of firearms as part of a temporary ex parte order or protective order.
Additional Relief
House Bill 738 (passed) authorizes the court in a domestic violence proceeding to include in a temporary ex parte order or protective order a provision ordering the respondent to remain away from a child care provider of a person eligible for relief while a child of the person is in the care of the child care provider. "Child care provider" is defined as a person that provides supervision and care for a minor child.
Current law permits the court to order a respondent to remain away from the residence, the place of employment, school, or temporary residence of a person eligible for relief or the home of other family members.
Under current law, a defendant charged with violating an ex parte order or a protective order may be released before trial by a District Court commissioner. The commissioner may authorize the release of the defendant on personal recognizance or, if it is determined that release on personal recognizance will not reasonably ensure the defendant's appearance at trial, under specific conditions. House Bill 231 (passed) prohibits a District Court commissioner from authorizing the pretrial release of a defendant charged with violating the provisions of an ex parte order or the provisions of a protective order that order the defendant to refrain from abusing or threatening to abuse a person eligible for relief under the domestic violence statute. Under the legislation, only a judge may authorize the release of the defendant pending trial on suitable bail or any other conditions that will reasonably ensure that the defendant will not flee or pose a danger to another person or the community.
CHILD ABUSE AND NEGLECT
In the wake of the tragic child abuse death of an eight year old child in Worcester County, Maryland, several measures were introduced in the 1999 Session to increase the accountability of child protective services and to encourage the reporting of child abuse and neglect.
Senate Bill 464/House Bill 958 (both passed) establish citizen review panels to provide independent oversight of child protective services. The legislation: (1) renames the existing State Citizen Board of Review of Foster Care for Children to be the State Citizens Review Board for Children (State Board); (2) authorizes the creation of local citizens review panels; (3) codifies the Governor's Council on Child Abuse and Neglect, which was originally established by executive order in 1986, and renames it to be the State Council on Child Abuse and Neglect (State Council); (4) creates a State Child Fatality Review Team in the Department of Health and Mental Hygiene; and (5) requires the establishment of a multidisciplinary and multiagency child fatality review team in each county.
The bills expand the duties of the State Board and the State Council by requiring these panels to evaluate the extent to which State and local agencies are effectively discharging their child protective responsibilities. The State Board and the State Council are charged with performing this evaluation by examining the policies and procedures of State and local agencies and specific cases that are necessary to perform their duties. Both the State Board and the State Council are authorized to designate local citizens review panels to assist in a review of specific cases. The State Board and the State Council are required to annually prepare and make available a public report containing a summary of their activities.
The purpose of the State Child Fatality Review Team and the local child fatality review teams is to prevent child deaths by investigating child deaths, developing an understanding of the causes and incidence of child deaths, developing plans for and implementing changes within the agencies the members represent to prevent child deaths, and advising the Governor, the General Assembly, and the public on changes to law, policy, and practice to prevent child deaths.
The bills amend the current law making all records and reports concerning child abuse or neglect confidential by authorizing the disclosure of such reports or records to the State Citizens Review Board for Children, the State Council on Child Abuse and Neglect, or a child fatality review team as necessary to carry out their official functions.
In 1996, Congress amended the Child Abuse Prevention and Treatment Act (CAPTA) requiring that states, in order to receive funding under the Child Abuse and Neglect State Grants Program, establish at least three citizen review panels by July, 1999. State General Fund expenditures could increase from $200,000 to $1.9 million in fiscal 2000 as a result of this legislation; however, existing federal funds of $547,000 would be available to reimburse these expenditures.
Under current law, a health practitioner, police officer, educator, or human service worker, acting in a professional capacity, who has reason to believe that a child has been subjected to abuse or neglect is required to: (1) notify the local department of social services or the appropriate law enforcement agency as soon as possible; and (2) make a written report to the local department within 48 hours after the contact, examination, attention, or treatment that caused the individual to believe that the child had been subjected to abuse or neglect.
There is currently no criminal penalty for failure to comply with the requirement to report suspected child abuse or neglect. However, police officers, teachers, licensed social workers, and certain health care practitioners (including nurses and physicians) who knowingly fail to report suspected child abuse are subject to professional sanctions.
House Bill 724 (failed) would have made it a misdemeanor for a private or parochial school teacher to fail to report the abuse or neglect of a child, subject to a maximum fine of $500 and a maximum term of imprisonment of 90 days.
House Bill 778 (failed) would
have made it a misdemeanor for a health practitioner, police officer, educator, or human
service worker to knowingly fail to provide a required notice or report of suspected child
abuse or neglect, subject to a fine not exceeding $1,000.
House Bill 148 (passed) establishes hearing procedures for individuals who challenge child abuse or neglect findings and sets forth requirements for the maintenance of data regarding abuse and neglect investigations in the computerized database operated by the Department of Human Resources.
The law requires that after a local department of social services completes an investigation and makes a finding of "indicated" or "unsubstantiated" child abuse or neglect, the local department must notify the alleged abuser or neglector of that finding and of his or her right to appeal the finding by an administrative hearing. Under current law, "indicated" means a finding that there is credible evidence, that has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur. "Unsubstantiated" means a finding that there is an insufficient amount of evidence to support a finding of indicated or ruled out abuse. Hearings to contest these findings are called "Chapter 318 hearings" in reference to the legislative act that created them in 1993. Chapter 318 hearings provide only for a review of a local department's records and do not allow for the presentation of evidence or testimony by the accused.
Additionally, under the law, before the Department of Human Resources may enter the name of a suspected abuser or neglector in a "central registry" of reported cases, the Department must give the individual notice and an opportunity for a hearing to appeal the entry. In C.S. v. Prince George's Co. Dept. of Social Services, 343 Md. 14 (1996), the Court of Appeals held that before the name of an individual who is suspected of abuse or neglect may be entered in a central registry, the individual must be offered a full contested hearing under the Administrative Procedure Act with the right to judicial review and not simply the limited hearing specified by Chapter 318.
Currently, the Department stores information concerning suspected child abusers and neglectors in an "Automated Master File" (AMF) or "Client Information System" (CIS). The AMF and CIS are statewide, comprehensive databases containing records of all cases, including those of suspected child abuse or neglect, that are handled by local departments of social services.
On April 9, 1998, the Court of Appeals ruled in Montgomery Co. Dept. of Social Services v. L.D., 349 Md. 239 (1998), that the AMF and CIS databases operated by the Department and local departments of social services are "central registries." Accordingly, the Court held that anyone suspected of child abuse or neglect is entitled to a full contested case hearing and the right to judicial review before his or her name may be entered into these databases.
The Department of Human Resources asserted that as a result of the Court's decision in L.D., a finding of child abuse or neglect and the use of the AMF or CIS databases to track the case triggers the right to duplicative appeals processes, a Chapter 318 hearing and a contested case hearing, both of which are focused on the "correctness" of the finding.
House Bill 148 streamlines the hearing procedures by eliminating the more limited record review and oral argument appeal process of Chapter 318 and substituting a single contested case hearing for those cases in which abuse or neglect is indicated. For findings that abuse or neglect is unsubstantiated, the bill provides for a conference between the local department and the accused with an opportunity for the accused to challenge the outcome in a contested case hearing.
Additionally, the bill authorizes the Department to enter in a central registry the names of the individuals related to an abuse or neglect investigation (the child, the parent, members of the household, or suspected abuser or neglector) unless the case has been ruled out or the finding has been expunged. However, an individual may only be identified as responsible for the abuse or neglect in the registry if the individual has been found guilty of a crime or has been found responsible for indicated abuse or neglect and has either unsuccessfully appealed the finding or failed to make a timely appeal.
MARRIAGE AND DIVORCE
Marriage
House Bill 388 (passed) was introduced in response to the recent marriage of a 13 year old girl to a 29 year old man in Anne Arundel County. Under current law, an individual 16 or 17 years of age may not marry unless: (1) the individual has parental consent; or (2) either party to be married submits a certificate from a licensed physician that the woman to be married is pregnant or has given birth to a child. Also, under current law, an individual under the age of 16 may not marry unless: (1) the individual has parental consent; and (2) either party to be married submits a certificate from a licensed physician that the woman to be married is pregnant or has given birth to a child. Currently, there is no stated age below which an individual is prohibited from marrying.
Current provisions of law authorizing an individual under the age of 16 to marry conflict with provisions of the criminal code prohibiting sexual offenses against a child. For example, vaginal intercourse between a person younger than 14 and someone 4 or more years older is second degree rape, which is a felony punishable by a maximum 20 year prison term. Additionally, it is a third degree sexual offense for a person 21 years of age or older to engage in vaginal intercourse with another person who is 14 or 15 years old. Also, it is a fourth degree sexual offense for a person to engage in sexual intercourse with another person who is 14 or 15 years old if the perpetrator is 4 or more years older than the other person.
Under the State's marriage laws, a person who has committed any of these specified crimes could marry the victim. After marriage, the victim spouse could claim a privilege from testifying against the perpetrator spouse, making prosecution of any premarital sexual offense difficult.
House Bill 388 prohibits the marriage of an individual under the age of 15.
Senate Bill 282/House Bill 250(both passed) make several changes to provisions of current law concerning the duties of circuit court clerks regarding marriage licenses and the contents of marriage licenses. Most significantly, the bills provide "one stop shopping" for marriage license applicants by authorizing a clerk to deliver a marriage license at the time of the application. However, the license will not become effective until 6 a.m. on the second calendar day after the license is issued. Under current law, a clerk may not deliver a marriage license until 48 hours after the time an application is made.
Additionally, the bills permit the issuance of replacement licenses in all counties and set a fee of $10 for the replacement license. Currently, only Anne Arundel County expressly provides for the issuance of a replacement license.
Finally, the bills alter the forms for marriage licenses and certificates to accommodate the changes proposed in the manner of delivery, to reflect the upcoming year 2000, and to conform to current practice by which the information is entered onto these forms.
Divorce
House Bill 430 (failed) would have required a party who files a complaint or countercomplaint for absolute divorce or annulment to file, on the request of the other party, an affidavit stating that the affiant has taken all steps solely within the affiant's control to remove all religious barriers to remarriage by the other party. Under the bill, if an affidavit were requested, the court would be prohibited from entering a decree for absolute divorce or annulment until the affidavit is filed.
The proposal was intended to address what has been described as the withholding of Jewish religious divorces, despite the entry of civil divorce decrees, by spouses acting out of vindictiveness or applying economic coercion. The problem is faced mainly by Orthodox Jewish women whose marriages have ended . Under traditional Jewish law, a civil divorce does not dissolve the marriage. Only a religious divorce, called a "get" is sufficient to do so. The husband has the power to grant or withhold the get. He cannot be compelled under Jewish law to grant it. A civilly divorced husband who is indifferent to the barrier of his own remarriage may refuse to grant the get. If his wife does want to remarry within the Orthodox tradition, her husband's recalcitrance about the get might well coerce her into making harmful concessions in settlement negotiations preceding the civil divorce. House Bill 430 was intended to induce parties to a divorce proceeding to seek religious relief on pain of being deprived of civil relief.
Senate Bill 406/House Bill 72 (both passed) authorize a court, in proceedings involving absolute divorce, limited divorce, and property disposition in annulment and divorce, to award to either party the reasonable and necessary expense of prosecuting or defending the proceeding. Before ordering the payment, the court must consider the financial resources and financial needs of both parties and whether there was substantial justification for prosecuting or defending the proceeding. If the court finds an absence of substantial justification for prosecuting or defending the proceeding and an absence of good cause to the contrary, the court is required to award expenses to the other party.
The law permits a court to award costs and counsel fees in cases involving alimony, child support, custody, and visitation. Therefore, a party involved in a divorce action that may or may not involve issues of property is not entitled to an award of fees unless the case involves children or a claim for alimony. The bills expand the proceedings in which a court could award the reasonable and necessary expenses of prosecuting or defending the proceeding to include proceedings involving divorce alone or divorce in combination with property disposition.
CHILD SUPPORT
The Child Support Enforcement Privatization Pilot Program established in 1995 by the General Assembly would have terminated on June 30 of this year. Senate Bill 720/House Bill 1059 (both passed) extend the program to October 31, 2002, in order to further evaluate its effectiveness. Additionally, the bills authorize the expansion of child support enforcement demonstration sites that compete against privatization contractors from one to not more than six jurisdictions. For a more detailed discussion of Senate Bill 720/House Bill 1059, please see Part M - Human Resources of The 90 Day Report.
CHILD CARE
The deaths of two infants in a family day care house on Kent Island last year raised concerns about the safety of children in child care settings.
House Bill 117 (Ch. 68) requires the Department of Human Resources to adopt regulations requiring each registered family day care provider to hold a current certificate indicating successful completion of approved basic first aid training through the American Red Cross or an equivalent program and age appropriate cardiopulmonary resuscitation (CPR) training through the American Heart Association or an equivalent program. The Act also requires the Department to adopt regulations requiring child care centers to have in attendance at all times at least one individual who is responsible for supervision of children, including children on field trips, and who holds a current certificate indicating successful completion of approved basic first aid training and CPR training. Child care centers serving more than 20 children must have at least one certificate holder in attendance for every 20 children. These requirements become effective July 1, 2000.
Currently, there is no requirement that individuals who provide care for children be certified in first aid or CPR. Current regulations require only that family day care providers and child care centers have an individual in attendance who has completed six hours of CPR training without certification.
House Bill 299 (passed) authorizes the Department of Human Resources to make unannounced inspections of each family day care home in any year that an initial or renewal inspection has not taken place. Additionally, the bill requires an inspection of a family day care home prior to the issuance of an initial registration and at least once every two years thereafter prior to the issuance of any renewal registration.
Currently, there is no requirement that an inspection be conducted prior to the issuance of an initial registration; however, a thorough evaluation of every prospective family day care home and day care provider is to be completed before the Department of Human Resources may accept an initial registration. Also, current law requires an inspection of family day care homes every two years but does not require an inspection to be conducted before a renewal registration is issued. There is currently no provision for unannounced inspections of family day care homes.
Senate Bill 289/House Bill 271(both passed) require a residential educational facility to be licensed by the Social Services Administration for the residential portion of its programs by January 1, 2000. A "residential educational facility" is defined to mean a facility that provides special education and related services for students with disabilities, holds a certificate of approval issued by the State Board of Education, and provides 24-hour care and supportive services to children in a residential setting. A "residential educational facility" includes the Benedictine School, the Linwood School, the Maryland School for the Blind, and the Maryland School for the Deaf.
The bills also authorize the Department of Human Resources to adopt regulations relating to the licensing of residential educational facilities. The licensing requirements for residential educational facilities do not apply to child care homes and child care institutions that are already licensed and institutions that accept only children placed by the Department of Health and Mental Hygiene or the Department of Juvenile Justice. A residential educational facility must still obtain a certificate of approval from the State Board of Education for its educational programs.
Current law does not require that residential educational facilities obtain a license from the Social Services Administration. All four of the schools specifically covered under the legislation have been certified by the State Board of Education for special education curriculums. Three of the schools are private schools and the fourth school, the Maryland School for the Deaf, is an independent State agency.
ADOPTION AND FOSTER CARE
Maryland and every other state have programs for assisting the adoption of children with special needs. Special needs children include those with disabilities, emotional disturbances, or special medical conditions. In the absence of adoption subsidies, many special needs children would not be adopted because the costs of meeting the needs of these children are far greater than those of caring for normal, healthy children who are available for adoption.
According to the Department of Human Resources, a significant limitation on the effectiveness of Maryland's adoption assistance program has been the inability to assure prospective adoptive parents that they will receive the contemplated assistance, particularly medical assistance coverage, when they live in other states or move from Maryland to another state. The Interstate Compact on Adoption and Medical Assistance, which 36 states have joined, provides a mechanism for interstate assistance delivery.
Senate Bill 96/House Bill 370(both passed) authorize the Social Services Administration of the Department of Human Resources to develop, participate in the development of, negotiate, and enter into one or more interstate compacts on behalf of this State with other states to provide procedures for interstate adoption assistance payments, including medical payments.
Senate Bill 480 (passed) is intended to restrict an individual's ability to be a foster parent to other children until the individual first provides support for his or her own children. The legislation requires the Social Services Administration of the Department of Human Resources to adopt regulations that authorize the Administration to: (1) conduct a background check of child support arrearages on an applicant for foster home approval who is also a biological or adoptive parent; and (2) consider any child support arrearage of an applicant in determining whether to approve or disapprove the application.
Under current regulations, a foster family must have sufficient income and financial stability to provide reasonable living conditions for their own family group without depending upon the reimbursement for basic foster care.
DISCRIMINATION BASED ON SEXUAL ORIENTATION
Legislation to prohibit discrimination based on sexual orientation has been considered by the General Assembly for the past several sessions. This session, as part of the Administration's legislative package, Senate Bill 138/House Bill 315 (both failed) would have prohibited discrimination based on sexual orientation with regard to public accommodations, labor and employment, and housing. Current law prohibits discrimination in these areas on the basis of race, sex, creed, color, religion, national origin, marital status, and physical and mental handicap. Although the House of Delegates passed House Bill 315, the Senate did not act on either bill.
HUMAN RELATIONS COMMISSION
Jurisdiction
Under current law, the Maryland Human Relations Commission (MHRC) does not have jurisdiction in employment discrimination cases over employers with less than 15 employees. In Molesworth v. Brandon (1996), the Maryland Court of Appeals held that an at-will employee of an employer with less than 15 employees has a common law cause of action for wrongful discharge. The court held that small employers are merely excluded from the administrative process of the MHRC law, but not from the public policy underlying the law. The effect of the Molesworth case is that small employers are exposed to greater liability in wrongful discharge cases than large employers.
Senate Bill 140/House Bill 186 (both failed) would have given the MHRC jurisdiction over employment discrimination complaints filed against an employer in Maryland with one or more employees. These bills also would have authorized the MHRC to award compensatory damages to a complainant. Compensatory damages would have been capped according to the number of employees of the employer.
Disability
House Bill 59 (Ch. 60) is a technical bill that substitutes the term "disability" for "handicap" and "physical or mental handicap" in the Human Relations Commission statutes to reflect the currently acceptable terminology to describe persons who have a physical, mental, or sensory condition that manifests itself through a functional limitation that interferes with a person's ability.
LANDLORD/TENANT
Landlord-Tenant Actions
House Bill 605 (passed) revises Title 8 of the Real Property Article relating to the laws governing landlords and tenants. The bill is the result of the recommendations of the Commission to Review Landlord-Tenant Laws and is intended to enhance the equity, efficiency, and effectiveness of the State's landlord-tenant laws. The bill's major provisions include the following:
House Bill 605 clarifies that rent under a protective order commences with the rent next due after an action for nonpayment of rent was filed. It also allows the rent normally paid into escrow with the court to be paid directly to the landlord if the landlord and tenant agree or at the discretion of the judge. The bill further specifies the circuit court procedures in these cases.
Under current law, a lease may contain a lease option agreement, which gives the tenant the right to buy the leased property. If a lease option agreement is defective, both the lease and the lease option agreement are void, regardless of the intentions of the tenant and landlord. House Bill 605 authorizes a lease option to be a separate document from the lease and requires the lease to contain specified information, including that it is not a contract to buy. The party that did not draft the lease option agreement may void the lease and/or the lease option agreement if the agreement is defective.
Under current law, landlords are required to deposit security deposits into a bank or savings institution located in Maryland and pay 4% simple interest on security deposits. Also, current law does not define "leased premises," which creates some confusion as to what damages may be assessed against a security deposit. Under House Bill 605, landlords are authorized to hold security deposits in a broader range of insured financial instruments, including certificates of deposit and federal and State securities. Landlords are also authorized to use a security deposit to recover damages caused by tenants, their guests, and invitees, to common areas, major appliances, and furnishings.
Generally, a landlord is only required to provide a residential tenant with a receipt if the tenant makes payment in person by means other than a check. As a result, landlords whose tenants pay by money order or who do not pay in person are not required to provide those tenants with a receipt. House Bill 605 requires all landlords to provide tenants with a receipt for rent if the tenant makes the payment in cash or requests a receipt. In addition to any other penalty, a landlord is liable to the tenant for $25 if the landlord does not provide the required receipt.
Under current law, written leases are optional. There are a number of provisions that are prohibited from inclusion in a written lease if the landlord owns more than four units in a jurisdiction. These provisions include a tenant's ability to waive certain rights, late fees in excess of five percent of the rent due for the rental period for which the payment was late, and a shorter notice to quit the lease. House Bill 605 requires landlords who own five or more rental units throughout the State to use a written lease that includes certain information and is prohibited from containing other specified information (including the prohibitions listed above).
The law has been interpreted to prevent a tenant from bringing a civil action for a retaliatory eviction. House Bill 605 clarifies that a tenant may bring such an action.
Most courts require that each time a tenant fails to pay rent, the landlord must file a separate case against the tenant, rather than amend an existing filing. As a result, if a tenant fails to pay rent and the case is heard after the next month's rent is due, the court is only authorized to consider the rent due from the month for which the case was filed although additional rent may then be owed to the landlord. House Bill 605 authorizes a landlord seeking eviction of a tenant for nonpayment of rent to request the court to include in the judgment all rent that is due as of the court date.
There is some confusion in the District Court system as to how to process a tenant's demand for a jury trial. House Bill 605 clarifies how the District Court is required to process jury demands, including filing requirements, notification requirements, and review of demands for jury trials.
Limit on Collecting Back Rent
While there has no express limit on how many years back rent a landlord can seek in a collection action, the general provisions of § 5-101 of the Courts Article require a civil action to be filed within three years from the date it accrues unless another provision of the Code provides otherwise. On occasion, a landlord will attempt to collect more than three years' back rent, arguing that because a lease is "under seal" a longer limitation period, that is, 12 years, would apply under § 5-102(a)(5) of the Courts Article. When a lease is up for renewal and a tenant has not satisfactorily kept up with the rent, a landlord may demand and collect up to three years back rent from the tenant before renewing the lease.
House Bill 971 (passed) limits the amount of back rent a landlord is entitled to demand or recover to three years back rent. This three-year limitation applies to all residential leases or subleases in effect on or after October 1, 1999, which have an initial term of 99 years and which create a leasehold estate, or subleasehold estate, subject to the payment of an annual ground rent.
Fees for Service of Summary Ejectment Papers
For landlord-tenant summary ejectment cases, House Bill 110 (failed) would have required a sheriff to collect a $5 fee for service of summary ejectment papers for each location and an additional $5 fee for each tenant for whom personal service is requested. The bill was intended to provide a uniform fee structure statewide for the service of summary ejectment papers.
CONDOMINIUMS - DISCLOSURE REQUIREMENTS FOR PUBLIC OFFERING STATEMENTS
A contract for the initial sale of a condominium unit to a member of the public is not enforceable by the vendor unless the purchaser receives certain information, including a public offering statement. House Bill 106 (Ch. 66) requires a public offering statement to include a plain language statement of the policies for collection of assessments and delinquencies as well as details about the number and percentage of delinquencies among the unit owners. The Act also clarifies that the public offering statement must be filed not less than annually with the Secretary of State, whose office is charged with enforcing the Maryland Condominium Act.
SALE OF NEW HOMES - DISCLOSURE OF ENVIRONMENTAL HAZARDS
House Bill 161 (passed) expands the list of disclosures builders must make when selling a new home. The bill applies to both builders who participate in a new home warranty security plan and nonparticipating builders. Under the bill, a builder is required to disclose any hazardous or regulated materials on the site of a new home of which the builder has actual knowledge or make a statement that the builder makes no representations or warranties as to whether there are any hazardous or regulated materials on the site of a new home. The hazardous and regulated materials required to be disclosed include asbestos, lead-based paint, radon, methane, underground storage tanks, licensed or unlicensed landfills, licensed or unlicensed rubble fills, and other environmental hazards. The disclosure provisions contained in House Bill 161 are similar to those already required of property owners for subsequent sales of residential homes.
HOMEOWNERS ASSOCIATIONS FAMILY DAY CARE HOMES
Senate Bill 403/House Bill 803 (both passed) prevent homeowners associations from prohibiting the use of a residence as a family day care home until the lot owners, other than the developer, have 90% of the votes in the homeowners association. Under current law, a homeowners association may include in its declaration, bylaws, or recorded covenants and restrictions a provision that expressly prohibits the use of a residence as a family day care home.
The bills also specify that the approval of provisions that expressly prohibit the use of a residence as a family day care home must be made by a simple majority of the total eligible voters of the homeowners association, excluding the developer. Current law allows the developer, who often initially holds the majority of votes in a homeowners association, to prohibit family day care homes in the community at the outset.
In addition, Senate Bill 403/House Bill 803 repeal the ability of a homeowners association to include in its governing documents a provision that regulates the number or percentage of family day care homes operating in the homeowners association.
BALTIMORE CITY COMMUNITY ASSOCIATIONS - NUISANCE ABATEMENT AND LOCAL CODE ENFORCEMENT
Senate Bill 522/House Bill 387 (both passed) allow more Baltimore City community associations to seek a remedy for community problems such as vacant lots, sanitation issues, and illegal dumping.
The bills amend the definition of "community association" which under current law, authorize a community association in Baltimore City to bring an action in the circuit court seeking abatement of a qualifying nuisance. The bills change the required composition of a "community association" from a Maryland nonprofit association, corporation, or other organization that is comprised of "at least 25% of adult residents of a local community consisting of 40 or more individual households" to one that is comprised of "at least 25 households or 25% of the households, whichever is less, of a local neighborhood consisting of 40 or more individual households." Senate Bill 522/House Bill 387 also alter the notice requirements that must be satisfied before a community association may bring an action to abate a nuisance.
WATER AND SEWER AUTHORITIES - DISCLOSURE OF DEFERRED CHARGES
A contract has been required for the initial sale of improved, residential real property to disclose to prospective purchasers any estimated deferred water and sewer charges, as established by the appropriate water and sewer authority. Senate Bill 444/House Bill 673 (both passed) include contracted private developers within the definition of water and sewer authority so as to require that potential home buyers receive notice up front of the charges developers assess for constructing water and sewer subdivision lines.
Senate Bill 444 defines "water and sewer authority" to include a person to whom the duties and responsibilities of a water and sewer authority have been delegated by a written agreement or in accordance with a local ordinance. Under House Bill 673, the person must be delegated duties and responsibilities by the Washington Suburban Sanitary Commission.
GUARDIANS
Guardianship of Disabled Person - Certificates of Competency
Under current law, a petitioner seeking guardianship of a disabled person is required to file with the petition certificates of competency by two licensed physicians, at least one of whom must have examined the disabled person within 21 days before the filing of the petition.
House Bill 290 (passed) broadens the persons who may provide a certificate of competency by allowing the required certificates to come from either two licensed physicians or one licensed physician and one licensed psychologist. In addition, the bill alters the examination requirement by allowing either a physician's examination or a psychologist's evaluation to occur within the 21 day period.
Guardianship of Property of Disabled Person or Minor - Powers
Once a person has been appointed guardian of the property of a minor or disabled person, a circuit court has all the powers over the property that the individual could exercise if not disabled or a minor. In addition, the law specifically authorizes the guardian of the property of a minor or disabled person to make payments from the income or principal of the estate for the general care and welfare of the minor or disabled person.
However, the law has made no mention of a guardian's authority to make gifts for estate planning purposes. The Internal Revenue Service has challenged the authority of a Maryland guardian to make gifts for estate planning purposes although the guardian obtains circuit court approval. The IRS has determined that such gifts are not expressly authorized to be made by a guardian under State law and therefore are included in the decedent's estate for estate tax purposes. House Bill 758 (passed) clarifies that after the appointment of a guardian of the property of a minor or disabled person, a circuit court has the power to authorize or direct the guardian to:
(1) make gifts from the principal and income of the estate; and
(2) disclaim on behalf of the minor or disabled person, in whole or in part, the right of succession or transfer to that person of any property or interest in any property.
PERSONAL REPRESENTATIVES AND FIDUCIARIES
Reinstatement of Personal Representative
Generally, there are two types of probate processes in Maryland - administrative probate and judicial probate. Administrative probate is instituted when an interested person files a petition with the register of wills in the appropriate county. A personal representative is then appointed and probate proceeds.
If the validity of a will is challenged or if judicial probate is otherwise required, administrative probate is suspended and judicial probate is substituted with a special administrator responsible for the estate during the judicial probate. If a personal representative had been appointed under administrative probate, that appointment is terminated and the personal representative has the powers and duties of a special administrator. The role of a special administrator is to merely protect the property of the estate and the powers of a special administrator are much more limited than those of a personal representative.
When a request for judicial probate is withdrawn or dismissed, the only means of reinstating the previous personal representative has been by an order of court. Under House Bill 757 (passed), the appointment of a personal representative of a decedent's estate is automatically reinstated on a dismissal or withdrawal of a request for judicial probate.
Conversion of Sole Proprietorship to Limited Liability Company
A personal representative or fiduciary may convert a sole proprietorship that a decedent was engaged in at the time of the decedent's death into a corporation, but not into a limited liability company (LLC). The conversion of a sole proprietorship into an LLC is often preferable to conversion into a corporation because of reduced business liability and better federal tax treatment. In 1997, legislation was enacted that specifically authorized single-member LLCs (Chapter 659 of 1997), but a corresponding change was not made in the powers of a personal representative or a fiduciary.
House Bill 759 (passed) authorizes a personal representative or a fiduciary to convert a sole proprietorship of the decedent at the time of death to a limited liability company. For personal representatives, this conversion power may be limited or nullified by the decedent's will or by a court order. For fiduciaries, this conversion power may be limited or nullified by the governing instrument or by any limitation imposed by the appropriate court.
ORPHANS' COURT - STAY OF PROCEEDINGS
A party may appeal a final judgment of an orphans' court to the circuit court or the Court of Special Appeals. House Bill 760 (passed) provides that any appeal from an orphans' court or a circuit court stays all proceedings in the orphans' court concerning the issue appealed, except a proceeding in the orphans' court that does not concern the issue appealed, if the orphans' court can provide for conforming to the decision of the appellate court.
INTESTATE SUCCESSION - INCEST
House Bill 1100 (passed) provides that a parent who has been convicted of child abuse, a sexual offense, or incest with a child of that parent, or committed any of these acts with a child of that parent, may not inherit through intestate succession if the decedent was born as the result of incest between the parent and a child of the parent.
House Bill 1100 is an emergency bill that applies retroactively to a death occurring on or after August 1, 1998.
DISTRIBUTIONS, LIENS, AND REFUNDS
Distribution in Kind
A family allowance, intestate succession, statutory share, or legacy payable in cash may be satisfied by value in kind if:
(1) the person entitled to payment has not demanded payment in cash;
(2) the property distributed in kind is valued at fair market value as of the date of its distribution; and
(3) a residuary legatee has not requested that the asset in question remain as a part of the residue of the estate.
Courts have interpreted this law as allowing a person entitled to payment to demand cash for that person's entire share. The result of this ruling is that a person entitled to payment can potentially drain all of the cash reserves out of an estate. This ruling goes against the intent of the original law which established a preference for distribution in kind and directs the personal representative to make distribution in kind whenever feasible and to convert assets to cash only where there is a special reason for doing so.
House Bill 771 (passed) clarifies that a person entitled to payment may not demand cash for that person's entire share, unless the estate is comprised entirely of cash. A person entitled to payment may still demand cash for the portion of the estate that is otherwise payable in cash.
Lien for Nonpayment of Inheritance Tax
A lien against property for the failure of a foreign (i.e., out-of-state) personal representative to pay the inheritance tax on the property lasts for a period of four years from the date of death of the decedent.
However, a separate statute establishes a different duration for an inheritance tax lien applicable to Maryland personal representatives; generally, the duration of a lien for unpaid inheritance tax arises on the date of distribution and continues for four years.
House Bill 434 (passed) increases the duration of an inheritance tax lien arising from the failure of a foreign personal representative to pay inheritance tax to correspond to the same duration applicable to a Maryland personal representative.
Limitation Period for Refund Claim
House Bill 431 (failed) would have altered existing limitation periods for refund claims. First, House Bill 431 would have provided that if property or money of a decedent escheats (that is, reverts) through intestate succession to the Department of Health and Mental Hygiene or a county board of education, a claim for a refund may not be filed more than eight years from the date of distribution of the property.
Second, where a legatee or heir is not found or resides outside of the United States, House Bill 431 would have provided that if a personal representative has transferred money or property to a county board of education, a claim for a refund may not be filed more than eight years from the date of distribution of the property.