THE ACLU IN ANNAPOLIS - 2004

The ACLU of Maryland’s priorities for the 2004 General Assembly were to fully fund the Thornton education funding plan, ensure that public funds were not diverted from state programs to faith-based initiatives, protect a woman’s access to reproductive health services, extend legal protections to gay and lesbian couples, and champion the rights of immigrants amidst a wide-ranging legislative assault.

The state’s $830 million budget shortfall was a primary focus for legislators, with the session beginning and ending with a standoff on how to bridge the fiscal gap. A legislative logjam resulted from the standoff until the final days of the session, when legislators attempted to slog their way through as many bills as possible. Many bills that the ACLU advocated for this session were ultimately defeated during the rush to finish in the final hours. These bills included a domestic registry for same-sex couples, a state commission to study the death penalty, and expanded protection from hate crimes for gays and lesbians.

Significant victories on many of our priority issues came with the resounding defeat of: anti-immigration bills seeking to authorize local police to detain immigrants; measures to amend Maryland’s constitution to ban same-sex marriage; attempts to impose unnecessarily onerous regulations on abortion clinics; and legislation that would have greatly expanded the types of crimes eligible for the death penalty. In addition, the ACLU was a key player in restricting Ehrlich’s ability to unilaterally allocate funds to faith-based organizations and in defeating a host of bills that would have provided state subsidies for non-public schoolteachers.

The ACLU also championed several other important bills that won approval.  These include: legislation to strengthen the right of individuals under the Maryland Open Meetings Act; a bill that protects juveniles by making it more difficult for them to waive their right to counsel; a measure that would make it easier for homeowner’s associations to remove discriminatory language from covenants; and passage of Governor Robert Ehrlich’s plan to divert non-violent drug offenders from jail and into treatment.

Following is a wrap-up of the ACLU’s work in Annapolis this session:

CHURCH/STATE

Faith-Based Funding.  The ACLU helped to score a significant victory this session when strict limits were imposed on the governor’s proposed Office of Faith-Based and Community Initiatives. Senate President Mike Miller and other leaders shared our concerns regarding the separation of church and state, and demanded that the purpose and funding of such an initiative should not be unilaterally decided by the Ehrlich administration. The General Assembly made it clear that it wants to have a hand in deciding what kinds of programs and organizations are appropriate to fund. Budget language prohibiting the Governor to establish a faith-based program without the prior authorization of the legislature passed.

The ACLU also was successful in defeating another troubling faith-based funding measure. House Bill 1233 would have established the Community and Faith-Based Partnership Council to collect and disseminate information about programs that offer financial assistance to specified community and faith-based organizations and to provide training to community and faith-based organizations.  The legislation died in committee.

Public Subsidies for Private Schools.  The ACLU also continued its work with the Public $$$ for Public Schools Coalition to monitor taxpayer funded subsidies for non-public schools. Again this year, the budget submitted by Governor Ehrlich contained money for textbooks for non-public schools. Successful lobbying by the Coalition over the years has reduced the subsidy, which was first introduced as an annual $6 million budget item by former Governor Parris Glendening five years ago, down to $2.9 million this year. We also were successful in defeating a bill that would have allowed teachers who benefit from state-funded education scholarships to go on and fulfill their service obligation in private schools. With our public schools suffering from a lack of qualified teachers, the ACLU contended that it would be misguided to steer teachers whose education is paid for by the state away from public schools.

CIVIL RIGHTS

Supreme Court Corrective Act.  The Supreme Court Corrective Act – an important piece of legislation that would enable private citizens and state employees to sue the state when it violates the Americans with Disabilities Act (ADA) and other landmark federal labor and civil rights laws – hit now-familiar roadblocks again this year. The Act would correct a troubling Supreme Court ruling that Congress cannot make the states subject to lawsuit under the ADA and other fair employment laws unless the state agrees to be sued. This is the third year for the bill, which was again championed by Del. Sandy Rosenberg. Testimony in support was submitted by Kevin Knussman, the “Trooper Dad” who was told he could not be granted leave under the federal Family and Medical Leave Act to care for his daughter when his wife was sick; Randy Whaples, who sued Cambridge to establish access to municipal buildings for disabled individuals; Elbridge James from the Maryland NAACP; and Elizabeth Samuels, a professor at the University of Baltimore Law School. Unfortunately, the bill’s poison pill is exaggerated fear of the cost of lawsuits that could be brought if it passed. The ACLU will be convening a strategy group to ensure that citizens retain their rights under these landmark labor and civil rights laws.

Restrictive Covenants.  The ACLU successfully advocated for House Bill 1042, sponsored by Del. Rosenberg and many others, that will make it easier for homeowners associations to remove language from covenants meant to discriminate on the basis of race or religious belief. Such restrictions have been unenforceable since 1948, when the Supreme Court ruled them to be unconstitutional. Today, it is common belief that such covenants are meaningless because they are unenforceable. But, for example, when an African American family purchases a home in a neighborhood where the deeds harken to a time when those of their race were only permitted as servants, the reminder is painful and unnecessary.  Changing these covenants has been an unnecessarily difficult task in Maryland with state law requiring that 100% of homeowners in a neighborhood vote to remove the covenant language.  HB 1042 lowers the threshold to 85% of homeowners within a given neighborhood. Such a change still mandates that an overwhelming majority of homeowners approve a change while facilitating the ability of communities to erase a stain from a repugnant past of discrimination.

CRIMINAL JUSTICE

Drug Treatment Over Incarceration.  The ACLU worked with the Campaign for Treatment Not Incarceration – a coalition of more than 34 organizations – to build Governor Ehrlich’s support for promoting drug treatment over incarceration for offenders convicted of non-violent crimes. The Campaign started off the session with comprehensive legislation, HB 797, which was sponsored by Del. Obie Patterson, chair of the Maryland Legislative Black Caucus, among other key legislators. Ultimately, many provisions of the Campaign’s bill were folded into Ehrlich’s legislation. The package allows:  those already serving jail time for non-violent drug crimes to be eligible for parole in a drug treatment program; those arrested for non-violent drug crimes to have sentencing held pending successful completion of a drug treatment program; and offenders to have records of the arrests expunged upon successful completion.  It also allows for a court to consider a report and recommendation from a drug treatment provider before revoking parole if the offender fails to report or tests positive for drug use. This new policy for Maryland is a significant step forward, and promises to have positive ramifications in vulnerable communities around the state.

Juvenile Right to Counsel.  An alarming trend in criminal justice was revealed in a study last year, which showed that 40-58% of Maryland children and youth charged with crimes waive their right to counsel. The study, conducted by the Mid-Atlantic Juvenile Defender Center and the American Bar Association, sounded the alarm for many legislators who feared that a huge percentage of children caught up in the criminal justice system were not benefiting from due process. A legislative fix, Senate Bill 163, moved quickly through the General Assembly and ultimately passed. The bill prohibits a child from waiving the right to have the assistance of legal counsel except after they have been counseled by the relevant court. The bill also prohibits a parent, guardian, or custodian from waiving the child’s right to the assistance of counsel.

DEATH PENALTY

Maryland Commission on Capital Punishment/Repeal.  The ACLU pushed hard this session for the General Assembly to take action on the state-sponsored report issued last year detailing bias in the application of the death penalty.  The original study by Dr. Raymond Paternoster found that the race of the victim and where the crime takes place has more to do with whether prosecutors seek the death penalty than the individual culpability of the defendant or the seriousness of the crime. For this session’s debate, Paternoster took a closer look at the data from Baltimore County, the jurisdiction that seeks and imposes the most death sentences in Maryland, and found that the statewide patterns in the original study are replicated within the county. The new analysis shows that the chance that the state’s attorney would seek a death sentence was about twice as high if the defendant was black rather than white. In addition, the likelihood of a death sentence being sought was higher in white victim cases. When these two characteristics are combined, black offenders who killed white victims were nearly three times more likely to have the death penalty sought in Baltimore County and over three times more likely to have a death sentence imposed.

Along with our partners in the Maryland Coalition Against State Executions, the ACLU pushed legislation introduced by Del. Salima Siler Marriott to abolish the death penalty. The ACLU is troubled that no action was taken after the Paternoster study was released last year, particularly when a moratorium on the death penalty was narrowly defeated in the General Assembly in 2003.

The easiest way for the state to address these serious problems is to do away with capital punishment altogether. The bill that went the farthest this session was one that would have established a state commission to study the death penalty. Sen. Ralph Hughes introduced SB 744 and the Senate passed it overwhelmingly. There was a real sense by legislators that some action was needed on the serious issues raised by the University of Maryland study. Sen. Hughes’s bill would have created a framework for fully airing the relevant issues and producing a set of legislative recommendations for the General Assembly to consider. The bill ultimately stalled in the House Judiciary Committee, where legislators were ensnared in wrangling over how to address the budget deficit. We are encouraged by the Senate’s strong vote for SB 744 and plan to carry that momentum into next year.

EDUCATION REFORM

To come.

FREEDOM OF SPEECH

Homeowners Associations and Free Speech.  Legislation was introduced this session by Del. Joseph Boteler from Baltimore County that protects the right of homeowners and tenants to express their patriotism by flying a United States flag even when such an action would be prohibited by rules adopted by a homeowner or condominium association, or a landlord.  The ACLU supports this concept, but we believe that the desire to fly the American flag is not the only form of expression that should be protected. We have received complaints from tenants and residents in condominiums or those residing in homes governed by homeowners associations who have been told they cannot engage in what would otherwise be constitutionally protected speech.  For example, the ACLU was recently contacted by a Marine Corps veteran who had been told by the homeowners association that he could not fly his Marine Corps flag.  We have also been contacted by a resident of a homeowners association who had been told she could not put up a political poster in the window of her home. We submitted a friendly amendment to the bill that would have extended its protections to other forms of “passive” expression, such as noncommercial signs, posters, flags, or banners.  This would protect everyone’s ability to engage in the fundamental right of free expression, regardless of the content of their speech and where they live. While the bill passed, our amendment was not adopted this year.  We will introduce the more comprehensive language next year.

Roadway Solicitations.  The ACLU opposed House 187, which authorizes the Anne Arundel County Council to enact a permit ordinance regulating people who wish to solicit donations from motorists on public roads. The ACLU believes that the practice of soliciting donations is a protected form of speech, and so we contended that such regulation would be an unconstitutional prior restraint on free speech rights. In addition, the policy would allow the government to discriminate in favor of certain organizations. HB 187 permits fire companies along with religious, fraternal, civic, war veterans, or charitable organizations to have preferential access to the roadways. The goals of these groups may be laudable, but discrimination in their favor is not permitted by the First Amendment.  The roadways of Anne Arundel County are public property and a traditional public forum, which demands strict judicial scrutiny when restricting any speech that happens there. Unfortunately, it is difficult to oppose local bills sponsored by the county delegations, and the legislation was passed by the General Assembly.

GAY RIGHTS

‘Defense of Marriage’ Bills.  The ACLU was instrumental in soundly defeating a host of “defense of marriage” (DOMA) bills that sought to clog up the works in Annapolis in order to reiterate that only heterosexual marriage is legal in Maryland, which is currently legal reality. The House Judiciary Committee voted decisively against the measures. Another win on this front came when a group of legislators tried to attach one of the defeated bills to another bill on the House floor. That attempt was squashed 52-82, with Del. Emmett Burns, one of the bill’s original sponsors, voting against the attempt to thwart the legislative process.

Medical Decision Making Act.  The ACLU worked in coalition with Equality Maryland to win passage for House Bill 1284, which would create a domestic registry for same-sex couples and any two people living together who are 62 or older. The bill would guarantee limited rights, including the right to visit a partner in the hospital and to make medical decisions for a partner. The hearing for the bill was marked by the personal testimony of Del. Anne Kaiser from Montgomery County, who became the third member of the General Assembly to self-identify as gay in order to put a human face on the serious problems that lack of legal recognition can cause. The bill engendered wide bipartisan support and easily passed the House. The great momentum propelling the bill was blocked in the Senate Education, Health and Environmental Affairs Committee, where Sen. Sandra Schrader from Howard County voted against the bill, despite previous indications to constituents.  Her vote killed the legislation. Even still, the ACLU believes that the strong support from the House and a close vote in the Senate are encouraging for next year’s session.

Hate Crimes.  The ACLU supported legislation that would have expanded the scope of existing Maryland Hate Crimes law to include sexual orientation and gender identity. The House passed the bill without the language on gender identity.  The Senate Judicial Proceedings Committee also passed the bill, again without the gender identity language.  On the Senate floor, Sen. Alex Mooney from Frederick and Washington Counties threatened to introduce a number of amendments to the bill, which constituted a filibuster. The bill was then special ordered and did not come up again for a vote.

IMMIGRANT RIGHTS

Mandatory Detention by Local Police. The ACLU joined with the Friends of New Marylanders Coalition this year to fight a package of bills by Baltimore County legislators targeting the rights of immigrants. Most troubling for advocates of civil liberties was new legislation introduced under the aegis of fighting terrorism that would have recast community police officers as federal immigration enforcers. The legislation sought to require police officers to demand immigration documents, even for minor civil offenses, and detain immigrants in Maryland’s overcrowded jails until the federal authorities pick them up. The ACLU contended that such legislation threatens the security of Marylanders by undermining the ability of local jurisdictions to set their own priorities for law enforcement. Our argument was supported by a large group of legislators, headed by Baltimore County Del. Shirley Nathan-Pulliam, who sponsored a counter-measure that would have banned local police from engaging in such practices. That bill was able to successfully channel opposition and the attack on Maryland’s community policing model never made it out of the House Judiciary Committee.

Voting Rights. The ACLU provided an important legal analysis of House Bill 56, which sought to trade on an unfounded fear of immigrants to justify policies that would have further depressed the already depressingly low voter registration and turnout rates in Maryland.  The legislation would have required that a voter provide a voter registration card when voting, which violates the Maryland Constitution and is preempted by federal law. The bill also violated federal law by seeking to require that a person show a certified copy of their birth certificate, a passport, or naturalization papers issued by the Federal Government in order to register to vote. The ACLU believes that the state should focus on ways of improving voter participation, not waste time constructing obstacles to the democratic process. The House Ways and Means Committee felt similarly and rejected the legislation.

Consular IDs.  Baltimore County legislators also took aim at the use of consular identification cards -- issued by some foreign governments to nationals living in the United States -- as unacceptable forms of identification for use when doing business with the state or private businesses in Maryland. In fact, the House Bill 7 would have barred all forms of identification issued by foreign governments, including passports, unless accompanied by a visa or permanent resident card. This requirement seemed to be a back-door way of trying to  force non-citizens to prove their lawful presence in the U.S. each time they present ID, which would constitute unconstitutional discrimination against aliens. Along with the whole group of anti-immigrant bills this session, HB 7 was rejected in Committee.

OPEN GOVERNMENT

Maryland Open Meetings Act.  This is a banner year for legislation furthering the principle of open government. Howard County legislators sought to reverse a troubling decision in 2003 by Circuit Court Judge James B. Dudley, who ruled against Ellicott City lawyer Allen Dyer’s open-meetings claims against the school board. Dyer had accused the school board of gathering in illegal closed sessions, failing to give proper meeting notice, neglecting to provide timely records to the public, and taking action outside its authority in private. The judge ruled that the school board’s alleged violations did not affect Dyer any more than the general population, and therefore Dyer did not have the right to sue in court. This ruling touched-off a firestorm of advocacy in defense Marylanders’ ability to hold their local governments accountable. The Howard County legislators led the successful charge to pass legislation that would extend to any person the right to petition the circuit court when a public body fails to comply with the Maryland Open Meetings Act. The ACLU believes that a government of the people and by the people must be visible to the people. The tremendous support shown for this legislation has demonstrated a welcome commitment to open government in Maryland.

REPRODUCTIVE RIGHTS

Fetal Rights. The ACLU strongly opposed House Bill 520 and House Bill 802/Senate Bill 349, which all sought to confer personhood upon an unborn fetus. Fetal rights bills will continue to be introduced and pushed by anti-choice forces in Maryland.  It is likely that with the recent passage of federal fetal rights legislation, the effort will gain momentum.  It will be essential for pro-choice advocates to have a strong, pro-active strategy planned prior to the 2005 session in order to effectively defeat these measures.

In the House Judiciary Committee, HB 520 was a bill that would have established a separate crime for murder, manslaughter or homicide against a viable fetus.  The definition of viability was the one utilized in existing Maryland law on abortion. The Pregnant Woman’s Protection Act (House Bill 1267), which was introduced by Del. Neil Quinter from Howard County and supported by the ACLU, was a counter measure to the fetal rights bills.

A vocal group of pro-choice legislators expressed deep concern about the coalition’s support of the Pregnant Women’s Protection Act.  They were concerned both about giving enhanced rights to a woman just because she is pregnant and about the potential of anti-choice amendments being added to the bill on the floor.  We had many discussions about strategy, and, after hearing that the Judiciary Committee planned to kill HB 520 and pass HB 1267, a delegation of pro-choice legislators asked House Speaker Mike Busch to intercede and ask Chairman Joseph Vallario to put the bills in his drawer and allow them both to die without a committee vote, which is ultimately what happened.

HB 802 was assigned to the Health and Government Operations Committee in the House since, by making the crimes of homicide and assault apply to the fetus at any stage, the bill had the potential of undermining existing definitions of viability.  The bill was defeated by the Committee. In the Senate, SB 349 passed out of the Judicial Proceedings Committee.  This was a disappointment because advocates believed the pro-choice Committee Chair, Sen. Brian Frosh from Montgomery County, would hold the bill because he knew there were enough votes in his committee to pass it.  Thanks to the tremendous efforts of pro-choice senators who were at one point poised to filibuster, the bill was amended on the Senate floor, debated on five different days, and then postponed indefinitely.  The floor vote to special order the legislation was troublingly close, just 24-23.

Restrictions on Abortion Facilities.  The ACLU fought a new strategy by opponents of reproductive freedom this session that sought to place unnecessarily onerous restrictions on facilities that provide safe abortion services. The so-called Women’s Health Protection Act (HB 1156 & SB 265) was a broad bill that included clinic regulations, medical malpractice insurance requirements, unprecedented punitive damages, waiting periods and data reporting. The HB 1156 was withdrawn by the sponsor, who knew there were enough votes in the Health and Government Operations Committee to kill it.  The Senate version, SB 265, did not receive a vote in Committee, but the votes were there to kill it as well.

Another clinic regulation bill by Sen. Andrew Harris was potentially more dangerous because it was written much more narrowly and would have required clinics to be regulated in much the same manner as ambulatory surgical centers. There was some debate as well as to whether the bill also would have regulated doctor’s offices.  SB 471 did not receive a vote in committee after the Chairwoman of the Education, Health and Environmental Affairs Committee, Sen. Paula Hollinger from Baltimore County, learned of Sen. Sandra Schrader’s intent to support the bill and thus ensure its passage.  This bill is likely to return with greater support in 2005.

Emergency Contraception.  Hope was high this year that we could win passage for legislation to create a legal framework for dispensing emergency contraception (EC) at pharmacies. The campaign had been strengthened when the FDA’s Reproductive Health Drugs and Nonprescription Drugs Advisory Committee in December recommended a program of over-the-counter EC for retail pharmacies, even though the FDA ultimately rejected the program later during legislative session. We lobbied hard to make the most of the opportunity and promote this safe alternative to abortion. But once again, Sen. Sandra Schrader was a key vote against reproductive choice on the Education, Health and Environmental Affairs Committee. With anti-choice votes in the legislature getting closer, the ACLU’s affirmative agenda on choice issues becomes more challenging. Emergency contraception should be seen as a winner for both sides of the abortion debate, since it prevents conception and thus limits the need for abortion. We will work hard to ensure legislators recognize the wisdom of adopting the sound policy of making EC available over the counter.

Medicaid Funding for Medically Necessary Abortions. The ACLU once again successfully ensured that poor women who need medically necessary abortions can received funding through Medicaid. This perennial issue is always a challenge. This year, Sen. Andrew Harris from Baltimore and Harford Counties was successful in attaching a floor amendment that would have prohibited any state funded Medicaid abortions. The amendment also would have directed the Department of Health and Mental Hygiene to identify federal and state funding sources and review the utilization of existing resources that support non-profit organizations that offer information, counseling, education, pregnancy testing, and pre-natal support services to pregnant women. This radical proposal was soundly defeated.

VOTING RIGHTS

Ex-Offender Voting Rights. The ACLU supported two bills to restore the right to vote to individuals with certain past felony convictions who have been released from corrections facilities.  These measures were introduced by longtime allies Senator Delores Kelley and Delegate Salima Marriott.  Denying the right to vote to individuals with past felony convictions undermines our democracy, presents serious civil rights concerns, and is nearly impossible to fully enforce without implementing a costly tracking system. More than 150 ex-offenders came from across the state to attend committee hearings and hold a rally in Annapolis in support of SB 105 and HB 329.  The ACLU has been an active member of the Maryland Voting Rights Restoration Coalition, a coalition of over 60 members, including organizations such as NAACP, League of Women Voters, and I Can't, We Can and individuals such as former secretary of state John Willis and University of Maryland School of Law Professor Sherilynn Ifill.  Despite moving testimony and tremendous support, and no opposing testimony, both bills were not voted on in the committees where they were introduced.

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