ACLU of Maryland in Annapolis
2006 Legislative Wrap-Up
Each year, the ACLU of Maryland works in the Maryland General Assembly to ensure the civil liberties and civil rights of all Marylanders are protected and strengthened. We are represented in Annapolis by contract lobbyists Mindy Binderman, Ann Ciekot, and Barbara Hoffman on education issues.
The ACLU of Maryland’s priorities for the 2006 General Assembly session were to ensure full funding of the Thornton education funding plan, increase state funding for critical public school facility needs, win a veto-override for the Voters Rights Protection Act, and defeat any attempt to pass a constitutional amendment banning same-sex marriage.
In addition, we worked on a host of other important issues, including changing Maryland’s voting system to include a voter-verified paper trail, extending the franchise to ex-offenders, extending access to emergency contraception through pharmacists, ensuring that public funds were not diverted to faith-based initiatives, abolishing the death penalty, and enacting various criminal justice reforms.
The ACLU of Maryland won a significant victory right out of the gate again this year, when the General Assembly overrode Governor Robert Ehrlich’s veto of the Voters Rights Protection Act from last year’s session. We also were instrumental in greatly increasing the funding for the staggering public school facilities needs in the state, which we feel is essential to provide students with an adequate education. In addition, the ACLU helped to beat back efforts to pass a constitutional amendment that would have denied the protections of the constitution to thousands of gay and lesbian couples and their children.
New challenges and unexpected opportunities always arise in the General Assembly’s three month session, but the ACLU’s mission remains firm: to ensure that all people in the state of Maryland are free to think and speak as they choose and can lead their lives free from discrimination and unwarranted government intrusion.
The following is a summary of the ACLU’s advocacy during the 2006 legislative session:
EDUCATION REFORM
“Thornton” Education Funding. The ACLU of Maryland was instrumental in ensuring an increase of $466 million in the state budget for K-12 education, as the phase-in toward full funding of the Bridge to Excellence Act (“Thornton”) continues. This represents an increase of 11.6 percent. Baltimore City students, whom ACLU represents in Bradford v. Maryland State Board of Education, are slated to receive $62 million in additional funding in the coming year.
However, the original Thornton formula was not restored. Efforts to mandate funding for the Geographic Index, for counties with higher costs to provide education services, did not succeed. This important part of the Thornton formula should have added $139.8 million to schools by 2013 with a 50% phase in beginning in fiscal year 2009. The bill passed the Senate but stalled in the House when an issue of equity emerged (see “Equity” below).
School Construction. Victory! (in part)
· State Capital budget: A state task force established that Maryland schools need over $4 billion to remedy hazardous conditions, deficient building systems, and overcrowding. The ACLU advocated strongly for $400 million in state funding for school construction in fiscal year 2007, joining the Maryland Association of Counties, and others. Last year’s capital funding for schools was $250 million. The Governor announced in October that he intended to fund school construction at $150 million. By January, he increased the amount to $281 million. The legislature then added additional funds bringing the statewide total up to $322 million for fiscal year 2007.
· State Capital budget for City schools: Baltimore City is to receive $39 million of the $321 million, compared to $21.5 million from the State last year. The City’s share of state capital funding increased from 2006 to 2007 from 8.6% to 12.2%. This increase is due in large part to the efforts of the ACLU prior to the session to encourage Baltimore City to submit a request for capital funds that better reflected their huge backlog of need. Ultimately, the size of the request was a factor in determining how much each jurisdiction received. Though the funding is greater, this amount does not correspond to the great need of aging City school buildings, measured by the state Task Force as over $600 million.
· Capital Budget Add-on: The ACLU also successfully advocated for an increase to Maryland’s Aging Schools Program, from $11.5 million to $15.1 million. The Aging Schools Program is a formula driven program that directs funds to school districts based on age of its schools, allowing flexible funds for repairs to older buildings.
· Facilities Legislation: The ACLU worked to pass a bill to create a “Deficiencies in Schools Correction Fund,” which called for spending $250 million a year for five years, in addition to the regular capital budget. The ACLU also developed a bill to redirect 25% of the State’s regular school construction funding into the Aging Schools Program, to ensure that districts with older buildings would receive funding necessary for repairs. For these hearings, the ACLU organized parents and students from Prince George’s, Anne Arundel and Baltimore Counties, and Baltimore City to present testimony explaining the dire need for additional school facility funding. A student photo exhibit of school conditions was presented at an Annapolis gallery, and received significant media attention.
However, the bills did not get out of their respective committees; there is a great reluctance in the General Assembly to mandate the substantial amount of funding needed, and to direct it to the jurisdictions with the greatest documented need. Nonetheless, the ACLU would like to thank to Del. Keith Haynes and Sen. Nathaniel McFadden (both D-Baltimore City) for their leadership on the issue.
Equity and Fairness in Education Funding. In January, when it was disclosed that changing the filing deadline for tax extensions would inadvertently affect the distribution of state education aid, the ACLU began to push for a legislative correction which would maintain the equity of the aid formula. (Historically, Maryland has measured county wealth on September 1st of each year, for purposes of determining the amount of state education aid each county receives. However, because the federal government has changed the date by which late tax filers have to file their taxes- from August 15 to October 15th- a large portion of local wealth will not be captured if the date remains September 1st.) If the wealth is not accurately counted, 20 counties in Maryland will receive less education funding than is appropriate. Prince George’s County stands to lose about $20 million in education funding, whereas Montgomery County would gain substantial funding.
The ACLU educated the media and worked with affected counties to advocate for HB 1742, which would have changed the Sept. 1 date to Nov. 1. The ACLU stressed that maintaining the integrity of the long-standing wealth-based education formula was critical. However, jurisdictional rivalries and an emphasis on “winners” and “losers” doomed the bill. Even when combined fiscal notes with the Geographic Index indicated that Montgomery County would still gain funds, this bill (and the index bill) did not get out of the House Ways and Means Committee. Having no bill pass means that Montgomery and Baltimore counties will gain education funds and all the other counties will lose funds. This issue will re-surface in coming months. We would like to thank Del. Doyle Niemann (D-Prince George’s) for his work on the issue and his dedication to equity and fairness.
CRIMINAL JUSTICE
RWOC expungement. A slew of bills were introduced this session that would have required automatic expungement of the criminal records of tens of thousands of people arrested and released without criminal charges in Baltimore City. Unfortunately, all the versions were voted down by the House Judiciary Committee. The bills would not have reformed the practice of illegal arrests in Baltimore, but they would have ameliorated some of the practice’s most damaging effects.
The Baltimore Fraternal Order of Police raised concerns that if the records were expunged they could not defend themselves against charges of wrongful arrest. This argument was a red herring, however, because only the public record would be expunged so that individuals would not be blocked from employment and housing opportunities. Indeed, the ACLU wants the police to maintain detailed records of each arrest.
Another sticking point was making the bill retroactive. At issue was whether the tens of thousands of people already caught up in the BCPD’s illegal arrest dragnet would have to waive their right to sue for wrongful arrest in order to get their records expunged.
But despite the fact that Baltimore legislators and the City Administration all lined up behind RWOC expungement at the beginning of session, no compromise could apparently be reached. The ACLU of Maryland believes this is a travesty of justice, and we will return to fight for the issue next year.
Repeal of the death penalty. The ACLU again supported legislation to abolish the death penalty in Maryland. Rachel King, formerly an attorney with the national ACLU’s Capital Punishment Project, testified on behalf of the ACLU of Maryland. Also testifying against the bill was Bob Coe, a leader in the ACLU’s Montgomery County Chapter. Four years since the release of the University of Maryland study finding racial and geographic bias in the application of the death penalty – there once again is no legislative action to reform our system of capital punishment. Therefore, the ACLU is looking to the courts: the ACLU’s challenge to Maryland’s death penalty procedure will be heard this May by the Court of Appeals.
Eyewitness Identification Reform. The ACLU worked again with the Public Defenders Office and a growing number of other advocacy groups to pass SB 863/HB 807 -- legislation to reform Maryland’s process of identifying suspected criminals through eyewitness testimony. Unlike most other evidence in criminal cases, eyewitness testimony is direct evidence of guilt. But many researchers, and studies done by the Department of Justice, have shown that mistaken eyewitness identifications are the overwhelming reason for wrongful convictions.
Del. Samuel Rosenberg (D-Baltimore City) again took the lead, along with Sen. Delores Kelley (D-Baltimore County). They introduced legislation that would have established the admissibility of expert testimony on the reliability of eyewitness ID evidence, required a record of the process by which an individual ID is made, and required that that record be made available to a defendant. Rachel King, a former attorney with the ACLU’s Capital Punishment Project, was a strong advocate for the bill, drafting amendments that ameliorated some concerns raised by legislators.
Ultimately, the bill passed the Senate, was favorably reported by the House Judiciary Committee, and was primed for passage in the House. But up-to-the-last-minute consideration of energy utility reform legislation kept the bill from ever receiving a full vote on the House floor. The ACLU is confident that the compromise version has a good shot at passing next year.
Electronic interrogation recording. The ACLU advocated for HB 414, legislation that have required statements of a defendant under interrogation to be recorded electronically in order for them to be admissible in court. Every year, hundreds of Americans are wrongly convicted of crimes because of false confessions. On the other side of the coin, many law enforcement officers are charged each year with abusing prisoners and/or misstating what they said during unrecorded sessions. The ACLU believes that these problems can be avoided by recording entire interviews from the Miranda warning until the person is released from custody.
The bill was introduced by House Judiciary Committee Chairman Joseph Vallario (D-Prince George’s), as well as many other sponsors. Despite this deep support, the legislation was still bogged down by disagreements about the language. Ultimately, the Committee could not agree on amendments and the Chairman withdrew the bill rather than let it receive an unfavorable vote this year. The ACLU will work to ensure that these issues do not block passage next year.
FREE SPEECH
Funeral Protest Bans. All across the nation and here in Maryland, there has been a tidal wave of state legislatures that have passed bills banning the activities of the Westboro Baptist Church – a virulently anti-gay group that has made headlines for protesting at military funerals and institutions. The group, which is also anti-semitic, anti-Catholic, anti-Protestant, and racist, calls for more soldiers to be killed because, in their warped view, soldiers’ deaths are God’s vengeance for the U.S. showing tolerance towards gays and lesbians. Surely, their message and tactics are reprehensible. But banning their speech is also unconstitutional.
Like legislation that keeps anti-choice activists from blocking clinics, HB 850 would make it illegal for protestors to block another person’s entry to or exit from a funeral, burial, memorial service, or funeral procession. The ACLU has no objection to this provision. Other provisions, however, violate the First Amendment.
One provision says that “a person may not address speech to a person attending a funeral, burial, memorial service, or funeral procession that is likely to incite or produce an imminent breach of the peace.” The Supreme Court has made clear that the “fighting words” doctrine cannot be used to silence unpopular speech, just because it might arouse a hostile audience, and has repeatedly struck down similar statutes as unconstitutionally vague.
Another provision creates a 300 foot buffer zone around all funerals in which picketing “targeted at one or more persons attending the funeral” is prohibited, though all other picketing in such locations would be permissible. This provision is unconstitutional because it is not content neutral because all other protests are permitted in the same location. In addition, the Supreme Court has never upheld a restriction as large as 300 feet.
The ACLU understands the impulse to counteract the Westboro Baptist Church. Here in Maryland, we have spoken out strongly against the group. But the best defense against their message and tactics actually is already being practiced across the country. Peaceful counterprotestors have organized to protect the mourning families. It is a classic example, which the ACLU has seen time and again, that the best way to fight speech we don’t like is more speech, not less.
GLBT RIGHTS
“Marriage Amendment.” Victory! The ACLU of Maryland, along with our partners at Equality Maryland, successfully fought off two major attempts at passing a state constitutional amendment that would have reiterated current law in Maryland denying the legal protections that come with a marriage license to thousands of families headed by same-sex couples. These “marriage amendments” seek to forever enshrine in our state constitution discrimination against families headed by same-sex partners. The ACLU firmly believes that constitutions should be used to confer rights and protections, NOT to take them away.
The first major attempt came with HB 48, introduced by Del. Don Dwyer (R-Anne Arundel), on which the House Judiciary Committee heard over 7 hours of testimony from more than 160 people on both sides of the issue. Those who testified in favor of fairness included civil rights leaders, religious leaders, constitutional law professors, social workers, and members of many families headed by same-sex partners. The testimony was at times heart-wrenching, as parents testified about situations such as having to show adoption papers before being able to see their own child in the emergency room.
The House Judiciary Commission voted unanimously against the bill, after Del. Kathleen Dumais (D-Montgomery) successfully attached an amendment to the bill that would have permitted civil unions. Supporters of HB 48 showed their true colors in voting against civil unions, after many of those legislators argued at the hearing that their concern was only with marriage and that they did not oppose legal protections for same-sex couples. Then, the full House voted 78-61 to reject an attempt to revive the amendment. In saying “NO,” many legislators spoke out about how it is appropriate for the issue to be fully addressed by the judicial branch of government. There were also many legislators who spoke out in favor of fairness for same-sex couples and their families.
Another attempt was made on the Senate side, weeks after another emotional hearing in the Senate Judicial Proceedings Committee. Senate Minority Leader Lowell Stoltzfus (R-Lower Shore), attempted to move SB 690 out of the Committee and directly to the floor for debate. This motion came after Sen. Stoltzfus failed in his attempt to petition the bill to the floor, which would have required the signatures of 16 out of 47 senators. Once the motion was made, Sen. Brian Frosh (D-Montgomery), the chairman of the Committee, immediately sought to postpone the Stoltzfus motion indefinitely; Sen. Frosh’s motion passed 26 to 21, effectively ending the effort this session.
IMMIGRANT RIGHTS/PRIVACY
Real ID implementation. Victory (so far)! The ACLU of Maryland opposes the implementation of the federal Real ID Act in the state. The Act imposes regulations on the design, issuance and management of state driver’s licenses – turning them, for all practical purposes, into federal identity papers. In addition, the Act would force Maryland to deny drivers’ licenses to persons who cannot prove lawful presence in the U.S. The ACLU believes such a ban would be wrong-headed and hinder the ability of the MVA to ensure people operating vehicles are able to do so safely, because a new class of unlicensed drivers would threaten our security by being forced underground. Legislators have soundly defeated such attempts to restrict driver’s licenses in past years.
Now, the Real ID Act threatens to create an unfunded mandate that dictates to Maryland how our drivers licenses will look, who they can be given to, and how the personal information collected about drivers will be managed and used. What is more, completing these forced changes by the 2008 federal deadline amounts to an unfunded mandate, carrying heavy expenses that will have to be absorbed by Maryland taxpayers and license applicants. So far, no implementation legislation has been passed by the General Assembly.
RELIGIOUS LIBERTY
Public $$ for Public Schools. Victory! The ACLU continued to oppose taxpayer-funded subsidies to private schools this session, including SB 740, which would have established income tax credits for private school teachers to get graduate level education. In addition, we opposed a new proposal this year, SB 946 the “BOAST” bill, which would have siphoned off millions of dollars from the State’s coffers to subsidize private schools, in addition to supporting undefined “innovative programs” in our public schools. The BOAST proposal seemed to be primarily a backdoor attempt to enact private school vouchers, especially for religiously-run schools.
The ACLU firmly believes that publicly-funded vouchers for religiously-run schools are part of a political and ideological crusade, not a plan for education reform. We believe that it is neither the responsibility nor the proper role of the State to subsidize education outside the public school system. There is no need, since all students are already offered a free education at the state’s public schools, which need to be the State’s focus. Neither bill got out of committee.
REPRODUCTIVE FREEDOM
Emergency contraception. A broad coalition of pro-choice advocates, including the ACLU of Maryland, came together this session to fight for SB 297, which would have made emergency contraception available through pharmacists. This was common-sense legislation that would have expanded access to safe and effective contraception for women when they need it most, in emergencies.
SB 297 also would have made a big difference in the lives of the many women in Maryland without health coverage, who have no doctor they can go to in order to get a quick prescription for EC. This access is especially important because EC must be used within 72 hours of having unprotected sex; every hour that passes increases the chance that a woman becomes pregnant, after which EC will not work. EC is prevention, not abortion.
We were only one vote short of passing the EC bill in the Senate this year. With this slimmest of margins, and with common sense on our side, the ACLU will work to ensure that next year Maryland is once again shown to be the pro-choice state that it is!
Family planning funding. Victory! The ACLU, along with our partners in Marylanders for the Right to Choose, successfully advocated for an increase of $500,000 in state family planning funding, which has not been raised since 1996.
VOTING RIGHTS
Voters Rights Protection Act. Victory! The ACLU of Maryland’s advocacy in Annapolis got off to a strong start this session, when legislators overrode Gov. Ehrlich’s veto of last year’s SB 287/HB 5 -- the Voters Rights Protection Act. The legislation, which was an ACLU priority last session, will now bolster the right of voters to cast a provisional ballot while outlawing voter fraud and the use of misrepresentation to suppress voter turnout.
The Voters Rights Protection Act addresses many of the problems the ACLU of Maryland observed when we monitored the 2004 election. These problems included poll workers and election judges who were improperly turning voters away from the polls or denying voters their right to cast a provisional ballot. The Act will also address campaigns of voter intimidation and fraud, such as were seen in the 2002 statewide election. In one notorious incident reported by the Baltimore Sun in 2002, flyers were posted in some African-American neighborhoods in Baltimore and read “URGENT NOTICE. Come out to vote on November 6th [the wrong day]. Before you come to vote make sure you pay your parking tickets, motor vehicle tickets, overdue rent and most important any warrants.”
Such tactics have no place in a civilized democracy. They are a shameful continuation of the era when Americans were prohibited from voting because of their race. However, many of these activities were not illegal in Maryland. Now, they are. Enacting the Voters Rights Protection Act is a significant victory that will help protect the rights of voters during statewide elections this fall.
Voter-verified paper trail. The fight for a voter-verified paper trail, which would help ensure transparency and accountability in our voting system, made significant progress this year. HB 244, a bill that would have required a paper trail, was passed unanimously by the House. It included an amendment that would have instated an emergency plan – the “Hixson-Bobo plan” after Dels. Sheila Hixson (D-Montgomery) and Liz Bobo (D-Howard) – to lease an optical scan voting system for the statewide election this fall. But concerns over chaos during the election this fall, as well as disagreement over what acceptable voting systems could be implemented in time, killed the prospects for any paper trail for the 2006 statewide election.
A strong and growing coalition came together to fight for a paper trail this session, which changed the discussion of the issue from whether to have a paper trail to what kind of paper trail system is best and when can it be implemented. The ACLU of Maryland will continue to work with allies during the coming year to both monitor this fall’s elections and prepare the groundwork for Maryland to adopt a voting system that is accurate, verifiable, transparent, and fully accessible to all voters.
Judicial elections. Maryland voters who are not affiliated with any political party are effectively shut out from voting for Circuit Court judicial candidates. In 2004, the ACLU of Maryland filed Suessmann v. Lamone on behalf of unaffiliated voters who were kept from voting for judicial candidates because, although they run as unaffiliated, they appear on the ballots in party primaries. The case went to the Maryland Court of Appeals, which ultimately disagreed with us, reasoning that the current system represented “a policy of keeping partisanship out of judicial elections as far as possible without abandoning the long-established infrastructure of political party primaries.”
For the last two years, the ACLU of Maryland has fought to change the law to ensure that unaffiliated voters are not disenfranchised. Several proposed reforms were offered this session, most notably from Del. Bobby Zirkin (D-Baltimore County) and Sens. Allan Kittleman (R-Carroll & Howard) and Roy Dyson (D- Calvert, Charles & St. Mary's Counties). Although initially promoting their own proposal, the Maryland Judicial Conference eventually dropped their opposition to a plan that would have allowed for a separate ballot for unaffiliated voters at the primary elections so they could cast their vote for judicial candidates.
The compromise bill, SB 324, passed the Senate unanimously. Unfortunately, it then got bogged down in the House Judiciary Committee as the session drew to a close and no reform was passed. The ACLU is very disappointed that this basic voting rights issue, which causes the disenfranchisement of thousands of Maryland voters, could not have been resolved in time for elections this fall.
ID requirements. Victory! The ACLU of Maryland strongly opposed a range of bills this session that would have required that voters show identification at the polls. ID requirements disproportionately impact the poor and elderly, who may not have drivers’ licenses or access to a location where they can obtain IDs. In addition, voters must pay fees for such forms of identification, which amounts to an unconstitutional poll tax on voters.
While it is vital to ensure our voting system is free of fraud, there has been no demonstrated problem of fraud perpetrated by individual voters in Maryland. Certainly, the state should not institute a policy that effectively disenfranchises the most vulnerable segments of society without showing how a specific “reform” would fix a problem plaguing Maryland. What is more, the ACLU believes that adequate security can be achieved through the current use of provisional ballots, which comply with the Help America Vote Act, passed after the voting debacle in Florida during the 2004 election. None of the ID bills got out of committee in either the House or Senate.
Ex-offender voting rights. This year, the ACLU of Maryland continued the fight for the voting rights of the thousands of Marylanders who disenfranchised due to past convictions. The State Board of Elections has said that current law, which requires a three-year waiting period before ex-offenders can apply to have their voting rights reinstated, jeopardizes the ability of many to vote‚ especially poor people, African Americans and Hispanics.
Along with our partners in the Maryland Voting Rights Restoration Coalition – greatly expanded this year as concern about the issue has grown – advocated for HB 603, which would restore a person’s right to vote immediately upon being released from prison. Unfortunately, legislators did not seem eager to take this issue up during an election year, fearing the public seeing this issue as about being “soft on crime” as opposed to being an important component of the kind of rehabilitation promoted by Governor Robert Ehrlich and a majority of legislators themselves. The legislation never got of the House Judiciary Committee.
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