The Impact Fee Study That Never Was, Part II

Call this the sequel to my post captioned “The Impact Fee Study That Never Was.” That post described how the Baltimore County Council made a serious mistake during the enactment of Bill No. 16-19 by creating a discrepancy between the bill as enacted and the legal prerequisites for enacting the bill described in the official explanations of both the bill and its state enabling act.

The Fiscal and Policy Note prepared by the General Assembly’s Department of Legislative Services and the Fiscal Note prepared by the Baltimore County auditor stated that the council had to conduct an impact fee study before imposing an impact fee. Nevertheless, Bill No. 16-19 was passed without an impact fee study being done.

The council made things unnecessarily complicated because of its apparent ignorance of a change in the law.

This post deals with related issues, the first of which is what appears to be the motivation for both Bill No. 16-19 and its state enabling act, Chapter 657 of the 2019 Laws of Maryland. In my first post, I quoted Councilman David Marks’ statement of his understanding of the inherent difference between development impact fees and development excise taxes:

“Impact fees are different than excise taxes in that revenue must be spent in a localized manner — in other words, money collected from a development must be used for schools, roads, and infrastructure near the affected community. Money from an excise tax can be spent anywhere.”

He went on to explain the reason for his decision to eschew the county’s longstanding authority to adopt a development excise tax in favor of his bill enacting a development impact “fee” as follows:

“Mr. Olszewski has shown himself to be a thoughtful and collaborative leader, but there is a historical mistrust in Baltimore County, and not just between communities and developers as Mr. Plymyer asserts. There is real fear that a partisan county executive will use his or her power to reward loyal communities or punish adversaries. That is exactly why my legislation requiring localized spending of impact fee revenue is better.” [Emphasis added.]

I explained in my first post how Mr. Marks appeared to fail to understand how a 2018 decision by the Court of Appeals, Dabbs v. Anne Arundel County, had changed the law regarding impact fees. As a consequence of that change in the law, if all that Mr. Marks wanted to do was restrict the use of school impact funds to the school district from which they were collected, he could have done that by a simple amendment to the development excise tax bill introduced at the request of the county executive, Bill No. 23-19.

Going the route of an amendment to Bill No. 23-19 would have eliminated the need for the General Assembly to enact Chapter 657 of the 2019 Laws of Maryland and for the council to enact Bill No. 16-19. More importantly, it would have avoided the legal mess caused by the apparent confusion over the need for an impact fee study. 

There is a better way to deal with the council’s fear of the county executive.

If the motivation for Bill No. 16-19 was indeed fear of the power of the county executive over the Board of Education budget, then isn’t it better to address the power imbalance directly, rather than to make a hash of a major piece of legislation? Here is what I am talking about:

The Baltimore County Council is the only county council in Maryland that lacks the power to restore any denial or reduction made by a county executive in the budget submitted by the local board of education. (The Baltimore City Council also lacks the power to do so.) Under § 5-102(c) of the Education Article of the State Code, the power to restore any denial or reduction made by the county executive in the budget submitted by the BOE will be given to the council if approved by the voters of the county as a charter amendment.

Council members, why don’t you pass a resolution putting that measure on the ballot in 2020? Let the voters decide. If the voters approve the charter amendment, then the council rather than the county executive would have the final say on which capital projects proposed by the BOE get funded. If the voters reject the amendment, then the voters have told you that they trust the county executive over you, and you just live with that fact and stop passing screwed-up bills like Bill No. 16-19.

There is another interpretative issue arising from the absence of an impact fee study.

In my first post I explained how the failure by the council to do an impact fee study despite both the Fiscal and Policy Note prepared by the General Assembly’s Department of Legislative Services and the Fiscal Note prepared by the county auditor stating that one was required created a legal ambiguity. There is an additional issue arising from that ambiguity that I did not mention.

One of the shortcomings of “traditional” (pre-Dabbs) school impact fees is that they can be used only for schools directly affected by the new residential development, and then only for adding or expanding school capacity – they cannot be used for remedying existing deficiencies, such as remodeling or maintenance. This means that the impact fee revenues can sit unused for years if collected in a school district in which no capital projects to add or expand student capacity are needed, even if the overall impact of new residential development in the county has created the need for adding or expanding capacity elsewhere.

One of the issues to be sorted out by the county in light of the ambiguity created by Bill No. 16-19 is whether it was the council’s intent, despite Dabbs, to limit expenditure of the fees to projects that add or expand school capacity. Again, there is plenty of evidence to suggest that it was. That includes the council’s preamble to the bill, in which it states that:

“Development impact fees have been imposed in other jurisdictions in Maryland that pay for additional or expanded . . . public school and public safety facilities, and debt service on bonds issued for additional or expanded infrastructure and facilities.” [Emphasis added.]

Is the County going to argue that, despite the language in the preamble, it can use impact fee revenues for routine maintenance and remodeling? That is another area of confusion that could and should have been avoided.

CONCLUSION

There’s no good explanation for what the council did. If the Fiscal and Policy Note prepared by the General Assembly’s Department of Legislative Services and the Fiscal Note prepared by the county auditor were correct, and the council intended to impose an impact fee bound by the rational nexus standard, then an impact fee study should have been done before passing Bill No. 16-19.

If, on the other hand, the Department of Legislative Services and the county auditor simply were unaware of the Dabbs case and made a mistake about the requirement for an impact fee story, the council should not have passed Bill No. 16-19 before asking the auditor to issue a revised note eliminating her statement that an impact fee study was required. It would be an unacceptable level of sloppiness for the council to knowingly pass a bill that was inconsistent with the legal prerequisites as stated in the legislative record.

Of course, if the county auditor (and county council) were unaware of the Dabbs decision, that raises another question. The Dabbs decision was issued on April 10, 2018. The county auditor issued her report on Bill No. 16-19 on May 23, 2019. By then, one would assume that the county attorney, or someone, was aware of Dabbs and would have brought it to her attention. And if not, why not?

This situation has all the earmarks of “haste makes waste” and the failure to apply sufficient time and expertise to a major piece of legislation. And that is never a good excuse.

The Impact Fee Study That Never Was

Baltimore County Councilman David Marks introduced Baltimore County Council Bill 16-19, which imposed a development excise tax on new non-residential construction and a development impact fee on new residential construction. The purpose of both is to help defray the costs of expanding public facilities to accommodate the demands of new construction.

I wrote an opinion piece criticizing the bill. Mr. Marks responded with his own commentary, describing mine as “predictably negative.”

Mr. Marks said something striking in his commentary that led me to conclude that perhaps I had not been negative enough. In response to my criticism, Mr. Marks touted his 1997 master’s thesis on impact fees and explained the reason that he wanted an impact fee rather than an excise tax applied to new residential construction as follows:

“Impact fees are different than excise taxes in that revenue must be spent in a localized manner — in other words, money collected from a development must be used for schools, roads, and infrastructure near the affected community. Money from an excise tax can be spent anywhere.”

Dabbs v. Anne Arundel County (2018)

Actually, development impact fees are not inherently different from development excise taxes. What was true in 1997 when Mr. Marks wrote his thesis no longer is true in 2019.

A 2018 case decided by the Maryland Court of Appeals, Dabbs v. Anne Arundel County, held that impact fees need not satisfy the so-called “rational nexus” (also referred to as the “rough proportionality”) test to be constitutionally sound. Therefore, under the constitution, impact fees generally applicable to specified types of new construction are indistinguishable from development excise taxes in that they “can be spent anywhere,” to paraphrase Mr. Marks.

Although the rational nexus requirement is not constitutionally mandated, the General Assembly is free to impose it on a jurisdiction as part of an enabling act. Under the rational nexus model, there be a reasonable relationship between the public facilities on which the fees are spent and the new construction on which the fees are imposed. There must also be a reasonable relationship between the amount of the fees and the fiscal impact of the new construction on public facilities.

Notwithstanding Dabbs, it appears from his commentary that Mr. Marks intended the impact fee adopted by Bill 16-19 to be based on the “traditional” (pre-Dabbs) model. In other words, subject to rational nexus requirements. Among those requirements is a formal impact fee study that must be done before the fee scheduled can be established.

An impact fee study is a substantial undertaking that follows what is now a widely accepted methodology.  Here is a link to a recent impact fee study done by Frederick County:                                    https://www.frederickcountymd.gov/DocumentCenter/View/302741/0213—2017-Impact-Fee-Study?bidId

What happened to the impact fee study?

The requirement for an impact fee study was described in the Fiscal Note to Bill 16-19 prepared by Baltimore County Auditor Lauren Smelkinson as follows:

“[T]here must be a reasonable connection, or nexus, between the amount of the impact fee imposed and the actual cost of providing facilities to the properties assessed. The projects and services funded by impact fees typically include public school construction, libraries, community colleges, transportation, public safety, parks and recreation, and water/sewer utilities. . . In order to justify the imposition of a development impact fee, a jurisdiction must conduct a study that measures the effects that new development will have on public facilities.” [Emphasis added.]

The county auditor did not make up that description from whole cloth. She took it directly from the legislative history of the enabling act for Bill 16-19, which was Chapter 657 of the 2019 Laws of Maryland, enacted into law as HB 449. It is worth noting that Baltimore County has had the authority to enact a development excise tax since 1953. The explicit authority to impose an “impact fee,” however, is new.

The Fiscal and Policy Note prepared for HB 449 by the General Assembly’s Department of Legislative Services contains the same language as the Fiscal Note for Bill 16-19:

“In order to justify the imposition of an impact fee, a jurisdiction must conduct a study that measures the effects that new development will have on public facilities.”

And therein lies the rub: Despite the description of the requirement by both the Department of Legislative Services and the county auditor, no impact fee study was done by the county council before the impact fee schedule in Bill 16-19 was adopted.

Now what?

The consequences of the council’s failure to do an impact fee study are uncertain. One consequence could be a legal challenge to the fee schedule based on the absence of an impact fee study justifying the fees.

The requirement for an impact fee study is not expressly stated in Chapter 657 of the 2019 Laws of Maryland. Then again, the requirement was not included in impact fee enabling acts before Dabbs. It was implied under the constitution.

Is the requirement for an impact fee study implied in Chapter 657 and in Bill 16-19? The most authoritative accounts of the legislative intent of the General Assembly and Baltimore County Council seem to think so. Also, in the preamble to Bill 16-19 the council itself states that the purpose of impact fees is “to provide funds for various public facilities proportionate to development.” That’s rational nexus, impact fee study language.

Thus, an argument can be made that the Department of Legislative Services and county auditor were correct, and that the General Assembly and County Council wanted the constraints of the rational nexus test to apply to the fee. That argument is made more persuasive because the county already had the authority to adopt a “no constraints” development excise tax.

There was no point in passing Chapter 657 unless the General Assembly intended to create an option for defraying the costs associated with new construction in Baltimore County that differs from the development excise tax option. The rules of statutory construction militate against interpretations that would make a statute redundant.

A competing explanation is that neither the Department of Legislative Services, the County Auditor nor Mr. Marks were aware of Dabbs v. Anne Arundel County when they wrote what they wrote. In other words, the legislative intent as described by the Department of Legislative Services and repeated by the county auditor may simply have been a mistake based on outdated law.

If it was a mistake, it should have been recognized and corrected before Bill 16-19 was passed by the county council. It is never a good idea to have the implementation of a bill directly contradict the requirements of the bill as described by the professionals paid by the legislative body to prepare such descriptions; indeed, it is difficult to overstate how unacceptable such discrepancies are in competently done legislation, given that they are invitations to litigation. 

For all its other shortcomings, Bill 16-19 was an extremely sloppy piece of work. Sorry, Mr. Marks, but the bill deserved my “predictable negativity.” And then some.

Mr. Mayor: Call a press conference and lay the cards on the table.

I’m not big on optics, but as it turned out it probably would have been better for Mayor Jack Young to return to Baltimore from Detroit upon learning of Catherine Pugh’s resignation on Thursday. Friday’s bloodbath in Baltimore put an exclamation point on the city’s need for a mayor who is on the ground and fully-engaged in the battle against the violence.

There have been many bad days in Baltimore over the past four odd years, but few worse than yesterday, Mayor Young’s first full day on the job. Two infants, a one year old and a two year, were among the twelve shooting victims in Baltimore on Friday. Fortunately, the infants survived. Three other victims did not.

You’re coming back tomorrow, Mr. Young, and my first unsolicited piece of advice to you is to have an honest conversation with the people of Baltimore as soon as possible. Talk with your police commissioner and schedule a press conference with him in the next few weeks. Ask Mr. Harrison to lay out his plan, in as much detail as possible, on how he is deploying the men and women of the Baltimore Police Department (BPD) to reduce the rate of deadly and non-deadly shootings in the city.

For example, is he going to use special-purpose units like the TIGER (Tactical Intelligence Gathering and Enforcement Response) unit that he used in New Orleans? What is he going to do to get the known or suspected trigger-pullers off the streets?

It may be that Mr. Harrison lacks confidence in his commanders and supervisors at this point and does not believe that the BPD is ready to employ more proactive policing, leery of a repeat of the days of the GTTF and other abuses by the BPD. If so, how long is it going to take to get the BPD up to speed?

I believe it is time for honesty, if nothing else. If the citizens can expect more days like yesterday, tell them that, and explain why. If the new mayor and the relatively new police commissioner want to retain the trust and confidence of the people, they must talk to them and tell them what they are doing about the carnage on the streets of their city. If the mayor and police commissioner want people to be patient, they are going to have to ask for that patience and explain why.

And, finally, Mr. Mayor, I’d like to see you do this: Acknowledge to citizens that controlling the violence is going to require the return of more aggressive policing, and that it will not make everyone happy. And declare your support for the commissioner and the BPD in rolling out such tactics. That will take more political courage than you’ve displayed in the past, but the problems of the city are not going to be solved without its leaders taking some political risks to which they are not accustomed.

You’re dealing with killers in Baltimore who have no compunction about shooting babies. I think most citizens understand that requires bolder action than we saw under your predecessor.

Fees, taxes, surcharges and other sources of confusion in Baltimore County.

I’ve used the expression “time for the gloves to come off” a lot recently. Maybe it’s just me, but it seems that the time for equivocating on any number of political issues confronting us on the local, state and national levels has passed.

Of all such issues, the debate in Baltimore County between the “development impact surcharge” proposed by County Executive Johnny Olszewski (Bill No. 23-19) and the “development impact fee” proposed by Councilman David Marks (Bill No. 16-19) is a small one indeed. Nevertheless, it is important enough to the county to make the following point, and to do so without equivocation:

It would be absolutely foolish for any county, if it had the option, to impose a development impact fee rather than a development excise tax. Spend the money on needed infrastructure, not on lawyers and economists.

(The “development impact surcharge” proposed by Bill No. 23-19 is, under state law, a development excise tax. My educated guess is that the bill refers to it as a “surcharge” because it is an easier word for politicians to get past their lips than “tax.”)

Anne Arundel County had a development impact fee rather than a development excise tax while I worked in the Anne Arundel County Office of Law; the county didn’t have the legal authority to impose a development excise tax. Long story short, while the “rational nexus” principles governing the fee approach sound fine in theory, in practice they are little more than a significant administrative burden and expense that contribute nothing to the general welfare of the county. The fee approach does guarantee plenty of work for lawyers and economists – i.e., transactional costs that provide no benefit to residents.

I, and others familiar with local government law, contribute to the confusion between development impact fees and development excise taxes by occasionally referring to both generically as “impact fees.” In any event, here is a brief explanation of the differences by the General Assembly’s Department of Legislative Services:

Differences Between Impact Fee and Excise Tax

A development impact fee is a regulatory measure designed to fund facilities specifically required by new development projects in order to mitigate the impact of such development on infrastructure or public facilities. However, there must be a reasonable connection between the amount of the impact fee imposed and the actual cost of providing facilities to the properties assessed. In order to justify the imposition of an impact fee, a jurisdiction must conduct a study that measures the effects that new development will have on public facilities. The amount of an impact fee is subject to judicial review. Moreover, the revenue from the fee must be dedicated to substantially benefit the assessed properties. Thus, a county cannot collect an impact fee in one geographic area and spend the funds in another area. [Emphasis added.]

A building excise tax is another means of raising revenue from new development. Unlike a regulatory impact fee, the amount of an excise tax does not have to be closely related to the actual cost of providing public facilities to serve new development. In addition, excise tax revenues do not have to be spent to specifically benefit the properties that are taxed but can generally be spent throughout the county.

As it happens, Baltimore County has the authority to adopt a development excise tax under § 11-1-102(a) of the County Code, which was enacted by the General Assembly as Chapter 769 of the 1953 Laws of Maryland. In a case called Waters Landing v. Montgomery County, 337 Md. 15 (1994), the Maryland Court of Appeals held that Montgomery County could use similar authority to impose an excise tax on development. As I recall, Montgomery County and Baltimore County are the only two counties to which the General Assembly has delegated this general taxing power.

Here is a general observation:  Better to give the county executive and county council the flexibility to impose the tax and spend the revenues as they deem appropriate through the budget process, and hold them accountable for their actions, rather than try to micromanage the results through laws and regulations. For one thing, the latter approach doesn’t work very well, and, for another, it furnishes plenty of grist for the litigation mill. Baltimore County already spends an inordinate amount of money on litigation that, with a little foresight, could have been avoided.

Over the years, I have become a firm devotee of the KISS principle. Elected officials, sometimes in the sincere belief that they are “fine tuning” the law, instead make things too complex. Government becomes byzantine, balkanized, and ultimately FUBAR when the KISS principle is ignored.

If Baltimore County had imposed a development excise tax (or impact fee) 25 years ago, it would have avoided the present need for an increase in the local income tax. In that sense, Bill No. 23-19 (development excise tax) is many days and many dollars short, although better late than never. Nor does Bill No. 16-19 (development impact fee) come close to making up for current revenue shortfalls, but it would add needless costs to administering the expenditure of the revenues that Bill No. 23-19 would not.

[My commentary on the suggestion by Mr. Marks that his development impact fee bill is a substitute for the increase in the county income tax rate proposed by Mr. Olszewski will be for another time. Suffice it to say that when he votes on the county budget next month his vote likely will be the pivotal one. And when Mr. Marks votes, we’ll know whether he is more concerned about his own political future than the future of the county. He’s been a part of the problem in the past; this may be his last best chance to become part of the solution.]

Franchot’s Political Opportunism Backfires.

There is a moral to the story of House Bill 1052 which, if passed by the Maryland General Assembly and enacted into law, would transfer responsibility for enforcing state regulations on the alcohol and tobacco industries from the state comptroller to a newly formed Alcohol and Tobacco Commission. The moral is that if you make a political nuisance out of yourself, don’t hand the politicians that you are annoying the ammunition they need to shoot you down. In other words, don’t do what state Comptroller Peter Franchot has done.

Make no mistake about it, the impetus behind House Bill 1052 is raw politics. As luck would have it, however, the legislation makes a small but important change to Maryland governance.

Mr. Franchot is not the first comptroller to use that elected office as a forum to espouse views on subjects only vaguely related to its duties. He has, however, elevated use of the position as a platform for political opportunism to an art form. Along the way he has alienated scores of powerful state politicians, including Speaker of the House of Delegates Mike Busch and President of the Senate Mike Miller.

Mr. Franchot gained the lasting enmity of fellow Democrats for using his seat on the state Board of Public Works to side with Republican Gov. Larry Hogan in excoriating Democratic Baltimore County Executive Kevin Kamenetz for the lack of air conditioning in many Baltimore County schools. Until his death in May, Mr. Kamenetz was widely seen as the leading contender to run against Mr. Hogan in last year’s governor’s race.

Democrats fumed at what they saw as an unholy alliance between Mr. Franchot and Mr. Hogan that turned the Board of Public Works into a partisan political weapon aimed at a potential Democratic candidate for governor. Highly regarded state public school construction chief David Lever resigned in protest over their heavy-handed tactics. Last year, the General Assembly stripped the board of its authority over school construction projects.

Mr. Hogan rewarded Mr. Franchot for his support on the Board of Public Works by issuing an executive order in 2016 that implemented Mr. Franchot’s longtime goal of prohibiting local school districts from starting the school year until after Labor Day. Never mind that the job of comptroller has nothing to do with public school schedules.

And never mind that Maryland law takes care to try to separate educational policy from partisan politics and to preserve local control of public schools. Mr. Franchot, once described by Baltimore Sun columnist Dan Rodricks as a “publicity-seeking missile,” was not about to worry about such formalities and forego the chance to exploit an issue popular in vote-rich suburban counties.

Mr. Franchot’s school year victory may be short-lived. The General Assembly is working to overturn the governor’s executive order during the current session.

Mr. Franchot’s reelection campaign last year had a particularly insulting, sanctimonious tone, with Mr. Franchot portraying himself as a “reformer” crusading against the special interests that he claimed had a stranglehold on the General Assembly. In one notable ad, he accused lawmakers of being drone-like “yes men” for Mr. Miller, whom he described as a “machine boss.”

That was more than the legislators could bear, given Mr. Franchot’s own history. Having an elected official responsible for regulatory enforcement is fraught to begin with, especially in a state with Maryland’s checkered past. Maryland is one of only three states in which regulation of the alcohol industry is in the hands of an elected official.

Mr. Franchot compounded that concern not only by actively seeking changes to the laws governing the alcohol industry, but also by accepting campaign contributions from representatives of the industry subject to his office’s regulatory authority. His defense – “everybody takes money from the alcohol industry” – rings a bit hollow.

His single-minded pursuit of statutory changes favorable to the craft beer industry was not lost on members of the General Assembly. Sen. Ben Kramer (D-Montgomery) accused Mr. Franchot of “extorting” money from the industries he regulates, adding: “His lies know no bounds when it comes to a pot of gold.”

Ironically, Mr. Franchot’s support of causes popular with the electorate may be the kiss of death for those issues in the General Assembly. He told reporters last month that he couldn’t get any member to introduce bills that he deemed important to reform of the brewing industry.

Mr. Franchot has a knack for attaching himself to popular causes and endearing himself to the voters, less of a knack for working with people to actually get things done. A team player he isn’t.

House Bill 1052 likely will not put an end to Mr. Franchot’s political opportunism. It will at least make a worthwhile change to state government, removing important regulatory duties from direct control by an elected official who might confuse those regulatory duties with his political ambitions.

[Published as guest commentary by Maryland Matters on March 13, 2019 but not posted to my blog until April 14, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Baltimore state’s attorney’s marijuana lawsuit “nothing more than a publicity stunt.”

In January, Baltimore State’s Attorney Marilyn Mosby announced with considerable fanfare that her office no longer will prosecute people for possession of marijuana. The fact that she also filed a lawsuit asking the Baltimore circuit court to overturn 4,800 convictions for possession of marijuana, however, attracted less notice. The lawsuit should have received more attention, but not for reasons Ms. Mosby would like.

In my opinion, her suit is an affront to the criminal justice system and is nothing more than a publicity stunt. It bears only a passing resemblance to a legitimate legal action, disregards the safeguards of the adversarial system, violates her oath of office, and attempts to arrogate powers belonging to the Maryland General Assembly. It also is based on a legal theory concocted from whole cloth.

She filed what is known as a petition for a writ of error coram nobis. Coram nobis is a last-ditch remedy for overturning a conviction that was based on an error of “a constitutional or fundamental proportion” and that is posing “a substantial collateral consequence” for the petitioner at the time the petition is filed. It is infrequently employed because it may not be used to litigate issues that were or could have been raised at trial or on appeal and is not a substitute for other post-conviction relief.

Ms. Mosby filed the petition in the name of the State of Maryland on behalf of over 1,000 individuals who are not parties to the case. Coram nobis is a civil action against the state. In other words, Ms. Mosby’s petition has the state suing the state on behalf of private citizens seeking to have the state overturn the citizens’ convictions.

Even if Ms. Mosby convinces the court that she has the authority to bring a civil action on behalf of the state against the state to adjudicate the interests of private individuals, she has another hurdle: persuading the court that she should be allowed to turn the judicial process on its head and operate outside the adversarial system.

The adversarial system is the engine of truth undergirding our criminal justice system. Ms. Mosby captioned the suit “State of Maryland vs. State of Maryland,” apparently reflecting her intent to represent both sides of the case. It’s all a bit bizarre.

A real coram nobis case is filed by the petitioner seeking to have his or her conviction overturned. It is served on the state’s attorney. The state’s attorney then has the duty under the adversarial system to bring to the court’s attention deficiencies in the petitioner’s case to make sure that convictions are not improvidently overturned. As applied to Ms. Mosby’s petition, she took an oath of office that requires her to defend against frivolous claims of the type made in the petition, not advocate them.

Ms. Mosby may be able to prove her allegation that enforcement of laws criminalizing the possession of marijuana disparately impacted African-American residents of Baltimore. The rest, however, is fanciful: She claims that the arrests, prosecutions and convictions of all African-Americans for possession of marijuana therefore were unconstitutional even in the absence of discriminatory intent in individual cases and that the remedy is to wipe out otherwise-valid convictions for possession of marijuana.

She cites no case law in support of her legal theory; that’s because there is none.

Perhaps the most troubling aspect of the case is Ms. Mosby’s attempt to usurp the role of the General Assembly. In 2017, the General Assembly passed a bill allowing persons convicted of possession of marijuana to have the record of their convictions expunged four years after conviction or completion of their sentences, whichever comes later.

If Ms. Mosby believes that expungement of marijuana convictions should be accelerated or expanded, then she should make her case to the General Assembly, not the courts. The expungement statute is crafted to avoid the unintended consequences that could result from her suit, assuming it has any chance of success.

For example, if an arrest for possession of marijuana is ruled unconstitutional, then evidence of another crime, such as the illegal possession of a handgun, gathered as a result of the search incident to that arrest was unconstitutionally obtained. That could mean that the handgun conviction also would end up getting overturned.

Is Ms. Mosby genuinely trying to solve a problem? Or was this case filed by Ms. Mosby to maintain her prominence on the national stage as a “progressive” prosecutor? You form your conclusions. I know that I’ve formed mine.

[Published as an op-ed by the Baltimore Post on March 5, 2019 but not posted to my blog until April 14, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

In Debate Over Hopkins PD, It’s Time for the Gloves to Come Off.

A significant number of Baltimore City residents and their politicians are fighting a pitched battle to prevent Johns Hopkins University and Hospital from gaining approval from the Maryland General Assembly to establish its own police department. Former mayor of New York Michael Bloomberg described resistance to the proposed campus police department as “ridiculous.”

To a relative outsider like Mr. Bloomberg, the concept of a declining city waging war on its largest private employer and last remaining institution of national prominence is unfathomable. Then again, an outsider can’t be expected to appreciate the penchant of Baltimoreans for self-defeating behavior.

Mr. Bloomberg, who graduated from Johns Hopkins and recently gave it $1.8 billion, was right; the idea that Hopkins should not have its own police department is ridiculous. But it’s not only ridiculous. It is perilous to the future well-being of Hopkins and the city.

The opposition to the Hopkins police department results from the confluence of two powerful social forces in the city: Historical grievances against Hopkins, and general anti-police sentiment fueled by experiences with the corrupt and ineffective Baltimore Police Department. Neither justifies rejection of Hopkins’ proposal, and it is time to underscore just how ludicrous and wrong-headed the opposition is.

Hardly a novel idea

Listening to the debate one might conclude that Hopkins’ request for its own police department is a revolutionary idea. Nothing could be further from the truth. The following is a partial list of private universities with their own police departments:

Boston College, Boston University, Brandeis, Brigham Young, Brown, Carnegie Mellon, Case Western, Duke University, Emory, Georgetown, George Washington, Harvard, Marquette, MIT, Northeastern, Northwestern, Notre Dame, Princeton, Rice, Southern Methodist, Stanford, Syracuse, Texas Christian, Tuskegee, University of Chicago, University of Miami, University of Detroit Mercy, University of Pennsylvania, University of Richmond, University of Southern California, Vanderbilt and Yale.

All of the above universities have police or public safety departments that employ armed police officers with full law enforcement powers on campus. Not all departments have jurisdiction over contiguous areas off campus, but many that serve urban universities do, including Boston University, Northwestern, Rice, Southern Methodist, University of Chicago, University of Pennsylvania and University of Detroit Mercy.

What a shock that in the deadliest city in the country Hopkins would want to join its peers by having its own police force. Not one concrete reason to oppose the idea has been put forward.

Turning on its biggest job generator

The construction cranes on the Baltimore skyline belie the grimmer picture painted by a recent study of the city’s economy by the Urban Institute.

Baltimore’s poverty rate of 23.1 percent is roughly double the national average of 12.7 percent. The economy is overly dependent on a large social services sector. Investment lags far behind in poorer African-American neighborhoods already struggling with guns, gangs, drugs and underperforming public schools.

The city continues to hemorrhage people and is now the nation’s 30th largest city by population, down from 7th in 1970. Its last Fortune 500 company left in 2012, making Baltimore the largest city without one. It’s premier sporting event, the Preakness Stakes, is likely to leave town and its symphony orchestra is being downgraded to part time. Not everything is coming up roses lately in Baltimore.

More than anything else, Baltimore needs decent-paying jobs. Hopkins is by far the city’s largest private employer, with the university and hospital providing jobs for about 45,000 people. Hopkins quest to make its east Baltimore medical campus a life-sciences hub may be the last best hope in the city for creating the type of “advanced” manufacturing jobs that so far have proved elusive. If the city and environs are going to attract biomedical manufacturing, Hopkins will be the reason.

So, it’s only natural, right, that the city would pick a needless fight with Hopkins? As counter-productive as such behavior is, there are reasons for it.

A strained relationship

Baltimore industrialist Johns Hopkins and the institutions he founded played a significant role in the structural racism and “ethnic rotation” of neighborhoods that still plague Baltimore. As described by former Baltimore Sun reporter Antero Pietila in his new book, “The Ghosts of Johns Hopkins,” the relationship between Johns Hopkins Hospital and its neighbors in east Baltimore has been especially fraught.

The list of grievances, real and imagined, is a long one. There are, however, unmistakable signs of improvement in the relationship. The East Baltimore Development Initiative finally is beginning to fulfill its promise of building affordable houses to replace the blighted ones that were razed. The recent decision by Hopkins to retain the old Marine Hospital building pleases neighbors who didn’t want an out-of-scale edifice built on the site.

The point is that Baltimore is a city in crisis that cannot afford to dwell in the past. Historical grievances should not be forgotten and need not be forgiven. But stopping Hopkins from doing what it needs to do to protect its campuses as a means of punishing Hopkins for past sins would be tantamount to the city cutting off its nose to spite its face.

A dangerous fallacy

No city needs policing more but wants it less than Baltimore. There has been organized and vocal opposition to a Hopkins police department from the woke left. “Wokeness” in Baltimore has a particularly strong anti-police quality, not surprising given the problems with the Baltimore Police Department. An ideology that casts criminals solely as the victims of systemic racism and oppression, however, offers no practical near-term solutions to violent crime.

The following tweet from a Harvard-educated member of Baltimore’s woke-left cognoscenti illustrates the dilemma: “Police-based solutions to violence betray a desire to shift violence to different people rather than stem it.” In other words, support for a Hopkins police department is not only wrong, it is morally wrong. That sentiment not only is nonsense, it is dangerous nonsense.

Baltimore is dying a death by a thousand cuts from violent crime. The insidious damage goes well beyond the death toll. A recent study by Johns Hopkins — who else? — indicates that Baltimore’s crime even contributes to the high truancy rates in city schools.

Violent crime is draining the life from the city, and does anyone with a modicum of common sense believe that policing is not part of the solution?

Yes, Hopkins is perceived as a bastion of white privilege, and the notion of Hopkins employing its own police officers whips the woke left into a frenzy. Conspicuously absent from that vociferous resistance, however, is a realistic plan to protect Hopkins and the city from the ravages of an epidemic of violent crime now in its fifth year.

Time for leadership and courage

The senators and delegates who represent the residents of Baltimore in the General Assembly should keep one thing in mind: It is the city, as much as Hopkins, that can ill afford to have Hopkins lose its competitive edge because it no longer can attract the best and brightest students, scientists, doctors and nurses. Or if patients no longer are willing to travel from around the country and the world to its hospital. Crime and fear of crime can erode the reputation of Hopkins as it has eroded the reputation of Baltimore.

I know that the senators and delegates have the woke left and other activists in their ears urging them to “stand up” to Hopkins. Conversely, it is the senators and delegates who need to stand up to those who seem to have explanations for all of Baltimore’s problems, but answers to none.

Hopkins is too precious an asset to the city to place it at risk because of things that happened in the past or because of ideologues who can’t accept society’s need for police officers.

[Published as guest commentary by Maryland Matters on February 21, 2019 but not posted to my blog until April 14, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

 

Ensuring More Transparency in Maryland’s Judiciary.

Maryland Chief Judge Mary Ellen Barbera of the Maryland Court of Appeals delivered the quadrennial State of the Judiciary address earlier this month. She described the state of Maryland’s judiciary as “fundamentally sound.” Given the inexcusable dearth of information that is made available to measure the performance of Maryland judges, I guess we’ll just have to take her word for it.

Although perhaps not for much longer. Gov. Larry Hogan has asked the General Assembly to enact “The Judicial Transparency Act of 2019.” The bill would require the Maryland State Commission on Criminal Sentencing Policy (MSCCSP) to publish detailed information on the sentences handed down for violent crimes across the state, including the sentencing histories of individual judges. The proposal, now before the General Assembly in the form of HB 229 (cross-filed with SB 176), is a sound one and it is long overdue.

The Maryland judiciary’s own record on transparency and accountability is dismal. In commentary published by The Daily Record in 2017, I pointed out that the database maintained by the MSCCSP contains a wealth of information about criminal sentences. The database does not, however, allow members of the public to determine the extent to which individual judges adhere to the sentencing guidelines promulgated by the commission.

The names of the judicial circuits in which the judges serve are captured in the database, but not the names of the individual judges. That information is unavailable because the judges don’t want it made available. I urged the judges to change their minds; they didn’t, and now the General Assembly should do what the judiciary should have done itself.

Maryland judges appear allergic to any kind of assessment of their performances. Unlike many other states, Maryland has no formal program for evaluating the performances of judges. In 1998, a select committee of Maryland judges and lawyers recommended that the state adopt a mandatory evaluation program run by the Administrative Office of the Courts. The recommendation has never been adopted.

Circuit court judges run in contested elections and appellate judges run unopposed in “retention” elections. In neither situation do voters have much information on which to base their decisions. Combine the absence of performance evaluations with a lack of transparency and the impression is created of a judiciary not keen on the possibility of negative feedback.

Retired circuit court judge Steven Platt co-chaired the committee that recommended a mandatory evaluation program for judges in 1998. He stated in 2017 that he still believed such a program was needed. “We’d be better with it than without it. Judges should be as subject to as much criticism as anyone else.”

Judges and others opposed to transparency of the judicial system disagree with Judge Platt about criticism. They believe that criticism from the public, and judges’ fear of that criticism, will lead to a loss of judicial independence.

The argument that judges must be insulated from criticism is troubling. In the case of the sentencing guidelines, for example, it means that a judge who consistently deviates from the guidelines does not get identified. Whose interests does that serve, other than the interests of the judge who wishes to avoid scrutiny?

And keeping citizens in the dark implies that citizens cannot be trusted to act responsibly with information about how judges do their jobs – a concept entirely unacceptable in a representative democracy. A lack of transparency does nothing more than fuel the worst fears of the public about the administration of justice.

If for some unfortunate reason HB 229 fails to pass, there remains something that Gov. Hogan can do. Based on the ages of the judges and the mandatory retirement age, it looks like he will get to replace five of the seven judges on the Court of Appeals, including the chief judge.

He can ask applicants for those judgeships if they support full transparency of judicial performance; it is an entirely apolitical and appropriate question. If an applicant does not support transparency, there are plenty of qualified candidates who do. And maybe when Judge Barbera’s successor gives the next State of the Judiciary address, we will have more to go on about the soundness of the judiciary than just his or her word.

[Published as guest commentary by Maryland Matters on February 12, 2019 but not posted to my blog until April 13, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Md.’s Police Hiring System Failed. The State Needs to Find Out Why.

Many questions arise from the death of 19-year-old Anton Black at the hands of officers of the Greensboro Police Department on Maryland’s Eastern Shore. One of them is why the Maryland Police Training and Standards Commission certified Thomas Webster IV to be a police officer in Maryland.

Mr. Webster, who is white, was the first officer on the scene of the reported “kidnapping” that turned out to be horseplay between Mr. Black and his 12-year-old family friend, both black. Would Mr. Black still be alive if an officer with a less volatile history than Mr. Webster had been first to arrive at the scene? That question will haunt Mr. Black’s family and Greensboro forever.

Police chiefs in Maryland have varying degrees of skills and experience, especially in towns like Greensboro (population 1,931). Did a system established by state law that is intended to prevent local police chiefs from making hiring decisions that endanger the safety of citizens fail? If so, why?

We’ll never know if another officer would have done something differently that avoided the death of Mr. Black. We can, in my opinion, conclude that Mr. Webster never should have been certified as a police officer in Maryland and making decisions about the arrest of Mr. Black.

Mr. Webster was on the Greensboro force less than six months at the time of Mr. Black’s death. But it was not his first job as a police officer.

In 2015, Mr. Webster was acquitted of felony assault for an incident that took place in 2013 when he was a corporal with the Dover, Del., Police Department. Mr. Webster kicked Lateef Dickerson in the head while he was on his hands and knees. Mr. Dickerson, who is black, was in the process of lying prostrate as commanded by Mr. Webster.

The kick knocked Mr. Dickerson unconscious and broke his jaw. Mr. Webster told a jury that, based on dispatch calls, he believed that Mr. Dickerson was armed and aimed his kick at Mr. Dickerson’s upper body, not his head. Mr. Dickerson was not armed and the kick struck him squarely on the jaw.

Watch the video of the incident. It apparently did not persuade the jury beyond a reasonable doubt that Mr. Webster intentionally used excessive force. It certainly convinced me, after considering his performance evaluations and disciplinary record, that Mr. Webster should have been fired.

Mr. Webster was not fired. He was induced to voluntarily resign from the Dover department by severance payments from the city totaling $230,000. The city paid $300,000 to settle a federal lawsuit filed by Mr. Dickerson.

Thanks to information that came out during the 2015 criminal prosecution of Mr. Webster there was a rare look into the disciplinary record of a police officer. Mr. Webster was hired by Dover in 2005. By the time he was indicted in 2015 there were 29 “use of force” reports in his file. None resulted in disciplinary charges.

A 2006 performance evaluation of Mr. Webster stated: “Officer Webster is very fit and strong. There have been times when he should have attemted [sic] lesser degrees of force to accomplish an objective. He has been spoken to regarding this issue.” A 2012 performance evaluation noted: “PFC Webster has made some very poor decisions and he obviously does not think of the consequences of his actions.”

For those who haven’t read hundreds of performance evaluations of police officers, let me translate: “Mr. Webster is a tough guy with questionable judgment who tends to needlessly rough up suspects, and I am worried about what he might do in the future.”

The problems with Mr. Webster’s performance apparently persisted for at least six years. Mr. Webster’s supervisors clearly saw signs of worse trouble ahead. Their concerns were justified.

In 2013, there was another incident before the one that led to his indictment. Mr. Webster and another officer took two drunken men from a 7-Eleven in Dover to a rural area left them there despite one individual’s request to be taken to a hospital. The two men were retrieved by Delaware state troopers after a neighbor called about them.

Mr. Webster was suspended for 10 days and placed on disciplinary probation for his actions. He was on that disciplinary probation when he kicked Mr. Dickerson in the head.

The 2015 trial of Mr. Webster drew national attention. The decision by Greensboro Police Chief Mike Petyo to hire him last year caused an uproar on the Eastern Shore. There is no way that the Police Training and Standards Commission was unaware of Mr. Webster’s background when it certified him to be a police officer in Maryland. Indeed, Mr. Petyo was obliged to bring it to the commission’s attention.

State law establishes a comprehensive process by which individuals, including individuals who were police officers in other states, are certified to be police officers in Maryland. In my opinion, the law gave the commission ample authority to deny Mr. Webster certification because his record demonstrated that he had not “displayed the behavior necessary to perform the duties of a police officer.” Not even close.

The law is only as effective as the people administering it. Like many state agencies, the Police Training and Standards Commission has been deprived of adequate resources. The commission’s regulations contain detailed standards individuals must meet. If the end result is that individuals like Mr. Webster get certified, the regulations aren’t worth the paper they’re printed on.

To his credit, Gov. Larry Hogan demanded that Greensboro officials be more forthcoming about the unfortunate death of Mr. Black. He also should demand that the Police Standards and Training Commission explain why Mr. Webster was certified to be a police officer in Maryland. And if the governor doesn’t do so, the General Assembly should.

[Published as guest commentary by Maryland Matters on January 30, 2019 but not posted to my blog until April 13, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Time for this case to end.

Rabbi Menachem Rivkin and Friends of Lubavitch, Inc. (Lubavitch) have tried to convince Baltimore County officials that the expansion of the Towson Chabad House was nothing more than a “residential addition.” They now want to try to persuade a federal court that the structure is something else: a place of religious assembly.

They and other plaintiffs claim in Friends of Lubavitch et al. v. Baltimore County et al., that the court-ordered demolition of the building violates the Religious Land Use and Institutionalized Persons Act (RLUIPA). Rabbi Rivkin and Lubavitch may have compromised that claim by their own actions, actions that the Baltimore County Board of Appeals described as dishonest.

Chabad House is an outreach center for Jewish college students located in a residential community a few blocks from Towson University run on behalf of Lubavitch by Rabbi Rivkin. Outreach activities initially took place in the 2,200-square-foot home of Rabbi Rivkin and his family owned by Lubavitch, a Hasidic organization.

In 2016, Lubavitch applied to Baltimore County for a permit to build a 4,400-square-foot “residential addition” to the house, ostensibly to accommodate the rabbi’s expanding family. Neighbors protested that the structure was intended to serve not as a residence but as a community center, a use requiring a zoning special exception.

The county Department of Permits, Approvals and Inspections referred the question of whether Lubavitch was entitled to the permit to a hearing officer. The hearing officer held that the question depended upon the ultimate use of the structure, an issue he said he could not decide.

The neighbors appealed the hearing officer’s decision to the board of appeals. For some reason, the county issued the building permit while the appeal was pending. And Lubavitch, despite being apprised of the risks, began construction.

Members of the appeals board minced no words in determining that the building permit was “dishonestly procured” and that the claim that the structure was merely an addition to a residence “was not credible.” The majority found that Lubavitch “had acted in bad faith,” and that Rabbi Rivkin’s testimony “was not particularly credible on contested points.”

The majority described much of Rabbi Rivkin’s testimony as appearing “to be coy and disingenuous given all the objective circumstances.” Among those circumstances was the fact that the addition has a dining room capable of seating over 120 guests served by a commercially-outfitted kitchen, a cloak room and separate powder rooms for men and women.

The board concluded that the building was not a residence and was being used as a community center. A community center is a commercial use and is not permitted as a matter of right under the property’s zoning.

Place of religious assembly

Assuming that their RLUIPA claim has merit, Lubavitch and Rabbi Rivkin should have sought approval of the addition as a place of religious assembly protected by RLUIPA and created the record accordingly. Instead, they tried to convince the board of appeals that the addition was a residential use. Lubavitch did not seek judicial review of the board’s decision.

The demolition order arose out of separate litigation not involving the county. Neighbors of Chabad House sued to enforce a building setback requirement contained in a private covenant binding on the property.

The board of appeals decision came back to haunt Lubavitch in the setback case: Baltimore County Circuit Court Judge Kathleen Cox ordered Lubavitch to raze the structure rather than move it back from the street. Her order is on appeal to the Court of Special Appeals.

Here is the problem that Lubavitch created for itself: The demolition order is based on a decision by the board of appeals in which, because of choices made by Lubavitch and Rabbi Rivkin, the status of the addition as a place of religious assembly was not raised or decided. The RLUIPA claim may not be ripe, and the federal court could refuse to intervene on that basis. That would be the just outcome.

It is the neighbors of Chabad House who are the victims in this case. They already were in litigation over the building for three years when the federal RLUIPA complaint was filed.

In my opinion, Lubavitch and Rabbi Rivkin had the chance to pursue their claims properly and blew it. It is time for this case to end.

[Published as guest commentary by the Daily Record on January 25, 2019 but not posted to my blog until April 13, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]