A bill that would shift tens of thousands of asbestos cases from circuit court to a mandatory mediation program has provisions that could be found unconstitutional, according to a letter of advice from the Office of the Attorney General.
Senate Bill 1049 was introduced in the last week of March by Sen. Jeffrey D. Waldstreicher (D-Montgomery) and promptly passed through the Senate by a unanimous vote. The bill would create the Office of Asbestos Case Mediation and Resolution, where the 32,000-plus asbestos cases in Baltimore City Circuit Court would be referred for mediation before a scheduling conference. The bill also would allow either party in a case to request mediation through the office, which the courts would be required to allow.
Advocates – including the powerful Law Offices of Peter G. Angelos which handles two-thirds of the pending cases – say the bill is aimed at clearing the backlog of asbestos cases pending in the state, including some that were filed decades ago. Opponents – including defense attorneys, insurers and the Maryland Judiciary – say the measure guts a court process that was only set in place in late 2017 and which has been clearing cases, including dismissal or resolution of hundreds of claims.
Sandra Benson Brantley, counsel to the General Assembly, wrote in a four-page letter dated Saturday that two provisions in particular raise constitutional concerns:
— the bill’s retroactive application to all cases on the asbestos docket, which would mean that cases currently under control of the courts would be shifted to the executive branch; and
— a provision requiring the court to maintain the current case management program indefinitely if the new process were to cause delays.
“Giving power to the Executive Branch to determine whether a court may proceed with a case on its docket seems to me to usurp the judicial power of the courts,” Brantley wrote.
She also added that “due to the extremely limited time I had to review the bill, I did not have time to research and analyze” other provisions of the bill that raise issues to advise whether they might be unconstitutional or legally insufficient.
Other provisions that Bentley noted as raising issues include giving power to the executive director of the new office to establish the rules for mediation and the ability of the plaintiff to opt out of mediation but not granting the same option to the defendant.
The measure remains pending before the House Judiciary Committee, which got its first look at the bill in a three-hour-long hearing Friday afternoon. The committee was set to meet for a possible voting session at 9:30 a.m. Monday, the last day of the 90-day General Assembly session.