BERLIN — The ongoing legal battle between a Berlin farm and an environmental watchdog group over alleged pollution violations took a surprise turn last week when Gov. Martin O’Malley called into question the use of the University of Maryland School of Law’s clinic and taxpayer resources to present the case, and the school’s dean essentially told the governor it is not his place to intercede.
In March 2010, the Waterkeeper Alliance, along with the Assateague Coastkeeper and the Assateague Coastal Trust, filed suit in U.S. District Court against Perdue and Berlin’s Hudson Farm, a contract Perdue factory farm operation of about 80,000 birds. The suit was filed when sampling in ditches adjacent to the property allegedly revealed high levels of harmful bacteria including fecal coliform and E. Coli in concentrations that exceed state limits.
The Waterkeeper Alliance filed suit in federal court accusing the Hudson Farm of violating the state’s Clean Water Act. The Assateague Coastkeeper and the Assateague Coastal Trust were later dismissed as plaintiffs in the case. From the outset, the University of Maryland School of Law’s environmental law clinic has represented the plaintiffs in the case, which is now heading toward a March 2012 trial. Last week, O’Malley sent a letter to University of Maryland School of Law Dean and Professor Phoebe Haddon calling into question the law clinic’s representation of the plaintiffs and the use of taxpayer money to pursue the case against the local family.
“I am writing to express my concerns about the ongoing injustice being perpetrated by the University of Maryland Environmental Law Clinic’s continued pursuit of costly litigation of questionable merit against Alan and Kristen Hudson on their family-owned farm,” the governor’s letter reads. “The Hudson Farm has been in the family for four generations and for over 100 years. In 2010, environmental groups — presumably well intended — persuaded the University Clinic to file suit against the Hudson and Perdue farms, alleging they were polluting the Pocomoke River.”
In the letter, O’Malley argued the Hudsons lack the financial resources to effectively battle the law school clinic and its “unlimited” legal resources.
“Corporations can defend themselves against such questionable suits even from deep-pocketed litigants,” the governor’s letter reads. “But the Hudsons must retain their own representation and, due to extensive legal fees, they now face possible bankruptcy and the loss of their land. They face this possibility even if, as is quite possible, they are ultimately exonerated from the environmental wrongdoing alleged by this suit.”
It’s important to note the Hudsons are not exactly going it alone in terms of financial resources needed to defend the suit. In September, several agricultural heavyweights, including the Maryland Farm Bureau and the Worcester County Farm Bureau for example, threw their support behind the Hudsons and Perdue in terms of legal support through the website SaveFarmFamilies.org. In the weeks since, several regional and national agricultural advocacy groups have joined the fray.
O’Malley said in the letter he acknowledged law clinics provide an important educational experience for students and a critical public service for those who lack access to legal representation.
“I’m not advocating that the government should dictate the clients clinics may represent or the cases they should undertake, but it is my strong belief that this case, at this juncture, is a misuse of state resources,” the governor’s letter reads. “This case, at this juncture, perpetuates an injustice. This case, given the facts now discovered, uses the economic weapon of unlimited litigation resources, namely taxpayer supported state services, to potentially bankrupt and destroy a family farming operation which has no recourse to similarly unlimited litigation assets.”
O’Malley said in the letter the clinic’s representation of the plaintiffs in the Hudson Farm case appears to run counter to the lessons taught when he was a student at the University of Maryland School of Law.
“This is not what we were taught about the high calling of justice when I was a student at the law clinic,” the letter reads. “Our clinics should help level the too often unequal playing field of court-administered justice. With vigor and determination, our clinics should represent those who cannot afford representation, and in this case, it seems that this purpose would have been better served by the clinic representing the Hudsons.”
With that said, O’Malley urged Haddon to consider pulling the law clinic’s representation of the plaintiffs in the case against the Hudsons and Perdue.
“This is a matter of fundamental fairness and the ongoing and significant injustice and economic harm being done to a decent, hard-working Maryland family by the continued support of this very questionable suit,” the letter reads. “I strongly and respectfully urge you to review this matter, and in doing so, to consider my view that continued participation by the clinic in this suit is a state-sponsored injustice and misuse of taxpayer resources.”
For her part, Haddon wasted no time in firing back a response to the governor’s letter dated last Monday with a letter of her own to the governor just three days later. In her letter, Haddon reminded the governor that as a lawyer, he should know the law clinic could not and would not withdraw from the case after several months as it nears trial.
“I respect your role in helping to ensure that all of us work to advance the best interests of the people of Maryland. It is a commitment I share deeply,” Haddon’s letter in response reads. “I am concerned, however, that you were not adequately briefed before preparing this letter. I believe there are good grounds for the lawsuit, which seeks to protect the Chesapeake Bay for all Marylanders. The judge in this case agreed when he denied an early motion to dismiss the lawsuit. In any event, as you know as a lawyer, the Maryland Rules of Professional Conduct preclude the clinic from withdrawing from the litigation.”
In her letter, Haddon essentially urged the governor to butt out of the judicial proceedings.
“I am uneasy about your decision to express in a letter, which has now become public, your opinion directly on the merits of a matter currently in active litigation,” Haddon’s response letter reads. “Such statements have the potential to become highly prejudicial, undermining the integrity of the judicial process and the independence of the lawyers’ relationship with their clients. I urge you to let the judicial process resolve this matter.”
Naturally, the exchange of letters ignited passionate responses from both camps and raised the debate about the use of state-sponsored resources in a suit against a private sector family farm. Even Congressman Andy Harris felt the need to weigh in on the issue.
“The poultry industry is the backbone of the Eastern Shore of Maryland. The Hudson family farm in Berlin is being unfairly attacked by a group, with the state’s overwhelming financial backing, that is not concerned about the merits of their claim, but are using litigation as a means of driving family poultry farms out of business,” said Harris in a statement this week. “Tactics like this, especially when they are backed financially by the state, will destroy the poultry industry. Governor O’Malley was absolutely right to question whether this is an appropriate use of state resources. I didn’t think it was when the Maryland Senate took action against state involvement two years ago, and I still don’t think it is.”