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The Tentacle


January 16, 2008

“When all else fails, read the Constitution”

Kevin E. Dayhoff

Last Thursday, Carroll County Circuit Court Judge Thomas F. Stansfield delivered a decision in the lawsuit filed by Republicans, which sought to overturn more than $1.3 billion in new taxes passed in the special session of the Maryland General Assembly in November.

Then, on Monday afternoon, in a move that surprised many, the plaintiff’s appealed. The merits – and results – of the appeal are the food for future commentary.

Meanwhile, in his ruling, the judge determined that a “procedural error” committed during the special session and the linking of the slots issue to a referendum did not rise to the level of nullifying the resulting legislation.

If you will recall, the suit alleged that the state Constitution was violated when the Senate adjourned for more than three days during the session without the consent of the House of Delegates. The plaintiffs also alleged that documents were created to make it appear the adjournment did meet constitutional requirements.

In his ruling, the judge wrote, in part:

“Although the court is inclined to agree with the plaintiffs regarding the reprehensible nature in which the Legislature conducted itself, the remedy they seek in redress is too drastic a notion to accept. The court can simply not agree that when a technicality in procedure is violated, the entire slate of lawfully enacted legislation should be invalidated.

“While the Court herein holds that the legislation at issue passes constitutional muster, it feels compelled to observe that if the actions presented by way of deposition are business as usual for the General Assembly, the citizens of Maryland deserve far better.

“It is the opinion of this Court that although there has clearly been an egregious lack of judgment on the part of the Offices of the President of the Senate and the Speaker of the House of Delegates regarding their conduct in failing to abide by constitutionally mandated procedures, there is ultimately no merit to the Plaintiffs' arguments.”

It was criticism that House Speaker Michael E. Busch (D., Anne Arundel) and Senate President Thomas V. “Mike” Miller, Jr., (D., Calvert) did not take kindly.

Nevertheless, in an attempt at political spin, the “two-Mikes” responded by suggesting that the judges decision demonstrated that the lawsuit was frivolous.

Huh?

To add some George Orwellian flavor to the soap opera, Liam Ferrell wrote in the Capital Gazette that Speaker Busch remarked: “Every individual here had a free and fair debate on all the issues… It's purely, in my estimation, politically motivated … It is the low point since I have been in office.”

There were no reports as to whether or not the speaker cried.

Of course, many found last autumn’s special session to be rushed, based on voodoo math and fuzzy numbers of a dubious foundation. If you recall the mayhem and chaos, much of the legislation was passed in the wee hours of the morning, with many legislators being handed the bills only moments before they voted.

So much for “free and fair debate on all the issues.”

The hits just keep coming. As the dawn of the second year of having a liberal-Democrat governor in the statehouse and an overwhelming Democrat majority in the legislature, Maryland state government is beginning to resemble a train wreck of soap opera proportions.

Much of the legislative body returned to Annapolis last week still exhausted from the bruising special session and looking over their shoulders as concern builds over the growing wrath of Maryland citizens over the tax increases.

For the political scientist, the current administration is providing an excellent study in the ramifications of unchecked power in the hands of one-party rule.

Meanwhile, it remains to be seen just how the few Republicans in the legislative body will play their hand. Many remember clearly that during the administration of Gov. Parris N. Glendening, many Democrats did not like the Democrat governor; however, they were forced to defend him as a result of the Republicans’ heavy-handed dealings with the second floor of the statehouse.

Of course, those who study governance are curious as to what role the Maryland Constitution will play in the remaining three years. If the past several years are prologue, the future looks to generate even more history.

This latest lawsuit is yet another in a series of awkward interactions between Maryland’s august legislative branch and Maryland’s judiciary. These two have been waging a low-grade guerilla war with one another for years.

The “Wal-Mart bill” which violated the “Employee Retirement Income Security Act,” which governs worker health care plans, led the way. With more than ample case law to support the decision, it was quickly dispatched by a well-respected U. S. District Court judge, who easily understood that federal statute governs employee health care benefits.

Next, in August 2006, another highly respected member of the bench, Anne Arundel Circuit Court Judge Robert Silkworth, struck down the General Assembly’s (vote early and vote often) “early voting law.

Duh, the Maryland Constitution says, in part: “… All general elections in this state shall be held on the Tuesday next after the first Monday in the month of November ...” No rocket science here.

One of the strongest judicial rebukes came on September 14, 2006, when the Maryland Court of Appeals, ruled unconstitutional the General Assembly’s legislation to fire the Maryland Public Service Commission. In its ruling the court said that the legislature’s attempt to seize authority otherwise relegated to the executive branch to be “… repugnant to the Maryland Constitution.”

Ay, caramba. Memo to the Maryland General Assembly, when all else fails, read the Constitution. Help is available from any first year law school student – or even a local Boy Scout getting his citizenship and government badge.

Kevin Dayhoff writes from Westminster: E-mail him at: kdayhoff@carr.org



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