Photo: Westminster, Md. - Members of the media gather around Owings Mills attorney Irwin Kramer, in front of the historic Carroll County Courthouse after last Friday’s hearing over a lawsuit brought by five Republicans and a businessman from Carroll County, which
questions the legitimacy of Maryland's November special session. Behind Kramer are Maryland Senators Brinkley and Kittleman and Maryland Delegates O’Donnell, Smigiel and Shank.
Friday, January 4, 2008 photo by
Kevin Dayhoff_____
Smigiel vs Franchot
January 7, 2008 by Kevin Dayhoff
I attended the hearing Friday, January 4th, 2008 in Carroll County Circuit Court for the oral arguments in the special session lawsuit: Case No.: 06-C-07-0496648: Michael D Smigiel Sr, et al vs Peter Franchot, et al., which seeks to invalidate the legislation passed in the Maryland General Assembly’s 22-day special session that ended November 19.
The plaintiffs in the suit are Senate Minority Leader David R. Brinkley (R-Dist. 4) of New Market; Senate Minority Whip Allan H. Kittleman (R-Dist. 9) of West Friendship; House Minority Leader Anthony J. O’Donnell (R-Dist. 29C) of Lusby; House Minority Whip Christopher Shank (R-Dist. 2B) of Hagerstown; Del. Michael D. Smigiel Jr., the House minority parliamentarian; and John Pardoe, the owner of Byte Right Support of Baltimore.
WJZ TV, Channel 13 in Baltimore, had the best video coverage (http://wjz.com/video/?cid=5) of last Friday’s historic oral arguments. To find this and other news videos of breaking Maryland news, go to: http://wjz.com/video/?cid=5.
20080104 WJZ video coverage of MD constitutional test
The suit filed on December 13 was lost in the shuffle for many as the regular season of the National Football League drew to a close; Baltimore Raven’s Coach Brian Billick joined the ranks of Maryland’s 3.5 percent unemployed; and many were getting ready for Christmas or Hanukah.
The Circuit Court case names as one of the defendants Maryland Comptroller Peter V. R. Franchot, who ironically was very vocal in opposition to the special session called by Maryland Governor Martin O’Malley on October 15.
Comptroller Franchot, scathingly wrote on October 23, in part, in his ongoing campaign for Maryland governor in the 2010 gubernatorial election; “As Maryland's chief fiscal officer, however, I must question the timing and necessity of this approach. Mindful of the reservations each of you has expressed about a special session, I must underscore the profound - and perhaps unintended - consequences of this undertaking on Maryland's economy, business climate, and quality of life, and to caution against acting in haste.”
In addition to Comptroller Franchot, the other defendants are the Department of Health and Mental Hygiene, the Maryland Health Care Commission, the Health Services Cost Review Commission, acting Secretary of State Dennis C. Schnepfe, the Maryland State Board of Elections, and the Carroll County Board of Elections.
The lawsuit alleges that the General Assembly did not follow constitutional procedure, and therefore, the sales tax, which was expanded to include computer services and the increases to the state’s sales, income, corporate, tobacco and vehicle-titling taxes are invalid:
House Bill 1, Chapter 2: Budget Reconciliation Act; Senate Bill 2, Chapter 3: Tax Reform Act of 2007; Senate Bill 3, Chapter 4: Maryland Education Trust Fund – Video Lottery Terminals; House Bill 4, Chapter 5: Video Lottery Terminals – Authorization and Limitations; House Bill 5, Chapter 6: Transportation and State Investment Act; and Senate Bill 6, Chapter 7: Working Families and Small Business Health Coverage Act.
If you have not had an opportunity to visit the courtroom on the second floor of the 1838 “Greek Revival” courthouse on Court Street in Westminster, please do so at your next opportunity. If it were not for the fact that the room does not have a back balcony, and the wooden floors are now carpeted, one could easily conjure up visions of the courtroom scenes in Harper Lee’s classic Pulitzer Prize winning 1960 southern gothic, “To Kill a Mockingbird.”
I went to the hearing with an open mind, however, like many, in December I had my reservations about the strength of the case being brought forward by the plaintiffs when the suit was initially filed. Then as I got away from the coverage of the elite media and began to examine the primary source documents, I began to see the “there - there.”
Actually several dynamics turned me around on the plaintiff’s case. My initial analysis continued to change once the Attorney General’s office began to pitch a fit about deposing the chief clerk of the House of Delegates, Mary Monahan – who has a reputation as a straight-up person. It is my understanding from anecdotal accounts that she was perfectly willing to testify…
Then came the transcript of her testimony, which is a must read for anyone interested in the case.
Concurrently, there were the acidic public comments from some of the main players. For example, Senate President Thomas V. Mike Miller Jr. called the suit ‘‘bungled legal reasoning and frivolous,” according to Doug Tallman, writing for the Gazette.
The next shoe dropped when the Baltimore Sun published the Maryland Democrat Party’s talking points, in a most unfortunate editorial on January 2nd, 2008, “Much ado about nothing.” It was a “Hail Mary” pass in an attempt to replace the law by plebiscite and populism.
It was with that editorial that I realized that Maryland Democrats and the state had resigned themselves that the lawsuit was on firm legal footing as it was anticipated that they will lose. Please read the following excerpt. I did not make it up.
Yet even as the new rates settle in (changes to most, such as the income tax, are already in effect while the extra penny in the sales tax arrives tomorrow), a bit of uncertainty is still hovering in the air. That's because a lawsuit filed by Republicans seeking to undo the bills approved by the General Assembly during November's special session remains pending before the courts.
It's fair to oppose new taxes - although tax opponents are usually loath to own up to the adverse impacts of such a stance - but there's been ample opportunity to express dissent. There was plenty of debate in the House and Senate. Amendments were offered, some adopted and some not. Votes were taken. Ultimately, Gov. Martin O'Malley signed the various pieces of legislation into law - in front of witnesses, too.
But the lawsuit would seek to scrap all of it for the flimsiest of reasons. The entire case centers on an obscure provision in the state constitution that says lawmakers in one chamber cannot adjourn for more than three days without a vote of assent from those of the other.
Leave aside whether that happened or not in this instance; why is this even a requirement? Here's the historic context: It's meant to prevent members of the Senate or House of Delegates from leaving town before the government's business is done. That was never at issue in this case. It's much ado about nothing. Republicans might as well be litigating the stock of paper used for bills or the Senate's opening prayer.
Reread it. After one digests what the Baltimore Sun wrote, the only conclusion is that so what if the Maryland Constitution was violated, the taxes are a good thing…
As the hearing evolved, the mood of the room seemed to swing in the direction of Irwin Kramer, the Owings Mills attorney representing the plaintiffs, as he as he forcefully articulated his case.
Austin Schlick, head of the Maryland attorney general's civil litigation division, representing the state of Maryland and Irwin Kramer, the Owings Mills attorney representing the five Republicans and a businessman from Carroll County who filed the lawsuit; advocated their client’s positions on what constitutes the “consent” as required by the Constitution.
The State’s case, on the other hand, seemed to falter on the law. The State’s presentation deteriorated and appeared disingenuous, if not circuitous, and ultimately began to fall back upon arrogance and politics – a point of which the judge seemed to have no tolerance. It was not Austin Schlick’s day.
At issue is whether or not the Senate obtained the appropriate consent of the House in order to adjourn for more than three days as required by Article III, Section 25.
Senate President Thomas V. Mike Miller Jr. told senators on November 9, they would return to work on Nov. 13; however, it was later decided that the Senate not reconvene until November 15.
As a result all the legislation that followed, in the 22-day session which mercifully ended on November 19, should be ruled legally invalid.
Many of us clearly recalled when Delegate Smigiel (R-Dist. 36) of Elkton rose on the House floor and brought the Senate’s six-day adjournment to the attention of the House Parliamentarian, Del. Kathleen M. Dumais.
Incredibly, the Parliamentarian promptly produced a letter from Assistant Attorney General Kathryn Rowe which said that the work of legislature could proceed. This, in spite of Article III, Section 25, which states clearly: “Neither House shall, without the consent of the other, adjourn for more than three days, at any one time, nor adjourn to any other place, than that in which the House shall be sitting, without the concurrent vote of two-thirds of the members present.”
The state hinged its argumentation on two points, one the legislature may make its own rules and pleaded that the consequences of ruling invalid the increases to the sales, income, corporate, tobacco, and vehicle titling taxes.
Mr. Irvin Kramer responded effectively that the legislatures’ own rules invalidate the subsequent bills enacted after the Maryland Senate took a five-day break, without the appropriate consent from the House.
Furthermore, as was revealed in the deposition of chief clerk of the House of Delegates; the consent never could have occurred because the delegates were never given a chance to debate the consent.
Perhaps now we understand why the Attorney General’s office tried so hard to prevent the chief clerk from being deposed…
At the hearing last Friday, Schlick repeatedly attempted to argue that nullifying the $1.5 billion in increased taxes would place the state in financial peril and cause “extraordinary harm.” The judge sustained Mr. Kramer’s objections to this testimony, not once but twice, saying that matter was not before the court.
Lost in the reporting on the lawsuit by the elite media is the focus of the second constitutional test which contests the General Assembly decision in HB 4, Chapter 5 (Exhibit P) and SB 3, Chapter 4 (Exhibit O), to refer the contentious issue of slots to referendum this coming November in violation of Article XVI, Section 2, of the Maryland constitution.
As an aside, editorializations by elected officials and the elite media “to let the voters decide the issue of slots,” has always been the source of amusement by those of us who have studied the Maryland Constitution. Yes, it’s a great idea. However, in Maryland, there’s only one small problem; it is unconstitutional.
The plaintiff’s December 13 memorandum alleges that the legislation to refer the issue of slots to referendum was an effort “To avoid a lengthy and rancorous debate on slot machines, (in that) the Legislature attempted to shift their work on this controversial revenue plan to the public at large.”
“Though some issues may be referred to voters, the Constitution prohibits the referral of revenue and appropriations bills for maintaining the State Government or other public institutions.”
Article XVI, Section 2 of the Maryland constitution clearly states: “No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.”
This latest lawsuit is yet another in a series of awkward interactions between Maryland’s august legislative branch and Maryland’s judiciary. The two branches of government have been waging a low-grade guerilla war with one another for years, which has usually only been the topic of esoteric scholarly conversations between academics.
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 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 by any first year law school student – or even a local Boy Scout getting his citizenship and government badge.
Meanwhile, the judge, of whom I have known for many years, is a straight arrow and known to be a Maryland constitutional and historical scholar. After two hours of courtroom deliberations, Carroll County Circuit Court Judge Thomas F. Stansfield announced he would review the entire record in the context of the just-presented oral arguments and issue a written opinion as soon as possible with the understanding that the regular General Assembly session begins January 9th.
I’m not a lawyer, but I do have some insight into the Maryland Constitution, its history and the legislative rules and procedures involved. I walked out of the courthouse with a feeling that the plaintiff’s made their case – and the state did not.
As I wrote earlier in the comment section of He'll Rule the Wrong Way; after reading the Transcript of Deposition of Mary Monahan, Chief Clerk of the House of Delegates of Maryland; and the Memorandum in Support of Plaintiffs' Motions for Emergency Declaratory and Injunctive Relief; [www.kramerslaw.com/special_session.htm] and hearing the oral arguments last Friday; I will hypothecate that the Judge will rule in favor of the plaintiffs.
[Also, be sure to read “Lawsuit Conclusion,” posted Sunday, January 6, 2008 by David K. Kyle on “The Candid Truth.” Mr. Kyle has followed the lawsuit studiously. Click here: GOP Lawsuit, to view his excellent coverage.
Another blog post worthy of your time is, The Candid Truth - Lawsuit Conclusion posted by “Robert” on January 7, 2007 on Anne Arundel Maryland Politics.]
My hypothecation is that the ruling will narrowly confine itself strictly to the matters of law and will not get anywhere near legislating from the bench.
Furthermore, with the understanding that whatever is decided, it will be appealed, comes a greater burden for the Carroll County Circuit Court Judge. It will serve this judge well to concisely and definitively focus the matters of law before it so as to provide the higher courts the foundation with which to work.
This case is a constitutional test that will live in the judicial annals long into the future, and long after the politics of the day are forgotten. The decision at this level of the judiciary needs to be one of the best decisions this judge could possibly write. My guess is that he will not disappoint.
Ultimately, the case will be decided at the state’s highest court – where the Maryland General Assembly has not fared well in recent years.
Kevin Dayhoff writes from Westminster Maryland USA.
www.kevindayhoff.net
E-mail him at: kdayhoff AT carr.org or kevindayhoff AT gmail.com
His columns and articles appear in The Tentacle - www.thetentacle.com; Westminster Eagle Opinion; www.thewestminstereagle.com, Winchester Report and The Sunday Carroll Eagle – in the Sunday Carroll County section of the Baltimore Sun. Get Westminster Eagle RSS Feed
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For good newspaper coverage of the Special Session Lawsuit Case No.: 06-C-07-0496648: Smigiel vs Franchot:
Whatever folks want to say about the mainstream media, Maryland has some great writers out there who call it as they see it and do not write articles based on a pre-determined agenda or ideology. Folks like Doug Tallman with the Gazette (along with several of the other statewide beat writers at the Gazette.)
Or spend sometime with Liam Farrell with the Maryland Gazette or Len Lazarick with The Examiner or Tom LoBianco with the Washington Times.
These are just a few writers that come quickly to mind; perhaps some other bloggers have other writers in mind.
For more information:
Maryland General Assembly Oct. 29 2007 Special Session,
Maryland General Assembly Oct. 29 2007 Special Session Lawsuit Case No.: 06-C-07-0496648: Smigiel vs Franchot
Franchot Peter
Maryland General Assembly Opera
O'Malley Administration
Governor Robert L. Ehrlich Jr.
mdga spec session dec 13 2007 lawsuit
20080107 Smigiel vs Franchot
20080107 Smigiel vs Franchot ####
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