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January 9, 2008

The Special Session Lawsuit

Kevin E. Dayhoff

The 425th session of the Maryland General Assembly begins today. Hopefully, the first order of business for that august body will be to re-visit and fix all the problems created during the special taxing session last November.

Of course, the big unknown, as this column is being written, is what Carroll County Circuit Court Judge Thomas F. Stansfield will decide in the Michael D Smigiel, Sr., et al. v Peter Franchot, et al. case, which seeks to invalidate the legislation passed in the 22-day special session that ended November 19.

Hopefully, by the time you read this, a decision will have been rendered. I attended the hearing last Friday in Carroll County Circuit Court and regardless of the decision, the historic case deserves a thorough review.

As an aside, there are those who complain that the lawsuit unnecessarily complicates matters because a decision will be delivered so close to the beginning of the session and taxes enacted by the special session are already being collected.

Such protests are disingenuous as a hearing was convened December 21; and it was the state that caused the case to be postponed by attempting to block key testimony, not once, not twice but three times in a higher court.

To refresh your memory, 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 income, corporate, tobacco and vehicle-titling taxes thus are invalid.

Many of us attended the hearing with an open mind; however, like a lot of us, I had my reservations in December about the strength of the case being brought forward by the plaintiffs when the suit was initially filed.

As is often the case, once one gets away from the coverage of the elite media and begins to examine the primary source documents, such as the plaintiff’s December 13 “Memorandum in Support of Plaintiffs' Motions for Emergency Declaratory and Injunctive Relief,” you began to see the “there – there.”

Actually several dynamics turned many of us around on the plaintiff’s case. Initial analysis really began to change once the Attorney General’s office pitched a fit about efforts to depose the chief clerk of the House of Delegates, Mary Monahan – who has a reputation as a straight-up person. It is well understood 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.

As the hearing evolved, the mood of the room seemed to swing in the direction of Irwin Kramer, the Owings Mills attorney representing the five Republican legislators and a businessman from Carroll County who filed the lawsuit, as he forcefully articulated his case.

Austin Schlick, head of the Maryland Attorney General's civil litigation division, representing Maryland, and Mr. Kramer focused a great deal of attention on what constitutes the “consent” as required by the Constitution.

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 of the state’s Constitution.

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 would not reconvene until November 15. As the plaintiffs made clear, adequate, and appropriate consent was never obtained from the House.

As a result all the legislation that followed should be ruled legally invalid.

Lost in the reporting on the lawsuit by the elite media is the focus of the second constitutional test which disputes the General Assembly decision in HB 4 to refer the contentious issue of slots to referendum this coming November – in violation of Article XVI, Section 2, of the Maryland Constitution.

The plaintiff’s December 13 memorandum alleges that the legislation to refer the issue of slots to referendum was an effort “(t)o 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.”

Meanwhile, the judge is known to be a straight arrow and to be a Maryland constitutional and historical scholar. After two hours of courtroom deliberations, Judge 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 tomorrow.

Many, who have insight into the Maryland Constitution, its history and the legislative rules and procedures involved, walked out of the courthouse with a feeling that the plaintiff’s made their case – and the state did not, and hypothecate that the judge will rule in favor of the plaintiffs.

Moreover, conventional wisdom is that the judge’s ruling will narrowly confine itself strictly to the matters of law and will not get anywhere near legislating from the bench.

Furthermore, no matter what the decision, it will be appealed, creating a greater burden for the judge. Many hope that this judge will concisely and definitively focus on the matters of law before it so as to provide the higher courts the foundation from 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: E-mail him at:

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