Delegate forced to testify

January 16, 1994|By Ivan Penn | Ivan Penn,Staff Writer

In what some state officials say is an unprecedented federal court order, Del. Martin G. Madden, D-13B, was forced Friday to testify about legislation he sponsored in 1992 that bans nude dancing in public places where alcohol is being consumed.

The case involves Good Guys Bar & Grill, a 3-year-old nude dance club in North Laurel that is challenging the state law in U.S. District Court in Baltimore.

Mr. Madden and others have warned that the order forcing him to testify could set a troublesome precedent for state lawmakers.

"In state court, we have immunity, but if a federal judge tells you you've got to be there, you've got to be there," Mr. Madden said.

He warned that if lawmakers are forced to testify in court about bills they sponsored, "it could inhibit a legislator from going forward with legislation."

The state attorney general's office said federal judges usually recognize Maryland law, which states that "freedom of speech and debate or proceedings in the legislature ought not be impeached in any court."

Despite that, two federal judges ordered Mr. Madden to testify last week.

"I don't know of any cases" in Maryland where lawmakers were ordered to testify about their legislation, said Kathryn Rowe, the assistant state attorney general handling the Good Guys case.

"The federal cases clearly reflect that the federal courts will recognize state privilege."

Because of the court order, however, Mr. Madden "talked fully about his legislative subject -- to our objection, of course."

The legislation in question was passed in 1991, in response to a Baltimore County club called Body Talk, which had drawn protests from the surrounding community about noise, litter and disturbances caused by drunken patrons.

In 1992, Mr. Madden sponsored legislation that extended that law which became known as the Body Talk Statute, to Howard and Prince George's counties, saying he wanted to keep the Body Talk club out of Howard County.

Managers of Good Guys said they were specifically targeted by Mr. Madden's legislation, despite their claims that they run a clean operation.

"We had raised an issue that there was an unusually high level of police attention at Good Guys," said Ransom Davis, a Baltimore attorney who is representing the Good Guys club. "And the question of whether we have some discriminatory legislation came up."

He subpoenaed Mr. Madden to testify about the legislation. The lawmaker received the subpoena Jan. 5.

Thursday, U.S. District Senior Judge Joseph H. Young agreed that Mr. Madden could offer facts relevant to the case, which was heard in his courtroom Thursday and Friday.

As a way of respecting the legislator's privilege, Judge Young said that when Mr. Madden took the stand, the judge would decide whether the legislator had to answer a particular question.

Thursday evening, Evelyn Cannon, chief of litigation for the state attorney general's office, appealed Judge Young's decision to Judge Paul V. Niemeyer of the U.S. 4th Circuit Court of Appeals, asking him to quash the subpoena.

Early Friday morning, Judge Niemeyer rejected the appeal, and at 9 a.m. that day, Mr. Madden took the stand.

The attorney for Good Guys defended calling Mr. Madden to court.

"Yes, it's unusual, but I don't think any undue burden was put on him other than the fact that he had to come up here to Baltimore instead of staying in Annapolis," Mr. Davis said.

"Any privilege has limitations to it. The delegate chose to talk more than he was questioned."

An expert on legislative immunity said the case could set what he sees as a disturbing a precedent.

"This is a horrible thing. It's not right," said Peter Wattson, state Senate counsel for Minnesota and author of a report on legislative immunity covering state and federal lawmakers.

Mr. Madden's subpoena will "make things complicated," Mr. Wattson said. "There have been many cases where legislators were subpoenaed. Virtually all of them were quashed. This example will make courts wonder: 'Are things changing?' "

Ms. Rowe said that in future cases, the state attorney general's office would rely on years of Maryland cases that have shielded legislators from subpoenas. She said she hopes the Madden case "doesn't have any effect."

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