Can the Council Be Sued?

August 05, 1994

Howard County's lawyers may have overstated things a bit this week in defense of a County Council resolution that asks all businesses except taverns to remove cigarette vending machines from their premises.

In court to defend the council against a suit brought by a vending machine company, a county solicitor told Circuit Court Judge Dennis M. Sweeney that the doctrine of legislative immunity allows the council to pass any measure it wants -- even an illegal bill -- without fear of being sued.

The response from Judge Sweeney was quick but not surprising. "Your position is that the council is free to do illegal actions [without fear of suit] -- is that your position?" Judge Sweeney asked the county's lawyer.

We would have to agree that it seems impossible to believe that an elected body could have such sweeping powers. The judge rightfully questioned whether, under the county's interpretation, for example, the council could pass libelous legislation labeling someone a crook or thief and still be immune from suit.

Moreover, it was probably not necessary for the county to make such an argument. The measure on vending machines did not carry the weight of law. It merely suggests that business owners get rid of their machines, and encourages patrons to frequent those places that do so. The issue is whether the council can express an opinion on such matters without being sued.

Representing the vending machine company, tobacco lobbyist Bruce C. Bereano contends that the resolution was far from a meaningless expression of opinion. He is asking for $2 million in damages for his client. He even suggests that business owners will comply with the legislation for fear of being hassled by liquor inspectors and other government regulators.

That is a completely unproven assertion. Any use of this measure to intimidate a business owner would justify grounds for the kind of legal action that is unwarranted in this case.

Mr. Bereano's suit should be dismissed because, simply by his bringing it, it has a chilling effect on elected officials who have used their powers to merely suggest a course of action designed to limit the exposure of the public, particularly minors, to the hazards of cigarettes.

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