Court of Appeals asked to let lobbyist retain his license

Evans' lawyers argue that ethics panel shouldn't have used law retroactively

May 07, 2004|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

Lawyers for prominent lobbyist Gerard E. Evans asked Maryland's highest court yesterday to let Evans keep his lobbying license, arguing that the state ethics panel was wrong when it used a new ethics law to strip Evans of his license after his 2000 conviction for defrauding clients.

"If you are going to make a law retroactive, you have to say so clearly," Daniel M. Clements, Evans' lawyer, told the state Court of Appeals. He argued that the 2001 law should not apply to Evans, who was convicted the year before. He also said the law illegally took aim only at Evans.

But the Maryland State Ethics Commission maintains that it acted legally in 2002 when it barred the influential lobbyist from his State House profession, and rejected claims that it targeted Evans.

"This is not only a Gerry Evans provision," former Maryland Attorney General Stephen H. Sachs argued for the commission. "It was going to apply far more generally than just to him."

Sachs noted that other laws have retroactive aspects to them - notably habitual offender laws that have mandatory jail provisions for repeat offenders.

Evans, a lobbyist since 1988 who rubbed shoulders with the state's most powerful legislators, had an income in 1998 that topped $1 million. But he was indicted in 1999 and convicted in 2000 in a scheme to garner fees from clients based on phantom legislation, a practice known as "bell-ringing."

A federal judge sentenced him to 30 months in prison, but he served less. He registered as a lobbyist in May 2002 and has lobbied since then.

After the commission pulled his license, Evans appealed. An Anne Arundel County judge sided with Evans, and the case swiftly moved on to the state's highest court.

The ethics commission views the Evans case as a crucial test of its enlarged powers under the new law.

"What's at stake is our ability to respond appropriately to situations that we believe require us to take action," said Suzanne S. Fox, the commission's executive director.

Two people were noted for their absence at yesterday's court session: Evans, who chose not to attend, his lawyer said; and Judge Lynne A. Battaglia, who was replaced by a retired judge for this case because she was the U.S. attorney whose office prosecuted Evans.

The ethics law at the core of the case was adopted in spring 2001 in an effort to curb what the judge who sentenced Evans for fraud had called a "culture of corruption." Effective Nov. 1 of that year, it gave the commission the power to revoke licenses for convictions dating back two years.

During an hour of arguments yesterday, three of the seven judges peppered lawyers for both sides with questions about retroactivity - laws generally are presumed not to be retroactive - and the two-year window for the commission to act on a criminal conviction.

Clements asserted that the 2001 ethics law clearly was intended to apply only to convictions that took place after that and could not be applied to convictions that took place before it was passed.

He also maintained that his client effectively was singled out by the law: "There was only one person who fell under the statute, and that person was Gerry Evans."

But Sachs said it was preposterous to think lawmakers planned on snaring Evans with a new law. He also argued that the legislative record and the wording of the law make it clear that lawmakers wanted the new statute to be retroactive.

The Court of Appeals has no deadline for when to rule. Evans, whose clients include the Maryland Thoroughbred Horsemen's Association, is allowed to keep lobbying while the case is pending.

In the future, however, lobbyists sanctioned by the commission would not receive such an automatic stay during their appeals. Last week, Gov. Robert L. Ehrlich Jr. signed into law a bill that lets the commission and judges decide whether to grant such a stay.

Outside the courtroom, Clements reiterated his position that the commission wanted to make an example out of his client.

"If they wanted to keep all convicted felons out of Annapolis they should have written one that went 10 years back," he said, a reference to another star lobbyist, Bruce C. Bereano.

Bereano, an attorney, was convicted in 1994 of mail fraud in a scheme to funnel illegal political campaign contributions. He was sentenced to 10 months of work release and home detention, and he continued lobbying. He was disbarred in 2000.

But a ruling in the Evans case might affect Bereano.

Last summer, the ethics commission suspended Bereano's license for 10 months and fined him $5,000 after finding that his 2001 contingency fee arrangement with a client was prohibited by law. He is appealing and has denied wrongdoing.

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