GOP legislators sue to invalidate special session

December 14, 2007|By Andrew A. Green | Andrew A. Green,Sun reporter

Republican legislative leaders filed suit yesterday to invalidate all of the tax, gambling and spending reduction bills approved in last month's special session of the General Assembly. They argue that the Senate violated the state constitution by adjourning for six days without a vote of approval from the House of Delegates.

A clause in the Maryland Constitution says that: "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."

Although the Senate sent a memorandum to the House relaying its intention to return after six days, the House did not take a vote on the matter. The plaintiffs argue that invalidates everything the legislature adopted -- including higher sales and corporate income tax rates.

"When it comes to the law, you cannot make it if you break it," the plaintiffs argue in their motion, which was filed in Carroll County Circuit Court.

Democrats argue that the Republicans are misreading that clause of the constitution. A analysis of the clause by the office of Democratic Attorney General Douglas F. Gansler held that the two-thirds vote is meant to apply to moving the proceedings to another place, not to adjourning for more than three days. Even if the Republicans are right about it, Democrats argued, the proper remedy is not to invalidate the product of the session.

"This is bungled legal reasoning and frivolous," said Senate President Thomas V. Mike Miller, a Democrat.

"Those who are filing suit have incorrectly cited a provision of the state constitution which has the sole purpose of ensuring that one body of the legislature cannot leave and refuse to return and finish their legislative work," he said. "If one body were to violate this provision, the only remedy would be for a court to order the other chamber back to finish their work. They are using this provision to invalidate work, when its intent is to ensure that work is accomplished and complete."

The suit also argues that the legislature's decision to place a constitutional amendment on the ballot on legalizing slot machines violates the constitution. However, the case Republicans cite to bolster their position deals with a previous attempt to petition a bill to referendum, not with a constitutional amendment.

The case was brought by Sens. David R. Brinkley and Allan H. Kittleman, the minority leader and whip; their counterparts in the House, Dels. Anthony J. O'Donnell and Christopher B. Shank; Del. Michael D. Smigiel Sr., a Cecil County Republican; and John C. Pardoe, a Carroll County businessman.

Dan Friedman, an attorney at Saul Ewing and author of a book on the Maryland Constitution, said courts typically do not overturn legislation on procedural grounds unless a gross violation takes place. In this instance, the bills were given the prescribed three readings in each chamber, enacted by majority votes, certified by the presiding officers and signed by the governor -- all the steps required for properly enacted legislation in a bicameral legislature, he said.

"What courts don't like is when somebody would reap a procedural windfall for what is a substantive political complaint," Friedman said. "They're trying to get what they want politically out of a minor procedural flaw, if it's a flaw at all."

andy.green@baltsun.com

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