GOP suit delayed to locate witness

Legislators want clerk of House to respond to challenge on session

December 22, 2007|By Gadi Dechter | Gadi Dechter,Sun reporter

Amid allegations that a key witness is intentionally evading lawyers for Republican lawmakers, a Carroll County judge postponed yesterday until Jan. 4 a lawsuit that seeks to invalidate all of the tax, gambling and spending-reduction bills approved in last month's special session.

Circuit Judge Thomas F. Stansfield granted a motion by the plaintiffs to postpone the hearings until Mary Monahan, chief clerk of the House of Delegates, can be found and deposed.

The administrative officer is central to the case because the lawsuit hinges on an obscure technical provision in the Maryland Constitution that the plaintiffs - led by Del. Michael D. Smigiel Sr., a Cecil County Republican - claim the General Assembly violated.

That clause requires that either chamber in the legislature get approval from the other before adjourning for more than three days.

The lawsuit argues that when the Senate took a five-day break during the special session - while waiting for the House to finish its work - it failed to get proper approval from the House, thereby invalidating all the bills that were later passed.

According to House records, the Senate requested permission Nov. 9 to adjourn until Nov. 15. On Nov. 12, Monahan sent a message consenting to the adjournment on behalf of Majority Leader Kumar P. Barve.

There is dispute about whether the state Constitution requires that the House take a vote to give its consent.

Plaintiffs' attorney Irwin Kramer declined to say what questions he had for Monahan, saying only that he believed they were essential to his case.

He also said that he believed Monahan was evading deposition and is being sought for related questioning by the FBI.

FBI spokeswoman Michelle Crnkovich said, "To my knowledge, we have no investigation that includes Mary Monahan in any way."

Lawyers in the attorney general's office argued in court that Monahan's testimony is irrelevant to the case, but Stansfield said that he believed her contribution was essential.

"I see this as more than incidental, and I'm not going to proceed until this deposition occurs," he said.

Whatever the relevance of Monahan's testimony, the outcome of the suit - which Stansfield said would probably end up in the state Court of Appeals - likely rests on questions of legal theory rather than disputes of fact.

The state is arguing that even if a technical violation of procedure occurred, there is no legal basis for invalidating the legislature's work. The intent of the clause was to prevent the legislature from stopping its work, the state said, and in this case the special session was productive.

"Plaintiffs cannot properly invoke a provision of the Maryland Constitution that is intended to keep the General Assembly at its legislative work, when they are trying to undo work that the Legislature actually accomplished," wrote Austin C. Schlick, head of the attorney general's civil litigation division, in a court filing.

Democrats have called the lawsuit a frivolous and politically motivated gambit by Republicans to try and undo a tax bill that they could not defeat legislatively.

Before the hearing yesterday, Smigiel said he and his fellow plaintiffs - which include the Republican leaders and whips for both chambers - were motivated solely by a desire to ensure adherence to state law.

Dan Friedman, an attorney at Saul Ewing and author of a book on the Maryland Constitution, predicted that the Court of Appeals "will have no problem rejecting" the plaintiffs' case.

"Here the Republicans lost the fight to avoid these taxes, and what they're trying to do is use this procedure to give them what they wanted," Friedman said.

But in the courts "there is a strong, strong predilection against granting a procedural windfall to somebody who lost the substance," he said.

Friedman also said the lawsuit's other argument - that putting the legalization of slot machines on the ballot is unconstitutional - also is likely to fail.

The plaintiffs ground their arguments in a constitutional prohibition on voter referendums that are essentially funding bills.

"But what is proposed for slots is not a referendum," Friedman said, but a constitutional amendment. "And there are no similar limits on constitutional amendments."

Sun reporter Matthew Dolan contributed to this article.

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