GOP lawmakers dealt setback

Appeals court delays deposition of House clerk in suit aimed at undoing special session

December 27, 2007|By Gadi Dechter | Gadi Dechter,Sun reporter

In a setback to Republican lawmakers seeking to invalidate tax, spending and gambling bills passed during the special session of the General Assembly, the Court of Special Appeals ruled yesterday that a key witness cannot be deposed today as planned.

Court filings indicate that attorneys for GOP legislators want to ask Mary Monahan, chief clerk of the House of Delegates, about official documents relating to a five-day adjournment by the Senate in November.

"I wouldn't expect that this is at all a comment on the merits of the positions," said plaintiffs' attorney Irwin R. Kramer about the court's decision to stay Monahan's deposition until it rules on the admissibility of her testimony.

"I'm pretty confident that when the judges take a look at the merits ... they will allow us to ask the questions we all need answers to."

Yesterday's ruling by a three-judge panel, made in response to an emergency petition filed Christmas Eve by the attorney general's office, is the latest in a flurry of developments in a high-stakes lawsuit about a little-known provision in the Maryland Constitution.

Led by Del. Michael D. Smigiel Sr. of Cecil County, five Republican lawmakers and a local businessman filed suit Dec. 13 in Carroll County Circuit Court claiming that the General Assembly violated a constitutional provision requiring that either legislative chamber formally consent to a break of more than three days by the other.

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.

The state says the lawsuit is an attempt by Republicans to undo laws they could not defeat legislatively and is without legal merit. The state further argues that Monahan's testimony is irrelevant and is in any case "privileged" by the constitutional separation of judicial and legislative powers.

Leslie D. Gradet, clerk of the special appeals court, said she did not know when the judges would issue a final ruling on whether Monahan could be deposed. Sandra B. Brantley, an assistant attorney general in the General Assembly's office, said she expected a ruling would come before proceedings on the lawsuit reconvene Jan. 4 in Westminster.

A central figure

Monahan emerged as a central figure in the case Friday, when Kramer asked Circuit Judge Thomas F. Stansfield to postpone hearings in the case until the House clerk - who is on vacation in Florida - could be found and a deposition taken.

Stansfield agreed and issued the delay until Jan. 4. "I see the issue of what the clerk may say as having great interest in this case, possibly," he said during Friday's hearing.

Kramer declined again yesterday to say precisely what questions he has for Monahan, who was scheduled for deposition in Tampa, Fla., this morning.

But in papers filed with the Court of Special Appeals, he wrote that the purpose of Monahan's deposition is to discover "when certain documents were received, when certain documents were created, and whether many of the documents relied upon by the Attorney General and legislative leaders were fabrications designed to conceal a constitutional impropriety."

Part of the defense's case is its contention that the House did give appropriate consent for the Senate's five-day adjournment, as required by the constitutional provision designed to prevent one chamber from derailing the entire legislature's work.

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, those records show.

But the Senate's records indicate that it intended to adjourn only until Nov. 13. A day earlier, President Thomas V. Mike Miller sent an e-mail to senators, informing them that the Nov. 13 session had been rescheduled to Nov. 15.

Discrepancy

The discrepancy in the records raises the issue of whether records were altered after Republican lawmakers asked on Nov. 15 if the Senate's adjournment met the standards laid out in the state constitution.

As House clerk, Monahan is responsible for her chamber's official records.

Byron Warnken, who teaches state constitutional law at the University of Baltimore, predicted that the courts would ultimately allow Monahan's deposition, despite the state's legislative privilege argument.

"Notwithstanding the separation of powers ... I think the courts cannot be denied the power to determine whether the constitution has been complied with," he said.

But Dan Friedman, author of a book on the Maryland Constitution, said courts are historically loath to probe the provenance of legislative records. "Under the separation of powers, they don't dig in," he said. "Courts will presume in these procedures that the legislature is following the rules."

Even if there were procedural irregularities involving the adjournment's consent, Friedman predicted the courts would not allow the plaintiffs to exploit them to reverse major legislation.

On Jan. 1, increases to the income tax and tobacco tax are scheduled to go into effect, followed by sales tax changes Jan. 3.

gadi.dechter@baltsun.com

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