The famous maxim that "the more things change, the more they remain the same" is not always true. Sometimes, things get worse. Consider, for example, the recent efforts of Gov. Martin O'Malley to influence the resolution of an environmental lawsuit pending in federal court.
In 2010, some legislators, mostly from the Eastern Shore, threatened to hold hostage hundreds of thousands of dollars from the University of Maryland budget in response to that lawsuit, brought by the law school's environmental law clinic on behalf of one of its clients against an Eastern Shore poultry farmer and its patron, Perdue Farms. The lawsuit alleges that the poultry farm violated the Clean Water Act by discharging pollutants into the Chesapeake Bay Watershed and that Perdue is also legally responsible for that pollution. In the end, the 2010 General Assembly did not restrict the UM budget.
But Governor O'Malley has now made things worse. He has written a widely publicized letter to the law school's dean in which he calls the lawsuit a "state-sponsored injustice and a misuse of taxpayer resources." He calls, in effect, for the clinic to abandon its client. Not surprisingly, some legislators, primarily those whose constituents include poultry farm interests, have announced their intention to follow the governor's lead. The Sun reports that they "say they plan to try to cut the clinic's funding or limit who it can sue."
I hope that Governor O'Malley will think more carefully about several aspects of this controversy and especially what his role in it might be in the future. For example:
•It is inappropriate for the governor to suggest that the environmental law clinic turn its back on its clients. Lawyers cannot ethically abandon clients, and governors should not suggest they do so.
•The environmental clinic and the many other clinics at the UM law school, which rank in the top 10 among the nation's law schools, have accomplished enormous good for Maryland's citizens. Annually, the students and faculty provide more than 100,000 hours of free legal assistance to people and community organizations that cannot afford private attorneys. They not only enforce laws that protect the bay but also laws that protect children from abuse, guarantee the elderly essential medical services, protect homeowners from foreclosure scams, and help communities throughout the state protect themselves from violence, crime and decay. This is civil law enforcement at its best.
The law school's clinics are not immune from criticism. But when a governor is a critic, he should express his views in ways that respect both the clinical law program's exemplary work and the independence from political interference that is essential to its success.
•Many will view the very public expression of the governor's displeasure while the lawsuit is pending as an effort to load gubernatorial weight onto the scales of justice.
It is not uncommon, of course, for politicians to tinker with the judicial process in order to achieve their goals. Fortunately, these efforts usually fail.
President Franklin Roosevelt, at the peak of his powers, tried to "pack" the Supreme Court with his appointees because he disagreed with that court's decisions. He failed. So did congressional efforts to strip federal courts of jurisdiction to decide politically controversial categories of cases. And President Ronald Reagan failed in his efforts to eliminate funding for lawyers who represent the poor. Gov. William Donald Schaefer flirted with the same idea early in his first term. He failed too.
The outcome of these episodes reflects our respect (whatever our disparate political views may be) for the rule of law and the integrity of the judicial process and, in our present context, for the freedom from political pressures of lawyers like those in the environmental law clinic, who serve the rule of law by seeking to enforce it.
I don't expect Governor O'Malley to change his mind about the wisdom of the environmental clinic's lawsuit. But I do hope and believe that the governor — who has served the state with great distinction and whose strong leadership I continue to value highly — will find some merit in this critique.
The governor stated that government should not "dictate the clients clinics may represent or the cases they should undertake." I hope and trust that he will adhere to that principle. But I urge the governor to do more. I urge him to help extinguish the fire that he has unfortunately helped to fuel. I urge him to lead.
With some members of the General Assembly openly threatening retaliation against the law school, I urge the governor to stand as the sentinel who protects the judicial process and ensures that a judge, not the political process, decides this case. He should use his influence to head off efforts to punish those whose only "crime" is their effort to enforce the law.
Stephen H. Sachs served as United States attorney for Maryland from 1967 to 1970 and as Maryland's attorney general from 1979 to 1987. His e-mail is firstname.lastname@example.org.