GOP: General Assembly’s special session was illegal

Six-day break, referendum on slots violated state constitution, lawsuit says

‘‘The Constitution is designed to protect the minority. The Constitution has protections for the people of Maryland to get a fair process,” said Senate Minority Whip Allan H. Kittleman (R-Dist. 9) of West Friendship, one of the plaintiffs. ‘‘We don’t have any misconception we have the votes to win. We just want them to follow the process.”

During the 22-day session, the General Assembly passed an array of tax increases designed to plug a $1.5 billion gap between revenue and spending in fiscal 2009. Most measures take effect Jan. 1, allowing the Maryland treasury to bank about $500 million before the July 1 start of the fiscal 2009 budget.

The suit contends the Senate violated Article III, Section 25, of the Maryland Constitution, in which a chamber cannot adjourn for more than three days. The Senate adjourned Nov. 9 and did not come back into session until Nov. 15.

The lawsuit also claims the legislature cannot ask voters to decide whether to legalize slot machine gambling because the Constitution forbids referendums to decide financial matters.

‘‘In the pace of a controversial and frantic session, legislators are prone to exceed the constitutional speed limit and to ignore provisions which restrain their process and their power,” the suit reads.

Attorney General Douglas F. Gansler (D), Comptroller Peter V.R. Franchot (D) and House Speaker Michael E. Busch (D-Dist. 30) of Annapolis had no comment.

Senate President Thomas V. Mike Miller Jr. called the suit ‘‘bungled legal reasoning and frivolous.”

In addition to Kittleman, the plaintiffs include Senate Minority Leader David R. Brinkley (R-Dist. 4) of New Market, House Minority Leader Anthony J. O’Donnell (R-Dist. 29C) of Lusby and House Minority Whip Christopher B. Shank (R-Dist. 2B) of Hagerstown.

Other plaintiffs are Del. Michael D. Smigiel Jr., the House minority parliamentarian, and John C. Pardoe, who owns Byte Right Support of Baltimore. Pardoe’s $1.3 million, 10-employee company will suffer, he said, from a General Assembly decision to extend the state’s 6 percent sales tax to computer services.

‘‘We feel we were penalized because we weren’t organized,” said Pardoe of Westminster.

The attorney filing the suit is Irwin Kramer of Owings Mills. Judge Thomas F. Stansfield has been assigned the case, said Kramer. A hearing is set for Friday in Westminster.

The case has several defendants: Franchot, the Department of Health and Mental Hygiene, the Maryland Health Care Commission, the Health Services Cost Review Commission, acting Secretary of State Dennis C. Schnepfe, the Maryland State Board of Elections and the Carroll County Board of Elections.

Slamming the majority

‘‘People will try to diminish this, that it’s frivolous, but it’s not,” O’Donnell said. ‘‘If a supermajority in their arrogance of power decides to pick and choose when they will follow the constitution, we’re all at risk.”

Smigiel (R-Dist. 36) of Elkton raised the issue of the Senate’s six-day adjournment on the floor of the House, asking whether the chamber could continue constitutionally.

The provision of the Constitution reads: ‘‘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.”

After Smigiel raised his objection, Del. Kathleen M. Dumais, the House Parliamentarian, ruled her colleagues could proceed.

At the time, she had a letter from Assistant Attorney General Kathryn Rowe who argued the adjournment does not require the vote because of punctuation changes as the provision evolved.

‘‘I think it may be much to do about nothing,” Dumais, a lawyer, said Thursday. ‘‘I’m not the judge, but I don’t think anything that we did will invalidate the legislation that was passed.”

The six days the Senate was out included a weekend and the Veterans Day holiday, noted Dumais (D-Dist. 15) of Rockville.

‘‘They are using this provision to invalidate work, when its intent is to insure that work is accomplished and complete,” said Miller, also a lawyer, in a statement.

Insisting the senators remain in Annapolis while the House completed work on the bills would have been a waste of taxpayer money, said Miller (D-Dist. 27) of Chesapeake Beach.

Dumais said the lawsuit erred in its challenge of the slots referendum. Article XVI, which covers referendums, might prohibit citizens from petitioning fiscal bills to voters, but Article XIV, which covers constitutional amendments, does not.

The slots bill specifically cites Article XIV, she said.

Brinkley countered: ‘‘You can’t have a decision dealing with the state’s finances and take it to referendum. The people expect us to do that.”

In his filing, Kramer cites recent Democratic actions that have run afoul of the courts, including Gov. Parris N. Glendening’s legislative redistricting map and the General Assembly’s attempt to fire the Public Service Commission last year.

‘‘Just last year, the Court of Appeals admonished legislators for the type of impatient and impetuous decision making that crossed constitutional lines during the 2006 Special Session,” the suit reads. It cites the court’s decision last year to overturn the firing of Kenneth D. Schisler, the former PSC chairman who sued to keep his job after the legislature tried to unseat the commission.

Read the lawsuit

Go to www.kramerslaw.com⁄special_session.htm