Experts differ on GOP suit seeking to overturn tax increases, slots vote

BALTIMORE (Map, News) - Lawyers for Maryland’s Republican legislative leaders and the Attorney General’s Office are set to duke it out in a Westminster courtroom Friday over the GOP’s attempt to invalidate the work of last month’s special General Assembly session.

Two legal scholars who have read the pleadings for the Republicans by attorney Irwin Kramer, an Owings Mills Democrat, find the arguments for overturning the tax increases as violations of the state constitution are not persuasive. But the experts differ on whether the slots referendum is the kind of revenue measure that can’t go on the ballot.

“What they couldn’t win in the political process, they’re trying to get as a result of procedural issues,” said Dan Friedman, a Saul Ewing attorney who wrote a 2005 reference guide to the Maryland Constitution.

The Republicans’ lawsuit makes two arguments.

The first rests on a provision of the state constitution that says neither the House nor the Senate can adjourn during a session for more than three days “without the consent of the other.” The Senate did this in early November as it waited for the House to act on the legislation it had passed.

“I think there are good arguments about what the plain text means,” Friedman said.

Byron Warnken, a professor at the University of Baltimore Law School, doesn’t see as much wiggle room in the constitution, and thinks there was a violation. But Warnken noted that “the framers were silent on what to do if one house violates this mandatory provision.”

Even if there was a violation, invalidating the laws passed “is an awful harsh remedy,” Friedman said, especially because there was no “legislative paralysis” that the constitutional provision was trying to prevent. Because the Senate eventually came back to town, and both houses ultimately passed the legislation in the same form, Warnken and Friedman saw no reason the laws should be overturned.

The other key argument is that the constitutional amendment to permit slot machine gambling is too closely linked to the underlying bill on how the revenue is to be used. This makes it an impermissible delegation of the legislature’s revenue-raising authority, a constitutional provision cited by the Court of Appeals in a 1987 ruling against a Baltimore stadium referendum.

“The people can always amend their constitution in any way they want,” Friedman said.

Warnken disagreed. “If the stadium issue could not be sent to referendum, it appears that the argument is even weaker on sending slots to referendum because the legislation is even more entwined with appropriations.”

Kramer declined to comment on the critiques of the pleadings, but did say: “I have a great respect for Dan. He was a student of mine” at the University of Maryland Law School, “and a very good one.” Kramer then joked, “Hopefully, I’ll be able to teach him a new lesson.”

Whatever Circuit Court Judge Thomas Stansfield decides on the motions for temporary restraining orders and injunctions blocking enforcement of the laws, his decision is likely to be appealed.

ON THE WEB

For links to pleadings in the case, go to

www.kramerslaw.com/special_session.htm

llazarick@baltimoreexaminer.com

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