Smigiel v. Franchot

BELL, C.J. I. Facts Governor Martin O’Malley, pursuant to his authority under MD. Const. Article II, Section 16, issued Executive Order 01.01.2007.23 on October 15, 2007, calling for the General Assembly to convene for an Extraordinary Session to address ³⁰⁵ an impending structural deficit facing the State. At the time, the State faced a potential $1.7 billion deficit for Fiscal Year 2009, along with similar projected deficits for future Fiscal Years, unless immediate budgetary action was taken.

Governor O’Malley’s solution for correcting this budgetary crisis was to increase the State’s revenue by raising taxes. The most controversial aspect of the Governor’s proposed solution to this impending fiscal crisis, and at the very heart of this entire case, is his recommendation that the General Assembly draft and adopt legislation that would permit slot machines in Maryland. The Extraordinary Session commenced on October 29, 2007 with Governor O’Malley proposing a package of legislation to the General Assembly 1 that he believed would generate budget savings, raise revenue and strategically position Maryland to address future fiscal challenges. Senate Bill 3 and House Bill 4, incorporating the slot machine proposal, are at the center of this case.

Senate Bill 3 was entitled, “Maryland Education Trust Fund-Video Lottery Terminals.” This Bill contained comprehensive legislation that would regulate the implementation and the allocation of revenues originating from Video Lottery Terminals, or slot machines, in Maryland. The only caveat, however, was that, at the time Senate Bill 3 was passed by the General Assembly and signed into law by the Governor, 2007 Md. Laws, Chapter 4, slot machines were not yet legal in Maryland. Senate Bill 3 recognized this fact by including the following contingency language in the Bill: ³⁰⁶ “SECTION 12. AND BE IT FURTHER ENACTED, That this Act shall be contingent on the passage of Chapter (S.B.4/H.B.4) of the Acts of the General Assembly of the Special Session of 2007, a constitutional amendment, and its ratification by the voters of the State. “SECTION 13.

AND BE IT FURTHER ENACTED, That, subject to the provisions of Sections 11 and 12 of this Act, this Act shall take effect on the proclamation of the Governor that the constitutional amendment, having received a majority of the votes cast at the general election, has been adopted by the people of Maryland.” As indicated in the contingency language above, House Bill 4 proposed for voter ratification a constitutional amendment that both authorized slot machines in Maryland and established various limitations surrounding their use. Thus, after House Bill 4 was passed by the General Assembly and approved by the Governor, it was to be voted on by Maryland voters during the November 2008 General Election. Between Monday, October 29, 2007, the day the General Assembly convened for the Extraordinary Session, and Saturday, November 3, 2007, the standing committees with jurisdiction over the Governor’s proposed legislation held public hearings. During the week of November 5, 2007, the full Senate considered the five bills that the standing committees recommended for approval, along with various proposed amendments.

By Friday, November 9, 2007, the Senate passed its versions of the five bills recommended by the committees and sent the bills to the House. The Senate also decided to adjourn until Tuesday, November 13, 2007, while the House finalized its work on the five bills. On Monday, November 12, 2007, which also happened to be Veterans’ Day, it appeared that the House would not have any bills ready for the Senate to consider by Tuesday—the day when the Senate’s adjournment originally was scheduled to end. The Secretary of the Senate, Billy Addison, Jr., at the behest of Senate President Thomas V. Mike Miller, Jr., called the Chief Clerk of the House of Delegates, Ms. Mary Mona ³⁰⁷ han, to inquire whether the House would agree to the Senate extending its adjournment.

The Maryland Constitution provides: “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.” MD. Const. Art. Ill, § 25. Ms. Monahan contacted Kristin Jones, Esquire, counsel to the Speaker of the House, who informed her that the Speaker agreed to the Senate’s request for extending its adjournment.

Apprised of the House Speaker’s agreement, Senate President Miller sent a memorandum to the members of the Senate, informing them that the Senate’s adjournment was extended until Thursday, November 15, 2007, by which time the President believed there would be substantive work for the members of the Senate to resume. The task of memorializing the extended adjournment was left to Ms. Monahan and the members of her staff. At the request of Senate Secretary Addison, 2 Ms. Monahan obtained stationery from his office so that a member of her staff could draft a “Message to the House of Delegates,” requesting the House’s permission to adjourn until November 15, 2007. The letter, on Senate stationery, read as follows: “By The Majority Leader: “Ladies and Gentlemen of the House of Delegates: “It is the intention of the Senate to adjourn until Thursday, November 15, 2007.

If the House consents the Senate will adjourn until Thursday, November 15, 2007.” In drafting the above “Message to the House of Delegates,” House staff debated whether to date the letter for November 12, 2007, the actual date the letter was drafted, or to backdate ³⁰⁸ the letter to November 9, 2007, the last day that the Senate would have been in session before being temporarily adjourned. After consulting with the legal counsel to the Speaker of the House, Ms. Monahan’s staff decided that the letter from the Senate should be backdated to November 9, 2007. On the same day that Ms. Monahan’s staff drafted the Senate’s “Message to the House of Delegates,” the assistant House Clerk, who also was on Ms. Monahan’s staff, responded to the Senate’s backdated letter. Captioned a “Message to the Senate” and on House of Delegates stationery, the letter stated, “[t]he House consents to the Senate adjourning until Thursday, November 15, 2007.” The messages were entered into the House Journal on November 12, 2007.

Neither of these messages was read to members of the House of Delegates nor voted on by them as a body. Ms. Monahan, at her deposition, testified that, in order to avoid any confusion, she made a handwritten note that these messages had only been “journalized” and had not been read or adopted by either the House or the Senate. On November 15, 2007, the Senate reconvened and remained in session until the 2007 Extraordinary Session adjourned indefinitely on November 19, 2007. During the remainder of the Session, both chambers appointed conference committees that reconciled the differences in their respective bills.

On November 19, 2007, the House and the Senate adjourned their Extraordinary Session “sine die” after passing the reconciled bills. On that same day, Governor O’Malley approved and signed into law the bills passed by the General Assembly during the Extraordinary Session. Before the Senate reconvened on November 15, 2007, a member of the House of Delegates from Cecil County, Michael Smigiel, the lead petitioner, 3 inquired of the House Parliamentarian whether the Senate’s extension of its adjournment violated Article 3, § 25 of the Maryland Constitution. Delegate Smigiel believed it did, by extending the initial adjourn ³⁰⁹ ment beyond the three days requested, without the House having voted to approve the extension.

The House Parliamentarian rejected the petitioner’s challenge, concluding that the General Assembly was “constitutionally proceeding appropriately.” II. Procedural History Less than one month after the General Assembly concluded its Extraordinary Session, the petitioners filed a Verified Complaint seeking Emergency Declaratory and Injunctive Relief in the Circuit Court for Carroll County on December 13, 2007. The petitioners requested that the Circuit Court expedite briefing and argument on their motions for a temporary restraining order, preliminary injunction or summary judgment. The Circuit Court scheduled a hearing on the petitioners’ motion for a temporary restraining order for December 21, 2007.

On December 19, 2007, the State filed a Motion to Dismiss, and simultaneously challenged the petitioners’ attempt to depose Ms. Monahan, arguing that “legislative privilege” precluded the deposition. The Circuit Court ruled, in an Order dated December 18, 2007, that the petitioners were permitted to depose Ms. Monahan. The respondents appealed the Circuit Court’s order to both the Court of Special Appeals and this Court. Both courts, however, refused to consider the merits of that appeal.

On December 21, 2007, the day of the scheduled hearing, the petitioners moved for a continuance so that they could locate Ms. Monahan and depose her. The Circuit Court granted the motion for a continuance and rescheduled the hearing for January 4, 2008. On January 2, 2008, Ms. Monahan finally was deposed. At the January 4, 2008 hearing, the Circuit Court heard arguments and subsequently issued an opinion on January 10, 2007, dismissing the case and holding that the legislation passed by the General Assembly during the 2007 Extraordinary Session was valid.

The petitioners timely filed a Notice of Appeal to the Court of Special Appeals and simultaneously requested that this Court issue a Writ of Certiorari in light of the significant issues raised. On January 29, 2008, this Court issued a Writ ³¹⁰ of Certiorari, Smigiel v. Franchot, 403 Md. 304 , 941 A.2d 1104 (2008), to the Court of Special Appeals before the latter could hear arguments in the appeal.

III

Questions Presented In their Petition for Writ of Certiorari, the petitioners posed two questions for our review. 4 First, they asked, whether the General Assembly may make the appropriations in Senate Bill 3 contingent on voter approval of a proposed constitutional amendment. In their second question, they inquired whether, when the Senate extended its adjournment without obtaining the House’s approval, bills passed during the 2007 Extraordinary Session are valid. On March 12, 2008, after oral argument, we issued a Per Curiam Order answering both of the above questions in the affirmative, with our opinion explaining the Order to follow. We now file that opinion.

IV

Legal Analysis Contingent Legislation Issue The petitioners argued that the General Assembly violated the Maryland Constitution by making Senate Bill 3, 2007 Md. Laws, Chapter 4, contingent on voter approval of the ballot question summarizing the proposed constitutional amendment contained in House Bill 4, 2007 Md. Laws, Chapter 5. The petitioners asserted that “the Legislature ... may not escape its duties and responsibilities by delegating such legislative power to the people at large.” See Brawner v. Supervisors of Elections, 141 Md. 586, 595-96 , 119 A. 250, 252 (1922). The ³¹¹ petitioners asserted that when the General Assembly made Senate Bill 3 contingent on voter approval of a constitutional amendment, it was merely a “disingenuous pretext for shifting its vote to voters at large.” They reasoned that the General Assembly, by enacting Senate Bill 3 and at the same time proposing the constitutional amendment embodied in House Bill 4, set up and subjected Maryland voters to an alleged “bait and switch” scheme. The alleged bait was that Maryland voters unwittingly would vote to approve the proposed constitutional amendment, believing that the slots revenue would fund education in Maryland.

The switch, however, would be that the appropriations actually made by Senate Bill 3 significantly would benefit the horseracing industry. The petitioners relied on Brawner v. Supervisors of Elections, 141 Md. 586 , 119 A. 250 (1922) to support their argument that the action of the General Assembly, during the 2007 Extraordinary Session, by subjecting the constitutional amendment to voter approval, was an unconstitutional attempt to delegate to the public its duties of enacting legislation. The petitioners asserted that, by subjecting the constitutional amendment to voter approval, the General Assembly was circumventing the redelegation prohibition that we recognized in Brawner. See also Benson v. State, 389 Md. 615, 641 , 887 A.2d 525, 540 (2005) (noting that the Legislative body possesses the non-delegable power to enact legislation).

They posited that “fi]n a representative democracy, the people delegate power to legislators—not the other way around.” Petitioners’ Brief at 19. Thus, according to the petitioners, Maryland voters should not be able to vote on a proposed constitutional amendment that merely would allow the General Assembly to redelegate its duties to them, a delegation, which, in any event, is prohibited under our holding in Brawner . The petitioners’ reliance on Brawner , however, is misplaced. In Brawner , this Court was asked to address the constitutionality of Chapter 448 of the Acts of 1922, also known as the Soldiers’ Bonus Act.

There, Baltimore City resident, Harry Brawner, requested that the Baltimore City Court issue a Writ of Mandamus to the Supervisors of Election, command ³¹² ing them to refrain from placing the Soldiers’ Bonus Act on the ballot for voter approval. Brawner v. Supervisors of Elections, 141 Md. 586, 591 , 119 A. 250, 250-51 (1922). The Baltimore City Court rejected the appellant’s request for a Writ of Mandamus, and he appealed to this Court. Under the Soldiers’ Bonus Act, a statute passed by the General Assembly, Maryland residents who served in the Army or Navy during World War I would be given a limited monthly stipend and an educational allowance.

Id. at 591-92 , 119 A. at 251 . The Act’s effectiveness was made contingent upon its approval by Maryland voters through referendum. Brawner, 141 Md. at 603 , 119 A. at 255 . The appellant proffered that “[t]he General Assembly of Maryland [was] utterly wanting in authority to make the validity of a public general statute dependent upon approval by a majority of the voters of the State under a referendum.” Brawner, 141 Md. at 593 , 119 A. at 251 .

We agreed. Id. at 595 , 119 A. at 252 . This Court held the Soldiers’Bonus Act to be unconstitutional. We reasoned that the General Assembly, pursuant to Article III of the Maryland Constitution, was prohibited from enacting legislation that hinged its effectiveness or validity on its approval by the Maryland voters.

Brawner, 141 Md. at 602 , 119 A. at 254 . In reaching our decision in Brawner , we explained that the Soldiers’ Bonus Act violated the exclusive law-making authority that the Maryland Constitution reserved for the General Assembly: “But in the act under consideration [the Soldiers’ Bonus Act], the Legislature has added a new qualification or condition to the passage of legislation, in addition to and entirely dehors anything in the Constitution. That is, it provides that although the act under consideration has passed both Houses and has been signed by the Governor, it shall not become a law unless a majority of the qualified voters of the State approve it. The effect of that provision is not in any way to amend the Constitution, but to violate it.” Brawner, 141 Md. at 602 , 119 A. at 254 .

The petitioners’ reliance, in the case sub jndice, on our decision in Brawner is misplaced. As the Brawner court ³¹³ clearly indicated, in that case, we rejected the General Assembly’s attempt to put before the voters, for their up-or-down vote, a statute already enacted by the Legislature and signed by the Governor. That simply is not the issue presented in the instant case. Rather, Maryland voters were being asked to approve, or not, a constitutional amendment.

Thus, Maryland voters were confronted with a proposed constitutional amendment, which, if the majority voted to approve, would, in turn, trigger the appropriations contained in the already enacted Senate Bill 3. Said another way, Maryland voters, by approving the proposed constitutional amendment, were not asked to approve a statute. This distinction, although given short-shrift by the petitioners, is absolutely critical and dispositive on the issue before this Court. Indeed, it is this division of labor that is at the very foundation of our representative democracy.

Section 1 of Article XIV of the Maryland Constitution empowers the General Assembly to submit constitutional amendments to Maryland voters. It provides, in relevant part: “The General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will stand when amended and passed by three-fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment.... The votes cast for and against said proposed amendment or amendments, severally, shall be returned to the Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the votes cast at said election on said amendment or amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, declare the said amendment or amendments having received said majority of votes, to have been adopted by the people of Maryland as part of the Constitution thereof, and thenceforth said amendment or amendments shall be part of the said Constitution.” MD. Const.

Article XIV, Section 1. ³¹⁴ In passing House Bill 4, the General Assembly exercised that power, thus submitting it to Maryland voters for their consideration “pursuant to Article XIV of the Maryland Constitution.” See Bd. of Supervisors of Elections for Anne Arundel County v. Attorney General, 246 Md. 417, 439 , 229 A.2d 388, 400 (1967) (“The people of Maryland from 1776 until today have shown that they concur in the generally prevailing view, which we believe to be sound, that the people retain the sovereign power to rewrite their constitution, that the legislative processes which lead to and assist in the exercise of that power are not a part of the previously bindingly delegated powers conferred on the Legislature by the people____”). The petitioners, in their briefs, however, never squarely addressed the explicit authority given to the General Assembly under Article XIV to propose, and for the people to approve, amendments to the Maryland Constitution. Rather, the petitioners argued that the constitutional amendment proposed by House Bill 4 was unnecessary because the General Assembly could have enacted all of the provisions in House Bill 4 through regular legislation instead of an unnecessary amendment to the Maryland Constitution. Moreover, the petitioners, in a footnote in their brief, asserted that while the people did reserve the power of referendum in Article XVI, 5 they “did not reserve any power to vote on revenue measures like those contained in the slots package.” See Kelly v. Marylanders for Sports Sanity, 310 Md. 437 , 530 A.2d 245 (1987).

The respondents, on the other hand, rejected the petitioners’ characterization of the proposed constitutional amend ³¹⁵ ment in House Bill 4 as unnecessary. According to the respondents, an amendment to the Maryland Constitution was necessary because House Bill 4 proposed to limit “the authority of future Legislatures to regulate commercial gambling.” Specifically, the respondents proffered that the constitutional amendment in House Bill 4 “will restrict the number of video lottery operation licenses to five, require that the licenses be for the primary purpose of raising revenue for education, limit the total number of video lottery terminals to 15,000, designate the exclusive locations for video lottery terminals, and make video lottery facilities subject to local planning and zoning laws.” The constitutional amendment was necessary, according to the respondents, because it would “limit the General Assembly’s future power to legislate on the subject of commercial gaming.” The petitioners respond that the constitutional amendment was a pretext for something that the General Assembly could have done through ordinary legislation. We start our analysis by considering the petitioners’ argument that while the people reserved the power of referendum under Article XVI, they “did not reserve any power to vote on revenue measures like those contained in the slots package.” For this proposition, the petitioners cited our decision in Kelly v. Marylanders for Sports Sanity, Inc., 310 Md. 437 , 530 A.2d 245 (1987). In Kelly , this Court had to determine whether various enactments passed by the General Assembly regarding the Maryland Stadium Authority were precluded by Article XVI, Section 2 of the Maryland Constitution from being referred for voter approval.

Article XVI, Section 2 reads, in pertinent part, as follows: “No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.” MD. Const. Article XVI, Section 2. In Kelly , the General Assembly created the Maryland Stadium Authority (the “Authority”) which it empowered to borrow money to purchase land, construct and regulate sports faeili ³¹⁶ ties, including stadiums for professional football and major league baseball in the Baltimore metropolitan area.

Kelly, 310 Md. at 439 , 530 A.2d at 246 . After the Authority notified the General Assembly of its intent to purchase an 85 acre-tract of land in Baltimore City known as Camden Yards, the General Assembly enacted three bills which, in part, authorized the Authority to contract for a facility on the Camden Yards site, 1987 Md. Laws, Chapter 122, outlined the Authority’s powers and duties, 1987 Md. Laws, Chapter 123, and limited the Authority’s power to issue bonds for financing the project, 1987 Md. Laws, Chapter 124. Kelly, 310 Md. at 441-43 , 530 A.2d at 246-48 . Opponents of the three bills enacted by the General Assembly sought to petition 1987 Md. Laws, Chapters 122 and 124 to referendum under Article XVI of the Maryland Constitution.

Kelly, 310 Md. at 446 , 530 A.2d at 249 . The petitioners’ reliance on our decision in Kelly was misguided in light of the fact that the proposed constitutional amendment contained in House Bill 4 was proposed pursuant to Article XIV, and not referred pursuant to Article XVI. Thus, 2007 Md. Laws, Chapter 5 [House Bill 4] was not subject to the referendum limitation outlined in Article XVI, Section 2 of the Maryland Constitution. The question thus presented is whether the Maryland General Assembly had the power to enact general legislation before, and contingent on, the adoption of a constitutional amendment that it had proposed to the voters.

We hold that it did. Indeed, its doing so was not an unusual occurrence. See 2006 Md. Laws, Chapters. 422 & 575 (availability of civil jury trials); 1996 Md. Laws, Chapters 81 & 674 (special elections in charter counties); 1990 Md. Laws, Chapters 62 & 515 (clerks of court—employees