State v. Holton

DAVIS, J. Appellant, the State of Maryland, appeals from the dismissal of charges against Baltimore City Councilperson Helen L. Holton, appellee. Appellee was indicted by a Baltimore City grand jury and charged with bribery, malfeasance in office, nonfeasance in office and perjury, arising out of her involvement with a development project in the Harbor East area of Baltimore City. Appellee moved to dismiss all of the charges on the basis that the evidence introduced before the grand jury constituted legislative acts, barred by the common law legislative privilege. The court addressed appellee’s motion to dismiss together with a “nearly identical” motion filed by former Baltimore City Mayor, Sheila Ann Dixon, in a separate case.

The court ruled in favor of both Dixon and appellee. The State now appeals that ruling as it pertains to appellee and presents one question for our review: Did the trial court err in holding that legislative immunity protects legislators in subordinate political subdivisions from criminal prosecution from the State? For the reasons that follow, we answer the State’s question in the negative. Accordingly, we affirm. ³²⁵ FACTUAL BACKGROUND The trial court dismissed the charges against appellant on the grounds that the only evidence obtained by the State, and alleged in the indictment, involved legislative acts.

The charges related to a payment of $12,500 made by Doracon Contracting, Inc. (Doracon), a developer owned in-part by Ronald Lipscomb, for a political survey for appellee’s benefit. The State alleged that the payment was intended to influence appellee to vote in favor of public subsidies known as “payments in lieu of taxes” (PILOT) for the development of two parcels of land in Baltimore City, for the benefit of Doracon and Lipscomb. The State presented evidence to the grand jury in the form of records and testimony regarding the proceedings of the Baltimore City Council and appellee’s activities in her capacity as a member of the Economic Development and Public Financing Committee and as Chairperson of the Taxation and Finance Committee, including telephone calls and meetings with Lipscomb and Doracon representatives. The circuit court provided the following summary of the legislative acts which it concluded infected the counts in the indictment against appellee: In Defendant Holton’s case, the use of legislative material is apparent in a review of the indictment.

It recites that Defendant Holton is and has been a duly elected member of the Baltimore City Council. ¶ 7. It notes that she was Chairperson of the Economic Development and Public Financing Subcommittee, and that after January 2007, she served as the Chairperson of the Taxation and Finance Subcommittee. At that time, she additionally served as chairperson of the Taxation and Finance Subcommittee. ¶¶ 8 and 9. The indictment describes the efforts of Ronald Lipscomb to communicate with Defendant Holton in her capacity as a member of the Baltimore City Council, and then as the chairperson of the Taxation and Finance Committee, regarding those projects. ¶ 11-21. ³²⁶ More specifically, the indictment alleges that beginning on or about June 4, 2007, Bill 07-0700 relating to Parcel D was introduced to the City Council and assigned to Ms. Holton’s Committee. ¶¶ 22 and 23.

Shortly thereafter, Ms. Holton commissioned an election survey to be prepared for her. ¶ 25. Eventually, Doracon Contracting Inc. paid $12,500.00 to Company Z for the survey. ¶ 31. Subsequently, Ms. Holton received the results of the survey, and thereafter, in the City Council, reported Bill 07-0700 favorably to the City Council on behalf of her committee and later voted for the bill in the City Council. ¶ 33-36. Legislative material pertaining to Defendant Holton is specifically referenced in many counts of the indictment.

For example: ¶ 15. On or about June 12, 2006, at the regularly scheduled 3:00 p.m. meeting of the Baltimore City Council, Councilwoman Helen L. Holton, acting for the Economic Development and Public Financing Subcommittee, reported favorably to the City Council on Bill 05-0301, the proposed PILOT for Parcel B portion of the Inner Harbor East project. ¶ 17. On or about July 10, 2006, Bill 05-301, the proposed PILOT for the Parcel B portion of the Inner Harbor East project was authorized by the City Council with Councilwoman Helen L. Holton abstaining. ¶ 28. On or about July 19, 2007, the Taxation and Finance Committee of the Baltimore City Council held a public hearing on Bill 07-0700.

Of the five members of the Committee, Chairperson Helen L. Holton and two other committee members voted to report favorably on the Bill with amendments. One member was absent and the fifth member abstained. ¶ 34. On or about August 13, 2007, Helen L. Holton reported Bill 07-0700 favorably with amendments to the City Council. ¶ 36. On or about September 24, 2007, the City Council approved Bill 07-0700 authorizing tax relief benefits in the form of a Payment in Lieu of Taxes (PILOT) for ³²⁷ Parcel D of Inner Harbor East with Councilwoman Helen L. Holton casting her vote in favor of the Bill.

These legislative acts are realleged in each of the four counts of the indictment. They form the factual predicate for the charge in Count 1 that the payment by Doracon Contracting Inc. of $12,500.00 for the survey constituted the receipt of the bribe. ¶ 40; in Count II, that the alleged solicitation and acceptance of that same money constituted a gift and malfeasance in office. ¶ .42; in Count III, that the failure to list the receipt of the $12,500.00 gift on Ms. Holton’s 2007 Financial Disclosure Form constituted perjury, ¶ .42; and in Count IV, that this failure also constituted nonfeasance in office. ¶ .46. In sum, the indictment alleged that appellee received and failed to report on her Financial Disclosure Statement the payment by Lipscomb’s company for her survey, the quid pro quo in exchange for the following acts: she reported favorably on the floor of the City Council on a bill that would subsidize parking for one of the development projects at issue, but abstained from voting on the matter; appellee participated in meetings between December 2005 and July 2007 with Lipscomb and others to negotiate the terms of another lot, which was ultimately approved by the Baltimore City Board of Estimates and she favorably reported another bill in favor of the second parcel, then voted in favor of the bill, which was ultimately approved by the City Council. The Indictment ultimately alleged that she signed, under oath, her Financial Disclosure Statement and filed it, without disclosing the aforesaid payment, acts constituting perjury, nonfeasance and malfeasance in office.

The trial court dismissed the indictment and issued a memorandum opinion delineating its reasons. The court rejected the State’s argument that local legislators are only entitled to legislative immunity in civil cases. Citing Montgomery County v. Schooley, 97 Md.App. 107 , 627 A.2d 69 (1993), the court determined that appellee, a local legislator, was entitled to the protections of common law legislative immunity, which the trial court believed to be “co-extensive” with the immunity ³²⁸ afforded to State legislators through the Speech and Debate provision of the Maryland Constitution. The circuit court distinguished the case principally relied upon by the State, United States v. Gillock, 445 U.S. 360 , 100 S.Ct. 1185 , 63 L.Ed.2d 454 (1980), which holds that a state legislator is not protected by a state legislative privilege in a federal criminal prosecution, because “such a state-created privilege was not part of the federal common law, and its recognition in federal court was not compelled by principles of federalism.” Because appellee invoked a state privilege in a state criminal prosecution, the court determined that, “[i]f the legislative immunity doctrine is indeed co-extensive with [the Speech and Debate clause], it is hard to see why the legislative immunity doctrine would not have purchase to some degree to promote the public purposes behind the doctrine when a State criminal prosecution is mounted.” The court further determined that the acts alleged in the indictments constituted legislative acts and that the State made “no fall-back or alternative argument that its conduct of the prosecution could be shown to have complied with the State and federal law____” Thus, the court opined: The Court reads the failure of the State prosecutor to make such a showing or proffer, despite being provided several opportunities to do so, including at oral argument on the motion on April 23rd, as a functional concession and admission that, on the current record, it cannot show compliance with the requirements to screen the grand jury from prohibited and prejudicial legislative related evidence in either of these cases.

Because it was not clear to the court that the grand jury would have indicted appellee without the evidence emanating from legislative proceedings, the trial court dismissed the indictment against Councilperson Holton. The State noted a timely appeal, challenging the court’s determination that appellee’s legislative acts were shielded by common law legislative immunity. After oral argument, this Court, sua sponte, directed the parties to address the applicability and impact of Md.Code (2006 Rep. Vol., 2009 Supp.), ³²⁹ Courts and Judicial Proceedings, C.J.P. § 5-501, which was not raised by either party before the trial court or in their briefs to this Court, and to reconcile how, if the statute was intended to immunize local legislators from prosecution for bribery, the General Assembly could, by statute, immunize a class of officers covered by Article III, Section 50 of the Maryland Constitution.

Additionally, this Court directed counsel to address the issue, based upon County Council v. Investors Funding Corp., 270 Md. 403, 436 , 312 A.2d 225 (1973) and Barranca v. Prince George’s County, 264 Md. 562, 570-71 , 287 A.2d 286 (1972), whether the traditional rationale for immunity of state legislators based on separation of powers is applicable to a local government and its officials. 1 The parties filed supplemental briefs in response to the Court’s instructions. We shall address in this opinion the original question raised on appeal as well as the issues addressed in the supplemental memoranda. 2 STANDARD OF REVIEW The trial court determined, as a matter of law, that the charges in the indictment against appellee, based upon evi ³³⁰ dence of her legislative acts, were barred by the common law doctrine of legislative immunity. The court’s ruling was based upon a pure question of law; thus, we shall review its decision de novo. [The Court of Appeals has said] that “[b]eeause [its] interpretation of the Maryland Declaration of Rights and Constitution, provisions of the Maryland Code, and the Maryland Rules are appropriately classified as questions of law, [it] review[s] the issues de novo to determine if the trial court was legally correct in its rulings on these matters.” Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78, 80-81 (2004); see also Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175, 184 (2006) (“where an order involves an interpretation and application of Maryland constitutional, statutory or case law, our Court must determine whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of review”). Thus, because we are presented with legal questions ..., we consider them de novo.

Owens v. State, 399 Md. 388, 402-03 , 924 A.2d 1072 (2007). LEGAL ANALYSIS We are tasked on this appeal with a determination of only the issue presented to the trial judge and decided by him, i.e., whether the prosecution of a local legislator may be based on evidence of his or her legislative acts. We underscore that our ultimate decision in no way intimates that local legislators are shielded from criminal prosecution when acting outside the purview of the legislative function. Based on existing statutory and decisional law, which we shall address in greater detail, infra, it is beyond cavil that local legislators are answerable for violations of the criminal laws committed outside the narrow parameters we recognize herein.

Lest there be any doubt, we now make indelibly clear that the issue before this Court is not, and never has been, whether appellee or any member of a local legislature may be criminally prosecuted for bribery, but only whether such a prosecution may be founded upon and proved by evidence of words spoken or actions taken by the legislator acting in his or her legislative capacity. ³³¹ The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. This privilege “has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries” and was “taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.” Tenney v. Brandhove, 341 U.S. 367, 372 , 71 S.Ct. 783 , 95 L.Ed. 1019 (1951). The Federal Constitution, the constitutions of many of the newly independent States, and the common law thus protected legislators from liability for their legislative activities. See U.S. Const., Art. I, § 6; Tenney v. Brandhove, supra, 341 U.S. 367 at 372-375 [ 71 S.Ct. 783 ].

Bogan v. Scott-Harris, 523 U.S. 44, 48-49 , 118 S.Ct. 966 , 140 L.Ed.2d 79 (1998). In both the trial court and in the parties’ briefs submitted to this Court, the issue was framed only in the context of whether Maryland common law, as enunciated in Schooley, supra and Manders, 101 Md.App. 191 , 643 A.2d 931 (1994), provides the same protections to local legislators that the State constitutional speech and debate provisions provide to State legislators. Accordingly, in the case sub judice, we must determine whether a local legislator, although not expressly covered by the speech and debate provisions of the Maryland Constitution or the United States Constitution, may invoke the common law doctrine of legislative privilege in Maryland in a criminal prosecution, which is currently an open question in Maryland. We hold that the common law privilege applies to local legislators in state criminal prosecutions.

In addition, we hold that the same protection is embodied in C.J.P. § 5-501. I The State devotes a significant portion of its brief advancing its argument that appellee, a local legislator, was not entitled to legislative immunity under the Speech and Debate clause of the Maryland Constitution. Appellee does not dispute this ³³² position and, in fact, the trial court’s ruling was not based on this proposition. In Blondes v. State, 16 Md.App. 165 , 294 A.2d 661 (1972), we interpreted the Speech and Debate provision of the Maryland Constitution.

Blondes, a delegate in the State legislature, was indicted for bribery. Id. at 167 , 294 A.2d 661 . He moved to dismiss the indictment because ... the prosecution was predicated upon legislative activities performed by him while a member of the Legislature, [and] he was afforded constitutional immunity from trial in a court of law by reason of the Speech and Debate clauses contained in Article 10 of the Maryland Declaration of Rights and Section 18 of Article 13 of the Maryland Constitution ____ Id. The trial court denied the motion to dismiss and Blondes appealed.

We agreed with Blondes and reversed the court’s decision. Article 10 of the Maryland Declaration of Rights provides: “That freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature.” 3 Section 18 of Article 3 of the Maryland Constitution provides: “No Senator or Delegate shall be liable in any civil action, or criminal prosecution, whatever, for words spoken in debate.” Addressing the origin of these clauses, we opined: The immunity of legislators from prosecution by the executive and judicial branches of government for the performance of legislative acts evolved from the long struggle in England for parliamentary supremacy and first found written form in the English Bill of Rights of 1689: “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 1 W. & M., Sess. 2, c. 2. As adopted in Section 6 of Article I of the Constitution of ³³³ the United States, and the Constitutions of the various states, including Maryland, the legislative privilege afforded by speech and debate clauses has served both to protect the integrity of the legislative process by insuring the independence of individual legislators and to reinforce the separation of powers embodied in our tripartite form of government. United States v. Johnson, supra.

Blondes, 16 Md.App. at 174-75 , 294 A.2d 661 . Quoting United States v. Johnson, 383 U.S. 169 , 86 S.Ct. 749 , 15 L.Ed.2d 681 (1966), we observed that legislative immunity was born to prevent intimidation by the executive and accountability before a possibly hostile judiciary; that “the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause.” 383 U.S. at 182 [ 86 S.Ct. 749 ]. Blondes, 16 Md.App. at 175 , 294 A.2d 661 . Although “the Speech and Debate provision in Article 10 of the Maryland Declaration of Rights ha[d] been equated with the federal constitution’s Speech or Debate clause” before, in Blondes , we held, for the first time, that the provisions were to be construed in pari materia.

Id. In view of their common derivation and purpose, we hold that the legislative privilege afforded under the dual provisions in the organic law of the State should be construed in pari materia "with Article I, Section 6 of the federal Constitution, subject to any limitation imposed by other provisions of the Maryland Constitution. Compare Freedman v. State, 233 Md. 498 [ 197 A.2d 232 (1964)], reversed on other grounds, 380 U.S. 51 [ 85 S.Ct. 734 , 13 L.Ed.2d 649 (1965) ]; Brown v. State, 233 Md. 288 [ 196 A.2d 614 (1964) ]; Bass v. State, 182 Md. 496 [ 35 A.2d 155 (1944) ]; Blum v. State, 94 Md. 375 [ 51 A. 26 (1902) ]; Lightman v. State, 15 Md.App. 713 [ 294 A.2d 149 (1972) ], all involving Maryland constitu ³³⁴ tional provisions held to stand in pari materia with similar federal constitutional provisions. Id. at 175-76, 294 A.2d 661 .

We relied upon the Supreme Court’s interpretation of the legislative privilege contained in the United States Constitution in reversing the court’s decision in Blondes. Id. For guidance, we looked to United States v. Brewster, 408 U.S. 501 , 92 S.Ct. 2531 , 33 L.Ed.2d 507 (1972), where a United States Senator was charged with violating a federal bribery-statute. Id. at 176, 294 A.2d 661 .

The trial court dismissed the indictment on the grounds that United States v. Johnson, 383 U.S. 169, 185 , 86 S.Ct. 749 , 15 L.Ed.2d 681 (1966), barred the Senator “from any prosecution for alleged bribery to perform a legislative act.” Id. at 176 , 294 A.2d 661 . We observed, however, that in Brewster : The Supreme Court concluded that Johnson was not authority for that holding; that what Johnson held was that the Speech or Debate clause in Article I, Section 6 of the federal Constitution protected members of Congress from inquiry into legislative acts or the motivation for actual performance of legislative acts; that how a legislator acted, voted, or decided was inadmissible evidence in a federal bribery prosecution; that a member of Congress could nevertheless be prosecuted under a criminal statute provided the Government’s case did not rely on legislative acts or the motivation for legislative acts, i.e., acts generally done in Congress in relation to the business before it; that the Speech or Debate clause reaches and prohibits inquiry only into those things said or done in the legislative body in the performance of official duties and the motivation for those acts. Id. at 176-77 , 294 A.2d 661 (citing Brewster, supra). Thus, we stated, “it was the holding in Brewster that where no inquiry into legislative acts or motivation for legislative acts is necessary for the government to make out a prima facie case, the Speech or Debate clause does not prohibit prosecution.” Id. at 177, 294 A.2d 661 . ³³⁵ Further evaluating the conduct that falls within the definition of legislative acts, we looked to the Supreme Court’s decision in Gravel v. United States, 408 U.S. 606 , 92 S.Ct. 2614 , 33 L.Ed.2d 583 (1972), where the Supreme Court held that the federal Speech or Debate clause protected members of Congress ‘“against prosecutions that directly impinge or threaten the legislative process.’ ” Id. at 178, 294 A.2d 661 (quoting Gravel, 408 at 616, 92 S.Ct. 2614 ).

These acts, the Supreme Court held, include “committee reports, resolutions, and the act of voting” in addition to “ ‘a member’s conduct at legislative committee hearings....’” Id. “Accepting the Supreme Court’s interpretation of the legislative privilege as authoritative, and applying it to Article 10 of the Maryland Declaration of Rights and Section 18 of Article III of the Maryland Constitution,” we reversed the trial court in Blondes because the “substantive evidence of legislative acts” introduced against Blondes “was inadmissible” and could not be considered harmless. Id. at 179 , 294 A.2d 661 . We further addressed in Blondes the trial court’s determination that the Senator could not be shielded by the speech and debate provisions in the Maryland Constitution because the Maryland Constitution also expressly requires the General Assembly to enact bribery laws applicable to certain enumerated public officials. Article III, Section 50 provides: Section 50.

Legislature to provide penalty for bribery, etc., and for compelling testimony in such cases It shall be the duty of the General Assembly, at its first session, held after the adoption of this Constitution, to provide by Law for the punishment, by fine, or imprisonment in the Penitentiary, or both, in the discretion of the Court, of any person, who shall bribe, or attempt to bribe, any Executive, or Judicial officer of the State of Maryland, or any member, or officer of the General Assembly of the State of Maryland, or of any Municipal corporation in the State of Maryland, or any Executive officer of such corporation, in order to influence him in the performance of any of ³³⁶ his official duties; and, also, to provide by Law for the punishment, by fine, or imprisonment in the Penitentiary, or both, in the discretion of the Court, of any of said officers, or members, who shall demand, or receive any bribe, fee, reward, or testimonial, for the performance of his official duties, or for neglecting, or failing to perform the same; and, also, to provide by Law for compelling any person, so bribing, or attempting to bribe, or so demanding, or receiving a bribe, fee, reward, or testimonial, to testify against any person, or persons, who may have committed any of said offenses; provided, that any person, so compelled to testify, shall be exempted from trial and punishment for the offence, of which he may have been guilty; and any person, convicted of such offense, shall, as part of the punishment thereof, be forever disfranchised and disqualified from holding any office of trust, or profit, in this State. In Blondes v. State, 16 Md.App. at 182-85 , 294 A.2d 661 , we examined Article III, Section 50 and considered whether it conflicted with granting a speech and debate privilege to Blondes in a bribery prosecution: We note, as hereinafter set forth, that bribery was a common law offense at the time the Maryland Constitution was enacted in 1867. See Perkins on Criminal Law, (2nd Ed. 1969), pp. 468-469. Reading the mandate of Section 50 literally, no directive was given that the offense of bribery be provided for by statute; rather it directed legislative enactment of a statute to punish that common law crime, “by fine, or imprisonment in the Penitentiary, or both, in the discretion of the Court,” with the further direction that such punishment render the person convicted “forever disfranchised and disqualified from holding any office of trust or profit in this State.” We find little to support the lower court’s conclusion that Section 50 constitutes an express exception to the legislative immunity provisions contained in Article 10 of the Maryland Declaration of Rights and Section 18 of Article III of the Maryland Constitution; those provisions, like the provisions of Section 50 of Article III, were included in the Constitu ³³⁷ tion at the time of its enactment in 1867.

Under well-established principles of constitutional construction, courts must construe the constitution as a whole, Boyer v. Thurston, 247 Md. 279 [ 231 A.2d 50 (1967) ], Reed v. McKeldin, 207 Md. 553 [ 115 A.2d 281 (1955) ], Co. Com’rs v. Supervisors of Elec., 192 Md. 196 [ 63 A.2d 735 (1948) ], Johnson v. Duke, 180 Md. 434 [ 24 A.2d 304 (1942) ], harmonizing each provision with the other provisions thereof where possible to do so, Reed v. McKeldin, supra, Co. Com’rs v. Supervisors of Elec., supra, Dyer v. Bayne, 54 Md. 87 [ (1880) ], the construction being favored which will render every part and every word operative as against a construction which will render some portions or words nugatory, Reed v. McKeldin, supra, Groome v. Gwinn, 43 Md. 572 [ (1875) ]. Id. at 182-83, 294 A.2d 661 . We ultimately construed the section “as a limited mandate providing for punishment of State legislators guilty of bribery if indictment and prosecution therefore can be accompanied without impinging on the legislative privilege by introducing evidence of legislative acts.” Id. at 183, 294 A.2d 661 . This holding, we opined, insured “the degree of separation of powers inherent in our form of government....” Id.

(citation omitted). As we made clear in Blondes, supra, the speech and debate clause in the Federal Constitution applies only to members of Congress and the comparable provisions in the Maryland Constitution apply only to members of the General Assembly. We therefore agree with the State’s position that neither of these provisions applies to members of local legislative bodies. II A Our decision in Montgomery County v. Schooley, 97 Md. App. 107 , 627 A.2d 69 (1993), where we first applied a comparable legislative privilege to local legislators as part of their common law official immunity, is at the center of the issue ³³⁸ presented to this Court by the parties, ie., the scope of the common law protection.

In Schooley, a Montgomery County councilman was sued for his involvement in a redistricting plan that was ultimately adopted by Montgomery County. Id. at 108, 627 A.2d 69 . A discovery dispute arose during the course of the litigation. Id.

The plaintiffs attempted to depose the members of the County Council, and the County sought a protective order based on their status as local legislators. Id. The circuit court denied the motion and the county appealed. Id.

In Schooley, the Court observed that “[m]embers of local legislative bodies in Maryland, like the Montgomery County Council, are not directly within the ambit of either the State or Federal Constitutional immunity provisions, which apply only to the members of legislative bodies mentioned within them.” Id. at 114, 627 A.2d 69 . The Court, however, continued: The doctrine articulated in those provisions has, however, been regarded as applicable to members of local and regional legislative bodies (as well as to State legislatures, in addition to any specific State Constitutional provision) as a matter of common law — the “common law doctrine of official immunity.” Thillens, Inc. v. Community Currency Exchange, 729 F.2d 1128, 1129 (7th Cir.), cert. dismissed, 469 U.S. 976 , 105 S.Ct. 375 , 83 L.Ed.2d 342 (1984). The source, nature, and scope of this common law privilege are not altogether clear and, to some extent, may depend on the context in which the privilege is asserted. When invoked in defense of a Federal criminal prosecution, for example, the common law privilege has been held to be inapplicable — “trumped” by the Supremacy Clause in the U.S. Constitution.

United States v. Gillock, 445 U.S. 360 , 100 S.Ct. 1185 , 63 L.Ed.2d 454 (1980). When there is no such paramount Federal interest, however, the privilege has been respected by both Federal and State courts. Id. at 114-15, 627 A.2d 69 . In examining the scope of the common law legislative privilege as applied to local legislators, this Court opined: ³³⁹ In Lake Country Estates v. Tahoe Planning Agcy., 440 U.S. 391, 403 , 99 S.Ct. 1171, 1178 , 59 L.Ed.2d 401 (1979), the Court observed that the privilege had its roots in the parliamentary struggles of 16th and 17th century England and that “such immunity was consistently recognized in the common law and was taken as a matter of course by our Nation’s founders.” See also Bruce v. Riddle, 631 F.2d 272 (4th Cir.1980); Baker v. Mayor and City Council of Baltimore, 894 F.2d 679 (4th Cir.), cert. denied, 498 U.S. 815 , 111 S.Ct. 56 , 112 L.Ed.2d 31 (1990); Hollyday v. Rainey, 964 F.2d 1441 (4th Cir.), cert. denied, 506 U.S. 1014 , 113 S.Ct. 636 , 121 L.Ed.2d 567 (1992).

In Baker , the Court, citing Bruce , declared it “beyond dispute that municipal legislators enjoy the protection of immunity when acting in the sphere of legitimate legislative activity.” Id. at 681. Subject to the consequences of the Supremacy Clause, that immunity, conferred as a matter of common law, appears to be coextensive in scope with the Constitutional immunity enjoyed by members of Congress and the Maryland General Assembly. In Bruce v. Riddle, supra, 631 F.2d at 279 , the Fourth Circuit Court of Appeals referred to it as an “absolute” immunity. Id. at 115, 627 A.2d 69 (emphasis added).

The State initially presents a perfunctory argument that there is no historical evidence that local or “subordinate legislators” have ever been accorded a common law legislative privilege, disregarding our holding in Schooley, supra, wherein we clearly recognized such a privilege. Alternatively, the State vehemently argues that the foregoing statements are dicta and ought not to be applied in this case because this case involves the application of the privilege to a local legislator in a criminal case and Schooley was a civil case. The State posits that “[t]he dicta in Schooley, appearing to state established law concerning the scope of common law ‘official immunity’, erroneously suggested that the doctrine extended far more broadly than it had been applied in any previous decision.” Instead, the State contends that the common law legislative privilege had only been applied in Maryland to local ³⁴⁰ legislators in civil cases and that Maryland has never, and should never, allow local legislators to invoke the protections of legislative privilege in a state criminal prosecution. 4 Appellee argues that the language suggesting that the common law legislative privilege applies to local legislators in criminal cases was not dicta, in part, because the language was later restated with approval by this Court in Manders v. Brown, supra. In Manders, the plaintiff sued city council members of the City of Crisfield, alleging that the Council violated the City Code when it secretly modified an urban renewal plan.

Id. at 204, 643 A.2d 931 . One of the three issues addressed by this Court was whether the actions of the members of the City Council were protected by common law legislative immunity. The Council members argued that the trial court properly dismissed Manders’ complaint based upon the doctrine of legislative privilege. Id. at 205 , 643 A.2d 931 .

Citing Schooley, supra, this writer penned for the Court: The privilege as it applies to Congress is found in the Speech or Debate Clause of the United States Constitution, Art. I, § 6; as to the Maryland General Assembly, the privilege is found in Article 10 of the Maryland Declaration of Rights and Art. Ill, § 18 of the State constitution. The majority of the Supreme Court case law focuses on the application of the federal constitutional privilege as it applies to Congress. Despite the common law origins of legislative privilege as it applies to local legislative bodies, ³⁴¹ federal and local privileges are essentially co-extensive. Schooley, 97 Md.App. at 115 [ 627 A.2d 69 ].

Thus, in this context, a statement of law regarding a Member of Congress is applicable to a local legislator. Id. at 205 , 643 A.2d 931 (emphasis added). We again noted the purpose of the privilege is to “insure that the legislative function may be performed independently without fear of outside interference” by shielding legislators from “... ‘the consequences of litigation’s results but also from the burden of defending themselves.’ ” Id. (quoting Schooley, 97 Md.App. at 116 , 627 A.2d 69 ).

Manders turned on whether the alleged “scuttling” of the prescribed legislative procedures for the City of Crisfield constituted “legislative acts” that should have been protected. Id. at 206-11 , 643 A.2d 931 . We remanded the case because ... the privilege, if it applies to appellees in this case, cannot turn on Manders’s assertions that the appellees “scuttled” the redevelopment plan to accommodate the influential crab house owners and Dana Tawes, the owner of the adjacent Tawes Lumberyard, or to benefit their individual careers and social status. If it is determined that appellees acted in their legislative capacity in modifying the urban renewal plan, the privilege may very well protect them even if they modified it to accommodate a particular group.

On remand, a determination must be made as to whether the appellees were acting within the sphere of legitimate legislative activity. Id. at 215 , 643 A.2d 931 . The parties dispute the meaning of this Court’s statements in Schooley, supra, later reiterated in Manders, that, “[d]e-spite the common law origins of legislative privilege as it applies to local legislative bodies, federal and local privileges are essentially co-extensive.” Manders, 101 Md.App. at 205 , 643 A.2d 931 (citing Schooley, 97 Md.App. at 115 , 627 A.2d 69 ). The State argues that, although both the federal and Maryland speech and debate clauses expressly protect federal or state legislators in both civil and criminal cases, common law ³⁴² legislative immunity should only protect local legislators in civil matters; thus, despite this Court’s earlier statements in Schooley and Manders, supra, the State urges us to hold that common law legislative immunity and the federal privilege are not truly “co-extensive.” The essence of the State’s argument is that, despite this Court’s statements in Schooley and Manders, supra, “[c]loser examination of the [Schooley] opinion, the authorities cited therein, and their contexts reveals that Schooley stands for little more than the unremarkable proposition that Maryland, like virtually every other State and federal government, recognizes a common law legislative privilege applicable to local officials in civil proceedings.” The authorities that we principally relied upon in Schooley in extending the legislative privilege to local legislators were Thillens, Inc. v. Community Currency Exchange Ass’n, 729 F.2d 1128, 1129 (7th Cir.), cert. dismissed, 469 U.S. 976 , 105 S.Ct. 375 , 83 L.Ed.2d 342 (1984) and United States v. Gillock, 445 U.S. 360 , 100 S.Ct. 1185 , 63 L.Ed.2d 454 (1980).

In Thillens, the United States Court of Appeals for the Seventh Circuit addressed the application of legislative privilege to Illinois state legislators in a civil suit and held that “the doctrine of official immunity is clearly implicated in this federal civil action” because the “causes of action focus[ed] on the defendants’ attempts to use their legislative positions to influence regulation of currency exchanges.” Thillens, 729 F.2d at 1130 . 5 The State aptly points out that in Thillens the ³⁴³ court did not hold that common law immunity extends to criminal prosecutions, but merely addressed its application in civil cases. Legislative immunity in criminal prosecutions was, however, addressed by the Supreme Court in Gillock, 445 U.S. 360 , 100 S.Ct. 1185 . The facts of Gillock are as follows. A Tennessee state legislator was indicted on federal charges arising out of allegations that (1) he accepted money and, in exchange, used his public office to block the extradition of a criminal defendant from the state and (2) he agreed to introduce legislation that would permit individuals who had failed their examinations to become master electricians to obtain their licenses.

Id. at 362 , 100 S.Ct. 1185 . The state senator moved to suppress all of the evidence relating to his legislative activities and the district court granted the motion based upon ³⁴⁴ Rule 501 of the Federal Rules of Evidence, holding that the federal common law legislative immunity was the equivalent of the immunity granted to Congress under the Speech or Debate Clause, Art. I., § 6, cl. 1. Id. at 363, 100 S.Ct. 1185 . The Government appealed the grant of the suppression motion and the Court of Appeals for the Sixth Circuit vacated the order and remanded the case for further consideration and application of the privilege to “particularize items of evidence.” Id.

On remand, the Government made a proffer and the District Court granted the renewed motion to exclude evidence of legislative acts, excluding Gillock’s ... official request for an opinion from the Attorney General regarding extradition and the answer to that request, and Gillock’s statements ... that he could exert pressure on the extradition hearing officer to block the extradition ... [and] ... all evidence regarding Gillock’s introduction and support of the electricians’ reciprocal licensing bill, his conversation with the private individuals who opposed the legislation, and the Governor’s veto letter.... Id. at 365 , 100 S.Ct. 1185 . The Government appealed the ruling on remand and the Court of Appeals affirmed. Id. at 366 , 100 S.Ct. 1185 .

The Supreme Court ... granted certiorari to resolve a conflict in the Circuits over whether the federal courts in a federal criminal prosecution should recognize a legislative privilege barring the introduction of evidence of the legislative acts of a state legislator charged with taking bribes or otherwise obtaining money unlawfully through exploitation of his official position. Id. at 361-62 , 100 S.Ct. 1185 (footnote omitted). Gillock argued that state legislators should have the benefit of an evidentiary privilege in a federal criminal prosecution because (1) “a speech or debate type privilege for state legislators in federal criminal cases is an established part of the federal common law and is therefore applicable through Rule 501” and (2) “... that even apart from Rule 501, a ³⁴⁵ legislative speech or debate privilege is compelled by principles of federalism....” Id. at 366 , 100 S.Ct. 1185 . The Supreme Court rejected both arguments.

Initially, the Court observed that “[t]he language and legislative history of Rule 501” did not provide support for Gillock’s argument. Id. at 367 , 100 S.Ct. 1185 . “The Rule provides in relevant part that ‘the privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.’ ” Id. (quoting Federal Rule 501). The Court explained that, under the original draft of Rule 501 proposed by the Advisory Committee of the Judicial Conference of the United States “federal courts would have been permitted to apply only nine specifically enumerated privileges ....” Id.

The privilege claimed by Gillock was not listed among those enumerated privileges. Thus, the Court observed, “the claimed privilege was not thought to be either indelibly ensconced in our common law or an imperative of federalism.” Id. at 368 , 100 S.Ct. 1185 (footnote omitted). The Court further pointed out that, “the fact that there is an evidentiary privilege under the Tennessee Constitution, Art. II., § 13, which Gillock could assert in a criminal prosecution in state court does not compel an analogous privilege in a federal prosecution.” Id. Turning to Gillock’s next argument, the Court also rejected Gillock’s contention that “the historical antecedents and policy considerations which inspired the Speech or Debate Clause of the Federal Constitution should lead [the Supreme Court] to recognize a comparable evidentiary privilege for state legislators in federal prosecutions.” Id.

Initially, the Court traced the origins of the legislative immunity provided for in the Speech or Debate Clause. Our cases, however, have made clear that “[although] the Speech or Debate Clause’s historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system.” United States v. Brewster, 408 U.S. at ³⁴⁶ 508 [ 92 S.Ct. 2531 ]. In deciding whether the principles underlying the federal constitutional speech or debate privilege compel a similar evidentiary privilege on behalf of state legislators, the analysis must look primarily to the American experience, including our structure of federalism which had no counterpart in England. Id. at 369, 100 S.Ct. 1185 (emphasis added).

The Supreme Court reiterated the two underlying rationales for the speech and debate privilege. Two interrelated rationales underlie the Speech or Debate Clause: first, the need to avoid intrusion by the Executive or Judiciary into the affairs of a coequal branch, and second, the desire to protect legislative independence. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502-503 [ 95 S.Ct. 1813 , 44 L.Ed.2d 324 ] (1975). Cases considering the Speech or Debate Clause have frequently arisen in the context of a federal criminal prosecution of a Member of Congress and have therefore accented the first rationale.

Only recently in such a case, we re-emphasized that a central purpose of the Clause is “to preserve the constitutional structure of separate, coequal, and independent branches of government. The English and American history of the privilege suggests that any lesser standard would risk intrusion by the Executive and the Judiciary into the sphere of protected legislative activities.” United States v. Helstoski, 442 U.S. [477], at 491 [ 99 S.Ct. 2432 , 61 L.Ed.2d 12 (1979) ]. Accord, United States v. Johnson, supra, at 180-181 [ 86 S.Ct. 749 ]. The Framers viewed the speech or debate privilege as fundamental to the system of checks and balances.

The Works of Thomas Jefferson 322 (Ford ed. 1904); 1 The Works of James Wilson 421 (R. McCloskey ed. 1967). Id. 369-70 , 100 S.Ct. 1185 . The Court observed that declining to apply the privilege to state legislatures in federal prosecutions does not create a separation of powers problem. Id.

Although “the Federal Government has limited powers with respect to the states, ³⁴⁷ unlike the unfettered authority which English monarchs exercised over Parliament[,]” because the Supremacy Clause “dictates that federal enactments will prevail over competing state exercises of power[,]” the Court opined, “we do not have the struggles for power between the federal and state systems such as inspired the need for the Speech or Debate Clause as a restraint on the Federal Executive or to protect federal legislatures.” Id. at 370 , 100 S.Ct. 1185 . The Court concluded that “federal interference in the state legislative process is not on the same constitutional footing with the interference of one branch of the Federal Government in the affairs of a coequal branch.” Id. (citing Baker v. Carr, 369 U.S. 186, 210 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962)). Finally, the Supreme Court rejected Gillock’s assertion that the denial of the evidentiary privilege was tantamount to the federal government invading “essential state functions.” Id. at 371, 100 S.Ct. 1185 .

Turning to the second rationale for legislative immunity— the need for legislative independence — the Court held that the concern did not compel application of the privilege to a state legislator in a criminal case. Id. at 371 , 100 S.Ct. 1185 . In support of his argument, Gillock relied on Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 (1951). Id. “The issue there, however, was whether state legislators were immune from civil suits for alleged violations of civil rights under 42 U.S.C. § 1983 .” Id.

The Court drew a distinction between Gillock’s case and Tenney , where the Supreme Court held that, in enacting the [ 42 U.S.C. § 1983 ], it doubted that Congress, “ ‘itself a staunch advocate of legislative freedom, would impinge on a tradition so well-grounded in history ... by covert inclusion in the general language of [§ 1983].’ ” Id. (quoting Tenney, 341 U.S. at 376 , 71 S.Ct. 783 .) The Court distinguished Tenney . “First, Tenney was a civil action brought by a private plaintiff to vindicate private rights. Moreover, the cases in this Court which have recognized an immunity from civil suit for state officials have presumed the existence of federal criminal liability as a restraining factor on the conduct of state officials.” Id. at 372 , 100 S.Ct. 1185 . ³⁴⁸ The Gillock Court, citing O’Shea v. Littleton, 414 U.S. 488, 503 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974), 6 observed that “in protecting the independence of state legislators, Tenney and subsequent cases on official immunity have drawn the line at civil actions.” Id. at 373 , 100 S.Ct. 1185 (footnote omitted). The Court further explained, to the extent that denying the federal common law privilege’s application to state legislators infringed upon the state legislative process, it was permissible when weighed against the interest of the Federal Government “in enforcing its criminal statutes” as compared to the “only speculative benefit to the State legislative process.” Id. at 373 , 100 S.Ct. 1185 (citing United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974)) (holding that the risk of limiting candor in the Executive Branch was outweighed by the interest in the judiciary securing all relevant evidence in a criminal proceeding).

Ultimately, the Court concluded, id. at 374, 100 S.Ct. 1185 : The Federal Speech or Debate Clause, of course, is a limitation on the Federal Executive, but by its terms is confined to federal legislators. The Tennessee Speech or Debate Clause is in terms a limit only on the prosecutorial powers of that State. Congress might have provided that a state legislator prosecuted under federal law should be accorded the same evidentiary privileges as a Member of Congress. Alternatively, Congress could have imported the “spirit” of Erie R. Co. v. Tompkins, 304 U.S. 64 [ 58 S.Ct. 817 , 82 L.Ed. 1188 ] (1938), into federal criminal law and directed federal courts to apply to a state legislator the ³⁴⁹ same evidentiary privileges available in a prosecution of a similar charge in the courts of the state.

But Congress has chosen neither of these courses. In the absence of a constitutional limitation on the power of Congress to make state officials, like all other persons, subject to federal criminal sanctions, we discern no basis in these circumstances for a judicially created limitation that handicaps proof of the relevant facts. Id. 374, 100 S.Ct. 1185 . B Few state courts have reported decisions since Gillock, supra, on the application of the legislative privilege to local legislators in state criminal prosecutions.

The number of reported cases decided by the nation’s federal courts are legion, 7 but we find those cases to be inapposite for the same reason cited by the circuit court, to wit: in Gillock , the Supreme Court concluded that such a state-created privilege was not a part of the federal common law, and its recognition in federal court was not compelled by principles of federalism in a federal criminal prosecution of a state senator. 8 While instructive, Gillock sheds little light on whether the privilege is available to a local legislator in a Maryland criminal prosecution. The trial court cited D 'Amato v. Superior Court, 167 Cal. App.4th 861 , 84 Cal.Rptr.3d 497 (2008) for the proposition that local legislators should be entitled to the same privilege in criminal prosecutions as they are in civil suits because the threats to legislative independence are equally as significant. ³⁵⁰ In D’Amato, a City Administrator was charged with two counts of aiding and abetting a board member of a group, assembled by the City for the purpose of acquiring federal funding for a project, in violating California conflict of interest laws because the board member had a financial interest in a contract for which D’Amato had advocated in his capacity as City Administrator. Id. at 503-04.

The D’Amato Court explained that, by enacting the conflict of interest statute, the California legislature created a “conclusive presumption of divided loyalty where a public official holds a personal financial interest, [and] the Legislature avoided the prospect of executive and judicial officers delving into the subjective motivations of public officials performing their legislative duties.” Id. at 505. This, the court recognized, was purposefully done