A Problematic Baltimore Legislative Immunity Decision

Anonymous

Mon, 07/13/2009 - 06:50

City Related

Update - July 31, 2009 - see below 
In my April <a href="http://www.cityethics.org/node/707" target="”_blank”">blog post</a>
about the legislative immunity defense made by a former Baltimore
council member (now the mayor), I felt that her arguments didn't have a
chance. Well, I was wrong. I was wrong primarily because I thought that
a state prosecutor would be determined to see the case through and,
therefore, would put up a good fight on the issue. He did not (his
argument on this issue is attached; see below). I was also wrong because a local
judge fell for the legislative immunity argument hook, line, and
sinker, going out of his way to make what I consider to be a specious
argument about separation of powers (the decision, State of Maryland v. Dixon, is attached; see
below).

As I pointed out in my April blog post, this is not a pure local
government ethics situation. The ethics code is local, but it is being
enforced criminally and, therefore, requires the involvement of a state
prosecutor, a grand jury, and the state court system. So the
jurisdiction and powers of a local ethics commission are not at issue
here. Nor can this case be distinguished from other civil and criminal
cases, as it might be if it involved an independent government ethics
process. 
 
Co-Extensive Immunity 
The most damaging part of the judicial opinion is its insistence on p.
6 that
the immunity of local legislators is co-extensive with that of state
and federal legislators, even though the immunity of state and federal legislators is based on constitutional
provisions and the local legislators' immunity is based on the common
law. Also, the court concluded that this local legislative immunity is "absolute." On page 12 of the opinion,
the court sums up its position by writing, "a unified theory of legislative immunity is in play
for consideration at all levels of government." 
 
"Co-extensive" and "unified theory" are odd terms to use.
"Co-extensive" is defined in my dictionary as "having the same spatial
or temporal scope or boundaries." Does this mean the exact same
immunity and, if not, what are the differences and how might they apply
to this case? It appears that the court defines "co-extensive" as being
the same, because here is its conclusion on this issue: 
 
<ul>[T]he case law developed under the
Maryland Speech and Debate Clause and the federal Speech or Debate
Clause governs how the Court should respond to the issues raised. [p.
12] 
</ul>
 
How can a court interpret common law using the case law of
constitutional law? 
 
"Unified theory" is a term most
commonly used in physics. It appears to mean that there is only one
theory of legislative immunity, and it applies at all levels. In other
words, it is exactly the same as "co-extensive." But how can a
unified theory be "in play"? These are odd terms for a court decision.
And not at all
clear. But the conclusion is clear: local legislators effectively
have constitutional legislative immunity. 
 
The judge is wrong. Common-law legislative immunity
is not the same as constitutional legislative immunity. As the court
recognizes, federal courts do not apply either state constitutional
or local common-law legislative immunity when federal laws are being
applied. That is one important difference. The state prosecutor argues
that, similarly, the state should
not recognize local common-law legislative immunity. The court does not
accept this analogy. 
 
The court recognizes another important difference between common-law
and constitutional legislative immunity: "[Local legislative
immunity] is a common law doctrine and could thus be altered by the
enactment of Maryland law." (pp.14-15) He does not, however, recognize
that it could also be altered by the enactment of Baltimore law, for
example, its ethics code (see the next section, on waiver). 
 
Waiver 
The most important difference between constitutional and common-law
legislative immunity is that the requirement to show waiver of
constitutional immunity is much greater than that to show waiver of
common-law immunity. I understand better why the court did not deal with
the issue of waiver: the state prosecutor did not
raise the issue. 
 
Normally, when state law is being applied to local legislators, there
is no issue of institutional waiver, that is, waiver through legislation. But here the law was a city law,
in fact, a city ethics code that the defendant herself had worked to
amend. Therefore, a good argument could have been made for
institutional and, even, personal waiver. It is possible that this
judge, so wedded to legislative immunity, may not have recognized this
important distinction between constitutional and common-law
immunity with respect to waiver, but it certainly would have been worth
a try. 
 
Separation of Powers 
For some reason, the court did not stop at finding common-law immunity
for local legislators co-extensive with the constitutional immunity of
state and federal legislators. He took the unnecessary step of finding
that separation of powers also applies here, because a local grand jury
and a local court were involved (p. 13). 
 
This does not appear right to me. Judicial systems are state
institutions, not local institutions. They might have local grand
juries and courts, but these play no role in local government. Local
governments have only two branches, legislative and executive. And in
most local governments, these two branches are not nearly as separate
as they are at the state and local level. Most mayors sit on the
council, and most executive branches are run by unelected
administrators overseen by the legislative body. Courts therefore do
not apply separation of powers doctrine to the branches of local
government. 
 
This argument raises a serious question for me concerning the validity
of the entire opinion. However, the opinion says nothing about
separation of powers with respect to local ethics commissions. But I
can see how it will cited by local legislators attempting to create as
strong and broad as possible a legislative immunity doctrine applying
to them. 
 
The Bottom Line: Express
Waiver 
The bottom line here is that this decision, if it is not appealed (and
it appears that the state prosecutor has done an end-run around this
obstacle and, therefore, will not be appealing), has created some
dangerous precedents in the local legislative immunity area. (Update - July 31, 2009. According to <a href="http://www.baltimoresun.com/news/maryland/baltimore-city/bal-md.ci.dixo…; target="”_blank”">an article in the Baltimore Sun,</a> the prosecutor has done his end-run and will be using testimony from the gift giver rather than from any legislative information to make his case pursuant to two new indictments brought by the grand jury on Wednesday (<a href="http://www.baltimoresun.com/media/acrobat/2009-07/48351879.pdf" target="”_blank”">1</a> and <a href="http://www.baltimoresun.com/media/acrobat/2009-07/48351943.pdf" target="”_blank”">2</a>)). This
decision fully embraces an effectively constitutional, absolute
legislative immunity for all local legislators, with no mention of the
possibility of waiver and no balancing of public policy concerns. 
 
The decision also applies separation of powers doctrine to a local
situation, where I do not feel it belongs at all. 
 
This decision will likely be taken out of context -- especially the
context of a failure of the state prosecutor to raise the issue of
waiver -- as evidence of absolute, unquestionable, effectively
constitutional immunity for local legislators, in both civil and
criminal contexts and, why not, ethics contexts, as well. But at least,
although this case is based on a city ethics code, its enforcement is
not via an ethics commission, but state criminal law. Therefore, there
is still room, even in Maryland, to distinguish an ethics commission
proceeding from the prosecution in this case. 
 
This decision makes it that much more important for local ethics
codes to expressly mention common-law and even state constitutional
immunity (both official and legislative), and make it clear that the
code overrides them, acting as a waiver of any immunity defense. It is
also worthwhile to get local legislators to personally waive any
immunity they might have. 
 
For more on the Baltimore case, see these blog posts: 
<a href="http://www.cityethics.org/node/463" target="”_blank”">Favoring Friends and
Family Catches Up to Baltimore Mayor</a> 
<a href="http://www.cityethics.org/node/606" target="”_blank”">Baltimore Mayor Indicted</a> 
<a href="http://www.cityethics.org/node/707" target="”_blank”">Legislative Immunity Goes
Local</a> 
<a href="http://www.cityethics.org/node/712" target="”_blank”">Maryland Prosecutor
Concedes</a> 
 
Robert Wechsler 
Director of Research-Retired, City Ethics

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A Problematic Baltimore Legislative Immunity Decision

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