A New Twist to a Baltimore Legislative Immunity Case
The paths of justice have some odd twists to them. Consider these
twists. As I wrote in <a href="http://www.cityethics.org/content/legislators-independence-ethics-enfor…; target="”_blank”">a
blog post almost exactly a year ago</a>, both parties to a case
involving a Baltimore council member's alleged acceptance of a bribe
argued that a statutory provision entitled "Action for defamation
against local government
official" was not relevant to the case. Here is the text of that
provision (§5-501):<ul>
A civil or criminal
action may not be brought against a city or town councilman, county
commissioner, county councilman, or similar official by whatever name
known, for words spoken at a meeting of the council or board of
commissioners or at a meeting of a committee or subcommittee thereof.</ul>
Without the title, this would appear, at first glance, to be an application of
legislative immunity to local legislators. But the title and the
language both make it clear it's only about actions for defamation. By
"language," I refer to the fact that it says that actions may not be
brought "for words spoken," not that a local legislator's "speech or
debate" (the constitutional language applicable to state legislators)
which is far broader, cannot be brought into evidence in actions
against local legislators.<br>
<br>
Despite the parties' agreement that this statutory provision was not
relevant to the case, the court of special appeals applied it and found
it effectively an application of the state's legislative immunity
protection given to state legislators. That is, the court extended this
limited statute not only beyond defamation, but also beyond "words
spoken," to include all legislative activity.<br>
<br>
<b>The Big Twist</b><br>
That's the minor twist. Here's the big twist. In <a href="http://www.leagle.com/xmlResult.aspx?xmldoc=In%20MDCO%2020110713292.xml…; target="”_blank”">its
decision yesterday, the court of appeals</a>, the state's highest
court, not only agreed with the application of §5-501, and the
ability to dismiss the case on the basis that the council member's vote
(constituting the words "Ay," assuming voting is not done by raising a
hand or pushing a button) was put into evidence.<br>
<br>
The court of appeals also dismissed the legislative immunity argument
that was the only one accepted at the trial level, and the principal
argument at the special appeals level. The court of appeals found the
legislative immunity argument moot:<ul>
Whether local legislators enjoyed a common law
"speech and debate" immunity from <i>criminal</i> prosecutions is
presently a moot question because the General Assembly has, by statute,
provided that immunity.</ul>
Therefore, the lower courts' talk about common law legislative immunity
being "co-extensive" with constitutional legislative immunity, and the
crazy idea of a "unified theory" of legislative immunity, are just
dicta. And dicta that were not very well thought out, because both of
these ideas ignore some important issues, such as waiver.<br>
<br>
<b>The Good News</b><br>
This, at least, is good news. The state prosecutor's terrible job of
defending against a legislative immunity argument at least has not
burdened the rest of Maryland or the nation with a horrible
precedent. However, there is still crazy language that can, and will,
be used in briefs by council members, board and commission members and,
on occasion, executive officials across the country.<br>
<br>
<b>Faith</b><br>
The twistedness doesn't stop at the court of appeals. According to <a href="http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-holto…; target="”_blank”">an
article in yesterday's Baltimore <i>Sun</i></a>, the council member said after
the decision was rendered, "At long last, justice is done and
this ordeal is over. ... If not for my faith and my trust in God, I
would not have made it through this public persecution."<br>
<br>
This is from someone who, alleged to have taken money
for a vote, successfully kept the vote secret, even though
everyone knows about the vote. This isn't faith in a higher
power, but rather faith in a higher court.<br>
<br>
<b>Lack of Faith</b><br>
It isn't only prosecutors and good government people like me who
realize the problem with a statute like Maryland's, as it has now been
interpreted by the court of appeals. Andrew I. Alperstein, a defense
attorney, told the <i>Sun</i> that the state legislature might want to narrow
the law so that it would not prevent similar cases from going to trial
in the future. He said, "I'm sure it wasn't designed to allow local
officials to use it as a shield against criminal wrongdoing." Amen.<br>
<br>
<b>Why Isn't the Council Prosecuting?</b><br>
But what this and other lawyers fail to say (but the <i>Sun</i> said in an
editorial last year and I said in <a href="http://www.cityethics.org/content/local-legislative-bodys-duty-investig…; target="”_blank”">a blog post at the time</a>) is that <br>
when local government legislators defend
themselves by
saying that, constitutionally, evidence of legislative activities may
not be presented against
them outside their body, they rarely ask their body to investigate the
matter, and the body rarely calls for such an investigation. Protection
from external prosecution should not mean protection from internal
prosecution. But unfortunately it usually does.<br>
<br>
The penultimate words of this post go to the council member's attorney.
Read them in the context of a local legislator who slipped out of a
bribery trial that could legally be handled by the council. "Every
local legislator in the state can take comfort in what Miss Holton has
done at the local court and the appellate court level."<br>
<br>
The rest of us have no comfort to take. The ghost of former Baltimore
County Executive and Vice President <a href="http://en.wikipedia.org/wiki/Spiro_Agnew" target="”_blank”">Spiro Agnew</a> must
be smiling.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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