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A Problematic Baltimore Legislative Immunity Decision
Monday, July 13th, 2009
Update - July 31, 2009 - see below
In my April blog post 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:
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 an article in the Baltimore Sun, 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 (1 and 2)). 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:
Favoring Friends and Family Catches Up to Baltimore Mayor
Baltimore Mayor Indicted
Legislative Immunity Goes Local
Maryland Prosecutor Concedes
Robert Wechsler
Director of Research-Retired, City Ethics
In my April blog post 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:
- [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]
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 an article in the Baltimore Sun, 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 (1 and 2)). 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:
Favoring Friends and Family Catches Up to Baltimore Mayor
Baltimore Mayor Indicted
Legislative Immunity Goes Local
Maryland Prosecutor Concedes
Robert Wechsler
Director of Research-Retired, City Ethics
Story Topics:
| Attachment | Size |
|---|---|
 Baltimore Decision on Leg Immunity 052809.pdf | 0 bytes |
| MD Opposition to Motion to Dismiss Leg Immun 0409.pdf | 0 bytes |
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Visitor (not verified) says:
Tue, 2009-12-15 17:01
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Court of Appeals of Maryland.
This is another case involving an attempted appeal, under the so-called "collateral order" doctrine, from an interlocutory order rendered by a trial court. Like the result in numerous similar collateral order doctrine cases decided by this Court in recent years, the attempted appeal in this case will be unsuccessful
"As a general rule, interlocutory trial court orders rejecting defenses of common law sovereign immunity, governmental immunity, public official immunity, statutory immunity, or any other type of immunity, are not appealable under the Maryland collateral order doctrine. Whether, and under what circumstances, interlocutory orders overruling immunity defenses asserted by the Governor, Lieutenant Governor, Comptroller, Treasurer, Attorney General, Speaker of the House, President of the Senate, or judges as defined in Article IV, § 2, of the Maryland Constitution, are immediately appealable under the collateral order doctrine will have to be determined in any future cases that might arise. Mandel v. O'Hara, 320 Md. 103, 134, 576 A.2d 766, 781 (1990). Interlocutory trial court orders overruling immunity claims by other government officials, employees, departments, agencies, entities, units, or subdivisions, or by private persons or entities, are not appealable under the doctrine."
The Dawkins holding reflected several prior decisions by this Court rejecting appeals from interlocutory trial court orders denying immunity claims. Housing Authority v. Smalls, 369 Md. 224, 798 A.2d 579 (2002); Orthodox Jewish Council v. Abramson, 368 Md. 1, 791 A.2d 129 (2002); Peck v. DiMario, 362 Md. 660, 766 A.2d 616 (2001); Bowers v. Callahan, 359 Md. 395, 754 A.2d 388 (2000); Dennis v. Folkenberg, 354 Md. 412, 731 A.2d 883 (1999); Samuels v. Tschechtelin, 353 Md. 508, 727 A.2d 929 (1999); Shoemaker v. Smith, 353 Md. 143, 165-170, 725 A.2d 549, 560-563 (1999). Moreover, Dawkins has consistently been cited with approval by this Court's subsequent opinions dealing with the collateral order doctrine. See, e.g., Hudson v. Housing Authority, supra, 402 Md. at 25, 935 A.2d at 399; Ehrlich v. Grove, supra, 396 Md. at 562-563, 914 A.2d at 791; St. Joseph's v. Cardiac Surgery, supra, 392 Md. at 85-86, 896 A.2d at 310; Nnoli v. Nnoli, supra, 389 Md. at 329, 884 A.2d at 1223.
Other recent cases in this Court rejecting attempted appeals under the collateral order doctrine include, e.g., Hudson v. Housing Authority, 402 Md. 18, 25-27, 935 A.2d 395, 399-400 (2007); St. Mary's County v. Lacer, 393 Md. 415, 427-431, 903 A.2d 378, 386-387 (2006); St. Joseph's v. Cardiac Surgery, 392 Md. 75, 85-88, 896 A.2d 304, 310-311 (2006); Nnoli v. Nnoli, 389 Md. 315, 329-330, 884 A.2d 1215, 1223 (2005); Dawkins v. Baltimore Police, 376 Md. 53, 827 A.2d 115 (2003); Theurer v. Farrell, 376 Md. 65, 827 A.2d 122 (2003); In re Foley, 37,3 Md. 627, 820 A.2d 587, 591-593, cert. denied, 540 U.S. 948, 124 S.Ct. 398, 157 L.Ed.2d 279 (2003); Housing Authority v. Smalls, 369 Md. 224, 798 A.2d 579 (2002); Orthodox Jewish Council of Baltimore, Inc. v. Abramson, 368 Md. 1, 791 A.2d 129 (2002); In re Franklin P., 36,6 Md. 306, 783 A.2d 673, 685-686 (2001); Peck v. DiMario, 362 Md. 660, 766 A.2d 616 (2001); Bowers v. Callahan, 359 Md. 395, 754 A.2d 388 (2000); Dennis v. Folkenberg, 354 Md. 412, 731 A.2d 883 (1999); Pittsburgh Corning v. James, 353 Md. 657, 660-666, 728 A.2d 210, 211-214 (1999); Samuels v. Tschechtelin, 353 Md. 508, 727 A.2d 929 (1999); Shoemaker v. Smith, 353 Md. 143, 164-170, 725 A.2d 549, 561-563 (1999). Bunting v. State, 312 Md. 472, 477-482, 540 A.2d 805, 807-810 (1988).
In addition, for purposes of interlocutory appeals from denials of immunity claims, where the issue relates to the fourth requirement of the collateral order doctrine, there is no reason for distinguishing between a
valid absolute immunity claim and a
valid qualified immunity claim.
When a qualified immunity claim is not defeated by malice or some other factor which might defeat qualified immunity, the two types of immunity claims are the same and are reviewable on appeal from an adverse final judgment.
If valid, either form of immunity
will result in a reversal of the judgment and
a direction to dismiss the action. As to the "avoidance of trial" aspect, there is also no difference between a valid absolute immunity defense and a valid qualified immunity defense. One purpose of any type of immunity from suit is to avoid having to stand trial. This same purpose, however, underlies a plethora of pre-trial orders. For this reason, pre-trial orders denying immunity claims are generally not reviewable by interlocutory appeals.
In light of Dawkins and numerous other decisions by this Court, the Court of Special Appeals correctly dismissed PETITIONERS 's appeal.