The paths of justice have some odd twists to them. Consider these twists. As I wrote in a blog post almost exactly a year ago [1], 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):

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.

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.

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.

The Big Twist
That's the minor twist. Here's the big twist. In its decision yesterday, the court of appeals [2], 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.

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:

Whether local legislators enjoyed a common law "speech and debate" immunity from criminal prosecutions is presently a moot question because the General Assembly has, by statute, provided that immunity.

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.

The Good News
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.

Faith
The twistedness doesn't stop at the court of appeals. According to an article in yesterday's Baltimore Sun [3], 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."

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.

Lack of Faith
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 Sun 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.

Why Isn't the Council Prosecuting?
But what this and other lawyers fail to say (but the Sun said in an editorial last year and I said in a blog post at the time [4]) is that
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.

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."

The rest of us have no comfort to take. The ghost of former Baltimore County Executive and Vice President Spiro Agnew [5] must be smiling.

Robert Wechsler
Director of Research, City Ethics

203-230-2548