Smigiel v. Franchot
| Decision Date | 26 August 2009 |
| Docket Number | No. 121, September Term, 2007.,121, September Term, 2007. |
| Citation | 410 Md. 302,978 A.2d 687 |
| Parties | Michael D. SMIGIEL, Sr., et al. v. Peter FRANCHOT, et al. |
| Court | Court of Special Appeals of Maryland |
Argued before BELL, C.J., RAKER,* HARRELL, BATTAGLIA, GREENE, MURPHY, CATHELL, and DALE R. (Retired, specially assigned) JJ.
Governor Martin O'Malley, pursuant to his authority under MD. Const. Article II, Section 16, issued Executive Order 01.01.2007.23 on October 15, 2007, calling for the General Assembly to convene for an Extraordinary Session to address an impending structural deficit facing the State. At the time, the State faced a potential $1.7 billion deficit for Fiscal Year 2009, along with similar projected deficits for future Fiscal Years, unless immediate budgetary action was taken. Governor O'Malley's solution for correcting this budgetary crisis was to increase the State's revenue by raising taxes. The most controversial aspect of the Governor's proposed solution to this impending fiscal crisis, and at the very heart of this entire case, is his recommendation that the General Assembly draft and adopt legislation that would permit slot machines in Maryland.
The Extraordinary Session commenced on October 29, 2007 with Governor O'Malley proposing a package of legislation to the General Assembly1 that he believed would generate budget savings, raise revenue and strategically position Maryland to address future fiscal challenges. Senate Bill 3 and House Bill 4, incorporating the slot machine proposal, are at the center of this case.
Senate Bill 3 was entitled, "Maryland Education Trust Fund-Video Lottery Terminals." This Bill contained comprehensive legislation that would regulate the implementation and the allocation of revenues originating from Video Lottery Terminals, or slot machines, in Maryland. The only caveat, however, was that, at the time Senate Bill 3 was passed by the General Assembly and signed into law by the Governor, 2007 Md. Laws, Chapter 4, slot machines were not yet legal in Maryland. Senate Bill 3 recognized this fact by including the following contingency language in the Bill:
As indicated in the contingency language above, House Bill 4 proposed for voter ratification a constitutional amendment that both authorized slot machines in Maryland and established various limitations surrounding their use. Thus, after House Bill 4 was passed by the General Assembly and approved by the Governor, it was to be voted on by Maryland voters during the November 2008 General Election.
Between Monday, October 29, 2007, the day the General Assembly convened for the Extraordinary Session, and Saturday, November 3, 2007, the standing committees with jurisdiction over the Governor's proposed legislation held public hearings. During the week of November 5, 2007, the full Senate considered the five bills that the standing committees recommended for approval, along with various proposed amendments. By Friday, November 9, 2007, the Senate passed its versions of the five bills recommended by the committees and sent the bills to the House. The Senate also decided to adjourn until Tuesday, November 13, 2007, while the House finalized its work on the five bills.
On Monday, November 12, 2007, which also happened to be Veterans' Day, it appeared that the House would not have any bills ready for the Senate to consider by Tuesday — the day when the Senate's adjournment originally was scheduled to end. The Secretary of the Senate, Billy Addison, Jr., at the behest of Senate President Thomas V. Mike Miller, Jr., called the Chief Clerk of the House of Delegates, Ms. Mary Monahan, to inquire whether the House would agree to the Senate extending its adjournment. The Maryland Constitution provides:
"Neither House shall, without the consent of the other, adjourn for more than three days, at any one time, nor adjourn to any other place, than that in which the House shall be sitting, without the concurrent vote of two-thirds of the members present." MD. Const. Art. III, § 25.
Ms. Monahan contacted Kristin Jones, Esquire, counsel to the Speaker of the House, who informed her that the Speaker agreed to the Senate's request for extending its adjournment.
Apprised of the House Speaker's agreement, Senate President Miller sent a memorandum to the members of the Senate, informing them that the Senate's adjournment was extended until Thursday, November 15, 2007, by which time the President believed there would be substantive work for the members of the Senate to resume. The task of memorializing the extended adjournment was left to Ms. Monahan and the members of her staff.
At the request of Senate Secretary Addison,2 Ms. Monahan obtained stationery from his office so that a member of her staff could draft a "Message to the House of Delegates," requesting the House's permission to adjourn until November 15, 2007. The letter, on Senate stationery, read as follows:
In drafting the above "Message to the House of Delegates," House staff debated whether to date the letter for November 12, 2007, the actual date the letter was drafted, or to backdate the letter to November 9, 2007, the last day that the Senate would have been in session before being temporarily adjourned. After consulting with the legal counsel to the Speaker of the House, Ms. Monahan's staff decided that the letter from the Senate should be backdated to November 9, 2007. On the same day that Ms. Monahan's staff drafted the Senate's "Message to the House of Delegates," the assistant House Clerk, who also was on Ms. Monahan's staff, responded to the Senate's backdated letter. Captioned a "Message to the Senate" and on House of Delegates stationery, the letter stated, "[t]he House consents to the Senate adjourning until Thursday, November 15, 2007." The messages were entered into the House Journal on November 12, 2007. Neither of these messages was read to members of the House of Delegates nor voted on by them as a body. Ms. Monahan, at her deposition, testified that, in order to avoid any confusion, she made a handwritten note that these messages had only been "journalized" and had not been read or adopted by either the House or the Senate. On November 15, 2007, the Senate reconvened and remained in session until the 2007 Extraordinary Session adjourned indefinitely on November 19, 2007. During the remainder of the Session, both chambers appointed conference committees that reconciled the differences in their respective bills. On November 19, 2007, the House and the Senate adjourned their Extraordinary Session "sine die" after passing the reconciled bills. On that same day, Governor O'Malley approved and signed into law the bills passed by the General Assembly during the Extraordinary Session.
Before the Senate reconvened on November 15, 2007, a member of the House of Delegates from Cecil County, Michael Smigiel, the lead petitioner,3 inquired of the House Parliamentarian whether the Senate's extension of its adjournment violated Article 3, § 25 of the Maryland Constitution. Delegate Smigiel believed it did, by extending the initial adjournment beyond the three days requested, without the House having voted to approve the extension. The House Parliamentarian rejected the petitioner's challenge, concluding that the General Assembly was "constitutionally proceeding appropriately."
Less than one month after the General Assembly concluded its Extraordinary Session, the petitioners filed a Verified Complaint seeking Emergency Declaratory and Injunctive Relief in the Circuit Court for Carroll County on December 13, 2007. The petitioners requested that the Circuit Court expedite briefing and argument on their motions for a temporary restraining order, preliminary injunction or summary judgment. The Circuit Court scheduled a hearing on the petitioners' motion for a temporary restraining order for December 21, 2007. On December 19, 2007, the State filed a Motion to Dismiss, and simultaneously challenged the petitioners' attempt to depose Ms. Monahan, arguing that "legislative privilege" precluded the deposition. The Circuit Court ruled, in an Order dated December 18, 2007, that the petitioners were permitted to depose Ms. Monahan. The respondents appealed the Circuit Court's order to both the Court of Special Appeals and this Court. Both courts, however, refused to consider the merits of that appeal. On December 21, 2007, the day of the scheduled hearing, the petitioners moved for a continuance so that they could locate Ms. Monahan and depose her. The Circuit Court granted the motion for a continuance and rescheduled the hearing for January 4, 2008. On January 2, 2008, Ms. Monahan finally was deposed. At the January 4, 2008 hearing, the Circuit Court heard arguments and subsequently issued an opinion on January 10, 2007, dismissing the case and holding that the legislation passed by the General Assembly during the 2007 Extraordinary Session...
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