State Of Md. v. Holton

• Decision Date: 01 July 2010
• Docket Number: No. 861,2009.,861
• Parties: STATE of Marylandv.Helen L. HOLTON.
• Court: Court of Special Appeals of Maryland

193 Md.App. 322

997 A.2d 828

STATE of Marylandv.Helen L. HOLTON.

No. 861, Sept. Term, 2009.

Court of Special Appeals of Maryland.

July 1, 2010.

Thomas M. McDonough, Deputy State Prosecutor & Robert A. Rohrbaugh of Townson, MD, for appellant.

Joshua R. Treem & Nicholas J. Vitek (Schulman, Treem, Kaminkow & Gilden, on the brief) Baltimore, MD, for appellee.

Panel: DAVIS, WOODWARD, ALAN M. WILNER, (Retired, Specially Assigned), JJ.

DAVIS, J.

Appellant, the State of Maryland, appeals from the dismissal of charges against Baltimore City Councilperson Helen L. Holton, appellee. Appellee was indicted by a Baltimore City grand jury and charged with bribery, malfeasance in office, nonfeasance in office and perjury, arising out of her involvement with a development project in the Harbor East area of Baltimore City. Appellee moved to dismiss all of the charges on the basis that the evidence introduced before the grand jury constituted legislative acts, barred by the common law legislative privilege. The court addressed appellee's motion to dismiss together with a “nearly identical” motion filed by former Baltimore City Mayor, Sheila Ann Dixon, in a separate case. The court ruled in favor of both Dixon and appellee. The State now appeals that ruling as it pertains to appellee and presents one question for our review:

Did the trial court err in holding that legislative immunity protects legislators in subordinate political subdivisions from criminal prosecution from the State?

For the reasons that follow, we answer the State's question in the negative. Accordingly, we affirm.

FACTUAL BACKGROUND

The trial court dismissed the charges against appellee on the grounds that the only evidence obtained by the State, and alleged in the indictment, involved legislative acts. The charges related to a payment of $12,500 made by Doracon Contracting, Inc. (Doracon), a developer owned in-part by Ronald Lipscomb, for a political survey for appellee's benefit. The State alleged that the payment was intended to influence appellee to vote in favor of public subsidies known as “payments in lieu of taxes” (PILOT) for the development of two parcels of land in Baltimore City, for the benefit of Doracon and Lipscomb.

The State presented evidence to the grand jury in the form of records and testimony regarding the proceedings of the Baltimore City Council and appellee's activities in her capacity as a member of the Economic Development and Public Financing Committee and as Chairperson of the Taxation and Finance Committee, including telephone calls and meetings with Lipscomb and Doracon representatives. The circuit court provided the following summary of the legislative acts which it concluded infected the counts in the indictment against appellee:

In Defendant Holton's case, the use of legislative material is apparent in a review of the indictment. It recites that Defendant Holton is and has been a duly elected member of the Baltimore City Council. ¶ 7. It notes that she was Chairperson of the Economic Development and Public Financing Subcommittee, and that after January 2007, she served as the Chairperson of the Taxation and Finance Subcommittee. At that time, she additionally served as chairperson of the Taxation and Finance Subcommittee. ¶¶ 8 and 9. The indictment describes the efforts of Ronald Lipscomb to communicate with Defendant Holton in her capacity as a member of the Baltimore City Council, and then as the chairperson of the Taxation and Finance Committee, regarding those projects. ¶ 11-21.

More specifically, the indictment alleges that beginning on or about June 4, 2007, Bill 07-0700 relating to Parcel D was introduced to the City Council and assigned to Ms. Holton's Committee. ¶¶ 22 and 23. Shortly thereafter, Ms. Holton commissioned an election survey to be prepared for her. ¶ 25. Eventually, Doracon Contracting Inc. paid $12,500.00 to Company Z for the survey. ¶ 31. Subsequently, Ms. Holton received the results of the survey, and thereafter, in the City Council, reported Bill 07-0700 favorably to the City Council on behalf of her committee and later voted for the bill in the City Council. ¶ 33-36.

Legislative material pertaining to Defendant Holton is specifically referenced in many counts of the indictment. For example:

¶ 15. On or about June 12, 2006, at the regularly scheduled 3:00 p.m. meeting of the Baltimore City Council, Councilwoman Helen L. Holton, acting for the Economic Development and Public Financing Subcommittee, reported favorably to the City Council on Bill 05-0301, the proposed PILOT for Parcel B portion of the Inner Harbor East project.

¶ 17. On or about July 10, 2006, Bill 05-301, the proposed PILOT for the Parcel B portion of the Inner Harbor East project was authorized by the City Council with Councilwoman Helen L. Holton abstaining.

¶ 28. On or about July 19, 2007, the Taxation and Finance Committee of the Baltimore City Council held a public hearing on Bill 07-0700. Of the five members of the Committee, Chairperson Helen L. Holton and two other committee members voted to report favorably on the Bill with amendments. One member was absent and the fifth member abstained.

¶ 34. On or about August 13, 2007, Helen L. Holton reported Bill 07-0700 favorably with amendments to the City Council.

¶ 36. On or about September 24, 2007, the City Council approved Bill 07-0700 authorizing tax relief benefits in the form of a Payment in Lieu of Taxes (PILOT) for

Parcel D of Inner Harbor East with Councilwoman Helen L. Holton casting her vote in favor of the Bill.

These legislative acts are realleged in each of the four counts of the indictment. They form the factual predicate for the charge in Count 1 that the payment by Doracon Contracting Inc. of $12,500.00 for the survey constituted the receipt of the bribe. ¶ 40; in Count II, that the alleged solicitation and acceptance of that same money constituted a gift and malfeasance in office. ¶ . 42; in Count III, that the failure to list the receipt of the $12,500.00 gift on Ms. Holton's 2007 Financial Disclosure Form constituted perjury, ¶ .42; and in Count IV, that this failure also constituted nonfeasance in office. ¶ .46.

In sum, the indictment alleged that appellee received and failed to report on her Financial Disclosure Statement the payment by Lipscomb's company for her survey, the quid pro quo in exchange for the following acts: she reported favorably on the floor of the City Council on a bill that would subsidize parking for one of the development projects at issue, but abstained from voting on the matter; appellee participated in meetings between December 2005 and July 2007 with Lipscomb and others to negotiate the terms of another lot, which was ultimately approved by the Baltimore City Board of Estimates and she favorably reported another bill in favor of the second parcel, then voted in favor of the bill, which was ultimately approved by the City Council. The Indictment ultimately alleged that she signed, under oath, her Financial Disclosure Statement and filed it, without disclosing the aforesaid payment, acts constituting perjury, nonfeasance and malfeasance in office.

The trial court dismissed the indictment and issued a memorandum opinion delineating its reasons. The court rejected the State's argument that local legislators are only entitled to legislative immunity in civil cases. Citing Montgomery County v. Schooley, 97 Md.App. 107, 627 A.2d 69 (1993), the court determined that appellee, a local legislator, was entitled to the protections of common law legislative immunity, which the trial court believed to be “co-extensive” with the immunity afforded to State legislators through the Speech and Debate provision of the Maryland Constitution. The circuit court distinguished the case principally relied upon by the State United States v. Gillock, 445 U.S. 360, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980), which holds that a state legislator is not protected by a state legislative privilege in a federal criminal prosecution, because “such a state-created privilege was not part of the federal common law, and its recognition in federal court was not compelled by principles of federalism.” Because appellee invoked a state privilege in a state criminal prosecution, the court determined that, “[i]f the legislative immunity doctrine is indeed co-extensive with [the Speech and Debate clause], it is hard to see why the legislative immunity doctrine would not have purchase to some degree to promote the public purposes behind the doctrine when a State criminal prosecution is mounted.”

The court further determined that the acts alleged in the indictments constituted legislative acts and that the State made “no fall-back or alternative argument that its conduct of the prosecution could be shown to have complied with the State and federal law....” Thus, the court opined:

The Court reads the failure of the State prosecutor to make such a showing or proffer, despite being provided several opportunities to do so, including at oral argument on the motion on April 23rd, as a functional concession and admission that, on the current record, it cannot show compliance with the requirements to screen the grand jury from prohibited and prejudicial legislative related evidence in either of these cases.

Because it was not clear to the court that the grand jury would have indicted appellee without the evidence emanating from legislative proceedings, the trial court dismissed the indictment against Councilperson Holton.

The State noted a timely appeal, challenging the court's determination that appellee's legislative acts were shielded by common law legislative immunity. After oral argument, this Court sua sponte, directed the parties to address the applicability and impact of Md.Code (2006 Rep. Vol., 2009 Supp.) Courts and Judicial Proceedings, C.J.P. § 5-501, which was not raised by either party before the trial court or in their briefs to this Court, and to reconcile how, if the statute was...