State v. Holton, 91

CourtCourt of Appeals of Maryland
Citation420 Md. 530,24 A.3d 678
Docket Number2010.,Sept. Term,No. 91,91
PartiesSTATE of Marylandv.Helen L. HOLTON.
Decision Date13 July 2011

420 Md. 530
24 A.3d 678

STATE of Maryland
Helen L. HOLTON.

No. 91

Sept. Term


Court of Appeals of Maryland.

July 13, 2011.

[24 A.3d 679]

Emmet C. Davitt, State Prosecutor and Thomas M. McDonough, Deputy State Prosecutor (Robert A. Rohrbaugh, State Prosecutor, and Shelly S. Glenn, Senior Assistant State Prosecutor, Office of the State Prosecutor, Towson, MD) on brief, for Petitioner.Joshua R. Treem (Nicholas J. Vitek of Schulman, Treem & Gilden, PA, Baltimore, MD), on brief, for Respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.MURPHY, J.

[420 Md. 532] In a four-count indictment returned by a Baltimore City Grand Jury, Helen L. Holton, Respondent, was charged with bribery, malfeasance in office, nonfeasance in office, and perjury. The Circuit Court for Baltimore City granted her motion [420 Md. 533] to dismiss those charges on the ground of legislative privilege. After that ruling was affirmed by the Court of Special Appeals in State v. Holton, 193 Md.App. 322, 997 A.2d 828 (2009), the State filed a petition for writ of certiorari in which it presented two questions for our review:



(Emphasis in original).

We granted the State's petition. 416 Md. 272, 6 A.3d 904 (2010). The first question presented, although interesting, is moot. For the reasons that follow, we answer “no” to the second question and

[24 A.3d 680]

therefore affirm the judgment of the Court of Special Appeals.


The indictment at issue includes the following assertions:

The Grand Jurors of the State of Maryland for the City of Baltimore do on their oath present:


* * *

8. Prior to January 2007, Helen L. Holton served as Chairperson of the Economic Development and Public Financing Subcommittee and commencing on or after January, 2007, Helen L. Holton served as the Chairperson of the Taxation and Finance Committee.

[420 Md. 534] 9. At all times pertinent, as a member of the Baltimore City Council, Helen L. Holton was prohibited by the Baltimore City Ethics Ordinance from soliciting or accepting gifts from any person seeking to do business, in any amount with the Baltimore City Council, or engaged in activity regulated or controlled by the Baltimore City Council, or with a financial interest that might be substantially and materially affected, in a manner distinguishable from the public generally, by the performance or non-performance of her official duties.

* * *

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.

* * *

22. On or about June 4, 2007, a Baltimore City Council Bill, Legislative ID number 07–0700 (hereinafter “Bill 07–0700”) pertaining to the parcel D portion of the Inner Harbor East project was introduced to the Baltimore City Council and assigned to the Taxation and Finance Committee chaired by Councilwoman Helen L. Holton.

* * *

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 as absent and the fifth member abstained.

* * *

[420 Md. 535] 34. On or about August 13, 2007, Helen L. Holton reported Bill 07–0700 favorable 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.

* * *

38. In her Financial Disclosure Statement, Helen L. Holton was asked whether she had received any significant

[24 A.3d 681]

gifts, directly or indirectly, from any person that does business with the City or is regulated or lobbies before the City during calendar year 2007. Helen L. Holton answered “yes” to the question and attached Schedule 4 which required a description of all gifts. In response to the question on Schedule 4 about the nature of the gifts, Helen L. Holton responded: “events for which all council members were invited.” No other gifts were disclosed.

* * *



(Criminal Law Article, Section 9–201)

39. The allegations contained in paragraphs 1 through 38 are re-alleged and incorporated herein as if set forth in full.

* * *


Malfeasance in Office

[420 Md. 536] (Common Law)

41. The allegations contained in paragraphs 1 through 38 are re-alleged and incorporated herein as if set forth in full.

* * *


(Perjury—Criminal Law Article, § 9–101)

43. The allegations contained in paragraphs 1 through 38 are re-alleged and incorporated herein as if set forth in full.

* * *


Nonfeasance in Office

(Common Law)

45. The allegations contained in paragraphs 1 through 38 are re-alleged and incorporated herein as if set forth in full.

The Circuit Court's dismissal of the indictment at issue was accompanied by a MEMORANDUM in which it (1) rejected the State's argument that the doctrine of legislative immunity has no application whatsoever to a criminal prosecution of a member of the Baltimore City Council, (2) found “that prohibited legislative material was used and relied on in bringing [the charges against Respondent],” and (3) explained why dismissal of the indictment was required:

These legislative acts are realleged in each of the four counts of the indictment. They form the factual predicate for the charge in Count I that the payment by Doracon Contracting Inc. of $12,500.00 for the survey constituted the receipt of a bribe[ ]; in Count II, that the alleged solicitation [420 Md. 537] and acceptance of that same money constituted a gift and malfeasance in office [ ]; 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[ ]; and in Count IV, that this failure also constituted nonfeasance in office.

* * *

The State makes no fall-back or alternative argument that its conduct of the

[24 A.3d 682]

prosecution could be shown to have complied with the State and federal law cited above. For example, cases have indicated that the State may, without violating the privilege, rely on some acts “casually or incidentally related to legislative affairs but not part of the legislative process itself.” United States v. Brewster, 408 U.S. 501, 528, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). This doctrine provides prosecutors with some leeway to make incidental references to legislative matters without impairing the privilege.

* * *

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 [Respondent's case].

The opinion of the Court of Special Appeals included the following analysis:

A fair reading of [CJ] § 5–501 intimates a legislative imperative that local legislators enjoy the same protection as the protection that State legislators have against being forced to defend or explain their legislative conduct. Section 5–501 provides:

Action for defamation against local government official.

[420 Md. 538] 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.

* * *

We do not share the parties' view that the statute is limited to defamation actions against local legislators. Such a view improperly elevates the effect of a mere caption and ignores the plain language of the statute itself as well as its legislative history. The statute was initially enacted by 1973 Md. Laws, ch. 287 for the purpose, according to its title, of providing that “certain officials shall not be liable in any civil action or criminal prosecution for words spoken in debate.” (Emphasis added). Intending to cover all local legislators it added, in nearly identical language, to each of the Code articles dealing with municipal and county legislative bodies (Articles 23A, 25, 25A and 25B) that no such local legislator—town councilman, county commissioner, county councilman, code county commissioner or in debate at [a meeting of the applicable legislative body].” The meaning and effect of that statute could not be clearer. That language was lifted directly from Article III, Section 18 of the Maryland Constitution and must be construed as having the same effect—to provide the same level and scope of protection to the local legislators as is enjoyed by members of the General Assembly.

A few months after the enactment of that statute, the General Assembly returned for a special summer session in order to begin implementation of the code revision process—the non-substantive re-writing of the 1957 Code in a more topical and coherent manner. One of the volumes produced at that special session was the Courts and Judicial Proceedings Article, which was intended as...

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