March 29, 2010

Analysis: Is Maryland’s attorney general an unimpeachable source?

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By Len Lazarick
Len@MarylandReporter.com

Will the House of Delegates impeach Attorney General Doug Gansler?

That’s the question Del. Don Dwyer has promised to ask the House to consider Wednesday. Dwyer, a socially conservative Republican from Anne Arundel County, believes Gansler broke the law with his February opinion that Maryland courts would likely recognize same-sex marriages performed in other states, despite their prohibition in Maryland law.

The question that has stymied Dwyer, and will likely derail his attempt tomorrow is: Can the House of Delegates impeach an attorney general?

The answer so far is no. Who says so? The Attorney General’s office, which acts as counsel to the legislature.

You can understand why Dwyer might not have full confidence in the three different opinions the legislature’s lawyers, who work for Gansler, have issued in the past month.

They give House Speaker Michael Busch little choice in ruling Dwyer out of order when he moves to impeach.

No telling how far Dwyer will push this. If he is overruled, he can appeal the speaker’s ruling to the full House of Delegates. That appeal would likely fail on a party line vote, even though some Democrats, like most Republicans, are mighty unhappy with Gansler’s opinion. Some have attempted but failed to overturn it through legislation.

Dwyer, who is not a lawyer, is relying on a sentence in the Maryland Constitution that says “the House of Delegates shall have the sole power of impeachment in all cases.” That sounds pretty clear – and Dwyer and his allies have been posting this quote all over the House office buildings.

But there’s another provision of the state constitution that says the attorney general “shall be subject to removal for incompetency, willful neglect of duty or misdemeanor in office, on conviction in a Court of Law.”

So the constitution is in conflict. Not totally surprising, given that the Maryland constitution is a mess – a mishmash of high language and excruciating detail, with large sections applying only to Baltimore City. At 47,000 words it is five times longer than the U.S. Constitution, and 21,000 words longer than the average state charter, according to Wikipedia.

The impeachment provision that Dwyer is relying on has never been used, as far as anyone can tell. It specifies no grounds for impeachment, but in another place, the constitution does say the legislature may provide a law for the impeachment of the governor and lieutenant governor. The constitution also says the comptroller and state attorney general can be removed in the same way as the attorney general, without mentioning impeachment.

It is unfortunate that the people supplying the legal advice on the attorney general also happen to work for him. On the other hand, Dan Friedman, the general counsel to the Assembly, literally “wrote the book” on the constitution before he came to work for Gansler,. It’s a reference guide that other Maryland lawyers rely on.

Angry and frustrated, Dwyer has filed an ethics complaint against Speaker Busch for appointing a Democratic delegate as the parliamentarian interpreting the rules for the House, rather than a staff member, as is done in other legislatures. Dwyer has asked for other legal opinions, including one from former U.S. Attorney General Edwin Meese, now at the conservative Heritage Foundation.

Dwyer’s fellow Republicans have tried to help. Del. Joseph Boteler, D-Baltimore COunty, asked State Prosecutor Richard Rohrbaugh how to bring criminal charges against Gansler. Rohrbaugh, the man who prosecuted Baltimore Mayor Sheila Dixon, was not encouraging.

“Based solely upon what the press has reported, I presently do not see any facts which would justify filing criminal charges against the Attorney General for his issuing a public legal opinion, regardless of whether any person agrees or disagrees with that opinion,” Rohrbaugh wrote to Boteler.

Gansler’s 55-page opinion is just that — not the law or a court judgment, but legal advice requested by a state senator and which state agencies can follow. It does reverse a 2004 attorney general’s opinion, but Gansler said the law has evolved since then.

“While the matter is not free from all doubt, in our view, the Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction,” Gansler said.

Dwyer and supporters think the opinion is wrong, and a lot of Marylanders don’t like it. But he has not made a case for how the opinion is illegal, criminal, negligent, unconstitutional or even something the attorney general is not allowed to do. Though it seems to Dwyer to undermine current Maryland law, Gansler and Dwyer simply interpret the law differently.

Dwyer freely admits his crusade is a “political” prosecution. He can’t get the votes to overturn the opinion, he can’t pass a constitutional amendment against it and he wouldn’t be able to get the votes to impeach the attorney general, even if he could be impeached.

The Maryland Constitution does not permit “recall,” allowing voters to remove an official from office as they can in other states. The only way they can do that is the election. So far, no one has even talked about challenging Gansler in the fall.