Photo above:Gov. Martin O’Malley signs the Budget Reconciliation and Financing Act last Thursday, with Senate President Mike Miller, left, and House Speaker Michael Busch, right; behind them Sen. Nancy King, left, and Del. Sheila Hixson, right.

The key budget-balancing bill signed by Gov. Martin O’Malley last Thursday contained several unconstitutional provisions, including language exempting Carroll and Frederick counties from aspects of the rain tax.

That’s what Attorney General Doug Gansler told O’Malley in a letter the day before he signed the Budget Reconciliation and Financing Act of 2014, SB172. But the AG still said O’Malley could sign the bill.

The letter was first reported on Wednesday by the Conduit Street blog of the Maryland Association of Counties.

Other unconstitutional provisions in the catch-all BRFA (BUR-fa as it’s called) included a $50 reduction in the title fees for rental cars, a funding mandate for the Maryland Park Service, a mandate that speed camera fees be used to buy State Police vehicles and a hotel tax in Harford County.

Violated one-subject rule

These amendments made by the legislature were unconstitutional because they violated the one-subject rule for legislation in the Maryland Constitution. The purpose of the BRFA is to balance the state budget in time of fiscal difficulty by raising revenues or reducing expenses, Gansler explained.

He said some of the illegal provisions actually increased spending or had nothing to do with the state budget — like the stormwater remediation fees that Carroll and Frederick county commissioners refused to impose as a separate “rain tax.”

Regardless of the unconstitutional provisions, Gansler told O’Malley that the bill overall was “constitutional and legally sufficient and that you may sign it” because the unconstitutional provisions are “severable.” That means a court could knock out these unconstitutional provisions without affecting the implementation of the rest of the law.

Unlike past years, Gansler even recommended alternatives on how the state and counties could carry out the legislative intent of the provisions.

The Budget Reconciliation and Financing Act is a key companion to a balanced state budget as it shifts revenues, raises taxes and fees, and reduces spending mandates or entitlement programs.

Objections were no surprise

Gansler’s official opinion should have come as no surprise to legislators and executive branch officials working on the budget in March. Similar objections to the unconstitutional provisions proposed by lawmakers were registered in written opinions from the assistant attorneys general who advise the General Assembly and the Department of Budget and Management.

The Office of the Attorney General reviews all legislation that the General Assembly passes for legal sufficiency before the governor signs them into law. In judging the bills, the AG uses a fairly loose standard, finding most bills “not clearly unconstitutional,” only red-flagging legislation that clearly violates the state or federal constitutions.

–Len Lazarick