Lack of court opinion leaves legal limbo on immigrant tuition

By Megan Poinski

Last July, the Maryland Court of Appeals found that the referendum on the slots casino in Anne Arundel County should go forward, and the county’s voters approved it in November.

The slots casino near Arundel Mills Mall is under construction, with the lawsuit in its past.

Or is it?

Seven members of the Court of Appeals, Maryland's highest court

Seven members of the Court of Appeals, Maryland's highest court

One of the issues that was raised in the legal battle was whether the slots issue was one of appropriations, which would mean that it could not be brought up as a referendum. Anne Arundel Circuit Court Ronald Silkworth ruled that it was. The Court of Appeals overturned the lower court’s ruling, and ordered the referendum to take place.

But why?

Is it an appropriation?

That’s a question that has gone unanswered over the last year. The July ruling was short and pointed, and promised a more detailed explanation in the future. But that explanation has yet to come as members of the Court of Appeals have been crafting their written opinion for more than a year.

And while the issue about the slots referendum has passed, the legal issue – about what is an appropriations bill — remains.  It was brought up by Casa de Maryland and several Marylanders in the lawsuit filed earlier this month challenging the planned referendum for a law that could grant illegal immigrants in-state tuition at state colleges.

Casa attorney Joseph Sandler is arguing that the according to the fiscal note attached to the bill granting in-state tuition, the law impacts the funding that community colleges receive through the state’s Cade formula. He said he is using that definition to say that the bill is an appropriations bill and therefore ineligible for referendum. But he also admitted that because of the pending opinion from the Court of Appeals, the legitimacy of that argument is “murky.”

Judge Silkworth is handling that lawsuit too, but he doesn’t have any guidance as to why his ruling on a similar argument was wrong.

Court of Appeals Chief Judge Robert Bell was not available to comment on the progress of the opinion.

Long time to opinions

According to the Maryland Constitution, the Court of Appeals is supposed to issue opinions within 90 days of hearing cases.

However, that is seldom the case. Daily Record reporter Steve Lash recently wrote an in-depth report about the long waits that some cases have in the Court of Appeals. According to Lash’s research, the average timespan between an argument and an opinion in fiscal year 2010 was 178 days – nearly six months.

Lash found criminal cases where defendants have been waiting five years or more for the Court of Appeals to issue opinions.

While no lives hang in the balance with the Anne Arundel slots opinion, the court’s opinion will still make a big difference in how the case over the in-state tuition law is fought. Byron Warnken, a professor at the University of Baltimore law school, said that he has never heard of a situation like this, where the lack of an opinion leaves a door open for similar legal arguments.

“I guess that both sides will have to fully brief this part of the case in the absence of an opinion,” Warnken said. “It’s a catch-22; they can’t do anything else. The Court of Appeals works at its own guidance and you can’t go to another authority. It is the state supreme court.”

Other cases have taken years to get written opinions. After the 2007 special legislative session, Del. Mike Smigiel sued Comptroller Peter Franchot, seeking to invalidate the session because a cleark backdated a notice of recessing for more than three days. The court ruled against Smigiel, in March 2008, but did not enter an opinion in the case until August 2009.

Smigiel said that the waiting is frustrating because the Court of Appeals is charged with interpreting laws. Without interpretations, it is difficult for issues to move forward. And interpreting what counts as an appropriations bill would be extremely useful for future business of the government, he said.

As a member of the House Judiciary Committee, Smigiel said he would like to hear from the Court of Appeals if they are having problems.

“If the court is overburdened by the number and complexity of cases, their job is to come before my committee, the Judiciary Committee, and say,  ‘We need more money, more clerks, more time,’” Smigiel said.

Attorney Irwin Kramer, who represented Smigiel in his case against Franchot, and who argued against the state challenging the ballot question allowing slots in Maryland, is quite familiar with waiting for the Court of Appeals. His case was decided nearly three years ago in quick deliberations. Now, the state has two slots parlors in operation and one more under construction, and the Court of Appeals still hasn’t released an opinion about it.

Kramer says this is essentially an issue of government transparency.

“The court needs to recognize that they are an equal branch of government,” he said. “They have the responsibility to act in a matter that is transparent so the people can know why it is being done. Can you imagine a governor taking action on a bill, but not giving his reasons why he did what he did until after he’s out of office?”

About The Author

Len Lazarick

Len Lazarick was the founding editor and publisher of and is currently the president of its nonprofit corporation and chairman of its board He was formerly the State House bureau chief of the daily Baltimore Examiner from its start in April 2006 to its demise in February 2009. He was a copy editor on the national desk of the Washington Post for eight years before that, and has spent decades covering Maryland politics and government.


  1. Barry Dennis

    Why should we assume that the Appeals Court is no less subject to politically-influenced inertia than other branches of bureaucracy?

  2. Joseph Dooley

    Without referenda, the people lose representative government, as the majority of Maryland delegates and the governor do not represent the best interests of the people.

  3. Just saying

    This same issue came up with the attempt to bring the Stadium Authority up for a referendum in 1986, or thereabouts. As I recall the ruling at that time was that it could not go to referendum. It will be interesting to see whether the Court of Appeals delineates clear standards to guide what can and cannot be brought to referendum.

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