Board of Public Works refuses to obey federal court order on attorney fees

Board of Public Works: State Treasurer Nancy Kopp, Gov. Martin OMalley and Comptroller Peter Franchot

Board of Public Works: State Treasurer Nancy Kopp, Gov. Martin OMalley and Comptroller Peter Franchot

By Ilana Kowarski

The Board of Public Works last Wednesday refused to obey a federal court order to pay nearly $200,000 to the attorneys of plaintiffs who successfully sued the State of Maryland for civil rights violations.  The failure to act in this long-running legal battle drew a stinging rebuke from the American Civil Liberties Union.

“We think it is outrageous for the governor and comptroller to refuse to pay a judgment in a civil rights case that a federal court has ordered the State to pay,” said Debbie Jeon, legal director of the Maryland ACLU.  “Playing political games now that the bills have come due will only waste more in taxpayer funds, as this forces us to pursue a collection action against the State.”

Comptroller Peter Franchot first raised objections to the judgment at last week’s board meeting, saying that it was “not appropriate,” and Gov.  Martin O’Malley questioned why the state was being punished for actions he rescinded when he took office.

“This litigation required no litigation, because I changed the policy as soon as I got into office,” O’Malley said.  “Do you mean to tell me that they [the plaintiffs] get more money on top of the money they shouldn’t have received?”

Court case over voter registration

The dispute began in 2006 when the Maryland Transit Administration started requiring citizens to obtain permits before staging political demonstrations or voter registration drives on public transit.  Two ACORN employees were permanently banned from registering voters on Baltimore city buses and subways, and these employees sued in January 2007, claiming that the Transit Administration was interfering with constitutionally protected activity.

A federal district court agreed, and revoked the speech regulations, an action which O’Malley describes as “utter irrationality” since his administration had stopped enforcing them.  The district court did not initially require the transit authority to compensate the plaintiffs’ attorneys, but the Fourth Circuit Court of Appeals overruled that decision, writing that “this is the very form of litigation Congress wished to encourage” by allowing civil rights plaintiffs to be compensated for their court costs since it “successfully vindicated important First Amendment rights.”

Assistant attorney general Matthew J. Fader warned the board that the plaintiffs could garnish state funds, and he said that it was highly unusual for a state to defy a federal court order. “I’m not aware of a precedent for a federal judgment that was not paid when it was rendered against an official operating in their official capacity,” he said.

But Franchot was undeterred. “With all due respect to the Fourth Circuit, I’m going to vote no,” he said. “I’m happy to see what compliance the plaintiffs plan to pursue.”

Franchot spokesman Joe Shapiro said that the comptroller was taking a “principled stand” against the federal court’s decision. “We disagree with the court.  The civil rights issues were resolved very quickly by the governor. The lawsuit didn’t solve anything.”


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. James Bush

    The comptroller is not required to sign. The Treasurer is required to sign the check for the stubborn old woman for who she is. Then the stupid drunk Governor must pay the lawsuit.

  2. The real deal on this issue

    Just as a point of fact. The O’Malley administration continued to enforce voter registration restrictions after it was brought to their attention (for several months). This is contrary to what was stated by O’Malley in this article, resulting in this lawsuit. The reporter on this article should ask for documentation of the policy change from the New Orleans city records and when and if that actually happened.

    Perhaps memories are fuzzy here…it may be true that O’Malley himself changed this policy; however, this was long after registrars were banned from public transit with threat of arrest. For a long time, voter registrars were limited by permits, which were limited to a few times a month and which required an application process. These issues began happening before 2007 and at the time the city did take steps to address it. The reality is that there were individuals actually arrested, handcuffed, and dragged to jail for registering voters…

    Ironically, O’Malley benefited from the very registrars who worked so hard to increase minority and low income participation in Maryland elections. He should consider changing his position here and paying those who defended the right to have everyone register to vote, after all ACORN no longer exists so just hating ACORN can’t be a good reason for him to vote no anymore

    Sadly, in this day and age people were denied their rights, suffered the consequences of being hauled to jail, gaining a police record, and ultimately no longer registering voters using mass transit systems because of fear of further arrests. The attorneys that worked on this case took the risk of defending democracy despite the fact that if they had lost the case they would have made zero. All they are asking for now is a refund of the costs, ordered by the courts, because in fact, citizen’s rights to register voters had to be addressed in the courts in order to ensure compliance by the authorities.

  3. Cindy Walsh

    The ACLU MD needs to speak out for the $800,000 million that the Maryland courts awarded the Baltimore City schools and Historically Black Colleges a few years ago. This is a significant failure on the part of the ACLU as they push Wall Street funding of school building while billions remain uncollected in judgements and subprime mortgage fraud against mostly black homeowners.

  4. Maryland Esquire

    Pursuant to section 12-203 of the State Government Article, the Governor is obligated to put a request for all judgments against the State in the annual Budget Bill. How does that impact the BPW vote?

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