Maryland's highest court has ruled: A party's central committee may send multiple recommendations to the governor when a legislative seat vacancy is to be filled by executive appointment.
The Court of Appeals of Maryland on Monday upheld a ruling by a Carroll County Circuit Court judge, who denied a request to prevent the county's Republican Central Committee from sending multiple names to the governor when it was making recommendations to fill a vacated seat in the House of Delegates representing Carroll.
The appellate court also lifted a temporary restraining order it had placed on the Carroll County Republican Central Committee precluding the sending multiple names until after the high court ruled.
"They ruled for us, so we are happy," said Larry Helminiak, vice-chair of the Carroll County Republican Central Committee.
Gov. Larry Hogan's administration was also pleased with the appellate court's decision.
"We knew that the court would give due consideration to this matter, and we agree with its decision," said Doug Mayer, spokesman for the Hogan Administration. "The fact is, Maryland Attorney Generals have been providing correct advice for the past 40 years on filling vacancies to the General Assembly. Our process has been confirmed."
Helminiak said Mon day the committee has no definitive plans concerning when its members will vote on which names to recommend to the governor, who is poised to make an appointment to fill the vacant House seat in District 5, previously occupied by Justin Ready, who was elevated by Hogan appointment to the Maryland Senate.
If the committee does not recommend someone by Wednesday, the responsibility of selecting someone to fill the vacancy will fall exclusively to the governor. The Maryland Constitution outlines a 30-day period from the time of the vacancy during which a party central committee can make recommendations.
Mark Stichel, the attorney representing plaintiffs Kathy Fuller, Amy Gilford and Melissa Caudill, said he was somewhat surprised by the court's decision.
"Based on the questions the court asked, and the way it appeared to go in court, I thought they would've had a different opinion," Stichel said.
Fuller, Gilford and Caudill — all members of the Carroll Republican Central Committee — filed the lawsuit Feb. 2 in response to Hogan's request that central committees send three names to him for consideration as potential replacement delegates.
The plaintiffs argued that the Maryland Constitution states that central committees shall send only one name to the governor to fill a vacant legislative seat.
Article 3, Section 13 of the Maryland Constitution, says "the Governor shall appoint a person to fill such vacancy from a person whose name shall be submitted to him in writing … by the Central Committee of the political party."
The plaintiffs' interpretation of the constitution, including two attorney generals' opinions from 1939 and 1977 in support of it, did not convince Carroll County Circuit Court Judge Fred Hecker of the validity of their argument, who denied their request for a temporary restraining order Feb. 12.
Attorney General William Walsh's opinion from 1939 states: "We find in the Senate journal from 1935, that when this amendment was introduced it provided, 'the governor shall appoint a person to fill such vacancy from two person whose names shall be submitted…' and that it was amended in the House by striking out 'two persons whose name…' and inserting in lieu thereof 'a person whose name.' It, therefore, appears that the submission of only one name by the Committee was contemplated, and you are so advised."
Stichel, in his petition to the Court of Appeals, wrote: "The provision for two names to be submitted to the governor was struck purposefully to limit the job filling powers of the Governor."
A 1977 opinion from Attorney General Francis Burch affirms Walsh's position, Stichel wrote.
Current state's Attorney General Brian Frosh told the high court last Thursday that these committees have "sole discretion" to choose how many names they will submit to the governor.
In his petition, Stichel also requested the appellate court issue a writ of mandamus that would've permanently prohibited the committee from submitting more than one name for a legislative vacancy. A writ of mandamus is an order from a court to an subordinate government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion, according to Cornell University Law School's website.
Dirk Haire, one of the attorneys representing the Carroll County Republican Central Committee as an entity, said the appellate court's decision to uphold the circuit court's opinion was based on several factors.
Haire argued that in Article 3, Section 13, the committee is granted permission to participate in the process of appointing a replacement, but the duty is explicitly on the governor to make the appointment. The court, therefore, could not issue an order preventing the committee from submitting multiple names since the committee's responsibility is not a public or statutory duty outlined by law, which are the only duties such an order can block.
Though Stichel used past attorney generals' opinions to support his plaintiffs' argument, Haire said there is a "long line" of attorney general opinions that state political parties are not government agencies, so a writ of mandamus cannot be issued against central committees.
Haire said if the plaintiffs wished to have the appellate court issue a writ, they needed to include the governor on their list of defendants since it would've applied to him.
Stichel said Hogan was not included in the lawsuit because the plaintiffs' issue was with the decision-making process of the central committee.
Finally, when Section 13 was amended in 1935, legislators at the time chose to change the language from specifying committees recommend "two persons whose names shall be submitted" to "a person."
During the hearing, Haire referenced a dictionary from the time the amendment was written that states "a" does not necessarily mean singular.
"If they had meant one person then they would've written that," Haire said.
The appellate court's full opinion and explanation of its agreement with the circuit court is expected at a later date, Stichel said.
Haire said there is no specific timeframe for the court to issue its full opinion, but said it could be sometime in the next few weeks.
Reach staff writer Wiley Hayes at 410-857-3315 or firstname.lastname@example.org.