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Filing details GOP's claim

The Baltimore Sun

In a filing with the Maryland Court of Appeals, an attorney for five Republican legislators laid out in detail for the first time yesterday an alleged "conspiracy to conceal constitutional defects" by Democratic leaders during November's special legislative session.

Also yesterday, the state's highest court cleared the way for the hotly contested deposition of the House of Delegates' chief clerk in the GOP-led lawsuit, which seeks to invalidate the tax, gambling and spending-reduction bills that start going into effect this week.

Irwin R. Kramer, attorney for the Republicans, is raising questions about the authenticity of documents purporting to show that the House of Delegates - as required by the Maryland Constitution - formally approved a five-day adjournment by the state Senate.

Sandra B. Brantley, an assistant attorney general in the General Assembly counsel's office, called Kramer's filing an example of "brief-writer's hyperbole" based on "speculation," and expressed confidence that the courts would not overturn major legislation even if the allegations were proved true.

But Kramer insisted yesterday: "These things are not the product of a lawyer's imagination. Dates don't lie, calendars don't lie. This is the product of a complete disregard for the law and for integrity in government."

Kramer plans to ask Mary Monahan, the House clerk, about the origin of official records stating that the House granted consent to the Senate's five-day break.

Those records are at the heart of the lawsuit that Kramer filed last month in Carroll County Circuit Court, in which his Republican clients - Del. Michael D. Smigiel Sr. of Cecil County, the minority leaders and whips of both chambers, and a Carroll County businessman - claim that the Democrat-controlled General Assembly violated a constitutional requirement that either legislative chamber formally consent to a break of more than three days by the other.

The Sun reported last week that an apparent discrepancy in the official records of both legislative chambers raises the question of whether they were altered to make them appear to meet standards laid out in the state constitution.

A clause in the constitution says: "Neither House shall, without the consent of the other, adjourn for more than three days, at any one time, nor adjourn to any other place, than that in which the House shall be sitting, without the concurrent vote of two-thirds of the members present."

The purpose of the clause is to prevent one chamber from obstructing the work of the joint legislative body.

According to House records, the Senate requested permission Nov. 9 to adjourn until Nov. 15. On Nov. 12, Monahan sent a message consenting to the adjournment, records show.

But the Senate's records indicate that it intended to adjourn only until Nov. 13. Senate President Thomas V. Mike Miller sent a Nov. 12 e-mail to senators, informing them that the next day's session had been rescheduled to Nov. 15.

In his filing yesterday, Kramer referred to the Senate's Nov. 9 message as "fictitious" and an attempt by "Senate leaders" to "rewrite history," noting that the message does not appear in the Senate's own records.

A spokeswoman for Miller, Lisa Fulton, declined to comment on the substance of Kramer's allegations.

"The record is clear," Fulton said, "that the Senate asked for consent, received consent, and returned to finish the work of passing legislation in full compliance with the Maryland Constitution."

A spokeswoman for House Speaker Michael E. Busch declined to comment.

Despite winning the right to depose Monahan, Kramer said yesterday that he expected the state's lawyers to still try to prevent the chief clerk from answering his questions.

In trying to get the courts to prevent Monahan's deposition, attorneys for the state argued that her testimony would violate legislative privilege and constitute an infraction of the constitutional separation of powers.

While it declined to hear the state's appeal, the high court also did not clarify its definition of legislative privilege. Brantley said the state would proceed on the assumption that questions to Monahan about legislative activity were objectionable.

"It could be a very difficult deposition," said Saul Ewing attorney Dan Friedman, who has written a book about the Maryland Constitution.

The deposition will likely take place tomorrow or Thursday. On Friday in Westminster, Circuit Judge Thomas F. Stansfield is scheduled to resume hearing arguments in the case, including motions from both sides for summary judgment.

Friedman and Byron Warnken, who teaches state constitutional law at the University of Baltimore, both predicted that Maryland courts would decline to overturn the governor's $1.3 billion tax package and other new laws even if the plaintiffs prove there were defects in the General Assembly's adherence to procedural requirements in the constitution.

A $1-a-pack tobacco tax increase goes into effect today, followed by increases in the sales tax on Thursday.

Sun reporter Bradley Olson contributed to this article.

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