Gov. Larry Hogan scored a significant legal victory Thursday as the state’s highest court struck down the General Assembly’s attempt to constrain his appointment powers and ordered that two former Cabinet secretaries receive back pay the legislature wanted to withhold from them.
The ruling appears to strengthen the hand of governors in any disputes with the legislature regarding controversial appointments. It also represents a defeat for Democratic Attorney General Brian E. Frosh, who issued an opinion upholding lawmakers’ attempt to prevent the Republican governor from reappointing officials who failed to win Senate confirmation.
The Court of Appeals split 4-3 in the case, which involved Hogan’s appointments of Dennis R. Schrader as health secretary and Wendi Peters as planning secretary in 2016. When the Senate balked at confirming either in early 2017, Hogan withdrew the nominations and then reappointed them after the session ended.
Anticipating the governor’s move, lawmakers wrote language into the budget blocking spending on salaries that year for any officials subject to confirmation who had been rejected by the Senate Executive Nominations Committee or whose names had been withdrawn. As of July 1 of that year, acting on Frosh’s advice, Treasurer Nancy K. Kopp stopped paying the two although they continued to run their departments. Frosh and Kopp are Democrats.
Schrader and Peters, who were later given new jobs in their departments and went back on the payroll, sued. The court found the budget language didn’t pass constitutional muster and ordered the treasurer to give them back pay.
Hogan’s office welcomed the decision.
“I’m certain that the legislature severely regrets taking this action,” Hogan spokeswoman Amelia Chasse said. “Their zeal to push a petty personal vendetta against two hardworking public servants has resulted in the Court of Appeals completely neutering their ability to recklessly legislate through the budget.”
The majority opinion was written by Senior Judge Alan M. Wilner. In it, he found that the only restriction on the governor’s appointment power is in cases where the Senate actually has rejected a nominee. Peters’ nomination was voted down by the Executive Nominations Committee but Hogan withdrew it before it went to the Senate floor. Schrader’s nomination was withdrawn on the 79th day of the 90-day session after the committee delayed a vote.
“The Senate had a fair and reasonable opportunity to reject the Peters and Schrader nominations, and it failed to do so,” Wilner wrote. “Absent such a rejection, the governor was fully empowered to reappoint them.”
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The court majority also struck down the legislature’s budget language, ruling that to bar the payment of salaries it must directly tie it to a specific appropriation rather than simply write it into the budget bill.
Judge Robert N. McDonald agreed on the governor’s appointment power, writing that “a sort of constitutional loophole” lets the chief executive withdraw a nomination and make repeat appointments between sessions. But, writing in dissent with two other judges, he disagreed with the decision on the legislature’s budget authority.
That, he wrote, is the legislature’s “check on the governor’s use of that loophole.”
“That is how a system of checks and balances works,” McDonald wrote.
Senate President Thomas V, Mike Miller, a Calvert County Democrat, could not be reached for comment.
House Speaker Michael E. Busch, an Anne Arundel County Democrat, questioned what is left of the Senate’s advice and consent powers if a governor can reappoint an official who has been rejected by the Executive Nominations Committee without the legislature having a recourse.
“What’s the point?” Busch said.