Opinions, Advice and Legislation Quarterly News
April-June 1997

Opinions

  1. Alcoholic Beverages
  2. Constitutional Law
  3. Public Officers
  4. Retirement Systems
  5. Statutes
  6. Taxation
  7. Torts

Advice Letters

  1. Attorneys
  2. Constitutional Law
  3. Counties
  4. Health
  5. Immunity
  6. Port Administration
  7. Procurement
  8. Public Information Act
  9. Taxation
  10. Wiretapping and Electronic Surveillance

Alcoholic Beverages

Questions: 1. Does Montgomery County have authority to turn over the control of sales, distribution and possession of alcoholic beverages to people who are not licensed under Article 2B?
2. Does the County Executive have exclusive policymaking authority over the operation of the Montgomery County Department of Liquor Control?
Answer: 1. Montgomery County does not presently have authority to allow an unlicensed contractor to control the sales, distribution, and possession of alcoholic beverages in Montgomery County.
2. The Montgomery County Executive has exclusive policymaking authority over the operation of the Department of Liquor Control.

Opinion No. 97-013
June 4, 1997

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Constitutional Law

Establishment Clause

Question: May a municipality allow a church to use portions of a publicly owned facility, an armory, for two purposes: Sunday worship, in an area that is used on other days by various secular organization; and office space for the minister of the church, occupied on a full-time basis for what is described as "nominal rent"?
Answer: Because the space used for Sunday worship is made available to the church on essentially the same terms as the space is made available to other organizations, the use is not objectionable under the Establishment Clause of the First Amendment. The Establishment Clause, however, prohibits the government from providing a subsidy for the maintenance of a church office, in the form of a below-market rent.

Opinion No. 97-012
June 4, 1997

Questions: 1. May a reconstructed Catholic Chapel, or the land on which the original Chapel stood, be given by the Historic St. Mary's City Commission to the Archdiocese of Washington, presumably for the site to be used as a place of Catholic worship?
2. Do Article 27, §§265 and 267 of the Maryland Code, dealing with grave desecration, apply to the Commission?
Answer: 1. The Establishment Clause would prohibit the Commission from conveying a State asset, whether unimproved land or a building, to a religious organization for less than its fair market value.
2. Article 27, §§265 and 267 do not apply to the activities of a State agency, including the Commission.

Opinion No. 97-016
June 30, 1997

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Public Officers

Question: May a planning commission member be removed for malfeasance in office only if the member commits a crime?
Answer: Removal for malfeasance in office requires that the actions or conduct of the planning commission member have a direct relation to the performance of official duties and be of a substantial nature directly affecting the public interest, albeit not necessarily a violation of the criminal law.

Opinion No. 97-014
June 9, 1997

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Retirement Systems

Question: Are retired masters who are members of the Judges' Retirement System eligible for health insurance benefits under the State Employee and Retiree Health and Welfare Benefits Program?
Answer: Yes.

Opinion No. 97-010
April 16, 1997

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Statutes

Question: Can retailers continue to collect bad check fees despite the seeming repeal in 1996 of the statutory authority for the fees?
Answer: The 1996 legislation should not be construed to repeal the prior specific legislative authorization for these fees. Language in the 1996 legislation that, applied literally, would result in a repeal was a drafting mistake, which should not be given effect.

Opinion No. 97-011
May 1, 1997

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Taxation

Question: Is a taxpayer entitled to a refund for taxes paid on the unused portion of a line-of-credit debt secured by a deed of trust, if at the time of recording the taxpayer prepaid the recordation tax on the maximum amount of secured indebtedness, rather than on the amount of the initial advance only?
Answer: No. Recordation tax that a borrower chooses to prepay on a line-of-credit mortgage or deed of trust is not refundable, even if the borrower ultimately does not incur the maximum amount of available debt.

Opinion No. 97-015
June 11, 1997

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Torts

Question: Under what circumstances do landlords receive the benefit of the limits on liability contained in the Lead Poisoning Prevention Program Act of 1994, when tenants had differing levels of lead in their blood in tests done both before and after the effective date of the Act?
Answer: The applicability of the liability limits generally depends on whether tests done after the Act's effective date reflect exposure to lead that occurred before the effective date or after. Also relevant is the level of exposure, as measured by tests.

Opinion No. 97-009
April 7, 1997

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Advice Letters

Attorneys

Question: 1. Are lawyers who provide voluntary, pro bono legal services in programs administered by charitable organizations immune from tort liability in connection with those services?
2. Does the Maryland Legal Services Corporation have authority to require lawyers to report their compliance with the mandatory IOLTA statute?
Answer: 1. Volunteer lawyers enjoy immunity protection under the Maryland Volunteer Service Act, §5-314 of the Courts and Judicial Proceedings Article.
2. The Corporation does not have authority to mandate the submission of compliance reports. Such a requirement could be imposed, however, through the rulemaking authority of the Court of Appeals.

Robert J. Rhudy
May 1, 1997

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Constitutional Law

First Amendment

Question: Are there First Amendment limitations that pertain to the ability of public libraries to limit minors' access to certain materials or to provide for parental knowledge or control of materials used by a dependent child?
Answer: Public libraries may act in aid of parents who wish to control the access of their children by restricting access to some materials without parental consent, but a parent could not compel a library to do so.

Del. Samuel I. Rosenberg
May 16, 1997

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Counties

Collective Bargaining

Question: Do the Washington County Commissioners have the authority to recognize, for collective bargaining purposes, an organization of deputy sheriffs or other employees of the sheriff's office?
Answer: Absent express authority by the General Assembly, the Washington County Commissioners lack the authority to recognize an organization to represent deputies and other sheriff's office employees for collective bargaining purposes.

Del. John P. Donoghue
April 3, 1997

County Commissioners

Question: To what extent are the powers of county commissioners subject to the authority of the General Assembly?
Answer: Boards of county commissioners are, in essence, agencies of the State that exercise only those powers delegated to them by the General Assembly. The General Assembly has the authority to change those powers at any time.

Sen. Donald F. Munson
April 9, 1997

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Health

Question: Does a court have authority to order a potentially life-saving blood transfusion over the objection of a competent patient, on the ground that the patient is the parent of a young child?
Answer: The Maryland courts are likely to adopt the reasoning of decisions elsewhere that parental status alone does not justify court-ordered blood transfusion over the objection of a patient who is a parent, at least when the other parent is available as caretaker.

Michael K. Hofmann
May 21, 1997

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Immunity

Question: Does the federal Emerson Good Samaritan Food Donation Act preempt the comparable State Good Samaritan Law?
Answer: The State Good Samaritan Law, which provides essentially the same protection as the Emerson Good Samaritan Food Donation Act, is not preempted by the federal Act.

Paul Rolandelli
June 27, 1997

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Port Administration

Question: Does the MPA have authority to provide a permanent water line for The Sanctuary, a privately owned vessel intended to be used as a facility for the treatment of women suffering from drug addiction?
Answer: The MPA does not have the authority to expend its funds for this purpose, which is unrelated to waterborne commerce.

Tay Yoshitani
June 5, 1997

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Procurement

Question: Is it possible for the State to permit advertising on the State-wide, subscription and fee-based Contract Information System and to avoid offensive content, but not to act as a censor? Is so, what language in an RFP would achieve these objectives?
Answer: Advertising may be permitted on the State-wide Contract Information System, some types of which may be prohibited by the State. Language might be included in the RFP suggesting the types of advertising the contractor could prohibit without making the State the censor of such communications.

Sen. Robert J. Colborn, Jr.
June 24, 1997

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Public Information Act

Question: Is the Western Maryland Scenic Railroad Development Corporation subject to the Public Information act?
Answer: The Western Maryland Scenic Railroad Development Corporation is a private entity, its records are not those of "a unit or instrumentality of the State government or of a political subdivision." Thus, it is not subject to the Public Information Act.

Spkr. Casper R. Taylor, Jr.
May 9, 1997

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Taxation

Question: Are taxes that accrue after the date of a tax sale deducted from the portion of the purchase price that would be paid to the former owner, or paid by the purchaser?
Answer: Taxes that accrue after the date of the tax sale must be paid by the purchaser.

Del. Robert A. McKee
April 3, 1997

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Wiretapping and Electronic Surveillance

Question: May calls to the new 311 non-emergency number be recorded in the same manner as calls to the 911 emergency number?
Answer: No, the provision of law that authorizes the recording of 911 calls, §10-402(c)(5) of the Court Article, does not apply to 311 calls. Because the Baltimore Police Department is a State agency, however, the 311 recording system may be approved by the Attorney General under a different provision, Article 27, §555B(a).

Gary C. May
May 20, 1997

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To obtain a copy of any item in this newsletter, call Deborah Spence at 410-576-6327
Or e-mail opinions@oag.state.md.us
Maryland Attorney General's Office
Issue Date 1997.