Opinions
Advice
Question:
May a Baltimore City Charter provision requiring elections to fill vacancies
on the Baltimore City Council be given effect?
Answer: Without enactment of a constitutional amendment or
a State statute that addresses the issue, the charter provision cannot be given
effect.
Opinion No.
98-007
March 3, 1998
Question:
Would proposed legislation to ban the advertising of casino gambling in the
Maryland media be constitutional?
Answer: The proposed ban would be constitutional, although
it should be supported by a legislative record to substantiate the State's interest
in protecting its citizens against the harms that are particularly presented
by commercial casino gambling.
Opinion No.
98-005
February 5, 1998
Questions:
1. Is Article 27, §688, which relates to the acquisition, possession, and
use of property by the Division of Correction, obsolete in light of the comprehensive
procurement system and the rules governing the disposition of property established
in Divisions I and II of the State Procurement Law?
2. Is Article 27, §671 of the Code, which relates to bond requirements
for persons who contract with the division of Correction, obsolete in light
of the rules governing contractor bonds established in the Procurement Law?
Answers: 1. Article 27, §688 is not obsolete.
2. Article 27, §671 is obsolete.
Opinion No.
97-008
April 10, 1998
Question:
Would federal or State law prevent the Montgomery County Council from enacting
legislation prohibiting the solicitation of political contributions under certain
circumstances?
Answer: State legislative authorization is needed if Montgomery
County is to enact an ordinance prohibiting the solicitation of political contributions
under particular circumstances.
Opinion No.
98-003
January 27, 1998
Question:
Does current law authorize a provision in the domestic violence protective order
form that calls on law enforcement offices to use force to return to the custodial
parent a child kept in violation of the order is authorized by law?
Answer: Current law does not authorize an order to law enforcement
officers to forcibly return a minor child to the custodial parent.
[Note: At the request of a number of judges, this opinion
is being reconsidered.]
Opinion No.
98-004
January 28,1998
Question:
May a sweepstakes race be held at a harness track in Worcester County, with
half of the proceeds used to benefit a local hospital?
Answer: The sweepstakes would be unlawful.
Opinion No.
98-001
January 7, 1998
Question:
May a former Senator, expelled for the remainder of his term, be selected by
the central committee to occupy the vacant seat until the next election?
Answer: In light of the wording of the Senate's expulsion resolution,
the former Senator is legally unqualified to serve in this seat until the next
election.
Opinion No.
98-006
February 11, 1998
Question:
May the Treasurer and the local officials who have comparable investment authority
invest in money market mutual funds that hold commercial paper?
Answer: Yes.
Question:
Is the Maryland Legal Services Corporation prohibited by law from providing
grant funding for legal assistance to victims of crime when they exercise the
various rights afforded to victims under Maryland law?
Answer: No.
Robert J. Rhudy,
Esquire
February 21, 1998
Question:
Under the definitions used in Article 27, §141, which makes it a crime
to obtain property or services by a bad check, does "real property"
include a leasehold interest and does "lodging," as a service, include
a residential leasehold interest?
Answer: For purposes of the Bad Check Law, "real property"
does not include a leasehold interest and "lodging" does not include
a residential leasehold interest.
Del. Joseph
F. Vallario, Jr.
February 20, 1998
Question:
Is the retroactive application of HB 298, which reinstates provisions concerning
civil remedies for bad checks that were accidentally repealed in 1996, constitutional?
Answer: The provision of the bill that makes it retroactive
to the effective date of the 1996 law does not violate the Due Process Clauses
of the federal and State Constitutions.
Del. Mary Ann
E. Love
February 17, 1998
Question:
If a suit is brought claiming a violation of Article 36 or any other provision
of the Maryland Constitution, what is the case law governing: (i) a prevailing
plaintiff's entitlement to attorney's fees; (ii) damages; and (iii) exhaustion
of administrative remedies?
Answer: (i) A prevailing plaintiff in a suit alleging a violation
of the Maryland Constitution is not entitled to attorney's fees.
(ii) In an appropriate case, a court would hold a plaintiff entitled to recover
compensable damages for a violation of Article 36 of the Declaration of Rights.
(iii) A claimant may not bypass the administrative agency.
Del. Samuel
I. Rosenberg
March 18, 1998
Question:
What law applies when a Maryland resident purchases a ticket by telephone for
an event in the District of Columbia through a ticket agency?
Answer: With respect to the resulting contract, the general
rule in Maryland is that the law where the contract was made governs. In the
case of a ticket agency that accepts a telephone order, the applicable law would
be the law of the location of the agency.
Del. Cheryl
C. Kagan
March 16, 1998
Question:
Is HB 140, a bill relating to the criminal misuse of electronic mail, consistent
with recent Supreme Court holdings?
Answer: Criminalizing misuse of electronic mail, as defined
and restricted by HB 140, passes constitutional muster.
Del. Samuel
I. Rosenberg
January 30, 1998
Question:
Does the contribution limit of $4,000 in a 4-year cycle bar a donor from giving
$4,000 to a candidate and an additional contribution to a slate of which the
candidate is a member?
Answer: A contributor may contribute either to the slate (up
to the applicable limit) or to the candidates who are members of the slate.
A contributor who wishes instead to contribute to both the slate and one or
more members of the slate should take certain steps to avoid an excessive contribution.
Del. John R.
Leopold
March 13, 1998
Question:
Would a State law violate the Establishment Clause if it required the party
seeking a divorce to file an affidavit attesting that the party has taken all
steps within his or her power to remove any barrier to the other party's remarriage?
Answer: Although the legislation is intended to resolve a problem
that arises when an Orthodox Jewish husband refuses to permit a religious divorce,
the legislation does not violate the Establishment Clause, because it avoids
State endorsement of or entanglement with religious doctrine.
Del. Samuel
I. Rosenberg
January 22, 1998
Sen. Barbara
A. Hoffman
February 23, 1998
Question:
Is Morgan State University barred by the Establishment Clause from providing
financial or in-kind assistance to the Morgan Christian Center?
Answer: Morgan would not be absolutely barred by the Establishment
Clause from providing some financial and in-kind assistance to the Center to
promote certain secular, public, and educational purposes.
Del. Kenneth
Montague, Jr.
March 27, 1998
Question:
May 911 Trust Fund money be used to establish 311 systems in the various counties?
Answer: Yes.
Mr. Dan Prats
January 28, 1998
Question:
What is the impact of House Bill 1041, "Religious Freedom," on curriculum
decisions in the public schools?
Answer: The case law under the compelling interest test suggests
that a school system is not required to modify its curriculum to meet religiously
based objections to the curriculum.
Del. Samuel
I. Rosenberg
February 26, 1998
Question:
May the Governor grant the Democratic Central Committee a extension of time
to nominate a qualified individual to fill a Senatorial vacancy created by a
Senate resolution expelling a former Senator?
Answer: No, the deadline is a mandatory one.
Mt. T. Michael
Scales
February 12, 1998
Question:
Does HB 566, which makes a number of changes to the law governing utilization
review by private review agents, apply to residential service agencies?
Answer: The term "health care services," as used
in HB 556, includes services that are provided by residential service agencies
and are subject to utilization review.
Del. Dan K.
Morhaim
March 18, 1998
Question:
Does the Open Meetings Act apply to the meetings of school improvement teams?
Answer: No.
Del. Robert
L. Flanagan
Del. Robert H. Kittleman
March 11, 1998
Question:
Is a meeting of the Senate Leadership required to be held in public under the
Open Meetings Act?
Answer: The Senate Leadership is not a "public body"
subject to the requirements of the Open Meetings Act.
Sen. Thomas
V. "Mike" Miller
January 9, 1998
Question:
Does the Maryland Port Administration have authority to sign a limited indemnification
agreement with the Army Corps of Engineers?
Answer: Yes.
Cong. Wayne
T. Gilchrest
March 23, 1998
Question:
Does the Public Information Act require disclosure of records of a county council
member that relate to legislation he has sponsored?
Answer: To the extent that these records are part of the process
of gathering and considering information in connection with the enactment of
legislation, they would be privileged from disclosure.
Sen. David
R. Craig
March 4, 1998
Questions:
1. May a county employee continue to serve in employment if elected to serve
as a county commissioner?
2. If so, may a county, through its personnel policy, prohibit county employment
after an employee's election as a county commissioner?
Answer: 1.An absolute rule cannot be stated. The question of
simultaneous service can only be addressed on a case-by-case basis.
2. The proposed personnel policy, which embodies and extends the common law
incompatibility doctrine, would be a restriction on dual permissible employment,
not a restriction on political activity.
Ms. Deborah
G. Byrd
January 12, 1998
Question:
Is the position of professor at local college a prohibited second "office"
or "political employment" for a judge of the Orphans' Court?
Answer: No.
Mr. Conway
Gregory, Jr.
March 5, 1998
Question:
Does a bill making the sexual offender registration law applicable to certain
out- of-State offenders who were convicted of offenses prior to the effective
date of Maryland's sexual offender notification law violate the ex post facto
provisions of the federal and State Constitution?
Answer: While it is less certain than as applied to the law's
registration requirements, the notification and public information requirements
would most likely also not be found to violate the ex post facto laws when given
retroactive effect.
Del. S. Sue
Hecht
March 9, 1998
Question:
Is a local referendum provision constitutional in proposed legislation prohibiting
the Maryland Racing Commission from approving a satellite simulcast betting
facility for Allegany County unless the facility has been approved by the county's
voters?
Answer: No. Neither the public general law itself nor the actions
of an agency that exercises power delegated under it may be mandated to a local
referendum.
Del. Casper
R. Taylor, Jr.
January 9, 1998