Opinions, Advice and Legislation Quarterly News
January-March 1998

Opinions

  1. Baltimore City
  2. Constitutional Law
  3. Corrections
  4. Elections
  5. Family Law
  6. Gaming
  7. Governor
  8. State Treasurer

Advice

  1. Attorneys
  2. Bad Checks
  3. Constitutional Law
  4. Contracts
  5. Criminal Law
  6. Elections
  7. Establishment Clause
  8. Fees
  9. Free Exercise Clause
  10. Governor
  11. Home Health Care
  12. Open Meetings Act
  13. Port Administration
  14. Public Information Act
  15. Public Officers and Employees
  16. Sexual Offender Registration
  17. Simulcast Racing-Referendum

Baltimore City

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

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Constitutional Law

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

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Corrections

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 Article 27, §671 is obsolete.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

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Elections

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

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Family Law

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

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Gaming

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

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Governor

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

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State Treasurer

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.

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Advice Letters

Attorneys

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

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Bad Checks

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

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Constitutional Law

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

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Contracts

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

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Criminal Law

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

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Elections

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

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Establishment Clause

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

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Fees

Question: May 911 Trust Fund money be used to establish 311 systems in the various counties?
Answer: Yes.

Mr. Dan Prats
January 28, 1998

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Free Exercise Clause

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

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Governor

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

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Home Health Care

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

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Open Meetings Act

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

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Port Administration

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

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Public Information Act

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

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Public Officers and Employees

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

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Sexual Offender Registration

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

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Simulcast Racing-Referendum

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

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