Opinions, Advice and Legislation Quarterly News
October-December 1998

Opinions

  1. Antitrust
  2. Child Custody and Support
  3. Counties
  4. District Court
  5. Local Health Officials and Departments
  6. Public Information Act
  7. Public Utilities

Advice Letters

  1. Administrative Law
  2. Counties
  3. Executive Orders
  4. Hate Crimes
  5. Jury Trials
  6. Legal Services Corporation
  7. Public Nuisance Laws
  8. Public Officers and Employees

Antitrust

Questions: 1. The wholesale pricing provisions of the State liquor law prohibit price discrimination and require wholesalers each month to post and maintain prices for all brands and sizes of liquor and wines. Do these provisions mandate conduct that violates the antitrust laws?
2. Are the wholesale pricing provisions of the State liquor law saved from preemption by the federal antitrust laws because they are "state action" and therefore excepted from the antitrust laws under the "state action immunity doctrine"?
3. Does the State's right under the 21st Amendment to regulate the distribution and sale of alcoholic beverages outweigh application of the antitrust laws?

Answers: 1. The proscription against price discrimination is compatible with federal antitrust law and likely to withstand any challenge. Although case law is split concerning price posting and adherence laws, those provisions are also defensible under current antitrust analysis.
2. The state action immunity doctrine applies only if the Alcohol and Tobacco Tax Unit of the State Comptroller's Office actively supervises the price posting and adherence provisions of the law.
3. The State's expressed interest in promoting temperance and small business at the expense of price competition in the wholesale alcoholic beverage industry may outweigh the general interest in free competition expressed in the federal antitrust laws.

Opinion No. 98-026
December 21, 1998

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Child Custody and Support

Question: Is the Public Defender obligated to represent indigent persons cited for contempt in child support cases that are referred to masters for hearing and recommended decision?

Answer: The Public Defender is required to provide representation to indigent persons at hearings before masters in civil contempt matters when incarceration is sought as a remedy.

Opinion No. 98-023
November 24, 1998

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Counties

Question: Does the Board of County Commissioners for St. Mary's County have the authority to enact an ordinance requiring local licenses for plumbers, propane gas fitters, and natural gas fitters?

Answer: No.

Opinion No. 98-022
November 23, 1998

Question: Does the Carroll County Board of Commissioners have authority to increase the per diem expense allowance of Commissioners from $12 to $90 without relation to actual expenses?

Answer: No.

Opinion No. 98-024
November 18, 1998

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District Court

Question: Must the District Court obtain the approval of the Board of Public Works to increase its fees?

Answer: No.

Opinion No. 98-019
November 4, 1998

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Local Health Officers and Departments

Question: Must local health departments that are units of State government report classifications and salaries of their State officers and employees as operating expenses in the annual State budget, pursuant to SFP 7-121?

Answer: Yes.

Opinion No. 98-020
November 9, 1998

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Public Information Act

Question: Is the public entitled to access to records reflecting individual bonuses or performance awards paid to merit system employees and appointed officials of Anne Arundel County?

Answer: Yes.

Opinion No. 98-025
December 18, 1998

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Public Utilities

Question: Are political subdivisions, municipalities and State agencies obligated to join the "one-call" system under the State's "Miss Utility Law"?

Answer: Yes.

Opinion No. 98-021
November 19, 1998

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Administrative Law

Questions: 1. Does the Health Claims Arbitration Office have the authority to adopt a regulation providing that the appropriate licensing board is notified if a claim alleges sexual misconduct?
2. Could the Secretary of DHMH adopt such a regulation for the Office?

Answers: 1. The Office could adopt such a regulation.
2. However, as the Office is not a part of the Department, the Secretary could not adopt the regulation for the Office.

Letter to Hon. Leonard H. Teitelbaum
November 19, 1998

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Counties

Question: In order to protect local farmers against nuisance law suits, does Worcester County have authority to create a local agency to hear complaints against farmers and to restrict nuisance claims in a court?

Answer: The County has the authority to create a local agency to mediate disputes, but cannot restrict access to the courts.

Letter to Edward H. Hammond, Jr.
October 20, 1998

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Executive Orders

Question: May the Governor revise the Executive Order on granting union recognition and limited collective bargaining rights to Executive Branch employees to require that union dues be deducted from employees who are represented by a union?

Answer: A union dues check-off requirement would be inconsistent with existing law which reserves to the individual employee the right to have organization dues deducted from an employee's pay.

Letter to Hon. Martin G. Madden
December 16, 1998

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Hate Crimes

Questions:1. Is the harassment component of Maryland's hate crimes statute consistent with the Supreme Court's decision in Wisconsin v. Mitchell?
2. Is the term "harass" unconstitutionally vague?

Answers: 1. The State hate crimes statute is consistent with Mitchell.
2. The statute should survive a challenge on the grounds that it is unconstitutionally vague. However, defining the term "harass" would further ensure the constitutionality of the statute.

Letter to Hon. Samuel I. Rosenberg
November 6, 1998

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Jury Trials

Question: Does the amendment to Article 23 of the Declaration of Rights increasing from $5,000 to $10,000 the amount in controversy necessary to trigger the right to a civil jury trial apply to cases pending at the time the amendment took effect?

Answer: Like its 1992 predecessor, the amendment increasing the jurisdictional amount applies to those cases pending on its effective date in which a jury trial has not yet been requested. Thus, if a jury trial is prayed after the effective date of amendment, the new jurisdictional amount applies. If a jury trial was prayed prior to the effective date of the amendment, the old jurisdictional amount applies.

Letter to Hon. Joseph F. Vallario, Jr.
November 17, 1998

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Legal Services Corporation

Question: Does the Maryland Legal Services Corporation have authority to operate a centralized intake and referral system for legal services? ?

Answer: Yes, as long as the system is primarily designed to reach individuals eligible for legal services from MLSC grantees.

Letter to Robert J. Rhudy
October 26, 1998

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Public Nuisance Laws

Question: May a municipality enact an ordinance like the one adopted by Baltimore County that gives the Chief of Police the authority, after notice and opportunity for a hearing, to order the discontinuance of a public nuisance and the closing of the premises if there have been convictions for certain criminal violations such as drugs, prostitution, and gambling on the premises?

Answer: The authority granted to municipalities to prevent and remove nuisances, along with the general police power, is sufficient to permit a municipality to adopt an ordinance like the one that Baltimore County has adopted.

Letter to Hon. David D. Rudolph
October 19, 1998

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Public Officers and Employees

Question: Did Delegate Mary Louise Preis meet the requirement of 2-101 of the Financial Institutions Article, that the Commissioner of Financial Regulation "have at least 5 years of experience in state or national banking regulation or management, which may include service as a bank director"?

Answer: Yes. Provisions that impose restrictions upon the right of a person to hold office are to be given a liberal construction in favor of eligibility. Given that the "experience" requirement is stated in broad, general terms, experience as a bank director constitutes "banking management," and experience in the General Assembly on matters involving the banking industry, constitutes "banking regulation."

Letter to John P. O'Connor
December 4, 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 1998.