Opinions, Advice and Legislation Quarterly News
July-September 1999

Opinions

  1. Elections
  2. Family Law
  3. State Archives

Advice Letters

  1. Criminal Law
  2. Insurance
  3. Local Corrections Programs
  4. Local Government Zoning
  5. Public Schools
  6. Public Officials and Employees
  7. Public Utilities
  8. Religious Freedom Restoration Act
  9. Tobacco Regulation
  10. Union Employee E-Mail
  11. Y2K Compliance

Elections

Question: May substitute members of local boards of elections participate in local board meetings, and if so, how may they participate?

Answer: Substitute members may participate, apart from voting, in local board meetings to the extent and in the manner determined by the regular members of the board with the approval or acquiescence of the State Board of Elections.

Opinion No. 99-014
September 29, 1999

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Family Law

Question: The domestic violence protective order forms contain an optional provision by which a judge may direct law enforcement officers to use "reasonable and necessary force" to carry out a temporary award of child custody.
1. Does the court have authority to issue such an order?
2. What is the meaning of the phrase "reasonable and necessary force" in this context?

Answer: 1. Although not free from doubt, the court’s authority to direct the use of "reasonable and necessary force" to execute a temporary child custody provision in a domestic violence order may be based on the inherent power of the courts. An amendment of the domestic violence statute that explicitly authorizes law enforcement officers to enforce child custody orders would resolve this question.
2. When an officer uses force, the officer’s conduct must be objectively reasonable, taking into consideration the specific circumstances presented to the officer. An officer will be protected from liability under §1983 for use of objectively reasonable force and may be immune from tort liability for actions taken without malice or gross negligence.

Opinion No. 99-012
August 10, 1999

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State Archives

Question: 1. May the State Archivist determine, with the advice and concurrence of the Hall of Records Commission, the format and content of a publication known as the Archives of Maryland?
2. How should revenues derived from publications of the State Archives be allocated between the special State Archives Fund and the consolidated publications account (which reverts in part to the general fund)?

Answer: 1. The State Archivist has discretion to determine the format and content of future installments of the Archives of Maryland series, but that discretion is not absolute. The Archives of Maryland series should contain public records of Maryland such as court records, legislative proceedings, gubernatorial correspondence, convention journals, military proceedings, and papers of public officials that the State Archivist deems to be of historical value and worthy of publication.
2. Revenues derived from future installments of the Archives of Maryland should be placed in the State Archives Fund; revenues from services and other publications should be credited to the consolidated publications account.

Opinion No. 99-013
August 10, 1999

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Criminal Law

Question: Is a person who has been admitted to a psychiatric hospital deemed "mentally defective, mentally incapacitated, or physically helpless" for purposes of the criminal sexual assault statutes, Article 27, §461 et seq.?

Answer: Whether a person is "mentally defective, mentally incapacitated, or physically helpless" is not necessarily related to whether the person is hospitalized. None of the definitions of those terms in the criminal statute makes reference to whether the person is in an institution.

Letter to Hon. Sue Hecht
July 27, 1999

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Insurance

Question: Do offerings of "subscription agreements" or "membership plans" by a volunteer rescue squad or ambulance company constitute the business of "insurance" subject to regulation under the Maryland Insurance Administration?

Answer: Typical subscription agreements would not be regarded as a contracts of insurance under State law.

Letter to Hon. Robert A. McKee
September 10, 1999

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Local Corrections Programs

Question: May the Montgomery County Department of Correction and Rehabilitation establish a workforce program for inmates in its custody without additional State legislation?

Answer: Under existing State law, Montgomery County could establish such a program within the confines of its correctional facilities. However, to the extent that inmates would be allowed to work outside the County’s correctional facilities, State legislation would be required.

Letter to Hon. Michael R. Gordon
August 3, 1999

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Local Government Zoning

Question: Does State law allow property which is the subject of a special exception to again be used for a use permitted by the applicable zoning?

Answer: Although State law provides for the granting of special exceptions, it delegates to local authorities the power to enact local laws to govern this matter.

Letter to Hon. Donald B. Elliott
June 14, 1999

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Public Schools

Question: How may the Montgomery County Board of Education comply with the recent statute directing the "governing body for Montgomery County" to "appropriate" funds from the school employees’ pension trust for payment of supplemental retirement allowances to teachers?

Answer: There appear to be three options: (1) treat county approval of the board budget as the "appropriation" required by this statute; (2) delay implementation until the county acts; and (3) delay implementation until the Legislature clarifies the statute.

Letter to Reginald M. Felton
July 20, 1999

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Public Officials and Employees

Question: Are deputy sheriffs and assistant and deputy State’s Attorneys in Baltimore County considered "public officials" or "employees" under the State Public Ethics law or "local officials" subject to local ethics regulation?

Answer: Consistent with case law regarding the status of deputy sheriffs and assistant and deputy State’s Attorneys, they are better considered subject to State rather than local ethics regulation.

Letter to Hon. Michael J. Collins
September 15, 1999

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Public Utilities

Question: 1. What procedures must municipal corporations follow to raise water and sewage rates?
2. Was the notice given by a town of a special meeting to set rates defective?
3. May a town bill monthly?

Answer: 1. Maryland law grants municipal corporations broad authority to regulate sewer and water systems including collecting, setting and revising rates. The procedure a town must follow to raise water and sewer rates depends in large part upon the specific authority relied upon the town.
2. The statute does not prescribe a form nor have the courts addressed the issue of notice of changes in sewer and water rates. In other contexts, the general rule is that notice is sufficient if it contains the necessary facts "in substance or by just and natural implications."
3. Depending upon the statute under which the town provides water and sewer service, it may be permitted to bill monthly.

Letter to Hon. Van T. Mitchell
July 6, 1999

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Religious Freedom Restoration Act

Question: HB 966 of 1999, relating to the protection of religious freedom in Maryland, was introduced, but not enacted, by the General Assembly.
1. May the preamble be considered in interpreting a bill, when the statutory text is clear?
2. Was HB 966 consistent with the legal precedent developed by Maryland and federal courts between the Supreme Court’s decisions in Serbert v. Verner and Employment Division v. Smith for claims brought under the Free Exercise Clause?
3. What is the continued validity of the federal Religious Freedom Restoration Act (RFRA) as to the federal government?

Answer: 1. While legislative intent is first sought in the actual language of the statute, a bill should be interpreted in light of any statements in the preamble and its legislative history.
2. Yes.
3. Although the Supreme Court held that RFRA exceeded Congress’ power to legislate with respect to the states under the Fourteenth Amendment, the weight of authority at the present time favors the continued validity of RFRA as applied to the federal government.

Letter to Hon Samuel I. Rosenberg
July 12, 1999

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Tobacco Regulation

Question: 1. Consistent with federal and State law, can a chartered county or municipality require tobacco retailers to display tobacco products only in areas inaccessible to customers such as behind the counter, in an overhead rack, or in a locked case?
2. Would such a ordinance be legal if it were adopted as a crime reduction measure designed to prevent minors from shoplifting cigarettes and if an exception were made for vending machines?
3. Could a County Board of Health enact such a measure?
4. Consistent with federal and State law, can a chartered county or municipality restrict outdoor tobacco product advertising to a "tombstone format" - in which truthful factual information appears in plain black type on a white background?

Answer: 1. Federal law relating to smoking and health would probably not preempt such an ordinance. To the extent it did not apply to cigarette vending machines, the proposed ordinance would also likely not be preempted by State law.
2. A local government considering such an ordinance as a crime reduction measure would be wise to have an evidentiary basis for its rationale.
3. A County Board of Health may enact such a measure.
4. If a chartered county and municipality enacted such legislation, it may be challenged on First Amendment grounds. While decisions in other jurisdictions suggest that a court would uphold the ordinance, there is no case on point in Maryland.

Letter to Hon. Christopher Van Hollen
July 14, 1999

Question: May money from the Cigarette Restitution Fund be used to conduct law enforcement investigations in which State or local officials have minors act undercover to purchase cigarettes?

Answer: Yes.

Letter to Hon. Samuel I. Rosenberg
July 16, 1999

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Union Employee E-Mail

Question: To what extent does Maryland law permit a union or its members to use a company e-mail system to communicate concerning union matters? May a company bar use of its e-mail systems for such purposes?

Answer: While no Maryland statute directly addresses the ability of unions to use employer e-mail system, such use by union organizers who are not employees could constitute the tort of trespass to chattels. Such use by current employees would not ordinarily constitute trespass. Under the National Labor Relations Act, an employer may not discriminate against union-related communication by employees. However, it would not prevent an employer from barring outside groups from using the system.

Letter to Hon. Samuel I. Rosenberg
August 31, 1999

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Y2K Compliance

Question: Would the recently enacted federal Y2K Act preempt possible state legislation that would afford greater protection than the federal act to individuals and businesses with respect to Y2K claims?

Answer: No.

Letter to Hon. Robert H. Kittleman
September 2, 1999

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If you would like a copy of any item in this newsletter, please call Deborah Spence at 410-576-6327
Or e-mail dspence@oag.state.md.us.
Maryland Attorney General's Office
Issue Date 1999.