Does Maryland need a constitutional convention?

Posted: 7:00 pm Sun, July 25, 2010
By Steve Lash
Daily Record Legal Affairs Writer

Maryland voters this fall will get their once-in-a-generation chance to decide if the state’s constitution should be rewritten.

Maryland’s governing document requires that every 20 years the state’s electorate vote on whether the General Assembly must call for a constitutional convention.

2010 is just such a milestone.

A yes vote on the ballot question would mark only the second time the 1867 Constitution has been put to a convention. The last time, on the document’s centennial in 1967, the Constitution was ultimately left intact.

Assistant Maryland Attorney General Dan Friedman, who wrote the book on the constitution, said the document — with its 19 articles and Declaration of Rights —is internally inconsistent and thus subject to various interpretations.

“There are lots of times when it’s hard to figure out what it says,” said Friedman, author of “The Maryland Constitution: A Reference Guide,” published by Greenwood Press in 2006.

“People should be able to understand their fundamental document,” he added.

But Friedman, citing his current role as counsel to the General Assembly, declined to say if he endorses a constitutional convention that could clarify the document. (To read more from proponents of a constitutional convention in Maryland, click here.)

Decades of change

The last time the issue was placed before Maryland voters, in 1990, they decided against a convention. (For more from those still opposed to a constitutional convention in Maryland, click here.)

But much has changed in 20 years.

In 1990, no U.S. state permitted same-sex marriage, few states had repealed the death penalty, and state and municipal governments invoked eminent domain for the construction of highways and hospitals — not to make room for private companies.

While other states have changed their laws in these areas, the Maryland General Assembly has in recent years repeatedly rejected calls to permit same-sex marriage, repeal the death penalty and change the state constitution to prohibit eminent domain actions that benefit private companies.

Meanwhile, Maryland’s top court in 2007 rejected arguments that the state constitution’s equal protection provision includes a right of same-sex couples to marry.

In December 2006, it upheld the death penalty but blocked its continued use until the state’s execution protocols are brought into compliance with the Administrative Procedure Act, a process that is still in progress.

While a constitutional convention might be the only way for those controversial measures to become law in Maryland, their proponents are divided on whether a convention — which would open the entire constitution to re-examination — would do more harm than good.

For example, a constitutional convention might forestall a slow but steady march toward legislative approval of same-sex marriage, said Morgan Meneses-Sheets, executive director of the gay-rights group Equality Maryland.

However, the General Assembly has in recent years recognized some rights for people in committed same-sex relationships, allowing them to make medical decisions for each other and waiving the inheritance tax when one of them dies, Meneses-Sheets said.

Those gains could be lost at a constitutional convention, which would be governed not by a reasoned consideration of the issues but by the emotions of convention delegates, she said. A convention could just as easily result in a proposal to expressly prohibit same-sex marriage, she added.

Any proposal that emerges from the convention would require the approval of Maryland voters to be adopted.

The legislative process is more “thoughtful, respectful” than a convention, Meneses-Sheets said.

“We would like to see this done through the legislative process in a measured way,” she added. “We feel very good about moving through the legislative channels.”

But Maryland Citizens Against State Executions said it would welcome a constitutional convention as the best hope to abolish the death penalty after the General Assembly rejected a repeal proposal in 2009. The legislature instead passed a law that restricts capital punishment to cases where guilt has been proven by biological evidence, such as DNA, or a videotape of the slaying.

“The profound issues underlying the government’s power to seek a penalty of death against one of its citizens simply has not, as a matter of public policy, been sufficiently addressed by either the Maryland legislature or its courts,” Amy Fusting, the group’s program director, wrote in an e-mail.

“Whether this reflects a failure of will, a lack of political courage or perhaps only of time, a convention may provide a more enlightened forum where a punishment that is unusually severe, arbitrarily inflicted, racially biased, substantially rejected by contemporary society and serves no penal purpose, may finally be ended.”

Lots and slots

Unlike Fusting, Del. Michael D. Smigiel Sr. is adamantly opposed to a convention.

But if one is convened, Smigiel said, he would like to see the eminent-domain provision changed so that it does not mirror the U.S. Constitution’s in light of the Supreme Court’s 2005 ruling in Kelo v. New London, Conn.

In that decision, the Supreme Court upheld the city’s taking of a private home with just compensation for the owner so that a private company, Pfizer, could build a facility on the site, bringing jobs and tax revenue to the financially strapped city.

Smigiel said government should resort to the extraordinary step of taking private property with just compensation only when the purpose is to fill an overriding public need, such as the construction of a school or a hospital.

“We need to ensure that eminent domain will be used for ‘public use,’ not ‘public good,’” said Smigiel, R-Eastern Shore.

Smigiel also said the state constitution should be changed to protect taxpayers by permitting appropriations bills to be subject to referendum.

Under Article XVI, Section 2 of the constitution, laws designed to raise revenue for “any public institution” cannot be challenged by referendum.

This constitutional provision came into play last month when Anne Arundel Circuit Judge Ronald A. Silkworth rejected a referendum drive by opponents of a proposed slots casino near Arundel Mills mall. Silkworth said the amendment and laws permitting slot machines in Maryland were appropriations measures because they were designed to raise money for schools and school construction.

But the Court of Appeals last week reversed Silkworth’s ruling and ordered the referendum to proceed.

Smigiel has been unsuccessful in getting the General Assembly to pass proposed constitutional amendments to change the eminent-domain provision and prohibition on referendums on appropriations laws. Had the General Assembly passed those bills, Maryland voters would have had the opportunity to vote on whether they should be added to the state constitution.

Even so, Smigiel said he would rather try again for piecemeal changes to the constitution in the next legislative session than have a convention where the entire constitution would be subject to review by delegates elected by the same General Assembly members who rejected his proposals.

“I’m not optimistic about the outcome of a constitutional convention without a mechanism for ensuring that those who are placed in it have a broader perspective, less political,” Smigiel said. “We have many brilliant minds and constitutional scholars in Maryland. It is my concern that they would not end up being delegates to the convention.”

Meredith Curtis, spokeswoman for the American Civil Liberties Union of Maryland, voiced concern that a constitutional convention would subject the rights of minorities to a majority vote.

“If there were to be one, we would strongly advocate to make sure that the civil rights and civil liberties of all Marylanders were protected and if possible strengthened,” she said. “We would certainly work to ensure that the rights of any minority group would not be up for popular vote.”

‘Constitutional senility’

Meanwhile, retired Court of Appeals judge Dale R. Cathell said that if his fellow Marylanders voted for a constitutional convention, he certainly would want to change the provision, found in Article IV, that requires judges to retire upon reaching age 70. That provision — known by its detractors as “constitutional senility” — forced Cathell to step down on July 30, 2007.

Cathell said the retirement-age provision was adopted when life expectancy was much shorter.

“Everybody’s living a lot longer, taking a lot more pills, but living a lot longer,” Cathell said. “I’m the smartest right now that I’ve ever been, but I’m sure that’s subject to argument.”

He said a retirement age of 75 would allow judges to serve longer while still addressing the need to promote turnover and diversity on the bench.

Cathell added that he favors a constitutional convention, quite apart from the issue of mandatory retirement.

“I don’t know that a lot could be accomplished, but it would give people more of an opportunity to participate in government and I think that’s good,” he said.