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Court of Appeals ponders Holton immunity

Helen L. Holton

ANNAPOLIS — State prosecutors Thursday urged Maryland’s top court to reinstate bribery and perjury charges against Baltimore City Councilwoman Helen L. Holton, who allegedly voted in favor of tax breaks for developers who had made an indirect payment to her.

Lower courts had dismissed the charges, ruling that Holton enjoyed legislative immunity from prosecution related to her vote. The immunity, which also extends to civil liability, enables lawmakers to cast votes without fear of criminal sanction or litigation, the courts held.

But Maryland State Prosecutor Emmet C. Davitt told the Court of Appeals that the immunity, as stated in the Maryland Constitution, applies only to state lawmakers. Extending the immunity to the City Council could undermine a “legitimate criminal prosecution” of a member whose vote was bought, said Davitt, who, as state prosecutor, enforces Maryland’s public-corruption laws.

Holton’s attorney, however, countered that the principle behind legislative immunity remains the same whether the legislator is in the General Assembly or the City Council.

“They shouldn’t have to defend themselves for their legislative acts,” Joshua R. Treem told the high court as Holton watched from a seat in the courtroom. She declined to comment on the case after the one-hour argument session.

During the session, Court of Appeals judges appeared to be as divided as the attorneys on whether legislative immunity extends beyond the State House to a city hall.

Judge Joseph F. Murphy Jr., for example, wondered aloud why council members should be treated any differently from state legislators or members of Congress, who enjoy legislative immunity under the Speech and Debate Clause of the U.S. Constitution.

“All politics is local,” Murphy said, asserting the importance of county and city lawmakers. “Why shouldn’t they have the privilege we extend to more lofty public officials?”

Judge Sally D. Adkins, however, said it would be “virtually impossible” to convict a council member for bribery if the vote that was allegedly bought cannot be introduced at trial.

But Treem disagreed.

He made reference to the case of former U.S. Rep. William Jefferson, D-La., who was convicted in 2009 of bribery and money laundering after $90,000 was found in a household appliance. Treem also referred to the public-corruption charges pending against former Prince George’s County Executive Jack B. Johnson and his wife, Leslie, after $75,000 was allegedly found in an undergarment.

“You could discover money in a freezer,” Treem said. “You could discover money in a bra.”

Treem added that the case against Holton, by contrast, is based primarily on the vote she cast after receiving what he called a “gift” from developers. Because that vote is protected by legislative immunity, the case was properly dismissed, said Treem, of Schulman, Treem & Gilden PA in Baltimore.

Davitt and his co-counsel before the high court, Deputy State Prosecutor Thomas M. “Mike” McDonough, acknowledged that Holton’s vote was crucial evidence as it consummated the alleged bribe. They added that legislative immunity does not apply to City Council members.

The bribery and perjury charges stemmed from a $12,500 political poll Holton commissioned in the summer of 2007, when she chaired what was then the Taxation and Finance Committee.

The poll was paid for by developers whose Harbor East building projects were candidates for city tax breaks.

The developers, Ronald H. Lipscomb and John Paterakis Sr. pleaded guilty in 2009 to conspiracy to violate campaign finance law.

Visiting Judge Dennis M. Sweeney, who presided over Holton’s trial in Baltimore City Circuit Court, decided her vote for the tax break could not be used against her, and, because prosecutors offered no evidence of a corrupt arrangement beyond the vote, he dismissed the bribery and perjury case against her in May 2009.

Then-State Prosecutor Robert A. Rohrbaugh appealed, arguing that legislative immunity applies to state but not city lawmakers.

But the intermediate Court of Special Appeals ruled on July 1 that council members have “the same responsibility for debating and setting basic public policy” as do state lawmakers.

“The need for legislative integrity and independence is thus as important in the local context, for the advantage of the citizens of the local community, as it is at the state level,” the Court of Special Appeals added.

Rohrbaugh, whom Davitt succeeded last fall, then sought review by the Court of Appeals.

The high court did not indicate when it will render a decision in State of Maryland v. Holton, No. 91, September Term 2010.