Ousted Del. Tiffany T. Alston would go all the way to the U.S. Supreme Court if necessary to get her seat back, her attorney said Friday as he prepared papers urging Maryland’s top court to hear her case.
“Delegate Alston will not fail to pursue all the remedies that are available,” said Raouf M. Abdullah, who added he will submit by Wednesday a request that the Maryland Court of Appeals consider her appeal.
While her would-be replacement persuaded the top court to stay a judge’s ruling that neither one of them is entitled to the seat, Abdullah said he is “confident” the Court of Appeals ultimately will rule for Alston, a Prince George’s County Democrat.
Abdullah will argue in part that Alston’s federal rights to due process of law were denied in the proceedings that led to her ouster, he said. Those federal issues will enable Alston to seek review by the Supreme Court if Maryland’s high court rules against her, he said.
On Thursday, the Court of Appeals stayed the decision declaring Alston’s seat vacant. That order delayed enforcement of Prince George’s County Circuit Judge C. Philip Nichols Jr.’s day-old decision that Alston was removed from office upon being sentenced in October for misdemeanor misconduct.
Nichols also ruled Gov. Martin O’Malley has no legal obligation to appoint Greg Hall to fill Alston’s seat, even though the Prince George’s Democratic Central Committee nominated Hall to fill the vacancy.
The Court of Appeals’ stay, requested by Hall, will remain until the court decides whether to review Hall’s pending appeal. The court, which set a filing deadline of Wednesday, did not say when it will make that decision.
Hall’s appeal is based on Article III Section 13 of the Maryland Constitution, which states “the governor shall appoint a person to fill [a legislative] vacancy from a person whose name shall be submitted to him … by the Central Committee of the political party” of the departed legislator.
“The governor does not have discretion to refuse to appoint that person,” said Walter W. Green, Hall’s attorney and a College Park solo practitioner. “The governor is bound to appoint that person whose name was submitted to him.”
O’Malley, through the attorney general’s office, will counter that argument in papers to be filed at the high court by Wednesday, said Raquel Guillory, the governor’s spokeswoman.
O’Malley, who has asked the committee to remove Hall’s name because of his criminal history, has said he can fill a House of Delegates vacancy with anyone he chooses so long as he or she meets the constitutional requirements of being at least 21, a resident of Maryland for the past year and having resided in the legislative district for the past six months.
But Abdullah said Alston remains a delegate because her conviction was erased when she ultimately received a sentence of probation before judgment last month. Without the conviction, the Maryland constitutional provision removing a convicted legislator from office does not apply, added Abdullah, of Raouf M. Abdullah & Associates LLC in Upper Marlboro.
General Assembly Counsel Daniel A. Friedman disagreed, stating that Alston lost her seat when a judge first sentenced her on Oct. 9 following her June conviction for misdemeanor theft and misconduct in office.
At that sentencing, Anne Arundel County Circuit Court Judge Paul F. Harris Jr. said he would give Alston probation before judgment if she completed 300 hours of community service and paid $800 in restitution. On Nov. 13, Harris said Alston completed those conditions.
Based on Friedman’s opinion, the central committee selected Hall to take Alston’s seat, pending O’Malley’s approval.
But Hall’s selection was controversial due to a misdemeanor conviction in the early 1990s for gun possession during an incident in which a 13-year-old boy was shot and killed by someone other than Hall.
Hall has said his past was no secret at the time the committee selected him, and should not be grounds for disqualifying him now. His attorney said he hopes the Court of Appeals rules in before the General Assembly convenes on Jan. 9.
“What I want to have is for the highest court to address these issues and if their timetable permits, yes, to have a decision before the legislative session begins,” Green said. “But the first step is to have them grant cert.”