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Court of Appeals rules against former Del. Alston, would-be successor

ANNAPOLIS – With the General Assembly set to begin its 2013 session in a matter of days, the state’s highest court acted quickly Friday to affirm a ruling that former Del. Tiffany T. Alston lost her seat upon sentencing for misconduct in office and that the governor is not required to choose Gregory Hall to replace her.

In a one-page order signed by Chief Judge Robert M. Bell, the Court of Appeals promised its reasons would follow in an opinion to be filed later.

Alston did not return an email message seeking comment Friday, but her trial counsel, Raouf M. Abdullah, said the fight might not be over. Abdullah said he hopes the Court of Appeals will issue its opinion soon so he can better gauge any federal issues that might be available on appeal, such as denials of due process.

“We would like to read the court’s reasoning, and we will then determine what is in the best interest of Ms. Alston’s constituents,” said Abdullah, of Raouf M. Abdullah & Associates LLC in Upper Marlboro.

But even in the absence of a high-court opinion, Abdullah said he and Alston “will examine avenues of appeal.”

Hall’s attorney, Walter W. Green, said the court’s order “put an end to our argument” that the governor must appoint Hall.

Green said he does not envision any federal appeal, as he does not “see any federal issues at this point.”

He said any further comment on the court’s order would have to await its forthcoming opinion.

“Without an opinion, it’s difficult to speculate as to what they decided,” said Green, a College Park solo practitioner. “It’s hard to comment on it.”

The decision came the same day arguments were held in the Court of Appeals.

Alston’s appellate lawyer argued that she deserves to have her seat back because the misconduct conviction was overturned by a plea-bargained determination of probation before judgment.

“Give my client the benefit of the [plea] bargain and return her to her seat,” attorney Irwin R. Kramer told the Court of Appeals.

“The state consented to probation before judgment,” added Kramer, of Kramer & Connolly in Reisterstown. “The state cannot use the conviction to dislodge my client from office.”

But Assistant Maryland Attorney General Matthew J. Fader said the probation before judgment decision this fall did not overturn the June conviction but was a “modification” to it.

Alston’s waiver of her right to appeal, under the plea bargain, rendered the conviction “final,” which under the Maryland Constitution disqualifies a legislator from remaining in office, Fader said. He was arguing on behalf of Gov. Martin O’Malley and House Speaker Michael E. Busch, D-Anne Arundel.

Bell appeared to side with Alston, saying that a probation before judgment serves to “strike the conviction.” Bell added Fader was “disregarding the plea agreement’” the state reached with Alston, a Prince George’s County Democrat.

But Judge Sally D. Adkins said that first there had to have been a conviction for Anne Arundel County Circuit Judge Paul F. Harris Jr. to strike. That conviction, coupled with Alston’s plea-bargained waiver of appeal, presumably required her ouster under the Constitution, Adkins added.

In contrast to its apparent division regarding Alston, the high court seemed united in opposing the arguments on behalf of Hall that he is entitled to her House seat.

Green, Hall’s attorney, argued that O’Malley is constitutionally required to appoint him to the seat because the Prince George’s County Democratic Central Committee had submitted Green’s name to the governor. The committee subsequently withdrew Hall’s name amid criticism of his criminal history from about 20 years ago.

The central committee’s attorney, Joseph E. Sandler, told the high court the committee was free to withdraw Hall’s name, which would enable O’Malley to fill the seat, if deemed vacant.

The court, in its questions, indicated support for the argument by Sandler, of Sandler, Reiff, Young & Lamb P.C. in Washington.

‘Elephant in the room’

Adkins set the tone of the two-hour argument session when she urged the attorneys not to ignore “the elephant in the room,” as she described the state’s desire to oust Alston from office after her June conviction. That desire remained unchanged even after the state agreed to the plea bargain providing for probation before judgment, Adkins added.

But Kramer said the probation before judgment erased the conviction as a matter of law regardless of what the state wanted.

“The most powerful elephant is the probation before judgment statute,” he added.

But Adkins appeared unconvinced.

Alston’s trial counsel could have removed all uncertainty by including in the agreement that she retains her seat in the legislature, Adkins said.

“Why wasn’t it just stated explicitly on the record?” she asked. “Wouldn’t you have wanted that to be stated on the record?”

Kramer, who did not serve as Alston’s trial counsel, said putting such a statement on the record was unnecessary because the conviction was eliminated by the probation before judgment.

But that response drew criticism from Judge Lynne A. Battaglia, who suspected that both defense counsel and the state knew their silence on the legislative consequence in the plea bargain would inevitably have to be resolved by the high court.

“The parties seemed to roll the dice on this and cued it up right here,” Battaglia said.

Alston was ousted from the General Assembly effective upon her Oct. 9 sentencing for misdemeanor theft and misconduct in office. She was found guilty in June of having used state money to pay an employee in her law firm by representing the worker as a member of her legislative staff.

At the sentencing, Harris 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.

Meanwhile, the central committee in November selected Hall to take Alston’s seat and submitted his name to O’Malley.

But Hall’s selection was controversial because of 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 when the committee selected him and should not be grounds for disqualifying him now.

Last month, Prince George’s County Circuit Judge C. Philip Nichols Jr. upheld Alston’s removal from office and said O’Malley had no legal obligation to appoint Hall to fill the vacancy.

The high court in agreeing to hear the case stayed enforcement of Nichols’ rulings pending its decision in the case, Hall et al. v. Prince George’s County Democratic Central Committee et al., No. 100, Sept. Term 2012.