Leopold can run

Listen to this article

Former Anne Arundel County Executive John R. Leopold is guilty of misconduct in office but cannot be banned from running again as a condition of probation, an appellate panel held Wednesday.

The Court of Special Appeals affirmed Leopold’s conviction but said the campaigning ban “improperly interfered” with state and county lawmakers’ decisions governing the eligibility and removal of public officials.

Judge Alexander Wright Jr., writing for the unanimous three-judge panel, said Leopold is a registered voter in Maryland and a state resident, the two primary conditions for running for office in the state.

“Without evidence to the contrary, he is qualified and eligible to run for office pursuant to the Election Law Article and the Maryland Constitution,” Wright said.

At sentencing last March, Visiting Judge Dennis M. Sweeney banned Leopold from running for office during his five years on probation.

“We were gratified the court accepted our position on the legality of the sentencing conditions,” said Bruce L. Marcus of MarcusBonsib LLC in Greenbelt, Leopold’s lawyer. “That is a very important issue for our client.”

Wednesday’s decision also could bode well for Julius Henson, the former political consultant who last month was sentenced to four months in jail for violating his probation by running for state Senate.

Deputy State Prosecutor Thomas M. ‘Mike’ McDonough said he did not want to speculate on how the decision in Leopold’s case could affect Henson’s. But he called the condition of probation in Leopold’s case “an unusual area.”

“The court called it like it saw it,” McDonough said.

The Court of Special Appeals rejected Leopold’s argument that the “misconduct in office” charge was too vague to apply to the actions Leopold was accused of taking.

Wright, writing for the court, said Leopold put his employees “in a position where they could not refuse his direction.” Previous appellate rulings have found a public officer guilty of misconduct when “he or she oppressively and wilfully abuses his or her authority,” Wright added.

Among other allegations, prosecutors said Leopold had Anne Arundel County police officers who were members of his security detail distribute campaign fliers on his behalf during his 2010 re-election campaign. He also asked officers to compile online information about his political opponents.

“The person of ordinary intelligence would know that it is a violation of the law to direct your subordinates to engage in illegal activity, or to oppressively and wilfully abuse his or her authority to require an employee to perform offensive and unnecessary tasks wholly beyond their job descriptions,” Wright said.

McDonough said the appellate court “did the right thing” in upholding Leopold’s conviction.

“There is no doubt Mr. Leopold got a fair trial and was properly convicted and they certainly found that was the case,” he said.

Marcus said he was still reviewing the decision and weighing options for next steps.

In arguing to uphold Leopold’s probation provision, the state prosecutor’s office had relied in part on the Court of Special Appeals’ opinion last year in an earlier phase of Henson’s case.

Henson, convicted of sending automated robocalls during Election Day 2010, was put on three years’ probation with a condition that he not perform paid or unpaid work on any political campaigns. The Court of Special Appeals last year upheld the ban, calling it a “narrowly tailored punishment which relates directly to the offenses at the core of his conviction.”

But on Wednesday, the Court of Special Appeals distinguished its 2013 Henson decision. The court said it upheld the ban on campaigning in Henson’s case because the job of a campaign consultant “is not one subject to state licensing requirements” and there is “no legitimate control over his political activities,” Wright wrote, using italics to emphasize his point.

Late last year, Henson announced his intention to challenge Sen. Nathaniel J. McFadden, D-Baltimore. He argued that the ban applied to campaign work for others, not to his own run for office. That triggered the violation of probation charge decided in circuit court last month.

Henson argued, like Leopold, that setting the qualifications for political office is a job for the legislature, not the judiciary.

Baltimore City Circuit Judge Emanuel Brown disagreed, but stayed Henson’s four-month sentence until next Monday to allow Henson to appeal. No appeal had been filed as of Wednesday afternoon.

Russell A. Neverdon Sr., Henson’s lawyer and a Baltimore solo practitioner, did not respond to requests for comment Wednesday afternoon.

Leopold was found guilty of two counts of misconduct in office in January 2013 for using his security detail to conduct his political activities and forcing a secretary to empty a catheter bag he wore after a 2010 back surgery. He resigned as county executive, a position he held since December 2006, a few days after his conviction.

Leopold, in addition to receiving probation, was sentenced to 30 days in prison and 30 days of house arrest last March. He was also ordered to pay a $100,000 fine and perform 400 hours of community service.

The Court of Special Appeals last March denied Leopold’s request to stay his 30-day jail sentence pending appeal.

Kristi Tousignant contributed to this article.

WHAT THE COURT HELD

Case:

John R. Leopold v. State of Maryland, CSA No. 0017, Sept. Term 2013. Reported. Opinion by Wright, J. Argued Feb. 5, 2014. Filed March 26, 2014.

Issue:

Did the charge of misconduct in office violate petitioner’s due process by being unconstitutionally vague? Was a condition of probation banning a run for elected office illegal?

Holding:

No; petitioner willfully abused his authority. Yes; state and county laws govern eligibility and removal of public officials.

Counsel:

Bruce L. Marcus for petitioner; Emmet C. Davitt for respondent.

RecordFax # 14-0326-00 (28 pages).