Republican Larry Hogan’s victory in the governor’s race should have no effect on Democratic Attorney General-Elect Brian E. Frosh’s plan to enforce and defend Maryland’s strict gun-control law from legal challenge, a former governor and two former attorneys general said.
“Both the governor and the attorney general take the same oath to defend the constitution and laws of the state of Maryland,” said former Maryland Attorney General J. Joseph Curran Jr. “You don’t have to like the law and you might want to repeal the law, but it is the law. It’s the law and we took an oath to defend.”
Hogan, a gun-rights advocate, has yet to state his position on whether the 2013 Firearm Safety Act should be defended in court. A federal judge found it constitutional, but a challenge is pending in the 4th U.S. Circuit Court of Appeals.
Frosh, who drafted the measure as chairman of the Senate Judicial Proceedings Committee, has said he will defend it to the Supreme Court, if necessary.
The potential conflict between Hogan and Frosh reminded Curran, a Democrat, of the very real dispute he had with then-Gov. Robert L. Ehrlich Jr. over the so-called “Wal-Mart law,” which was intended to force very large private employers to provide health care or pay an equivalent sum in taxes.
The Democratic-controlled General Assembly approved the law over a veto by Ehrlich, a Republican who said the law would drive employers out of Maryland.
Ehrlich, however, did not discourage Curran from defending the statute in federal court, said Curran, attorney general from 1987 to 2007. The 4th Circuit ultimately struck down the law in January 2007.
Ehrlich, who was governor from 2003 to 2007, did not return telephone messages seeking comment before press time.
‘Politically stupid’ — and futile
Political-science professor Todd Eberly predicted that Hogan likewise will not interfere with Frosh’s defense of the Firearm Safety Act, as such an effort would alienate him from the Democrats who crossed party lines to support his message of economic restraint.
“Hogan could not have won were it not for Democratic crossover votes,” said Eberly, who teaches at St. Mary’s College of Maryland. “It would make no sense for Hogan to bring on a conflict like that. It would be politically stupid.”
It would also be futile, according to former Attorney General Stephen H. Sachs and ex-Gov. Parris N. Glendening, both Democrats.
“The attorney general absolutely has the authority” to defend a state law even in the face of a governor’s opposition, said Sachs.
He pointed to Article V, Section 3 of the Maryland Constitution, which says “the attorney general shall prosecute and defend on the part of the state all cases pending in the appellate courts of the state, in the Supreme Court of the United States or the inferior federal courts, by or against the state … .”
The word “shall” is “not a suggestion,” said Sachs, attorney general from 1979 to 1987. In addition, the word “state” is not limited to the governor but encompasses the General Assembly that passed the law.
“I don’t think we can get quibbly about what ‘the state’ means,” said Sachs, who endorsed Frosh for attorney general. “‘The state’ does not mean the governor; it’s not Louis XIV, ‘L’etat c’est moi.’”
Glendening said a Maryland attorney general has dual obligations, as counsel for the state but primarily as steward of the laws enacted by the General Assembly.
“As a practical matter and under long tradition, the attorney general is independent,” said Glendening, who was governor from 1995 to 2003. “The attorney general has the sole authority to decide whether he will pursue that appeal.”
Frosh “will need to interpret the law as he sees fit,” Glendening added. “He cannot in good conscience simply stand aside because someone tells him not to enforce that. He is not going to do something that he believes is not in keeping with the proper interpretation of the law.”
Maryland’s controversial — and to many, constitutionally suspect — law requires people to be licensed and fingerprinted before purchasing a handgun. It also bans assault-style weapons and high-capacity ammunition magazines.
The 4th Circuit has not yet scheduled argument on the opponents’ challenge to the law. Like Frosh, the challengers — including the Associated Gun Clubs of Baltimore — are prepared to take the battle up to the Supreme Court.
Frosh, 68, is the “right person” to defend the law in court after the grilling he received from the bill’s opponents in the Senate Judicial Proceedings Committee, which he chaired, and from Senate foes on the chamber floor last year, gun-control advocate Vincent DeMarco said.
“For hours and hours, the critics criticized everything,” added DeMarco, president of Marylanders to Prevent Gun Violence. “Every argument was thrown at him. It was like a moot court.”
Even State Sen. Joseph M. Getty, a Republican opposed to the Firearm Safety Act, praised Frosh’s advocacy for the law in the Senate.
“Senator Frosh had great respect for Maryland law and equal respect for case precedent…,” said Getty, R-Baltimore and Carroll counties. “I think that’s what you want from an attorney general.”
In the Senate, Frosh also wrote environmental legislation to safeguard the Chesapeake Bay. He campaigned for attorney general on a promise to strictly interpret the law and to vigorously defend the Maryland Department of the Environment in court.
“He is an environmentalist,” said Betsy Johnson, who chairs the political committee of the Sierra Club of Maryland. The group endorsed Frosh, who has often biked to work at his Bethesda law office. “He lives his life that way.”
Deriece Pate Bennett, of the Maryland Chamber of Commerce, said the business group “has always been committed to working with the administration,” including the attorney general. The chamber seeks to have an “open relationship” with the attorney general and “work together,” added Bennett, the group’s vice president of government affairs.
On Tuesday, before the polls closed, Frosh said he also hopes to chime in on Supreme Court cases of “significant importance” when the result could “make a difference in the lives of Marylanders” and in which “the attorney general has something unique to say.”
He mentioned specifically the high court’s rejection this year of aggregate spending limits as unconstitutional, in McCutcheon v. Federal Election Commission. Maryland had an aggregate spending limit of $10,000 per four-year election cycle.
“The office of the Attorney General is a bully pulpit and that’s one way you can use it,” Frosh said before the election Tuesday.
He cited the example set by former Vice President Walter F. Mondale, for whom he interned in the mid-1960s when Mondale was a U.S. senator from Minnesota.
As Minnesota’s attorney general in the early 1960s, Mondale had written a friend-of-the-court brief in Gideon v. Wainwright, successfully urging the justices to rule that indigent criminal defendants have a right to counsel.
“That’s a perfect example of something that’s an extremely important issue,” Frosh said.