A party central committee has “sole discretion” to choose how many names to submit to the governor to fill a General Assembly vacancy, Maryland’s attorney general told the state’s top court Thursday.
Attorney General Brian E. Frosh weighed in as the Court of Appeals considers whether the Republican Central Committee of Carroll County acted unconstitutionally in acceding to Gov. Larry Hogan’s demand for additional names after he rejected the committee’s first choice for a GOP Senate seat.
The current litigation does not challenge the Feb. 2 appointment of then-Del. Justin D. Ready, who was not the committee’s first choice; however, Ready’s appointment has left a GOP vacancy in the House of Delegates for the governor to fill.
Three members of the nine-person committee are seeking a declaration that Article III, Section 13(a) of the Maryland Constitution limits the committee’s list to the governor to one name.
Frosh disagreed in the friend-of-the-court brief he submitted at the high court’s request, saying the length of the list is up to the committee.
“Under its plain language, Article III, Section 13(a) imposed a duty only on the governor, who must appoint a nominated individual; the provision imposes no duty on a party central committee, which, under state law, is not a public body but an arm of a principal political party,” Frosh wrote in the brief co-signed by Assistant Attorney General Julia Doyle Bernhardt.
Since the section creates no enforceable duties against a central committee, the brief adds, “a party central committee may establish its own selection process and may, in its sole discretion, submit more than one name to the governor. If it does so within 30 days after occurrence of the vacancy, the governor has a duty to appoint a person from the names submitted by the party central committee.”
The high court will hear arguments in the case Monday, March 2, on an emergency basis.
The court had originally scheduled arguments for March 10, but moved the date up at the request of the three committee members. They argued, through counsel, that without a court decision by March 4, Hogan would have the constitutional authority to fill the Carroll County GOP vacancy in the House without input from the central committee, as the seat would have been empty for 30 days on that date.
The governor is not a party to the case, as the named defendant is the Republican Central Committee of Carroll County.
Committee members Kathy Fuller, Melissa Caudell and Amy Gilford objected to the process that led to Hogan’s appointment of Ready to succeed Sen. Joseph M. Getty, who left the legislature to serve as the governor’s legislative liaison. Ready’s appointment left his House of Delegates seat empty.
Hogan had rejected the committee’s first candidate for the Senate, former Carroll County Commissioner Robin B. Frazier, who had stirred controversy last March by defying a federal judge’s order temporarily barring the county commission from invoking Jesus Christ or any other specific deity in its pre-session prayers.
The governor told the central committee to submit more names. The panel added Ready and Dave Wallace to the list.
After Ready’s appointment, the committee was seeking names of candidates for the House seat he left vacant when Fuller, Caudell and Gilford filed suit in Carroll County Circuit Court on Feb. 10. The circuit court rejected the challenge on Feb. 12.
Attorneys H. Mark Stichel and Jack L.B. Gohn, who represent the three members, sought review by the Court of Special Appeals as well as by the high court. The Court of Appeals agreed to hear the case without action by the intermediate court.
Stichel and Gohn are with Gohn Hankey Stichel & Berlage LLP in Baltimore.
The case is Fuller et al. v. Republican Central Committee of Carroll County, Md., No. 92 Sept. Term 2014.