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Md. high court lets party panel submit multiple names to Hogan

ANNAPOLIS -—Maryland’s top court held Monday that a party central committee may submit multiple names to the governor to fill a General Assembly vacancy.

The Court of Appeals’ one-page order permits the Republican Central Committee of Carroll County to submit more than one name, if it so chooses, to Gov. Larry Hogan to fill a vacancy in the House of Delegates. The high court did not explain the reasoning for its decision, stating that an opinion would be filed at a later date.

The court issued its order within hours of hearing arguments on whether the central committee acted constitutionally 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.

The speed with which the court acted was expected, as the committee must submit a name or names, if its chooses, to the governor by Wednesday. If the committee misses the deadline, Hogan can choose a replacement of his choice for Ready’s vacant House of Delegates seat.

Hogan was not a party to the case, as the named defendant was the Republican Central Committee of Carroll County.

The governor’s spokesman, Doug Mayer, praised the court’s order.

“We knew that the court would give due consideration to this matter, and we agree with the decision,” Mayer said in an email message. “The fact is Maryland attorneys general have been providing correct advice for the past 40 years on filling vacancies to the General Assembly. Our process has been confirmed.”

C. David Jones, who chairs the central committee, declined to comment on the court’s order or his panel’s plans with regard to submitting a name or names to the governor.

Three members of the nine-person committee unsuccessfully sought a declaration that Article III, Section 13(a) of the Maryland Constitution limits the committee’s list to the governor to one name.

Their attorney, H. Mark Stichel, said he was “disappointed” by the court’s order.

“I cannot say anything more until we see the court’s decision and see how they came to their result,” added Stichel, who was assisted by co-counsel and law partner Jack L.B. Gohn.

Stichel told the high court Monday morning that the Constitution expressly provides that the governor shall fill a General Assembly vacancy with “a person whose name shall be submitted to him” by the party central committee.

“The word ‘a’ is singular,” Stichel said.

“It means one single person” can be listed by the central committee of the party of the legislator whose departure created the vacancy, he said.

The framers of the constitutional provision “wanted to limit the governor’s discretion” to make an appointment to the General Assembly, Stichel said. The central commission “can send one name and one name only,” he added.

But judges on the Court of Appeals appeared unpersuaded. Several cited Maryland Attorney General Brian E. Frosh’s brief to the high court stating that party central committees have “sole discretion” to choose how many names to submit to the governor to fill a General Assembly vacancy.

“The [constitutional] duty is upon the governor to appoint a person” to fill the vacancy, Chief Judge Mary Ellen Barbera said.

Judge Clayton Greene Jr. asked Stichel, “What is the danger that you are trying to avert” by limiting the committee to one name?

In response, Stichel again cited Article III, Section 13(a).

“The constitution puts the decision in the committee’s purview,” said Stichel, of Gohn Hankey Stichel & Berlage LLP. “The members of the committee also have a duty to follow the constitution.”

By contrast, the attorney for the central committee faced less opposition from judges when he argued that the constitution gives the governor the “duty” to fill the vacancy and party committees a mere “right to participate” in the process.

“The governor has the duty to actually make the appointment,” said Dirk D. Haire of Fox Rothschild LLP in Washington, D.C.

Barbera asked whether the constitution’s reference to “a person” limits the committee’s role to submitting a single name, as Stichel argued.

“The language [of Section 13(a)] is not absolutely clear,” Haire responded.

Committee members Kathy Fuller, Melissa Caudell and Amy Gilford brought the case as they 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.

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.

The case is Fuller et al. v. Republican Central Committee of Carroll County, Md., No. 92 Sept. Term 2014.