ANNAPOLIS — An Anne Arundel County Circuit Court judge will delay an order in a case that pits two of Republican Gov. Larry Hogan’s more controversial appointments against the state’s treasurer and Democrats in the Maryland Senate.
Judge Ronald Silkworth Thursday said he would delay a decision to allow attorneys for both sides to prepare proposed orders. Both sides are seeking summary judgments, and both sides warned of a severe constitutional crisis that would befall the state should the other prevail.
At issue is the constitutionality of budget language meant to prevent Hogan from paying acting Health Secretary Dennis R. Schrader and former acting Planning Secretary Wendi W. Peters after the governor withdrew their nominations before the full Senate could vote on either. The legislature responded in the waning days of the 90-day session earlier this year by using the budget to restrict payment of any appointment subject to Senate confirmation that had been withdrawn before a vote could be taken.
Only Peters and Schrader are subject to the language.
Schrader has not been paid since July 1. Peters’ salary as acting planning secretary was similarly denied. She began receiving a paycheck in late September after Hogan transferred her to a new position.
Timothy Maloney, a partner at Greenbelt-based Joseph Greenwald & Laake who represents Schrader and Peters, is asking Silkworth to declare the budget language unconstitutional and order that his clients receive their back pay.
“The Senate does not have the authority to limit recess appointments nor have the power to restrict paying recess appointments,” said Maloney, adding the use of budget language to limit recess appointments was a “usurpation of the governor’s power” and “opens the door to wholesale legislating in the budget without the checks and balances of an executive veto.”
Maloney argued that the legislature is prohibited from terminating executive branch employees. The budget language was intended as a “constructive discharge.”
Julia Doyle Bernhardt, chief of litigation for the Office of the Attorney General, said a ruling against the state would empower Hogan and future governors to ignore the role of the Senate in the appointments process by allowing an executive to simply nominate candidate for appointment, withdraw their name before a vote only to reappoint them once the legislature leaves town.
Bernhardt argued that the budget language was necessary to protect the Senate’s role in the appointment process.
“It was intended to protect the core power of the Senate to advise and consent,” Bernhardt told Silkworth. She added that without such a power, “it would create a loophole in the constitution” that would have the effect of eliminating that ability.
Bernhardt is representing state Treasurer Nancy K. Kopp, who was named in the suit, after she refused to pay either official.
She called a governor’s recess appointment powers were less important than the “core power” of the Senate to confirm a nomination. Maloney disagreed, saying that state constitution did not establish a hierarchy of powers and both were to be treated equally.
Silkworth focused all of his questions on the state’s case during the nearly two-hour hearing. His questions focused mostly on Senate’s use of budget language and on Kopp’s authority to unilaterally deny Schrader and Peters their salaries.
“Does the treasurer have the authority to decide not to pay the secretaries?” Silkworth asked.
Bernhardt responded saying Kopp has a responsibility to not write checks if money has not been appropriated though she ultimately acknowledged that there was no specific legal opinion that allowed her to withhold the payments to Schrader and Peters.
“Why not seek a judicial remedy?” Silkworth asked.
“All I can say is the treasurer is acting consistent with longstanding advice of where an appropriation is restricted, funds can’t be expended,” Bernhardt said.
Silkworth told attorneys he would delay a decision to allow each a week to submit proposed orders.
Sen. Bill Ferguson, D-Baltimore City and chairman of the Senate Executive Nominations Committee, sat in the front row of the courtroom, observing the proceedings. The second-term Democrat predicted this would likely not be the last courtroom to hear the case.
“I have a feeling that no matter what, this goes to the Court of Appeals,” Ferguson said.
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