http://www.carrollcountytimes.com/articles/2007/12/29/news/local_news/newsstory2.txt

Court OKs deposition of House clerk

By Liam Farrell, Landmark News Service

Carroll County Times, December 29, 2007

ANNAPOLIS - The Court of Special Appeals will allow the chief clerk of the House of Delegates to be interviewed for a lawsuit charging procedural problems during November's special session.

Several leading Republicans and a Carroll County businessman allege the Senate violated the Maryland Constitution when it adjourned for more than three days without a vote of the House.

The lawsuit alleges that the problems should negate $1.3 billion of tax increases that passed during that session.

A lawyer representing the plaintiffs sought to interview Mary Monahan, the chief clerk of the House, to assess the validity of documents the state is using to bolster its defense.

"We feel vindicated," said Irwin Kramer, the lawyer for the plaintiffs, after the court order was released yesterday.

"The Court of Special Appeals sent a strong message to [Attorney General Doug] Gansler and his assistants that it will not allow the appeals process to be used in that way.

"Now it is time to find out what the attorney general is trying to hide."

Kramer also filed a motion in Carroll County Circuit Court yesterday for a temporary stay on any tax increases scheduled to take effect on Jan. 1, which is several days before a hearing on the case.

He said the motion to stay the implementation and enforcement of the tax revisions was in response to the attorney general's office stating that implementing tax measures and then undoing them puts the state in a difficult position.

Kramer said his filing is to not implement or enforce the tax measures until after a decision is made.

A tobacco tax would increase from $1 to $2 per pack of cigarettes starting Jan. 1 and the sales tax increase from 5 to 6 percent is expected to go into effect Jan. 3. Revisions to the state's income taxes are also expected to start.

"This temporary stay will permit this Court to make a proper determination in this case without prejudice to innocent taxpayers who have done their best to expedite a decision," Kramer wrote in the motion.

An independent investigation by The (Annapolis) Capital uncovered clashing documents that described when the Senate decided to take a six-day versus a four-day break from the special session, over Veterans Day weekend.

The official House Journal indicates that on Nov. 12, Ms. Monahan gave the House's consent to a Nov. 9 message from the Senate stating the body would not come back until Nov. 15.

Other documents, including text and audio records from the Department of Legislative Services and a letter from Senate President Thomas V. "Mike" Miller, Jr., show the Senate intended to adjourn only from Nov. 9 until Nov. 12 and changed its mind in the days following its recess.

Four House proceedings took place between the time of Senate's adjournment and the consent to the message in question.

Carroll County Circuit Court Judge Thomas Stansfield had previously ruled Monahan should be deposed before a planned Jan. 4 hearing on the case.

The state appealed on the grounds Monahan is protected by state and federal laws that prevent senators, delegates and their staff from testifying on legislative proceedings. A deposition of Monahan had been scheduled for Dec. 27 in Tampa, Fla., where she had been vacationing. But it was canceled when the Court of Special Appeals began to study the issue.

Kramer is hoping a deposition of Monahan could be scheduled as early as Monday.

The Court of Special Appeals had not filed its opinion on the issue by 5 p.m. Friday, but the order cited a Maryland rule that a court can dismiss an appeal if it "is not allowed by these rules or other law."

Without the detailed opinion, the state cannot determine what specifically prompted the dismissal, said Sandy Brantley, a spokesman for the attorney general's office.

"We think the appeal is proper," she said.

The state could petition the Court of Appeals, the state's highest appellate court, to hear the case but it has not made that decision yet, Brantley said.