Ocean City Today

Local repesentatives challenge Frosh

Readers' Forum
Jul 13, 2017



printed 07/14/2017


The following was sent to Maryland Attorney General Brian E. Frosh by Delegate Christopher Adams (R-Caroline, Dorchester, Talbot and Wicomico), Delegate Haven Shoemaker (R-Carroll) others, including Delegate Mary Beth Carozza (R-Worcester, Wicomico).

Dear Attorney General:

We, the undersigned members of the General Assembly of Maryland, write to you regarding your recent actions taken pursuant to Senate Joint Resolution 5 (SJR5) passed in this past 2017 Session, which has been dubbed, histrionically, the “Maryland Defense Act of 2017.”

As you know, the Joint Resolution significantly expands the independent authority of the Office of the Attorney General to sue the federal government and abolished the long-standing check of obtaining permission from the Governor before spending hard-earned tax dollars of the citizens of Maryland on any such actions.

We were alarmed at the rush to pass SJR5 was so pronounced that the usual courtesy of a special order in the Senate to consider the measure and prepare amendments was ignominiously refused – prompting two-thirds of the Republican members of the chamber to walk out in protest. As a member of the Maryland Senate yourself for nearly 20 years, you must know what a rare occurrence the refusal to grant a special order is, and how rarer still a walk out of a group of members from a usually congenial chamber is.

Accordingly, the circumstances surrounding the hurried ramming through of SJR5 without any substantive debate or opportunity to offer amendments gives us pause and makes us fear that the measure is not intended its purported purpose:

“FOR the purpose of directing the Attorney General to take certain actions regarding civil and criminal suits and actions that are based on the federal government’s action or inaction that threatens the public interest and welfare of the residents of the State [emphasis supplied];”

Since Governor Hogan has been stripped of the power all proceeding governors of Maryland have held as the head of the executive branch of Maryland to check the Office of the Attorney General in the exercise of its power to sue on behalf of the citizens of Maryland, we hereby wish to exercise our legal and moral duty to provide oversight over litigation initiated pursuant to SJR5 by your office to insure said litigation aims to achieve the avowed purpose of the Joint Resolution, and to make sure the precious tax dollars of Marylanders who toil daily to provide for their families are not squandered on lawsuits whose actual goals are meant to grandstand and score political points via frivolous charges and contentions meant only to harass, embarrass, and “resist” the administration of President Trump solely because he is a member of a party different than your own, and because Maryland electoral votes were cast for his opponent in the last presidential contest.

Given that the seat of the federal government is on Maryland’s doorstep and that Maryland’s economic health and wellbeing relies heavily on its cooperative relationship with the various federal agencies that implement policy, we are concerned that a misuse of the powers granted to your office under SJR5 may “threaten[s] the public interest and welfare of the residents of the State” more directly than the Trump Administration’s lawful and valid exercise of its executive power granted by the U.S. Constitution. Since the passage of SJR 5, your office has joined more than a half-dozen cases against the Trump Administration. The undersigned would like an explanation regarding how each one of these actions achieves the stated goals of the Joint Resolution:

“(1) protecting the health of the residents of the State and ensuring the availability of affordable health care; (2) safeguarding public safety and security; (3) protecting civil liberties; (4) preserving and enhancing the economic security of workers and retirees; J.R. 1 2017 LAWS OF MARYLAND – 2 – (5) protecting financial security of the residents of the State, including their pensions, savings, and investments, and ensuring fairness in mortgages, student loans, and the marketplace; (6) protecting the residents of the State against fraud and other deceptive and predatory practices; (7) protecting the natural resources and environment of the State; (8) protecting the residents of the State against illegal and unconstitutional federal immigration and travel restrictions; or (9) otherwise protecting, as parens patriae, the State’s interest in the general health and well–being of its residents;”

Accordingly, please inform us of the following:

1. What lawsuits has your office filed or joined on behalf of the citizens of Maryland pursuant to the new power granted to you by SJR5?

2. What lawsuits is your office considering filing or joining on behalf of the citizens of Maryland pursuant to the new power granted to you by SJR5?

3. What costs have been incurred to date pursing lawsuits filed via the new power granted to you by SJR5?

4. What are the anticipated costs for pursing lawsuits currently filed pursuant to SJR5 to completion?

5. How many current staff in your office are working on or currently dedicated to pursing lawsuits currently filed lawsuits currently filed pursuant to SJR5 How many new staff have been hired or do you anticipate hiring to pursue current and future lawsuits filed or intended to be filed lawsuits currently filed pursuant to SJR5?

6. Detail how current lawsuits filed further the goals set for in Sections (1) – (9) above.

7. Detail the chances for success in each of the lawsuits filed pursuant to SJR5 and what would, in your Office’s opinion, be a desired outcome?

8. Detail the steps your Office has implemented to address the requirements of SJR5 the require “the Attorney General [shall] consider the Governor’s objection before commencing the suit or action,” and detail specifically how you addressed Governor Hogan’s objections, if any, to each lawsuit currently file under your new authority granted by SJR5.

9. If you did not consult the Governor before filing a lawsuit pursuant to SJR5, please detail what emergency circumstances required the immediate commencement of the suit.

Some of the undersigned are also members in good standing of the Maryland Bar and are concerned that your Office’s involvement in litigation against the Trump Administration has zero chance of succeeding and may lack a good faith basis -Md. Rule 19-303.1. Meritorious Claims and Contentions (3.1):

“An attorney shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous…”.

A prime example of this is the lawsuit your Office brought arguing that President Trump is and has violated the “Emoluments Clause” of the U.S. Constitution, Article I, Section 9, Clause 8:

“…And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

We undersigned members of the Bar find your contention that President Trump’s decision to retain ownership of his real-estate and branding empire has left the president “deeply enmeshed with a legion of foreign and domestic actors” and violates the Clause, dubious at best, and entirely without merit.

The Clause has never been formally interpreted by the court, and most lawyers interpret the Clause as requiring congressional approval before a federal official can accept payments or gifts from foreign officials. Most impartial attorneys are of the opinion, that even if you have standing to sue, that market-rate payments for goods and services at President Trump’s hotels, golf courses and the other businesses he owns, but no longer actively manages, are not “emoluments” as defined by the Constitution.

SJR5 may grant your Office the power to initiate lawsuits on behalf of the citizens of Maryland against the federal government and the current presidential administration, but the Joint Resolution does not free your Office from the mandates of the Rules of Professional Conduct (RPC), particularly the provisions regarding bringing frivolous actions.

In addition, the RPC frown on using the legal process as a tool of harassment or embarrassment - Md. Rule 19-304.4. Respect for rights of third persons (4.4):

(a) In representing a client, an attorney shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person…”.

The fanfare with which the Emolument Clause suit was announced coupled with the fact that information about it is the top link on your webpage (receiving top billing over bail reform, consumer information, identify theft, etc.) naturally leads a reasonable person to question the motives behind filing the suit.

We understand that the charge of your Office in general is broad and that the funds to accomplish your charge are limited. Given that you are the chief law enforcement officer in the State, it is hard to fathom how you have the time and money to file a lawsuit based on the “Emoluments Clause” when there are so many other issues threatening the health, security and public safety of Marylanders.

For example, in 2016 approximately 2,000 people died from heroin and other opioid overdoses in the State, about double the number of deaths in 2015. Additionally, drug overdose deaths rose by 19.2 percent from 2013 to 2014 in Maryland. In the light of this crisis, we suggest that the taxpayers of Maryland be better served by spending scare resources on measures designed to save lives, not garner headlines.

We urge that your Office exercise the very broad powers granted by the Joint Resolution sparingly and on an emergency basis only as contemplated in the resolution itself, and that you consult the Governor as required before filing:

“2) unless emergency circumstances required the immediate commencement of the suit or action, the Attorney General shall consider the Governor’s objection before commencing the suit or action;”

Please remember that your clients are all of the people of Maryland, not just those disappointed by the results of the 2016 presidential election.

Delegate Christopher Adams,

Delegate Mary Beth Carozza,

Delegate Haven Shoemaker

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