Franchot’s Political Opportunism Backfires.

There is a moral to the story of House Bill 1052 which, if passed by the Maryland General Assembly and enacted into law, would transfer responsibility for enforcing state regulations on the alcohol and tobacco industries from the state comptroller to a newly formed Alcohol and Tobacco Commission. The moral is that if you make a political nuisance out of yourself, don’t hand the politicians that you are annoying the ammunition they need to shoot you down. In other words, don’t do what state Comptroller Peter Franchot has done.

Make no mistake about it, the impetus behind House Bill 1052 is raw politics. As luck would have it, however, the legislation makes a small but important change to Maryland governance.

Mr. Franchot is not the first comptroller to use that elected office as a forum to espouse views on subjects only vaguely related to its duties. He has, however, elevated use of the position as a platform for political opportunism to an art form. Along the way he has alienated scores of powerful state politicians, including Speaker of the House of Delegates Mike Busch and President of the Senate Mike Miller.

Mr. Franchot gained the lasting enmity of fellow Democrats for using his seat on the state Board of Public Works to side with Republican Gov. Larry Hogan in excoriating Democratic Baltimore County Executive Kevin Kamenetz for the lack of air conditioning in many Baltimore County schools. Until his death in May, Mr. Kamenetz was widely seen as the leading contender to run against Mr. Hogan in last year’s governor’s race.

Democrats fumed at what they saw as an unholy alliance between Mr. Franchot and Mr. Hogan that turned the Board of Public Works into a partisan political weapon aimed at a potential Democratic candidate for governor. Highly regarded state public school construction chief David Lever resigned in protest over their heavy-handed tactics. Last year, the General Assembly stripped the board of its authority over school construction projects.

Mr. Hogan rewarded Mr. Franchot for his support on the Board of Public Works by issuing an executive order in 2016 that implemented Mr. Franchot’s longtime goal of prohibiting local school districts from starting the school year until after Labor Day. Never mind that the job of comptroller has nothing to do with public school schedules.

And never mind that Maryland law takes care to try to separate educational policy from partisan politics and to preserve local control of public schools. Mr. Franchot, once described by Baltimore Sun columnist Dan Rodricks as a “publicity-seeking missile,” was not about to worry about such formalities and forego the chance to exploit an issue popular in vote-rich suburban counties.

Mr. Franchot’s school year victory may be short-lived. The General Assembly is working to overturn the governor’s executive order during the current session.

Mr. Franchot’s reelection campaign last year had a particularly insulting, sanctimonious tone, with Mr. Franchot portraying himself as a “reformer” crusading against the special interests that he claimed had a stranglehold on the General Assembly. In one notable ad, he accused lawmakers of being drone-like “yes men” for Mr. Miller, whom he described as a “machine boss.”

That was more than the legislators could bear, given Mr. Franchot’s own history. Having an elected official responsible for regulatory enforcement is fraught to begin with, especially in a state with Maryland’s checkered past. Maryland is one of only three states in which regulation of the alcohol industry is in the hands of an elected official.

Mr. Franchot compounded that concern not only by actively seeking changes to the laws governing the alcohol industry, but also by accepting campaign contributions from representatives of the industry subject to his office’s regulatory authority. His defense – “everybody takes money from the alcohol industry” – rings a bit hollow.

His single-minded pursuit of statutory changes favorable to the craft beer industry was not lost on members of the General Assembly. Sen. Ben Kramer (D-Montgomery) accused Mr. Franchot of “extorting” money from the industries he regulates, adding: “His lies know no bounds when it comes to a pot of gold.”

Ironically, Mr. Franchot’s support of causes popular with the electorate may be the kiss of death for those issues in the General Assembly. He told reporters last month that he couldn’t get any member to introduce bills that he deemed important to reform of the brewing industry.

Mr. Franchot has a knack for attaching himself to popular causes and endearing himself to the voters, less of a knack for working with people to actually get things done. A team player he isn’t.

House Bill 1052 likely will not put an end to Mr. Franchot’s political opportunism. It will at least make a worthwhile change to state government, removing important regulatory duties from direct control by an elected official who might confuse those regulatory duties with his political ambitions.

[Published as guest commentary by Maryland Matters on March 13, 2019 but not posted to my blog until April 14, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Baltimore state’s attorney’s marijuana lawsuit “nothing more than a publicity stunt.”

In January, Baltimore State’s Attorney Marilyn Mosby announced with considerable fanfare that her office no longer will prosecute people for possession of marijuana. The fact that she also filed a lawsuit asking the Baltimore circuit court to overturn 4,800 convictions for possession of marijuana, however, attracted less notice. The lawsuit should have received more attention, but not for reasons Ms. Mosby would like.

In my opinion, her suit is an affront to the criminal justice system and is nothing more than a publicity stunt. It bears only a passing resemblance to a legitimate legal action, disregards the safeguards of the adversarial system, violates her oath of office, and attempts to arrogate powers belonging to the Maryland General Assembly. It also is based on a legal theory concocted from whole cloth.

She filed what is known as a petition for a writ of error coram nobis. Coram nobis is a last-ditch remedy for overturning a conviction that was based on an error of “a constitutional or fundamental proportion” and that is posing “a substantial collateral consequence” for the petitioner at the time the petition is filed. It is infrequently employed because it may not be used to litigate issues that were or could have been raised at trial or on appeal and is not a substitute for other post-conviction relief.

Ms. Mosby filed the petition in the name of the State of Maryland on behalf of over 1,000 individuals who are not parties to the case. Coram nobis is a civil action against the state. In other words, Ms. Mosby’s petition has the state suing the state on behalf of private citizens seeking to have the state overturn the citizens’ convictions.

Even if Ms. Mosby convinces the court that she has the authority to bring a civil action on behalf of the state against the state to adjudicate the interests of private individuals, she has another hurdle: persuading the court that she should be allowed to turn the judicial process on its head and operate outside the adversarial system.

The adversarial system is the engine of truth undergirding our criminal justice system. Ms. Mosby captioned the suit “State of Maryland vs. State of Maryland,” apparently reflecting her intent to represent both sides of the case. It’s all a bit bizarre.

A real coram nobis case is filed by the petitioner seeking to have his or her conviction overturned. It is served on the state’s attorney. The state’s attorney then has the duty under the adversarial system to bring to the court’s attention deficiencies in the petitioner’s case to make sure that convictions are not improvidently overturned. As applied to Ms. Mosby’s petition, she took an oath of office that requires her to defend against frivolous claims of the type made in the petition, not advocate them.

Ms. Mosby may be able to prove her allegation that enforcement of laws criminalizing the possession of marijuana disparately impacted African-American residents of Baltimore. The rest, however, is fanciful: She claims that the arrests, prosecutions and convictions of all African-Americans for possession of marijuana therefore were unconstitutional even in the absence of discriminatory intent in individual cases and that the remedy is to wipe out otherwise-valid convictions for possession of marijuana.

She cites no case law in support of her legal theory; that’s because there is none.

Perhaps the most troubling aspect of the case is Ms. Mosby’s attempt to usurp the role of the General Assembly. In 2017, the General Assembly passed a bill allowing persons convicted of possession of marijuana to have the record of their convictions expunged four years after conviction or completion of their sentences, whichever comes later.

If Ms. Mosby believes that expungement of marijuana convictions should be accelerated or expanded, then she should make her case to the General Assembly, not the courts. The expungement statute is crafted to avoid the unintended consequences that could result from her suit, assuming it has any chance of success.

For example, if an arrest for possession of marijuana is ruled unconstitutional, then evidence of another crime, such as the illegal possession of a handgun, gathered as a result of the search incident to that arrest was unconstitutionally obtained. That could mean that the handgun conviction also would end up getting overturned.

Is Ms. Mosby genuinely trying to solve a problem? Or was this case filed by Ms. Mosby to maintain her prominence on the national stage as a “progressive” prosecutor? You form your conclusions. I know that I’ve formed mine.

[Published as an op-ed by the Baltimore Post on March 5, 2019 but not posted to my blog until April 14, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]