Overreaching
There's no way around it: Delegate Don Dwyer is getting a raw deal from Legislative Leadership and the media on his threat to impeach Attorney General Doug Gansler.
What is getting lost in the hub-hub about the gay marriage issue is that Dwyer's call to impeach has nothing to do with the gay marriage issue. Nothing at all. Yes, Dwyer is one of the most vocal opponents of gay marriage in the entire state of Maryland. But even above all of that, Don values the Constitution and the Legal Process just as much. Gansler has, in fact, tried to obfuscate the roles of government by trying to circumvent the lawmaking process by trying to influence the courts and influencing changes in state law without the will of the General Assembly. In Dwyer's words, Gansler's actions "show a clear disregard for Maryland and the legislative process by which it is enacted."
Face it; Gansler's opinion on the matter is substantially overreaching of the authority of his office.
Gansler's reaction to Dwyer's attempts at impeachment were also curious in and of itself. The fact that Gansler's office put out an opinion saying Gansler cannot be impeached seems to be a bit of political jujitsu to defend the flank, a political maneuver whose technical term is "CYA." The fact that Gansler's office felt it necessary to put out an opinion you can deduce on your own, but when you consider the shaky precedent that Gansler's built his case upon (on top of all of the other constitutional issues) and the fact that Gansler is running his office based on the judicial activist tradition without actually being a judge and you realize that there is some there there where Gansler could legitimately face the music.
Doug Gansler is clearly in the wrong here. I may be a minority in supporting the idea of gay marriage, but Delegate Dwyer is right to pursue this as he sees fit. I certainly don't think that Gansler will be impeached or removed from office, but sometimes the point of accountability has to be made.....
....but it's a point that doesn't have to be made. If Legislative Leadership would just let the issue of gay marriage come to a vote once and for all, this issue would disappear. The General Assembly cannot duck this issue forever. We all know why Maryland's Democrats don't want this to come to a vote; because it is political inexpedient for them to do so. The basically have the Hobson's Choice of ticking off half of their base, no matter how the vote turns out. The moral we should really take away from the Gansler's marriage opinion is the fact tat Legislative Leadership needs to show the moral turpitude to bring the issue to a vote once and for all....
(Crossposted)
4 comments:
Come on, Brian. Disagree with Gansler's opinion if you want, but the idea that it was overreaching or usurping of the authority of the General Assembly is just bogus.
Article 5, Section 3(a) of the Maryland Constitution states that: "The attorney general shall . . . [g]ive his opinion in writing whenever required by the General Assembly or either branch thereof, the Governor, the Comptroller, the Treasurer or any State's Attorney on any legal matter or subject."
Senator Rich Madaleno asked for an opinion. Doug Gansler not only had the right, but the obligation, to give his opinion.
I testified to this effect on House Bill 1079 (Delegate Dwyer's constitutional amendment) yesterday, and I didn't hear him utter so much as a word of disagreement. Delegate McConkey, who did take issue with my view, was utterly unfamiliar with the constitutional provision.
If Delegate Dwyer "values the Constitution," maybe he should try reading it.
Moreover, your statement that Gansler is trying to "circumvent the lawmaking process by trying to influence the courts and influencing changes in state law without the will of the General Assembly" is equally lame. AG opinions are offered all the time on a host of subjects, and they are only as authoritative as a court ultimately chooses to make them. If a court doesn't agree with an AG opinion, it is completely and totally free to disregard it.
I can tell you this from first hand experience, as I've litigated cases in the Court of Appeals against the AG's office twice over the past two years, and I'm 2-0. If the issue of recognition of out of state marriages comes to to the Court of Appeals, which I strongly suspect it will, the Court will decide the issue without reference to the AG opinion.
Final point: citing Blair Lee as a legal authority is not a strong foundation upon which to build an argument. Neither he nor Delegate Dwyer are attorneys. There's an argument to be made on his side of the issue (not a winning argument, mind you), but that's different than saying that the Attorney General had no right to offer his opinion.
Jonathan Shurberg
Jonathon,
I do not necessarily agree with everything in Brian's post but to say that the AG opinion is just an opinion is a bit glib. Yes, the court will ultimately years from now decide the issue and I have convinced the Court of Appeals that the AG was wrong as well, many have.
But this opinion is a green light to state agencies to start treating out of state gay marriages as legal until a court tells them otherwise. This de facto cuts the General Assembly out of the process unless and until they take some action which, as Brian deftly points out, they won't.
Gansler is acting at the request of the General Assembly but not to give them a legal opinion. He is giving them cover for their failure to take a vote on the gay marriage issue.
Greg:
I don't agree with your opinion, but I can understand why you'd think that. But there's a big distinction between what you're saying and what Brian has written, echoing Delegate Dwyer.
You're saying that the purpose and intent of the opinion was to give the GA political cover not to have to vote on HB1079 or other bills on same sex marriage. Such things as intent and purpose are usually in the eye of the beholder, so we can agree to disagree on this.
But what Brian and Delegate Dwyer are saying is that the very giving of the opinion was nefarious, and as I noted, that just isn't so.
You say that this isn't "just an opinion." In one sense, I agree -- it's a big deal because this is a huge issue, on both sides.
But there's no legal basis for declining to give an opinion because the issue involves a hot-button political issue.
In another sense, the legal one, I disagree with you. The opinion is, as Mike Miller said, pretty "ho-hum" (and I don't usually agree with Senator Miller). Maryland, virtually alone among states, still applies 19th century choice of law rules, both to contracts and to torts. Legally speaking, there's no distinction between marriage and other contracts, as legally speaking, a marriage is just a particular type of contract. (Politically, of course, we both know otherwise)
The AG gives opinions all the time, and some of them have the effect of actually shutting down an actual statute passed by the General Assembly and signed by the governor. Take for example, Section 13-818 of the Transportation Code. It was passed in 1992 and provided for tax rebates for fuel efficient cars, and tax surcharges for particularly bad vehicles.
The AG issued an opinion, of highly dubious foundation, stating that federal vehicle labeling law preempts the entire statute. Since 1992, the statute has gone unenforced, despite remaining on the books for almost 20 years.
Not debating fuel standards, just noting that the idea that the recent AG opinion was some unique departure from normal practice is just wrong. Debate the legal aspects of it all you want, it's going to be decided by the Court of Appeals, and probably sooner rather than later, and then whatever Gansler said will be completely and totally irrelevant.
Jonathan Shurberg
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