- The Washington Times - Tuesday, September 25, 2007

ANNAPOLIS — A Maryland judge yesterday issued a temporary restraining order against Gov. Martin O’Malley’s administration, saying the governor acted unconstitutionally in signing an executive order to unionize child care workers.

The order by Judge Dexter M. Thompson Jr. of the Circuit Court for Cecil County bars Mr. O’Malley, a Democrat, from enforcing the executive order he signed last month.

“Continuing to enforce the provisions of … the executive order would result in immediate, substantial and irreparable harm to the plaintiffs,” wrote Judge Thompson. The judge stated he made the ruling because the executive order breeches the separation of powers as detailed in the state constitution and because the independent child care workers should not have a union negotiator forced upon them as a result of the order.

Delegate Michael D. Smigiel Sr., Eastern Shore Republican and an attorney, argued the case.

Mr. Smigiel said he brought the case before the court because the executive branch has been “usurping” the powers of the General Assembly.

“It is a victory for the legislative process and following the [Maryland] Constitution,” he also said.

Mr. O’Malley quietly signed two executive orders last month, allowing in-home health care workers and child care providers to form unions.

Mr. Smigiel and others then questioned the constitutionality of the move, saying the governor made an “end-run” around the Assembly by signing the orders.

An O’Malley spokesman yesterday defended the decision.

“The governor believes that child care workers in Maryland should earn a fair wage and should have the right to organize should they choose to,” said spokesman Rick Abbruzzese. “Perhaps, the Republican Party feels we shouldn’t pay our child care workers a fair wage.”

Mr. O’Malley has issued about a dozen executive orders since taking office in January, including ones concerning employee protection and transportation projects. Former Gov. Robert L. Ehrlich Jr., a Republican, who lost his re-election bid to Mr. O’Malley, issued a similar number of orders.

A spokeswoman for Attorney General Douglas F. Gansler said temporary restraining orders are common when a judge wants to further explore an issue.

Judge Thompson, a Democrat appointed by former Gov. Parris N. Glendening, set Oct. 4 as the hearing date.

In the injunction, Mr. Smigiel, Senate Minority Whip Allan H. Kittleman and independent child care providers argue Mr. O’Malley issued the order “without compliance with the procedures prescribed by state law for the issuance of regulations.”

“We’re not confident that the governor did this properly through executive order,” said Mr. Kittleman, Howard County Republican. “I think it was wrong.”

Mr. O’Malley’s executive orders are similar to those Mr. Glendening, a Democrat, issued in 1996 to allow state workers to unionize.

The Maryland Chamber of Commerce sued Mr. Glendening, but Maryland’s highest court, the Court of Appeals, upheld the governor’s move, saying he acted within constitutional bounds.

It is not clear whether the ruling applies to Mr. O’Malley’s orders because the workers are contractors, not state employees.

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