- Associated Press - Thursday, December 14, 2017

ANNAPOLIS, Md. (AP) - Maryland Gov. Larry Hogan has won Round 1 in a legal fight over the constitutional powers of the executive and legislative branches of government stemming from a clash on appointee confirmations.

But a spokeswoman for the attorney general’s office said the state will appeal a judge’s decision that two of Hogan’s appointees should be paid, even though the Senate has not confirmed them.

Anne Arundel County Circuit Judge Ronald Silkworth ruled Thursday that Dennis Schrader, Hogan’s health secretary, and Wendi Peters, a former Planning Department secretary, must be paid for their work.

The origin of the dispute stems from when Hogan, a Republican, withdrew their names from consideration before the full Senate could vote on their nominations. A Senate committee this year voted unfavorably on advancing Peters’ name to the full Senate, so Hogan withdrew her nomination on the same day. The full Senate never voted on her nomination. Schrader’s nomination never received a vote by either the Senate committee or the Senate, before Hogan withdrew his name in the waning days of the legislative session.

The legislature, which is controlled by Democrats, passed budget language blocking pay to people requiring confirmation, but whose names were withdrawn from Senate consideration. Hogan reappointed Schrader and Peters the day after the General Assembly adjourned. Treasurer Nancy Kopp, a Democrat, then declined to honor payroll warrants for them at the start of the fiscal year in July. Peters, whose salary was $137,749, and Schrader, whose salary was $174,417, sued the state. Peters resigned as planning secretary in September and took a new position as special secretary of smart growth. She has been paid since Sept. 22 in that job.

Silkworth ruled that it’s undisputed Schrader and Peters were lawful recess appointees, but the budget language created an unconstitutional intrusion on the governor’s authority.

“If the governor cannot pay his recess appointees, then he has sustained an extraordinary intrusion on his constitutional authority to appoint them and obtain their continued service,” Silkworth wrote in a 35-page ruling. “This intrusion violates the separation of powers and impairs the Governor’s discretion to appoint ‘some suitable person’ to a recess appointment … provided their nomination was not rejected by the full Senate.”

Silkworth also ruled that the budget language violated the prohibition against special laws against particular people, because Schrader and Peters were the only people affected by the budget language.

“There can be little doubt that (the provision) was narrowly tailored to inhibit the Governor from appointing these two particular plaintiffs, and to force the plaintiffs, once appointed, to leave their offices by depriving them of their lawful salaries and benefits,” Silkworth wrote.

State Sen. Bill Ferguson, who chairs the Senate Executive Nominations Committee, said the confirmation process itself is fundamentally at stake in the case, because if the court ruling is upheld, it would create a path for the governor to get appointees around the confirmation process.

“It really is a constitutional question about the value of appointment confirmations in our state’s Constitution,” said Ferguson, a Baltimore Democrat.

Doug Mayer, a spokesman for Hogan, said it’s time to move on.

“It is unfortunate that it took a court order to do it, but justice, common sense, and the rule of law have finally prevailed in this case,” Mayer said. “It is far past time for the Senate President, Attorney General, and Treasurer to stop this sad political game, do the right thing, and accept the court’s decision.”

Raquel Coombs, a spokeswoman for Attorney General Brian Frosh, said an appeal was inevitable.

“This was always a case that will be decided in the appellate court,” Coombs wrote in an email.

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