In a 5-2 decision yesterday, the Court of Appeals overturned a State Ethics Commission’s decision suspending the lobbying license of Lobbyist Bruce C. Bereano. Bereano’s lobbying license was suspended because he contracted to receive a financial bonus if he achieved favorable government action, which is in blatant violation of ethical rules. Incredibly, as I’ve written before, this case was heard by the alternative universe Maryland Court of Appeals. Only two of the judges that decided the case are active members of the Court, as five judges recused themselves because of their relationship with Bereano.
The court ruled in favor or Bereano because it found that the Commission improperly inferred that the lobbyist was not being truthful when he said the unlawful contract provision was drafted by the client because the client did not appear to testify at trial. The Court found that the finder of fact cannot infer fault because an ostensibly defense witness did not appear.
The majority opinion is an interesting read from the very beginning, when Judge Harrell paraphrases the classic “What we have here is a failure to communicate” line from Cool Hand Luke. The opinion essentially conveys that the “prosecution” was able to have their cake and eat it to too by not calling a witness they could have called because there was no evidence that the witness was under the sole power of the defendant.
I read the Maryland Daily Record summary of the opinion before reading the actual opinion and, at first, I was a little concerned about whether this was a new rule that would set precedent for the way Maryland personal injury lawyers can argue the failure of the other party to call a witness. But this rule in this case appears limited to an administrative hearing, in part because of the relaxed rules of evidence that apply.
What I find truly crazy about the opinion, and Judge Rodowsky touched on the issue briefly but then backed off in a way that did not make sense to me, is that it really makes no difference to the State Ethics Commission’s opinion who drafted the language. It was a superfluous finding that was completely ancillary to their opinion. If this is not harmless error, the doctrine does not exist in administrative cases. Moreover, I think this is an illusory victory for Bruce Bereano because the chance of the State Ethics Commission altering their finding after this remand is the same as Elliot Spitzer co-hosting The View next week.
The dissent points out that the fact finder is not really making a presumption, but instead is making an inference that is permissible. The dissent asks rhetorically why a jury is permitted as fact finder to make the inference but an administrative body cannot.
Besides the stare decisis of this ruling, it is hard to think this ruling will set a precedent in Maryland because only two judges who actually sit on the Maryland Court of Appeals were involved in the decision.