Maryland Attorney General Opinion 97 OAG 058

58 [97 Op. Att’y

PUBLIC OFFICERS AND EMPLOYEES

ELECTED OFFICIALS – REMOVAL FROM OFFICE – DELEGATE’S

CONVICTION AND WAIVER OF APPEAL RIGHTS TRIGGERS

AUTOMATIC REMOVAL UNDER ARTICLE XV, § 2 OF THE

MARYLAND CONSTITUTION DESPITE CIRCUIT COURT’S

SUBSEQUENT REVISION OF SENTENCE TO PROBATION

BEFORE JUDGMENT

November 20, 2012

The Honorable Martin O’Malley

Governor

You have asked for our opinion as to whether Delegate

Tiffany Alston has been removed from office by operation of law

as a result of her recent criminal conviction. Specifically, you

have asked us to review the conclusion reached by Dan Friedman,

Counsel to the General Assembly, that Ms. Alston’s conviction

for misconduct in office constitutes an offense that triggers the

automatic removal provisions of Article XV, § 2 of the Maryland

Constitution. After a thorough review of Mr. Friedman’s analysis

of the issue and the response thereto from Ms. Alston’s counsel,

and after considering events that have transpired in the days since

Mr. Friedman issued his letter, we conclude that Ms. Alston was

removed from office, by operation of law, by virtue of her

conviction for official misconduct and her waiver of her rights of

appeal.

In reaching this conclusion we are mindful of the fact that

the trial judge, after sentencing Ms. Alston to probation,

community service, and restitution, subsequently granted Ms.

Alston’s motion to modify her sentence pursuant to Rule 4-345

and granted her probation before judgment after she had

demonstrated that she had completed her community service

obligations and paid restitution. The trial court’s exercise of its

revisory power, however, does not amount to a determination that

the conviction was wrongly imposed, as would be the case if the

trial court’s judgment were “reversed or overturned” on appeal.

Because Ms. Alston’s conviction was finally imposed, and was

not reversed or overturned on appeal, we agree with Mr.

Friedman’s conclusion that she was removed from office effective

October 9, 2012.

Gen. 58] 59

I

Background1

Ms. Alston’s Conviction and Sentencing

Tiffany Alston was first sworn in as a member of the

Maryland House of Delegates representing the 24th legislative

district on January 11, 2011. On or about September 23, 2011,

the grand jury for Anne Arundel County returned a five-count

indictment against Ms. Alston for using campaign funds

belonging to the campaign finance entity, “Friends of Tiffany

Alston,” for her private benefit, including payments to herself and

an employee of her law firm, and for her wedding expenses

(“Alston I”). The indictment indicates that each of the criminal

acts was alleged to have occurred between April 6 and December

23, 2010, before Ms. Alston was sworn into office.

On December 15, 2011, the grand jury returned an additional

two-count indictment against Ms. Alston (“Alston II”) charging

her with theft under $1,000 and common law misconduct in office

based on allegations that Ms. Alston used State money to pay an

employee for work at her private law firm. See Duncan v. State,

282 Md. 385, 387 (1978) (describing common law misconduct in

office as “corrupt behavior by a public officer in the exercise of

the duties of his office or while acting under color of his office”).

Unlike the Alston I indictment, the Alston II indictment alleged

criminal acts that occurred during Ms. Alston’s term of office.

The two cases were set for separate trial dates before the

Honorable Paul F. Harris, Jr. of the Circuit Court for Anne

Arundel County. Alston II was scheduled for trial first and, on

June 12, 2012, a jury returned a guilty verdict on both counts:

misdemeanor theft and misconduct in office. Judge Harris

deferred sentencing until November 5, 2012. Trial of Alston I

was scheduled to begin on October 9, 2012. Rather than proceed

to trial, however, on October 9, 2012, Ms. Alston entered into a

plea agreement to resolve both Alston I and sentencing in Alston

II.

For purposes of this opinion, the critical terms of the

agreement approved by Judge Harris are:

On the fraudulent misappropriation by a

fiduciary count of Alston I, Ms. Alston pled

nolo contendere or “no contest.” Judge

1

Because we have provided this Opinion on an expedited basis,

our description of the circumstances surrounding Ms. Alston’s

prosecution and conviction is based entirely on the facts as described

by Mr. Friedman and by Ms. Alston’s counsel.

60 [97 Op. Att’y

Harris accepted the nolo contendere plea, but

struck the guilty finding and stayed entry of

judgment pursuant to CP § 6-220(b)

(“probation before judgment”). Ms. Alston

was also given three years of unsupervised

probation and served with a civil citation in

the amount of $500.

On the misdemeanor theft charge of Alston

II, on which she had been found guilty by the

jury on June 12, Judge Harris also struck the

guilty finding and granted Ms. Alston

probation before judgment.

On the misconduct in office charge of Alston

II, Judge Harris sentenced Ms. Alston to one

year of incarceration, suspended, 3 years of

supervised probation, 300 hours of

community service, and restitution to the

State of Maryland in the amount of $800.

As part of the agreement, Ms. Alston waived all appellate rights.

Ms. Alston’s waiver is recorded on the criminal hearing sheets

pertaining to her charges.

Finally, the letter agreement also contained a provision

allowing Ms. Alston to “earn” a modification of her sentence for

the misconduct in office charge of Alston II:

The Defendant may seek a Modification of

Sentence requesting probation before

judgment on the misconduct in office

conviction. The State shall remain silent and

the Court agrees to bind itself to striking the

guilty conviction and granting Ms. Alston

probation before judgment on Count 2 in

case #K-11-2626 immediately upon (i)

completion of three hundred hours of

community service, (ii) payment of $800.00

in restitution, and (iii) payment of a non-

criminal civil citation fine in the amount of

$500.

Despite the quoted text of the letter agreement, Judge Harris

stated in open court, on October 9, 2012, that he was not bound to

grant the modification, though he would entertain it once she had

fulfilled the terms of her sentence. Ms. Alston promptly filed the

necessary motion for modification and asked that it be held sub

curia pending completion of the community service and payment

of the restitution.

Gen. 58] 61

Mr. Friedman’s Advice on the Suspension and Removal of Ms.

Alston

On October 10, 2012, Mr. Friedman advised Speaker Busch

that, by virtue of Ms. Alston’s having received a sentence for the

crime of misconduct in office, Ms. Alston had been “suspended

from elective office by operation of law without pay or benefits.”

Letter of Advice from Dan Friedman, Assistant Attorney General,

to the Honorable Michael E. Busch, Speaker of the House of

Delegates (Oct. 10, 2012). It is our understanding that Speaker

Busch relied upon this advice and has since taken the necessary

steps to effectuate the suspension. The propriety of Ms. Alston’s

initial suspension is not at issue and is not addressed in this

Opinion.

Because of the urgent need to ascertain Ms. Alston’s status,

Mr. Friedman provided the Speaker with expedited advice on the

pressing issue of Ms. Alston’s suspension and left for another day

the issue of whether Ms. Alston’s conviction had resulted in her

permanent removal from office. The need for advice on the

removal issue soon arose, however, and Mr. Friedman provided a

second letter of advice, dated November 1, 2012, in which he

concluded that Ms. Alston had been removed from office by

operation of law by virtue of her conviction on the misconduct in

office charge and her waiver of appellate rights with respect

thereto. It is the conclusion that Mr. Friedman reached in this

second letter of advice that you have asked us to review.

The Trial Court’s Modification of Ms. Alston’s Sentence

It is our understanding that a hearing on Ms. Alston’s motion

for modification was held on November 5, 2012, at which point

Ms. Alston stated that she had paid the restitution and had

completed her community service obligations. After the State

Prosecutor proffered evidence to the contrary, the case was

continued to November 13, 2012, at which point Ms. Alston

indicated that she had carried out additional community service

since her previous court appearance. Judge Harris granted the

motion for modification, struck the finding of guilt, and entered

probation before judgment on the one count—misconduct in

office—for which she had been sentenced. Ms. Alston remains

under three years of supervised probation.

62 [97 Op. Att’y

II

Analysis

A. The Relevant Constitutional Provision

Article XV, § 2 of the Maryland Constitution provides for

the suspension and removal of elected officials who are convicted

of certain crimes:

Any elected official of the State, or of a

county or of a municipal corporation who

during [her] term of office is convicted of or

enters a plea of nolo contendere to any crime

which is a felony, or which is a misdemeanor

related to [her] public duties and

responsibilities and involves moral turpitude

for which the penalty may be incarceration in

any penal institution, shall be suspended by

operation of law without pay or benefits from

the elective office. During and for the period

of suspension of the elected official, the

appropriate governing body and/or official

authorized by law to fill any vacancy in the

elective office shall appoint a person to

temporarily fill the elective office, provided

that if the elective office is one for which

automatic succession is provided by law,

then in such event the person entitled to

succeed to the office shall temporarily fill the

elective office. If the conviction becomes

final, after judicial review or otherwise, such

elected official shall be removed from the

elective office by operation of Law and the

office shall be deemed vacant. If the

conviction of the elected official is reversed

or overturned, the elected official shall be

reinstated by operation of Law to the elective

office for the remainder, if any, of the

elective term of office during which [she]

was so suspended or removed, and all pay

and benefits shall be restored.

Md. Const., Art. XV, § 2. This provision creates a two-step

process: An elected official who is convicted of a qualifying

crime is suspended; if the conviction is “reversed or overturned”

the elected official is reinstated to office, but if the conviction

“becomes final,” i.e., is upheld “after judicial review,” the

removal becomes permanent.2

2

During the 2012 legislative session, the General Assembly

unanimously proposed a constitutional amendment that substantially

Gen. 58] 63

B. Removal Analysis

Mr. Friedman concluded that Ms. Alston was removed from

office by virtue of having been convicted of common law

misconduct in office. Mr. Friedman expressed “no doubt” that

this is a qualifying crime under Article XV, § 2 and that, upon

Judge Harris’s imposition of a sentence, the charge became a

“conviction” and thus became a proper basis for her suspension

from the legislature under Article XV, § 2. See 62 Opinions of

the Attorney General at 371. These conclusions do not appear to

be in question here and we see no basis on which to doubt their

accuracy.3

The question you have asked us to review can be distilled to

whether Ms. Alston’s conviction has “become[] final, after

judicial review or otherwise,” thus causing her to be permanently

removed from elective office, or whether the trial court’s

subsequent modification of her sentence to probation before

judgment means that her conviction has been “reversed or

overturned,” thereby allowing Ms. Alston to be reinstated. It is

our view that the former is the case and that Ms. Alston’s

conviction was rendered final by virtue of her receiving a

conviction and, simultaneously, forfeiting her appellate rights and

by her failure to file any residual appeal she may have had within

the thirty days allowed under Rule 8-202(a). At that time, Ms.

Alston’s conviction was final and could no longer be “reversed or

modified Art. XV, § 2 by (1) accelerating the trigger for suspension

from “conviction,” which occurs at sentencing, 62 Opinions of the

Attorney General 365, 371 (1977), to the time of a guilty verdict; and

(2) mandating immediate and automatic removal for guilty pleas and

nolo contendere pleas for qualifying crimes. 2012 Md. Laws, ch. 147.

On November 6, 2012, the voters adopted the new constitutional

amendment by a greater than seven to one margin. See Unofficial 2012

Presidential General Election results for All State Questions (available

at http://elections.state.md.us/elections/2012/results/general/gen

_qresults_2012_4_00_1.html (last visited Nov. 19, 2012)) (reporting

that 88% voted to approve Question 3). The amendment will become

effective upon the Governor’s proclamation that it has been adopted by

the voters. Art. XIV, § 1.

3

We also do not express an opinion on Mr. Friedman’s conclusion

that the other charges on which Ms. Alston was found guilty could not

serve as the basis of suspension or removal. With respect to her

misdemeanor theft charge, Mr. Friedman concluded that the charge had

not become a “conviction” because Ms. Alston received probation

before judgment. With respect to her charge of misappropriation by a

fiduciary, Mr. Friedman stated that, while the issue “is not entirely

clear at this time,” he believed that, because the count related to the use

of her campaign funds, it was not “‘related to [her] public duties and

responsibilities.’”

64 [97 Op. Att’y

overturned” by an appellate court so as to allow her to be

reinstated. Rather, her conviction became final, not by “judicial

review,” but “otherwise,” by her waiver of, and failure to

exercise, her appeal rights.

1. Interpretation of Article XV

Inasmuch as this issue raises a matter of constitutional

construction, we believe it helpful to review the analysis that the

Court of Appeals has prescribed when interpreting “a particular

provision, be it statutory, constitutional or part of the Rules”:

We begin our analysis by first looking to the

normal, plain meaning of the language of the

statute, reading the statute as a whole to

ensure that no word, clause, sentence or

phrase is rendered surplusage, superfluous,

meaningless or nugatory. If the language of

the statute is clear and unambiguous, we need

not look beyond the statute’s provisions, and

our analysis ends. If, however, the language

is subject to more than one interpretation, or

when the language is not clear when it is part

of a larger statutory scheme, it is ambiguous,

and we endeavor to resolve that ambiguity by

looking to the statute’s legislative history,

case law, and statutory purpose, as well as

the structure of the statute.

People’s Ins. Counsel Div. v. Allstate Ins. Co., 408 Md. 336, 351

(2009) (internal quotation marks omitted). The interpretation of

Article XV invokes all of these interpretive steps.

We believe the plain language and structure of Article XV, §

2, when read as a whole, describes a binary outcome: When an

elected official is convicted of a qualifying crime, she is

suspended from office pending any appeal. In that event, “[i]f the

conviction of the elected official is reversed or overturned, the

elected official shall be reinstated by operation of Law.” If,

however, “the conviction becomes final, after judicial review or

otherwise, such elected official shall be removed from the elective

office by operation of Law and the office shall be deemed

vacant.” When these passages are read together, the natural

meaning thereof becomes clear: If the official wins her appeal,

she is reinstated; if she loses her appeal or fails to appeal

altogether, she is removed. This binary interpretation does no

violence to the words of Article XV and is consistent with how

we have previously characterized the effect of the provision. See,

e.g., 62 Opinions of the Attorney General 365, 368 (1977)

(describing the legislative history of Article XV and observing

Gen. 58] 65

that the final version of the amendment “established a suspension-

removal procedure under which suspension from office would

occur upon conviction of a crime and removal would occur if the

conviction were upheld on appeal”); 62 Opinions of the Attorney

General 464, 477 (1977) (observing that Article XV specifically

contemplates “the possible reinstatement to office of an official

whose conviction is overturned on appeal”).

When we apply this interpretation to the facts of Ms.

Alston’s prosecution as we understand them, her conviction

became final, not by “judicial review,” but “otherwise,” because

she waived her right to appeal her conviction. We realize in this

respect that criminal defendants retain certain limited rights to

appeal their convictions even in cases where they have seemingly

waived all rights of appeal. See, e.g., Md. Code Ann., Cts. & Jud.

Proc. § 12-302(e) (allowing for review of judgment entered

following a plea of guilty). But because Ms. Alston was found

guilty of, as opposed to having pled to, the charge that resulted in

her removal, she was required to file any such appeal—again, if

one remained available—within 30 days of her conviction, Md. R.

8-202, which Ms. Alston failed to do. Thus, by the time Judge

Harris exercised his revisory power and granted Ms. Alston

probation before judgment, the conviction had become final for

purposes of Article XV.

We are aware that the 1974 legislative history of Article XV,

§ 2 provides some support for the view Ms. Alston espouses,

namely, that the term “judicial review” is broader than “appeal.”

As initially introduced, the proposed constitutional amendment

would have required permanent removal immediately upon

conviction, “notwithstanding any appeal which may be taken.”

Senate Bill 671 (1974) (emphasis added). The Senate amended

the proposal to create the two-step process of suspension and

removal that we are now familiar with, and likewise made the

process dependent on the outcome of an “appeal”:

If, after exhaustion of any appeal as a matter

of right within the court system in which the

elected official is so convicted, the

conviction is upheld, such elected official

shall be removed from the elective office by

operation of law. . . . If the conviction of the

elected official is reversed or overturned on

any appeal as a matter of right as provided

above, the elected official shall be reinstated

by operation of law. . . .

Maryland Senate Journal, Vol. II at 1914 (1974) (emphasis

added). The House of Delegates appears to have amended the

proposal further to arrive at the current language, “becomes final,

after judicial review or otherwise.” Maryland House Journal,

66 [97 Op. Att’y

Vol. II at 4365 (1974). The Senate then concurred in the House’s

amendment and it was that version that was approved by the

voters. Maryland Senate Journal, Vol. II at 3072; see also 1974

Md. Laws, ch. 879.

We acknowledge that this history could be seen as evidence

that the Legislature intended to make a distinction between an

“appeal” and “judicial review,” as Ms. Alston contends, and,

consequently, that an argument could be made that the trial

court’s revisory power, though not an appeal, is encompassed

within the term “judicial review.” But we think such a

construction places too much weight on a distinction that, we

believe, was not intended.

As the Court of Appeals explained in Gisriel v. Ocean City

Board of Supervisors, it was not uncommon in the early 1970s for

the Judiciary and the Legislature alike to conflate the concepts of

“appeal” and “judicial review”:

Section 12-302(a) [of the Courts & Judicial

Proceedings Article] was enacted by the

General Assembly in 1973, and the opinion

in Shell Oil Co. v. Supervisor, [276 Md. 36

(1975)], was rendered two years later in

1975. Prior to the opinion in the Shell Oil

case, and at the time § 12-302(a) was

enacted, statutory circuit court actions for

judicial review of decisions by administrative

agencies or local legislative bodies were

regularly called “appeals” and treated as if

they fell within the appellate jurisdiction of

the circuit courts. See, e.g., Criminal Inj.

Comp. Bd. v. Gould, [273 Md. 486 (1975)]

(using, throughout the opinion, the terms

“appeal” and “appellate” jurisdiction

interchangeably with the term “judicial

review”).

345 Md. 477, 493 (1997). Although Gisriel, Shell Oil, and Gould

involved distinctions between the circuit court’s original and

appellate jurisdiction with respect to the review of administrative

agency action—an issue not at play here—the courts’ conflation

of the terms “appeal” and “judicial review” gives us reason to

doubt that the Legislature intended the meaning of “judicial

review” that Ms. Alston ascribes to it.

Perhaps more importantly, Ms. Alston’s interpretation would

require us to read the words “reversed or overturned” as including

the word “modified” and require us to understand “revers[ing]”

and “overturn[ing]” as actions that may be taken by a trial court.

Gen. 58] 67

In our view, these words are more normally and naturally

understood as actions taken exclusively by appellate courts. We

note in this respect that, while “judicial review” is still used to

refer to a court’s review of both agency decisions and lower court

decisions, See, e.g., S. Easton Neighborhood Ass’n v. Town of

Easton, 387 Md. 468, 476 (2005) (“Further judicial review of the

Circuit Court’s order upholding the Town Council’s decision to

close Adkins Avenue cannot be maintained as an action for

judicial review of an administrative agency’s decision.”), we are

not aware of any instance in which it has been understood to refer

to a court’s review of its own decision.

The Maryland Rules bear this out. The Rules do not use the

terms “reverse” or “overturn” to describe the circuit courts’

actions with regard to their own judgments. See, e.g., Md. R. 4-

332(l) (using “set aside” for purposes of writs of actual

innocence); 4-331 (using the terms “revise” and “set aside” for

purposes of motions for new trial). Rule 4-345—which formed

the basis for Judge Harris’s revision of Ms. Alston’s sentence—

uses many words to describe its effect but never “reverse” or

“overturn.” See generally Md. R. 4-345 (using terms “correct,”

“modify,” “reduce,” “vacate,” and “revise”). Given that the

circuit courts do not engage in “judicial review” of their own

decisions, we believe the term “judicial review,” as used in

Article XV, § 2, means “appeal.”

2. A Trial Court’s Modification of the Sentence it

Imposed Does Not Constitute Judicial Review and

Does Not “Reverse or Overturn” the Trial Court’s

Sentence.

We believe that the interpretation of Article XV that we

reach is consistent with our understanding of motions for

modification as collateral criminal remedies (a category which

also includes post-conviction, writs of mandamus and coram

nobis, and pardons and commutations) that may be granted after a

criminal conviction becomes final. See generally Michael A.

Millemann, Collateral Remedies in Criminal Cases in Maryland,

An Assessment, 64 Md. L. Rev. 968 (2005). Historically, the

power of Maryland trial judges to revise criminal sentences was

unique, both as compared to other states and other areas of the

law. See Steven Grossman & Stephen Shapiro, Judicial

Modification of Sentences in Maryland, 33 U. Balt. L. Rev. 1

(2003). So long as a motion for modification was filed within 90

days of sentence and held sub curia by the trial court, it could be

granted at any time thereafter. Id. at 4-7 (discussing Greco v.

State, 347 Md. 423 (1997); State v. Robinson, 106 Md. App. 720

(1995)).

In 2004, the rule was modified to create the current 5-year

limit on the trial court’s revisory power, but during that 5-year

68 [97 Op. Att’y

period, the trial judge remains free to modify any sentence on a

timely filed motion:

Upon a motion filed within 90 days after

imposition of a sentence . . . in a circuit court,

whether or not an appeal has been filed, the

court has revisory power over the sentence

except that it may not revise the sentence

after the expiration of five years from the

date the sentence originally was imposed on

the defendant and it may not increase the

sentence.

Md. R. 4-345(e)(1). Although the revisory power is now time-

limited, Rule 4-345 does not limit the types of crimes to which it

may be applied. As a result, the trial court could, upon the

defendant’s timely motion and at any time up to five years,

exercise its revisory power to strike the lengthy prison term of an

elected official convicted of manslaughter and grant him or her

probation before judgment. Under Ms. Alston’s reading of the

law, the fact that such a motion was pending would forestall

removal of the elected official, potentially for as long as four

years—the duration of an elective term of office. Md. Const.,

Art. XVII, § 1 (limiting the terms of elected officials to 4 years).

We believe that the potential for this and similar scenarios

illustrates that the term “judicial review” cannot be interpreted to

include the trial court’s exercise of revisory power, and that the

contrary conclusion would be impossible to reconcile with the

public policy that lies behind Article XV.

Furthermore, like other collateral criminal remedies, the

revisory power available under Rule 4-345 provides for remedies

that may be granted after a criminal conviction becomes final, not

before. See State v. Griffiths, 338 Md. 485, 496 (1995)

(describing Rule 4-345 as providing “a method of opening a

judgment otherwise final and beyond the reach of the court.”).

That Judge Harris “struck” Ms. Alston’s guilty verdict and

conviction and granted her probation before judgment does not

mean that the conviction never occurred for purposes of Article

XV. We realize that probation before judgment is not always

considered a conviction when imposed at trial. See Myers v.

State, 303 Md. 639, 647-48 (1985); but see Abrams v. State of

Maryland, 176 Md. App. 600, 612 (2007) (discussing Myers and

observing that, “[i]n later cases, whether a probation before

judgment constituted a ‘conviction’ again depended on the

context and purpose of the use of the term ‘conviction’”); id. at

617 (“[W]e hold that, where a probation before judgment subjects

a person to significant collateral consequences, such probation

before judgment constitutes a ‘conviction’ for purposes of coram

nobis relief.”). But in this respect, timing is important. Had

Gen. 58] 69

Judge Harris granted Ms. Alston probation before judgment up

front—as he did with respect to the guilty verdict on Ms. Alston’s

misdemeanor theft charge—she would not have received a

“conviction” and would not have been removed pursuant to

Article XV. But because Judge Harris sentenced Ms. Alston, she

was “convicted” for purposes of Article XV and removed from

office, and the court’s later exercise of revisory power—whether

within thirty days or thirty months after the conviction—cannot

not undo that fact. The bell cannot be unrung.

3. The Legislative Purpose of Article XV Weighs

Against the Interpretation Ms. Alston Advocates.

The reading we ascribe to Article XV furthers its primary

purpose, which is plainly to remove from office those elected

officials who are found guilty of crimes that undermine the public

trust in and the integrity of the General Assembly. 4 As the Court

of Appeals stated in People’s Counsel, “[i]n statutory

interpretation, our primary goal is always to discern the legislative

purpose, the ends to be accomplished, or the evils to be remedied

by a particular provision, be it statutory, constitutional or part of

the Rules.” People’s Ins. Counsel Div., 408 Md. at 351 (internal

quotation marks omitted).

It is important in this respect to recognize that Judge Harris

expressly stated—both in open court and in court documents—

that he was modifying Ms. Alston’s sentence because she had

fulfilled her rehabilitative obligations and not because he had

changed his view as to her criminal responsibility. Modifying

Ms. Alston’s sentence in this respect may have been worthwhile

from a correctional perspective; sentence modification can be a

“powerful incentive” toward rehabilitation or restitution. Judicial

Modification of Sentences in Maryland, 33 U. Balt. L. Rev. at 3.

And if Ms. Alston has paid her debt to society, it may make sense

to strike her conviction so that it will not impair her prospects for

future employment or even public service, if subsequently chosen

by the electorate. But the purposes served by Article XV, like

other professional responsibility provisions, are not punishment,

but preservation of the public trust. Cf. Attorney Grievance

Comm’n v. Gerald Isadore Katz, No. 86, Sept. Term 2011, at 12

(Md., Nov. 19, 2012) (purpose of attorney grievance process is

4

The General Assembly’s unanimous adoption of the proposed

constitutional amendment, and the voters’ approval of that amendment

by a greater than 7 to 1 margin, though not evidence of the legislature’s

intent in enacting Article XV, § 2, demonstrates that preserving the

integrity of the institution remains a uniformly held policy goal.

Unofficial 2012 Presidential General Election results for All State

Questions (available at http://elections.state.md.us/elections/2012/

results/general/gen_qresults_2012_4_00_1.html (last visited Nov. 19,

2012)) (reporting that 88% voted to approve Question 3).

70 [97 Op. Att’y

“not to punish the errant attorney, but rather . . . to maintain

public trust in the legal profession by demonstrating intolerance

for unprofessional conduct”) (internal quotation marks omitted);

compare 65 Opinions of the Attorney General 445, 449 (1980)

(observing that “the primary purpose of Article XV, § 2 clearly is

to provide for the suspension from office of a convicted official; it

is not concerned with the treatment of an official convicted after

his term of office”). As we observed about Article XV soon after

its approval:

It is essential to our government that public

officials have the confidence of the people.

That confidence cannot extend to an official

under conviction for malfeasance in office.

His rights are subordinate to the public weal.

The possibility that his conviction may

ultimately be reversed cannot weigh against

public dissatisfaction with, and public

mistrust of him pending appellate hearing.

Public policy demands a rigid construction of

this law as well as its enforcement.

62 Opinions of the Attorney General 368-69 (1977) (quoting State

v. Levi, 109 W. Va. 277, 279-80, 153 S.E 587, 588-89 (1930)).

We cannot see how allowing Ms. Alston to retain her seat despite

her guilty finding and conviction does anything to restore public

trust in our elected officials or the institutions in which they serve.

The voters’ recent approval of Question 3, we believe, is strong

evidence that the contrary is true, that the reinstatement of Ms.

Alston will undermine the same public values that Article XV

was intended to enforce. Question 3 amends Article XV to

accelerate the process by which officials found guilty of criminal

wrongdoing are removed from office. Just as the initial approval

of Article XV, § 2 “was proposed and ratified by the voters of this

State in 1974 following the convictions of certain elected

officials,” 62 Opinions of the Attorney General at 367-68 (citing

Green v. State, 25 Md. App. 679 (1975), and Maryland State Bar

Association v. Agnew, 271 Md. 543 (1974)), see also Letter of

Advice to Del. Jill P. Carter from Assistant Attorney General

Kathryn M. Rowe (Nov. 20, 2012), the approval of Question 3

came after a series of instances in which prominent officials were

found guilty of a jury of their peers but refused to leave office,

managing instead to remain in office for extended periods of time

prior to sentencing. The voters’ overwhelming approval of

Question 3, and the modifications to Article XV it proposed,

provides recent and resounding confirmation of the meaning we

ascribe to Article XV. 5

5

Because our conclusions are based on other grounds, it is

unnecessary to consider whether the ratification of the amendments to

Gen. 58] 71

* * *

Finally, we confirm Mr. Friedman’s conclusion that Ms.

Alston’s removal from elective office pursuant to Art. XV, § 2

applies only to the current term of office. That conclusion reflects

the interpretation long held by this Office that the term is part of

the office itself. See 83 Opinions of the Attorney General 109

(1998); Letter of Advice to Theodore P. Weiner from Assistant

Attorney General Linda H. Lamone (Aug. 15, 1986).

Accordingly, absent further developments, Ms. Alston will be

eligible to run for election in 2014 or beyond. However, that

same interpretation yields the conclusion that Ms. Alston may not

be re-appointed to her seat during the current term of office. See

Letter of Advice to Del. Jill P. Carter from Assistant Attorney

Kathryn M. Rowe (Nov. 20, 2012).

III

Conclusion

For all of these reasons, we think that the better and more

natural interpretation of the constitutional provision as applied to

this set of circumstances is that Ms. Alston’s suspension from

elective office became a final removal when she forfeited her

rights to appeal from the conviction. Therefore, in our view, she

was removed from office by operation of law on October 9, 2012.

Douglas F. Gansler

Attorney General

Adam D. Snyder

Chief Counsel

Opinions & Advice

Article XV, § 2 would alter the timing of Ms. Alston’s initial

suspension.