Cecil County Exec’s ‘Unaffiliated’ Party Move, Appointment of Bowlsbey to Council Upheld by Judge; Smigiel Suit Dismissed
A Circuit Court judge has thrown out a lawsuit by Del. Michael Smigiel challenging the appointment of Joyce Bowlsbey to the Cecil County Council, ruling there was “no support whatsoever” in the law for Smigiel’s claims and noting that the delegate hadn’t even bothered to respond to county legal arguments in the case although he was given an extended period of time to do so.
Circuit Court Judge Thomas E. Marshall– a visiting judge who decided the case after local Cecil County judges recused themselves from hearing it– dismissed Smigiel’s lawsuit, saying that he failed to assert proper “standing” to sue and that his arguments misconstrued the “plain language” of the county Charter dealing with appointments and vacancies on the Council.
Tari Moore switched her political party registration from Republican to “unaffiliated” shortly before resigning her seat on the Board of Commissioners/County Council to become Cecil County’s first County Executive last December. Under the county’s Charter, that step put the decision on filling the legislative vacancy solely into the hands of the County Council. The Council deadlocked, 2-2, even on how to proceed with filling the vacancy, so under the Charter the decision was up to Moore.
Had Moore remained a Republican, the county’s GOP Central Committee would have had the power to draw up a list of three Republicans’ names from which the Council would choose an appointee. The GOP committee is controlled by the Smipkin political organization led by Smigiel and, formerly, Sen. E.J. Pipkin who recently resigned his own legislative seat and moved to Texas.
Moore appointed Bowlsbey, a Republican and longtime community volunteer and civic group leader, to fill the Council seat in January. But Smigiel filed suit seeking to block the appointment and mandate the involvement of the GOP committee, and he threw in lots of political attacks on Moore, whom he accused of “deception” and staging a “coup” of county government.
[“Now I can hang the pictures on my wall,” Bowlsbey said with a laugh, responding to the court ruling. “I’m glad this is over now,” she said, adding, “I believe I’ve demonstrated that I can do this job.” Bowlsbey has announced that she plans to run for election to her District 2 seat in the 2014 election.]
The crux of Smigiel’s lone legal filing in the case was his contention that the Charter is “poorly written” and vague on procedures for filling a vacancy and the act of Moore changing her political party registration from Republican to “unaffiliated” did not really change her longstanding “affiliation” and identification with the Republican party.
The judge found that there was “no support whatsoever” in the law or the county Charter for Smigiel’s claims, writing that “since Ms. Moore was not a member of a political party when she resigned, her successor may be appointed without regard to the appointee’s political affiliation.”
Judge Marshall also found that Smigiel’s lawsuit, which listed Chris Zeauskas—the chairman of the local GOP Central Committee– as the lone plaintiff, failed to meet basic tests of “standing” to sue. The judge noted that nowhere in the Smigiel suit did he name the full GOP Central Committee as a party to the suit and that Zeauskas failed to show “any particularized harm” that he might suffer.
(Zeauskas’ name was included on a list of three names that the GOP committee sent to the County Council, but the Council chose not to act on those names or any other potential candidates.)
And the judge noted that even though the county’s legal papers emphasized the “standing” of Zeauskas alone as the plaintiff, Smigiel did nothing to revise his filings. “Having had ample notice of Defendants’ challenges based on standing, Plaintiff has eschewed the opportunity to amend his complaint even in light of the motions to dismiss,” Judge Marshall wrote.
That’s not the only “opportunity” that Smigiel missed, according to the opinion.
Smigiel used his status as a state Delegate to obtain a postponement of a hearing in the case that had been scheduled for 3/18/13, while the General Assembly was in session. Then the county’s lawyers, who had filed copious legal arguments with the court to which Smigiel had not filed any response, decided to withdraw a request for an April hearing and just have the case decided by the judge on the basis of the legal briefs.
Judge Marshall noted in his opinion that Smigiel was also given an extra month to file a response to the county’s motion to dismiss his suit, but “Notwithstanding the grant of the requested extension, no answer has been filed.”
In non-legalese, Smigiel didn’t bother to file the paperwork to bring in the full Central Committee as a plaintiff that might have helped his legal case nor did he bother to file any response to the county’s legal arguments and their motion to dismiss his suit.
Even if Smigiel didn’t bother to take such steps, the county had to treat his lawsuit seriously, employing the services of the county attorney, Jason Allison, and an outside legal counsel from Baltimore County who specializes in local government law. The Smigiel lawsuit is believed to have cost county taxpayers about $30,000 in legal fees, sources said.
[UPDATE: Allison told Cecil Times the ruling was “significant” because the judge spelled out the procedural history of the Charter provisions and why the process used to fill the vacancy was fully compliant with the Charter. The judge could have simply dismissed the suit, based on the “standing” question, without addressing underlying issues raised in the suit but he did not, Allison added.
Smigiel could still file a motion to reconsider the ruling or file an appeal to the state Court of Special Appeals, Allison noted. The county attorney said local officials are exploring possible steps to recoup some of their legal costs incurred due to Smigiel’s action.]
But from the outset, Smigiel’s lawsuit was more about politics than legal fine points. The Smipkin political group financed negative robocalls and attack mailers against Moore during the GOP primary campaign last year. He also threw in an unrelated issue—Moore’s administrative action to send a “tier” land use map to the state to comply with a mandated deadline—that had nothing to do with the Council appointment process.
The judge dismissed the tier map claim in one sentence without getting into any of the details of the land use issue.
Smigiel is zero for zero in legislative appointment battles lately: the four GOP Central Committees in the 36th Distinct deadlocked on whether to support him, or Steve Hershey of Queen Anne’s County, for appointment to Pipkin’s vacated Senate seat. After a bitter fight in which Smigiel claimed that “outside forces” had conspired against him, he won a majority of the Queen Anne’s panel on a second-round vote, along with the Cecil GOP nod. But Kent and Caroline counties picked Hershey, so Gov. O’Malley was empowered under the state Constitution to break the deadlock.
O’Malley picked Hershey, based on his larger vote count in the last general election and higher tally of total votes among individual members of the GOP panels in the vacancy review process.