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Md. death-penalty repeal bill spending provision raises questions

Maryland Gov. Martin O'Malley speaks at a rally in support of repealing the state's death penalty in Annapolis last month. (AP Photo/Patrick Semansky)

Several leading Maryland lawmakers, including Senate President Thomas V. Mike Miller Jr. (D-Calvert), have said that they expect voters to have the final word on whether the state repeals the death penalty.

But it remains an open question whether the repeal bill sponsored by Gov. Martin O’Malley (D) could be petitioned to referendum if it passes the legislature.

The Maryland Constitution allows citizens to petition just-passed laws to the ballot if they collect enough signatures. But there’s an exception for laws “making any appropriation” — and O’Malley’s bill does propose spending some money.

Besides repealing the death penalty, the bill also directs the governor to put $500,000 a year into a fund for crime victims.

Even so, it is “more likely than not” that a court would allow a petition effort to go forward, according to an advisory letter written last week by a lawyer in the Attorney General’s Office.

“Arnold Palmer once said that ‘golf is deceptively simple and endlessly complicated.’ So too is the exception from referendum for a law ‘making any appropriation for maintaining the state government,’” wrote Sandra Benson Bradley, an assistant attorney general who advises the legislature.

In her seven-page letter, requested by Sen. James Brochin (D-Baltimore County), Brantley wrote that the “key question” is whether a court would find that the appropriation in the bill is “incidental” to the repeal of the death penalty or “a dominant purpose.” She predicts the court would see it as incidental.

If a repeal bill passes, it would be up to the State Board of Elections to determine whether to allow it to be petitioned to the ballot. A challenge could follow in court either way.

In November, Maryland voters faced ballot measures on three high-profile issues that had been petitioned to the ballot: same-sex marriage, in-state college tuition for illegal immigrants and congressional redistricting.

Several lawmakers are looking at ways to make it more difficult to put an issue on the ballot. Under current rules, citizens must collect signatures equaling 3 percent of voters in the previous governor's election.

John Wagner is a political reporter covering the race for the 2016 Democratic presidential nomination.

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