Just over a year after a circuit court judge upheld a decision by the Board of Charles County Commissioners to bar District 2 Commissioner Thomasina Coates (D) from voting on the employment contract of the current county administrator, attorneys for both sides returned to court last week to argue whether the ruling should be overturned.
Attorneys representing Coates and her opponents — District 3 Commissioner Amanda M. Stewart (D) and District 1 Commissioner Gilbert Bowling III (D) — participated in oral arguments before a three-judge panel of the Appellate Court of Maryland on Oct. 7, where they responded to probing and at times confrontational questioning from Judge Douglas R.M. Nazarian and Judge Daniel A. Friedman throughout the 50-minute session.
Coates appealed the circuit court ruling last October, arguing among other things that Circuit Court Judge Leo E. Greene Jr. made several key errors and abused his discretion. Both parties filed their briefs in the appeal earlier this year. Oral arguments afford appellate court judges an opportunity to raise specific questions about the contents of the briefs to help them draft their decision, called an opinion.
The oral arguments were divided into three sections: the appellant’s arguments (20 minutes), the appellee’s arguments (20 minutes), and the appellant’s rebuttal (five minutes). We’ll take each one in turn. Please note that this story focuses on summarizing the questions raised by the judges and the lines of argument by counsel; it is not intended to be a “blow-by-blow” account of the proceedings, which are worth watching in their entirety.
Appellant Arguments
Nazarian’s questions for Mariam Tadros, Coates’ counsel, mainly focused on the question of whether the set of restrictions placed on Coates by the county commissioners in June 2020 — called the “prompt and remedial action” or “PRA” for short — was a law enacted by the commissioners in their capacity as legislators, as Coates contends, and not a disciplinary action taken by them in their role as personnel administrators.
Throughout the case, Coates’ legal team has argued that the PRA is a legislative act and, as such, represents an unconstitutional “bill of attainder,” which is a law designed to punish a person without affording them due process. Furthermore, if the PRA is a law, then the circuit court did not have the authority to rule on its validity because that would be a violation of the separation of legislative and judicial powers.
Acknowledging that he found it “weird and challenging” that the commissioner form of government allowed the Charles County Board of County Commissioners to perform legislative, quasi-judicial, and executive roles without clear demarcation, Nazarian aggressively probed Tadros’ argument by applying the same line of reasoning to the thwarted effort by Coates and two other commissioners to fire Belton in December 2022 during a closed session of the board.
If it was true that the only way that the commissioners could undertake a human resources action was through legislation, Nazarian asked, then would not the vote to fire Belton have been a legislative action? And since it was clearly directed at a single person with the intent of firing him — i.e., punishing Belton without affording him due process — how would that not be a bill of attainder?
“That’s the loop you’re in, right?” Nazarian asked. “If, in order to deal with Mr. Belton as an employee, their only recourse is to pass legislation, how’s that not a bill of attainder?”
“Well, because the second prong of a bill of attainder is that it has to inflict punishment upon Mr. Belton, and that would not be inflicting any punishment upon him,” Tadros responded, though later in the rapid-fire and often confusing exchange Tadros appeared to acknowledge that the termination of his employment could be seen as a punishment.
Tadros pointed out that, prior to the enactment of the PRA, the county commissioners did not have guidance in place for dealing with elected officials who had been found to have created a hostile work environment.*
“If a majority of the commission[ers] is persuaded that Commissioner Coates has created a hostile work environment vis-a-vis Mr. Belton, what can they do about it?” Nazarian asked.
“They would’ve had to enact legislation that deals with what happens when a commissioner is acting in a hostile work environment and then execute the fines that are allowable by statute,” Tadros replied. “They did not do that.”
Appellee’s Arguments
In questioning the counsel for Stewart and Bowling, Nazarian sought to clarify the authority by which the commissioners enacted the PRA. Anthony May, representing the commissioners, argued that the authority derived from two principles, the first of which was based on case law as well as “common sense and morality.”
“When you’re … put on notice that somebody is subjecting somebody to employment discrimination, you can’t put your head in the ground. You’ve got to do something. So that’s the first principle,” May said. “The second principle is here because they were acting as an employer in this case, what they had to do was look to see whether or not there was any sort of conflict that would require Thomasina Coates to not take any sort of vote … on Mr. Belton’s status as an employee.”
May argued that there is a “whole breadth of Fourth Circuit case law … when an employer is faced [with] and has knowledge of employment discrimination, it has to take an act, otherwise it’s opening up itself up for liability. … And that’s what happened here.”
Nazarian also sought clarification from May on why the circuit court ruling took the form of a permanent injunction, rather than a preliminary one as originally sought when Stewart and Bowling filed the lawsuit at the end of December 2022.
“I think the short answer would be judicial efficiency,” May said. “The reason [Judge Green] said ‘permanent’ was because by the end of that hearing, there was nothing else left to present. There was no additional defense.”
“I bet you Commissioner Coates might say, ‘Well, there was a bunch of discovery I wanted to do and that I was precluded from doing, and I anticipate the possibility of having a trial on the merits because this was just a preliminary injunction,’ and then all of a sudden, boom, it’s … a permanent injunction,” said Nazarian. “I was struck by the light-speed evolution of the endpoint from preliminary to permanent, and whether that happened correctly.”
Following the circuit court ruling, Coates did in fact file a motion for Green to reconsider the ruling for that reason, arguing that the court had “yet to adjudicate any of the claims alleged in the [original complaint] on the merits.”
Green declined to reconsider, citing his discretion under the Maryland Rules to grant an injunction at any stage of the proceedings if he believed it was warranted by the evidence.
In its motion to reconsider, May explained, “the court said, ‘There’s nothing else that I could hear. There’s no other evidence. They’ve actually proven their case on the merits. … We don’t need to waste any more court time and resources on bringing everybody in for another full day of hearing exactly what it is that I just heard.’”
Judge Friedman expressed concern that the constraints of the PRA were impeding Coates’ ability to represent her constituents.
Arguing that “you don’t get to be elected to discriminate,” May characterized the PRA as “a very narrow protective action” that restricted her from only a single action — voting on Belton’s employment contract.
“Her ability to govern and to represent her constituents is in no way hindered,” May said, noting that in her own testimony, Coates acknowledged that she had willingly abided by the PRA for two years before the closed-session vote that motivated Bowling to publicly disclose the matter.
“I hear you, but in the entire universe of powers of county commissioners, one of those powers is the power to work with or then dismiss the county administrator, and [if] she no longer has that, her power is thus diminished by one attribute, right?” asked Friedman. “You can’t say it’s not diminished.”
“I would say in that context, yes,” May replied, stipulating that Coates’ position as an elected official does not grant her impunity “to discriminate by judicial fiat.”
Appellant’s Rebuttal
During her rebuttal, Tadros reiterated that the board rule specifying that the commissioners could take remedial action against a county commissioner was passed after the PRA was enacted. She also said that Coates had not been aware of the intent to amend the Commissioners’ Rules of Procedure with that guidance prior to its approval.
Nazarian grilled Tadros on whether she believed it represented a conflict if a commissioner had the ability to vote on the employment of someone with whom they are in a conflict.
“I don’t believe there’s a conflict,” Tadros replied, citing a 2009 appeal (Smigiel v. Franchot, 410 Md. 302) involving questions of the separation of powers that she argued represented “precisely the type of situation … where the court is telling another branch of government how to run its internal procedures.”
Following that, Judge Friedman drew the oral arguments to a close.
What’s Next?
Based on the briefs submitted by all the parties and the issues raised in oral arguments, the three-judge panel — Nazarian, Friedman, and Judge Terrence M.R. Zic — will draft and issue a written opinion. There are no deadline constraints on the court for issuing the opinion, though they typically take two to three months.
After the opinion is issued, both parties have a 30-day window to file a motion with the court to reconsider its opinion or to inform the court about errors, after which the court will issue its final judgment, called a mandate.
There is no automatic right of appeal to the Supreme Court of Maryland, the state’s highest court, except in certain special cases such as legislative redistricting. A party seeking to petition the supreme court would file a document called a writ of certiorari, which the court would then review. In fiscal year 2023, the state supreme court granted only 20 out of 295 civil writs (just under 7%) and 13 out of 135 criminal writs (a little over 10%). Thus, it appears likely that the appellate court’s mandate will represent the final legal word on the case, which is coming up on its second anniversary.
Download the Court Documents Discussed in This Post
1: ”Brief for Appellant,” March 4, 2024
2: ”Brief of Appellee Commissioners Amanda M. Stewart & Gilbert O. Bowling, III, in Their Official Capacities,” April 3, 2024
3: ”Brief of Appellee Mark Belton,” April 3, 2024
4: ”Brief of Appellee Board of County Commissioners of Charles County,” April 3, 2024
5: “Motion for Reconsideration and Defendant Commissioner Thomasina O. Coates’ Motion to Shorten Time to Respond to Her Motion for Reconsideration,” September 25, 2023
6: “Order [granting permanent injunction and dismissing the motion to reconsider],” October 17, 2023
* As noted in a previous story, at the time the board voted to pass the PRA in June 2020, the county did not have an explicit non-discrimination policy that applied specifically to the county commissioners. The board voted to adopt anti-discrimination language in the commissioners’ rules of procedure immediately after the vote to apply the PRA — an amendment that Coates declined to sign. (go back)