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Opinion: Litigation bill could have constitutional problems

March 21, 2007|by ANDREW SCHOTZ

ANNAPOLIS - A bill making appellants liable for delays for a new Washington County Hospital "could raise serious constitutional issues if it is applied to any pending litigation," according to a legal opinion.

The bill isn't written to be retroactive, Maryland Assistant Attorney General Sandra Benson Brantley's opinion says.

At issue is a legislative attempt to smooth a path for a new hospital on Robinwood Drive.

Five county residents appealed zoning variances for the project - first to Washington County Circuit Court, then the Maryland Court of Special Appeals, which hasn't heard the case.

Citing mounting costs, Washington County Health System, the hospital's parent company, has urged the residents to drop their appeal.

A bill filed last week by Del. John P. Donoghue, D-Washington, forces anyone appealing medical-facility zoning or land-use rulings in the county to secure a bond covering the projected cost of the delay.

If a circuit court ruling is appealed, litigants must post an additional $100,000 bond or deposit.

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Del. LeRoy E. Myers Jr., R-Washington/Allegany, has said the Health System sought the bill.

The Health System never meant for the bill to affect the current appeal, said Michael Schaefer, the system's general counsel.

But it could affect future rulings, such as a sign or a request to amend the county's zoning ordinance, he said.

Health System President and CEO James Hamill has said the court challenge could add $150 million and 18 months to a project last estimated to cost about $255 million.

Donoghue agreed the bill can't be retroactive, but wouldn't speculate about how it might be applied.

He said his main concern is getting the bill through the late-filing process. Monday is the deadline for bills that pass the House or Senate to go to the opposite chamber.

"They want to argue free speech," he said of the appellants, "and I'm going to argue that they're standing in the way of the community."

The residents - Gordon A. Bartels, Janet E. Bartels, Sally R. Hatch, Robert C. Hatch and Charles B. Hongell - have stuck with their case, even after three original appellants dropped out.

In an e-mail Monday, Hongell urged Donoghue to drop the bill, saying it seeks to "bypass the rights of the average citizen" in favor of the hospital.

Appellants' attorney William C. Wantz reiterated his belief Tuesday that the bill is unconstitutional. He said the bill has "penalties so excessive to deny access to the courts."

Del. Christopher B. Shank - who requested the attorney general's office opinion and shared a copy Tuesday - suggested that mixed delegation support for the bill, if that's the case, might hurt it.

Originally, the whole Washington County delegation was to sponsor the bill, or at least consider filing it. A delegation meeting was canceled when Donoghue took custody of the bill.

Donoghue said he'll use connections he has built up in the Democratically controlled General Assembly to help the bill.

Often, other lawmakers defer on a bill that only affects a certain area, a practice known as "local courtesy," if a majority of the local lawmakers support it.

While Donoghue, Shank and Myers have said they favor the bill, Del. Richard B. Weldon Jr., R-Frederick/Washington, blasted it Tuesday.

Weldon said he regularly proposes measures to open government to citizens. This bill, he said, has a "chilling" effect the other way.

Weldon said he believes a new hospital is important, "but not important enough to sacrifice citizens' ability to use the legal system."

Other county delegation members couldn't be reached for comment.

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