Kopp v. Schrader ( 2018 )


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  • Nancy K. Kopp et al. v. Dennis R. Schrader et al., No. 72, September Term, 2017
    IN 2016, THE GOVERNOR APPOINTED WENDI PETERS AS SECRETARY
    OF THE DEPARTMENT OF PLANNING AND DENNIS SCHRADER AS
    SECRETARY OF THE DEPARTMENT OF HEALTH, AND, ON THE FIRST DAY OF
    THE 2017 SESSION OF THE GENERAL ASSEMBLY, SUBMITTED BOTH NAMES
    FOR CONFIRMATION BY THE STATE SENATE. BEFORE THE SENATE ACTED
    ON THOSE NOMINATIONS, THE GOVERNOR WITHDREW THEM AND DID NOT
    NOMINATE ANY REPLACEMENT. AFTER THE SESSION ENDED, THE
    GOVERNOR REAPPOINTED MS. PETERS AND MR SCHRADER.
    DURING THE 2017 SESSION, THE LEGISLATURE LEFT INTACT
    APPROPRIATIONS FOR THE SALARIES OF THE TWO SECRETARIES INCLUDED
    IN THE FY 2018 BUDGET BILL BUT ADDED LANGUAGE TO THE BILL (§ 30)
    THAT EFFECTIVELY PRECLUDED ANY FUNDS IN THE BUDGET FROM BEING
    USED TO PAY THE SALARIES TO MS. PETERS AND MR. SCHRADER. IN
    ACCORDANCE WITH THAT LANGUAGE, THE STATE TREASURER REFUSED
    TO ISSUE PAYROLL CHECKS TO THEM FOR ANY PERIOD AFTER JUNE 30, 2017,
    NOTWITHSTANDING PAYROLL WARRANTS ISSUED BY THE STATE
    COMPTROLLER. IN AN ACTION BROUGHT BY MS. PETERS AND MR.
    SCHRADER, THE CIRCUIT COURT DECLARED THEIR REAPPOINTMENT VALID
    AND § 30 UNCONSTITUTIONAL.
    THE COURT OF APPEALS HELD (1) THAT, BECAUSE THE SENATE HAD
    NOT REJECTED THE NOMINATIONS, NOTWITHSTANDING AN OPPORTUNITY
    TO DO SO, THE REAPPOINTMENTS WERE VALID UNDER ART. II, §§ 11 AND 12
    OF THE STATE CONSTITUTION, AND (2) THAT BASED ON CLEAR LANGUAGE
    FROM BAYNE v. SECRETARY OF STATE, 283 MD. 560 (1978), § 30 WAS INVALID
    AND UNENFORCEABLE.      THE CASE WAS REMANDED FOR FURTHER
    PROCEEDINGS IN ACCORDANCE WITH THE APPELLATE OPINION.
    Circuit Court for
    Anne Arundel County
    Case No. C-02-CV-17-2227
    Argued 5/7/18
    IN THE COURT OF APPEALS
    OF MARYLAND
    No. 72
    September Term, 2017
    NANCY K. KOPP, et al.
    v.
    DENNIS R. SCHRADER, et al.
    Barbera, C.J.
    Greene
    Adkins
    McDonald
    Hotten
    Getty
    Wilner, Alan M. (Senior Judge, Specially
    Assigned)
    JJ.
    Opinion by Wilner, J.
    Barbera, C.J., Adkins, and McDonald, JJ.,
    concur and dissent.
    Filed: June 21, 2018
    On its face, this case is a dispute between the State Treasurer and two former
    gubernatorial appointees over whether those appointees are entitled to be paid for the
    services they rendered in their appointed positions. It emanates, however, from a
    disagreement between the Governor and the General Assembly over whether the
    “design” of the Maryland Constitution places a limit on the Governor’s appointing
    authority that the text of the Constitution does not place.
    It is a disagreement that, if truly requiring a judicial resolution, could have found
    one simply, quickly, and cleanly through a declaratory judgment action testing the
    validity of what the Governor did in this case.1 Instead, the response chosen by the
    Legislature has brought before the Judicial Branch not just the validity of the Governor’s
    action but a host of collateral Constitutional issues involving the duties and authority of
    the State Comptroller, the duties and authority of the State Treasurer, the scope of the
    General Assembly’s budgetary authority under Article III, §52 of the Constitution,
    separation of powers issues under Article 8 of the Md. Declaration of Rights, the
    Governor’s appointment and removal authority under Art. II, §§ 11 and 15 of the
    Constitution, Article III, § 33 of the Constitution prohibiting “special laws,” and the
    sovereign immunity of the State.
    BACKGROUND
    1
    See Md. Code, § 3-402 of the Courts Article, describing the Declaratory Judgment Act
    as “remedial” with a purpose “to settle and afford relief from uncertainty and insecurity
    with respect to rights, status, and other legal relations,” and to “be liberally construed and
    administered.” See also Board v. Attorney General, 
    246 Md. 417
    (1967).
    On July 6, 2016, Governor Hogan appointed Wendi Peters as Secretary of the
    Department of Planning. The salary for that office was set in the State Budget at
    $137,749. On December 15, 2016, the Governor appointed Dennis Schrader as Secretary
    of the Department of Health. The salary for that office was set in the State Budget at
    $174,417. Both appointments were subject to the advice and consent of the Maryland
    Senate. They were what is known as “recess” appointments – appointments made while
    the Senate was not in Session – and, pursuant to Art. II, § 11 of the Constitution, the
    Governor sent the names of both individuals to the Senate on the first day of the 2017
    legislative Session (January 11, 2017). In accordance with Senate Rule 22A, both
    appointments were referred for consideration by the Senate Executive Nominations
    Committee.2
    On March 13, 2017, that Committee voted against sending Ms. Peter’s nomination
    to the full Senate. The Governor withdrew the nomination that same day. By March 31
    – the 79th day of the 90-day Session – the Committee had taken no action on Mr.
    Schrader’s nomination, and, on that day, the Governor withdrew his nomination as well.
    2
    Article II, §§ 11 and 12, both dealing with recess appointments, refer to those
    appointments as both appointments and nominations, because they partake of both. They
    are appointments in the sense that, once the formalities – issuance of a commission and
    taking the prescribed oath – are satisfied, the appointee holds the office, but only until the
    end of the next Session of the Legislature. For the appointment to continue beyond that
    date, the Senate must at least consent, if not advise. To that extent, the appointments are
    regarded as nominations for continuance in office. For convenience and clarity, we shall
    refer to the submission of Ms. Peters’ and Mr. Schrader’s names to the Senate in January
    2017 as nominations and to their initial appointments in 2016 and their reappointments in
    April 2017 as appointments.
    2
    Thus, when the General Assembly adjourned its 2017 Session on April 10, 2017, the
    Senate had taken no action on either nomination and the Governor had not appointed
    anyone else to either position. A vacancy therefore existed in both offices. On April 11
    – the day following adjournment – the Governor filled those vacancies by reappointing
    Ms. Peters and Mr. Schrader. For the second time, they became recess appointees.
    Obviously anticipating that prospect, the General Assembly sought to thwart it
    during its 2017 Session by adding language to the FY 2018 Budget Bill (House Bill 150,
    2017 Md. Laws, Ch. 150) that purports to preclude Ms. Peters and Mr. Schrader from
    being paid any part of the salary that they otherwise would have been entitled to receive
    as Secretaries of the respective Departments. That was done by adding to the Budget Bill
    transmitted to the General Assembly by the Governor pursuant to Art. III, § 52 of the
    Constitution a new § 30 containing the following four paragraphs:
    “That no funds in this budget may be expended to pay the salary of a
    Secretary or an Acting Secretary of any department whose nomination as
    Secretary has been rejected by the Senate or an Acting Secretary who was
    serving in that capacity prior to the 2017 session whose nomination for
    the Secretary position was not put forward and approved by the Senate
    during the 2017 session unless the Acting Secretary is appointed under
    Article II, Section 11 of the Maryland Constitution prior to July 1, 2017.”
    “Further provided that no funds in this budget may be expended to pay the
    salary of a Secretary or Acting Secretary of any department who was a
    recess appointment in 2016 and whose nomination as Secretary was put
    forward and was not acted upon by the Executive Nominations Committee,
    or whose nomination was rejected by the Executive Nominations
    Committee and whose nomination was withdrawn before the full Senate
    acted.”
    “Further provided that no funds in this budget may be expended to pay the
    salary of an Assistant Secretary or Deputy Secretary who was a recess
    appointment as Secretary in 2016 and whose nomination was rejected by
    3
    the Executive Nominations Committee and was withdrawn before the full
    Senate acted or whose nomination was not acted on or whose nomination
    was not acted upon by the Executive Nominations Committee.”
    “Nothing in this language may be construed to prohibit employment in
    State Government not serving in a leadership capacity in the Agency or
    Department in which the Secretary or Acting Secretary’s nomination as
    Secretary was put forward and was rejected by the Executive Nominations
    Committee or who was not acted upon by the Executive Nominations
    Committee.”
    There does not appear to be any dispute that the only persons to whom this
    language could apply or was intended to apply were Ms. Peters and Mr. Schrader. The
    language had no effect until July 1, 2017, when the 2018 fiscal year commenced. Ms.
    Peters and Mr. Schrader were paid the salaries set by law for their respective offices
    through June 30. There was, however, correspondence between the Governor’s Office,
    the Attorney General’s Office, the Comptroller’s Office, and the Treasurer’s Office
    regarding what would happen come July 1.
    The Attorney General’s Office, in a June 27, 2017 advice letter based on prior
    Opinions of the Attorney General, concluded that the Governor had the Constitutional
    authority to make the two recess appointments. The letter continued, however, that,
    notwithstanding that conclusion, the language in § 30 of the Budget Bill was a valid
    exercise of legislative authority. In a July 3, 2017 follow-up letter, the Attorney General
    personally expressed his view that, even if the two recess appointments “are assumed to
    be valid,” § 30 effectively “stripped” the appropriation for the salaries and was a valid
    exercise of legislative authority under Article III, § 52(6) of the Constitution. In a
    4
    response to the Attorney General, the Chief Legal Counsel to the Governor disagreed
    with the latter conclusion.
    Caught in the middle, the Comptroller, on July 7, 2017 formally requested the
    Attorney General’s Office to seek “legal clarification” of the dispute through a judicial
    action, barring which the Central Payroll Bureau, a unit within the Office of the
    Comptroller, would be “obligated to follow the longstanding process that governs
    personnel compensation and therefore will continue to issue warrants of salary payments
    to Secretaries Peters and Schrader.” When the Attorney General declined his request to
    seek judicial action, the Comptroller, pursuant to that determination, included in his
    payroll warrants for the pay periods on and after July 1 amounts for the salaries of the
    two Secretaries. The Treasurer’s Office, however, reduced those warrants to exclude
    amounts for the salaries of Ms. Peters and Mr. Schrader for work days on and after July 1
    and declined to issue payroll checks to them for any period thereafter.
    Not being paid, Ms. Peters resigned as Secretary of the Department of Planning on
    September 21, 2017, when she was appointed as Special Secretary of Smart Growth, a
    position that does not require Senate confirmation. She was paid for her service in that
    position. Mr. Schrader remained as Secretary of the Department of Health until January
    9, 2018 – the first day of the 2018 Session of the Legislature – when the Governor
    nominated another person to replace him in that position. Earlier, on September 22,
    2017, Mr. Schrader was appointed by the Governor to serve contemporaneously as
    Special Advisor for Healthcare Financing and Medicaid at the Department of Health at a
    5
    salary of $174,416. Although he was not the first person to serve contemporaneously as
    Secretary of the Department of Health and as head of the Medicaid program and the new
    position did not require Senate confirmation, the Treasurer refused to pay his salary for
    that position as well.
    This action was filed by Ms. Peters and Mr. Schrader in the Circuit Court for Anne
    Arundel County on August 2, 2017 but proceeded on an October 13 Second Amended
    Complaint seeking (1) a writ of mandamus to compel the Treasurer to honor the
    Comptroller’s payroll warrants, countersign salary checks, and pay back wages, (2) a
    declaratory judgment that their recess appointments in April 2017 were valid, that § 30 is
    unconstitutional, and that the Treasurer exceeded her authority in deleting their salary
    payments for periods from and after July 1, 2017, and (3) injunctions restraining the
    Treasurer and the State from interfering with the payment of their compensation.
    The case was resolved by the Circuit Court on cross-motions for summary
    judgment. The court held that the recess appointments of Ms. Peters and Mr. Schrader on
    April 11, 2017 were valid, notwithstanding that the Governor had withdrawn his
    nomination of those individuals during the 2017 session. The court held further that § 30
    of the FY 2018 Budget Bill was unconstitutional (1) as an impermissible attempt to add
    in a Budget Bill substantive provisions contrary to existing law, (2) as a violation of the
    separation of powers provision in Article 8 of the Declaration of Rights, (3) as an
    intrusion on the Governor’s appointment power under Article II, § 11, (4) as an intrusion
    6
    on the Governor’s removal power under Article II, § 15, and (5) as a special law in
    violation of Article III, § 33.
    Apart from those Constitutional violations, the court also found that § 30 violated
    Md. Code, § 2-102(c) of the Health-General Article and §5-201(a) of the State Finance
    and Procurement Article, which provide an entitlement to the salaries set by law for the
    respective Secretarial positions. The court held that the Treasurer had a ministerial duty
    to honor the Comptroller’s warrants and no authority to reduce them. Finally, the court
    held that the plaintiffs’ claims were not barred by State sovereign immunity.
    Distressed by all of those rulings, the Treasurer and the State appealed. We
    granted certiorari prior to any proceedings in the Court of Special Appeals, and, as a
    result, the full conglomeration of issues raised by the parties are before us. We shall
    begin with the one that triggered all of this – whether the Governor had the authority to
    make the two recess appointments after having withdrawn his nomination of those
    individuals during the 2017 session.
    THE RECESS APPOINTMENTS
    The validity vel non of the Governor’s reappointment of Ms. Peters and Mr.
    Schrader in April 2017 is governed by two provisions of the Maryland Constitution –
    Article II, §§ 11 and 12. Section 11 provides:
    “In case of any vacancy during the recess of the Senate, in any office which
    the Governor has power to fill, he [or she] shall appoint some suitable
    person to said office, whose commission shall continue in force until the
    end of the next session of the Legislature, or until some other person is
    7
    appointed to the same office, whichever shall first occur; and the
    nomination of the person thus appointed during the recess, or some other
    person in his [or her] place, shall be made to the Senate on the first day of
    the next regular meeting of the Senate.”
    Section 12 places one limitation on the power conferred under § 11: “No person,
    after being rejected by the Senate, shall be again nominated for the same office at the
    same Session, unless at the request of the Senate; or be appointed to the same office
    during the recess of the Legislature.” (Emphasis added). There is nothing ambiguous
    about that section. It has a plain meaning. Read in harmony with § 11, it means that,
    during a recess of the Senate, the Governor can appoint any suitable person he or she
    wants, except for a person whom the Senate has previously rejected.
    The State argues that those sections do not mean what they plainly say – that the
    “design” of the Constitution also prohibits the Governor from appointing someone he or
    she previously had appointed and nominated to the Senate but then withdrew the
    nomination before the Senate acted on it. That view is drawn in part from a constricted
    portion of debates in the Constitutional Convention of 1850, where the State contends
    those sections originated, and in part from the pragmatic notion that allowing the
    Governor to make recess appointments of persons whose nomination he or she previously
    withdrew would frustrate the Senate’s ability to share in the appointment process.
    There are two responses to that argument. The first is the principle announced in
    Bd. of Elections v. Snyder, 
    435 Md. 30
    , 53 (2013) and confirmed more recently in State v.
    Phillips, 
    457 Md. 481
    , 487 (2018) that “because the Constitution was carefully written by
    8
    its drafters, solemnly adopted by the constitutional convention, and approved by the
    people of Maryland, courts lack the discretion to freely depart from the plain language of
    the instrument.” In other words, the “design” of the Constitution is to be determined
    from its text. If it is thought that the wording of a provision should be changed to reflect
    a new “design,” there is a procedure for doing that. See Article XIV, § 1.
    The State’s attempt to divine some other intent from the debates in the 1850
    Constitutional Convention rests on an inaccurate premise. The power of the Governor to
    make recess appointments and the single limitation expressed in current § 12 did not
    originate in the 1850 Convention, as the State seems to believe. It was added as an
    amendment to the 1776 Constitution in 1837 (see 1836 Md. Laws, Ch. 148, ratified in
    1837), and it was an important amendment.
    The 1776 Constitution created what essentially was a parliamentary form of
    government. Only the House of Delegates was directly elected by the eligible voters, for
    a one-year term. The Senate was elected for a five-year term by a senatorial electoral
    college. The Governor was appointed by the Legislature for a one-year term, could not
    be reappointed more than twice, and had no veto power over legislation. Nearly all
    gubernatorial executive powers, including the power to make appointments, required the
    concurrence of a five-member Council, also appointed by the Legislature.
    The 1837 amendment was the ultimate product of a reform movement intended to
    provide a more robust balance of power between the Legislature and the Governor. It
    provided for the Governor to be directly elected by the people for a three-year term,
    9
    which gave him an independent political base. It abolished the Council and gave the
    Governor the power to nominate and, with the advice and consent of the Senate, appoint
    all officers of the State whose offices were created by law.
    In language not, in substance, different from what we now have, the 1837
    amendment gave the Governor the power “to fill any vacancy that may occur in any such
    offices during the recess of the Senate” subject to the one limitation that “[t]he same
    person shall in no case be nominated by the Governor a second time during the same
    Session, for the same office, in case he shall have been rejected by the Senate . . . and in
    case any person nominated by the Governor for any office, shall have been rejected by
    the Senate, it shall not be lawful for the Governor at any time afterwards, during the
    recess of the Senate, in case of a vacancy in the same office to appoint such rejected
    person to fill said vacancy.” (Chapter 148, § 16).
    If there is an inference that properly may be drawn from this addition, it must be
    that the Legislature that proposed the amendment and the people who voted for it
    believed that the one limitation on recess appointments – no appointment of a person
    previously rejected by the Senate – sufficed to protect the legislative interest. Nothing
    more was needed.
    Fairly read, the debates in the 1850 Convention thirteen years later showed no
    inclination on the part of a majority of the delegates to reject that approach. If anything,
    there was greater recognition of the importance of not fettering the Governor’s power to
    make recess appointments. The Constitution that emerged from that Convention
    10
    abolished annual sessions of the General Assembly and allowed the Legislature to meet
    only every two years for a maximum of 70 days. Concern was expressed about the
    prospect of vacancies in important offices lasting for up to two years. Accordingly,
    although changing some of the language of the 1837 amendment, the Convention
    retained in its entirety the single limitation on recess appointments. The State overlooks
    the further fact that the issue of recess appointments also came before the 1864 and 1867
    Constitutional Conventions, both of which retained, in nearly identical language and
    without substantial debate, what existed.
    Four times in our history, the Constitution-makers have imposed only the one
    limitation on the Governor’s power to make recess appointments. It is not for this Court,
    under the guise of Constitutional interpretation, to add another one. The Senate had a fair
    and reasonable opportunity to reject the Peters and Schrader nominations, and it failed to
    do so. Absent such a rejection, the Governor was fully empowered to reappoint them
    once the session ended. The appointments were valid and in no way infringed upon the
    Constitutional authority of the Senate to advise and consent or to withhold advice and
    consent.3
    3
    The Dissent regards the Constitutional language that has persisted since 1837 as a
    previously unnoticed “sort of loophole.” We do not regard that language as a loophole.
    As we have recounted, it was adopted four times – once by the Legislature itself in 1836
    and three times by Constitutional Conventions, after mature consideration and debate.
    Indeed, it is interesting to note that, in the proposed new Constitution that emerged from
    the Constitutional Convention that met in 1967 (but failed of approval by the electorate),
    the same approach was adopted. See Art. 4, § 4.32. That Convention also did not regard
    the single limit of actual Senate rejection as a loophole.
    11
    SECTION 30
    As noted, it is the addition of § 30 to the FY 2018 Budget Bill, as the Legislature’s
    anticipatory response to the prospect of the Governor doing what he, in fact, did, that
    raises the host of collateral Constitutional issues. Given that we have concluded,
    consistently with the views previously expressed by several Attorneys General,4 that the
    Governor had the Constitutional authority to make those recess appointments, the
    response was in no way necessary to protect the Senate’s prerogatives, which were not
    transgressed. The question, however, is not whether that response was necessary, but
    only whether it is Constitutionally permissible.
    Article III, Section 52
    This Court has traced the history and explained the purpose of Art. III, § 52 of the
    Constitution, often referred to as the Budget Amendment, on a number of occasions.5
    We need not repeat it other than to note that the Amendment was intended to provide an
    intelligent way of estimating the income of the State and to assure that expenditures do
    not exceed that income. Together with Art. III, § 34, it has served to keep the State
    solvent for more than a hundred years, through wars, recessions, and other calamities.
    4
    See 43 Op. Atty. Gen. 103, 105 (1958) (Sybert, Prescott); 60 Op. Atty. Gen. 91, 99
    (1975) (Burch); and cf. 21 Op. Atty Gen. 281, 282 (1936) (O’Conor).
    5
    See Judy v. Schaefer, 
    331 Md. 239
    (1993); Bayne v. Secretary of State, 
    283 Md. 560
    ,
    567 (1978); Md. Act. For Foster Child. v. State, 
    279 Md. 133
    (1977), and cases cited
    therein.
    12
    Section 52(3) requires the Governor to present to the General Assembly, early in
    its annual Session, a Budget containing “a complete plan of proposed expenditures and
    estimated revenues” for the coming fiscal year. Section 52(4) requires, in relevant part,
    that the Budget “embrace an estimate of all appropriations,” including those for “the
    salaries payable by the State and under the Constitution and laws of the State”.
    (Emphasis added).6     Section 52(5) requires the Governor, in addition to the Budget, to
    deliver to the presiding officers of the House and Senate a Bill “for all the proposed
    appropriations of the Budget,” which those presiding officers are required to introduce in
    their respective Houses. Section 52(5a) provides that the total appropriations as
    submitted by the Governor in the Budget and the Budget Bill may not exceed the total
    estimated revenues and prohibits the Legislature from making any changes that would
    cause the total appropriations to exceed the total estimated revenues.
    Section 52(6) is the critical one in this case, in particular three provisions thereof.
    First, it prohibits the General Assembly from amending the Budget Bill “so as to affect . .
    . the payment of any salaries required to be paid by the State of Maryland by the
    Constitution thereof.” (Emphasis added). Second, with exceptions not relevant here, it
    provides that the General Assembly “may not alter the said bill except to strike out or
    reduce items therein, provided, however, that the salary or compensation of any public
    officer shall not be decreased during his [or her] term of office.” (Emphasis added).
    6
    See implementing statutory provisions in Md. Code, §§ 7-101 through 7-109 of the State
    Finance and Procurement Article.
    13
    Third, it provides that the Budget Bill, “when and as passed by both Houses, shall be a
    law immediately without further action by the Governor.” In other words, the Governor
    has no power to veto the Budget Bill as enacted by the Legislature.7
    Finally, with three exceptions not relevant here, § 52(14) provides that, in the
    event of any inconsistency between § 52 and any other provision of the Constitution, § 52
    shall prevail.
    In fulfillment of his obligations under §§ 52(3) and (5), the Governor included in
    the FY 2018 Budget Bill, introduced in the House of Delegates as House Bill 150, items
    for the salaries of the Secretaries of the Departments of Health and Planning.8 Section 12
    of the Bill stated that, pursuant to § 8-102 of the State Personnel and Pensions Article of
    the Md. Code, “the salary schedule for the executive pay plan during fiscal 2018 shall be
    as set forth below.”
    Immediately following that provision, the Bill provided the salary range for the
    Secretary of the Department of Health as $133,069 to $177,977 and the salary range for
    the Secretary of the Department of Planning as $114,874 to $153,532, subject to
    adjustments made pursuant to Md. Code, §§ 8-108 and 8-109 of the State Personnel and
    7
    See, however, Md. Code, §§ 7-205 through 7-213 of the State Finance and Procurement
    Article.
    8
    As required by § 52(5), the Budget Bill was introduced into the Senate as well, but the
    General Assembly proceeded on the House Bill.
    14
    Pensions Article.9 See 2017 Md. Laws, Ch. 150, § 12, pages 1308, 1310, and 1314. The
    General Assembly made no change to those provisions. Accordingly, except for § 30,
    Secretaries Peters and Schrader would have been entitled to receive those respective
    salaries, subject to any adjustments under §§ 8-108 or 8-109. See Md. Code, State
    Finance and Procurement Article, § 5-201(a) and Health-General Article, § 2-102(c).
    To frame the issue under § 52, it is clear that the Legislature could have stricken or
    reduced the items providing for the salaries of the two Secretaries. The only limits on
    striking or reducing items for the salaries of Executive Branch officials are the preclusion
    of striking or reducing a salary required to be paid by the Constitution or that would
    decrease the official’s compensation during his or her term of office. Neither of those
    exceptions applies here; the salaries of the Secretaries are not compelled by the
    Constitution and, as at-will appointees, they have no fixed term of office.
    If there is an impediment to what the Legislature did, it arises in part from the
    actual text of the “strike out or reduce” provision and in part from the last clause of §
    52(6) removing from the Governor any control over the Budget Bill as enacted by the
    General Assembly, from which has sprung the principle that the Legislature may not
    include substantive legislative provisions in the Budget Bill. The articulation of that
    9
    Those sections permit increases and decreases in pay rates for employees under the
    Executive Pay Plan. There is no dispute that the effective salary for Secretary Peters for
    FY 2018 would have been $137,749 and the salary for Secretary Schrader would have
    been $174,417. See also § 7-109 of the State Finance and Procurement Article, requiring
    the Budget Bill to contain a separate section that includes the proposed salary schedule
    for the Executive Pay Plan.
    15
    principle is found most clearly in a 1952 Opinion of Attorney General (and later Chief
    Judge of this Court) Hall Hammond (37 Op. Atty. Gen. 139) and the Opinion of this
    Court in Bayne v. Secretary of State, supra, 
    283 Md. 560
    .
    As we have indicated, the actual power given to the General Assembly in § 52(6)
    is limited to “strik[ing] out or reduc[ing] items” in the Governor’s Budget. Nothing is
    said about placing conditions on how items not stricken may be spent. Several Attorneys
    General, however, and, more important, this Court in Bayne, recognized that “[t]he
    General Assembly’s authority to reduce or strike out an item of appropriation necessarily
    includes the authority to condition or limit the use of money appropriated . . . provided
    the condition or limitation is directly related to the expenditure of the sum appropriated,
    does not, in essence, amend other substantive legislation or administrative rules adopted
    pursuant to legislative mandate, and is effective only during the fiscal year for which the
    appropriation is made.”10 
    Bayne, 283 Md. at 574
    (Emphasis added).
    Except as otherwise expressly provided in § 52(6) itself, there are no State-law
    limits or conditions on the Legislature’s power to strike or reduce an item outright. The
    conditions noted in Bayne are placed on this extended inferred power to place limitations
    on how an approved appropriation may be spent, because that raises the specter of
    10
    See 37 Op. Atty. Gen. 139 (1952) (Hammond) (declaring the budget language invalid);
    38 Op. Atty. Gen. 110 (1953 (Rollins) (declaring the budget language invalid); 48 Op.
    Atty. Gen. 19 (1963) (Finan) (declaring the budget language valid); 59 Op. Atty. Gen. 70
    (1974) (Burch) (declaring some conditions invalid and some valid) 63 Op. Atty. Gen. 60
    (1978) (Burch) (declaring conditions valid); 75 Op. Atty. Gen. 3 (1990) (Curran)
    (declaring conditions invalid).
    16
    departing from the function of the Budget Bill, which “is to appropriate money, not to
    legislate generally.” Bayne, at 574. This was explained by Attorney General Hammond
    in his 1952 Opinion:
    “The Legislature may not, under the guise of incorporating in the Budget
    Bill language purporting to have the effect of law, make that language
    become law. No law can be passed in Maryland except by both Houses of
    the General Assembly and the signature of the Governor, or the overriding
    of his veto if he disapproves the proposed law. The function and effect of
    the Budget Bill as a law is restricted by its purposes, and the mechanics set
    up by Section 52 of Article III carry out those purposes. That function is
    to appropriate money, not to legislate generally.”
    37 Op. Atty. Gen., supra at 141.
    The argument is made here that the provisions of § 30 do, in fact, constitute
    substantive legislation that conflicts with Health-General Article, § 2-102(c) and State
    Finance and Procurement Article, § 5-201(a), not to mention Articles of the Constitution
    dealing with the Governor’s authority to appoint and remove Executive Branch officials
    (and District Court judges), and the Circuit Court found such a conflict. Our concern
    focuses more directly on whether § 30 falls within the permissible ambit of the extended
    authority to attach conditions on the expenditure of approved appropriations, and Bayne
    is the guidepost for that.
    Commonly, including all throughout the FY 2018 Budget Bill and Budget Bills
    generally, conditions imposed on the expenditure of approved appropriations follow
    immediately the appropriation to which the conditions apply and, in their text, refer to
    and clearly attach to that appropriation. See, by way of just a few examples, conditions
    17
    attached to the expenditure of appropriations for the Office of the Secretary of the
    Department of Transportation on page 1145 of the 2017 Laws, the Office of the Secretary
    of the Department of Health on page 1171 of the 2017 Laws, and the Office of the
    Secretary of the Department of Human Resources at page 1187 of the 2017 Laws.
    The conditions at issue here are not of that type. They are not only in no
    proximity to the appropriations for the salaries of Secretary Peters or Secretary Schrader,
    which itself is not dispositive, but make no mention of them. Instead, they announce that
    “no funds in this budget” may be used to pay those two people. Those are not conditions
    “directly related to the expenditure of the sum appropriated.” The relational requirement
    set forth in Bayne is not merely a helpful suggestion. It has meaning, and it is not in any
    sense an onerous requirement, as the FY 2018 Budget Bill and previous Budget Bills
    themselves attest.
    If the Legislature chooses to place some limit or condition on the expenditure of
    an appropriation it has approved, it must “directly” tie that limit or condition to the
    particular appropriation rather than leave it hovering aimlessly over the entire State
    Budget. That may not in all instances insulate the limit or condition from challenge on
    the ground that it constitutes impermissible law-making, but at least it brings it into
    compliance with the relational requirement of Bayne. Because § 30 is in no way tied to
    18
    the appropriations for the salaries of the two Secretaries, it exceeds the authority of the
    Legislature under § 52(6) and is invalid, of no legal effect, and unenforceable.11
    Other Issues
    In light of this conclusion, we need not address whether § 30 constitutes an
    impermissible special law under Art. III, 33, contravenes the Governor’s powers of
    appointment and removal under Art. II, §§ 11 or 15, or violates the separation of powers
    principle under Article 8 of the Md. Declaration of Rights, or whether the Treasurer has
    the authority to reduce payroll warrants issued by the Comptroller.
    With respect to the State’s argument that the Secretaries’ action to recover back
    pay is precluded by the State’s sovereign immunity, we regard the nature of their action,
    though seeking mandamus, declaratory, and injunctive relief, as essentially one for
    breach of contract – breach of a written contract documented in the commissions issued
    to them, in the sections of the Code providing for the payment of their salaries, and in the
    appropriations in the FY 2018 Budget and Budget Bill. Md. Code, § 12-201 of the State
    Government Article precludes the State from raising the defense of sovereign immunity
    in a contract action based on a written contract that an official of the State (including the
    Governor) executed for the State within the scope of his or her authority. At least
    11
    The Dissent is based on the proposition that a condition on how an approved
    appropriation may be spent does not have to make any reference to the appropriation. If
    that is so, the first requirement stated in Bayne, that the condition be “directly related” to
    the appropriation has no meaning and sub silentio is overruled, which neither the
    Treasurer nor the State even suggests, much less argues.
    19
    implicit in those documents is the promise that the State would pay the Secretaries the
    salaries provided by law for the services they rendered, and warrants for those salaries
    were properly issued by the Comptroller pursuant to his statutory authority. 12
    Conclusion
    For the reasons stated in this Opinion, we shall vacate the Order issued by the
    Circuit Court and remand the case to that court for entry of: (1) a declaratory judgment
    declaring that Ms. Peters and Mr. Schrader are entitled to be paid the salaries set forth in
    the FY 2018 Budget for the times they served as Secretaries of their respective
    Departments, (2) a writ of mandamus requiring the Treasurer to honor the warrants for
    the payment of those salaries issued by the Comptroller and to issue payroll checks
    12
    The Dissent complains that this response to appellants’ sovereign immunity defense
    was not raised by appellees and that the State has had no opportunity to respond. This
    Court, in several cases, has distinguished between the raising of a new issue, which
    ordinarily is not allowed, and the raising of an additional argument, even by the Court, in
    support or opposition to an issue that was raised, which is allowed. See Crown Oil v.
    Glen, 
    320 Md. 546
    , 560-61 (1990); Medical Waste v. Maryland Waste, 
    327 Md. 596
    ,
    604-05 (1992); O’Leary v. Shipley, 
    313 Md. 189
    , 196 (1988).
    In that regard, we note that it was the State that raised the sovereign immunity
    defense, to an action that clearly alleged a right to back pay for employment based solely
    on written documents and that it should have been aware of the statute that has been on
    the books since 1976 precluding it from raising that defense to an action based on a
    written contract. In both the Circuit Court and this Court, appellees argued that sovereign
    immunity did not apply to their action, and the Circuit Court ruled that they were correct.
    We are affirming that conclusion by simply taking judicial notice of both the underlying
    written documents, which are matters of public record that were before the Circuit Court,
    and clear and long-standing provisions of the Maryland Code that support the Circuit
    Court’s conclusion. This is not a deus ex machina.
    20
    therefor, and (3) an Order enjoining the State from interfering with the payment of those
    salaries.
    JUDGMENT OF THE CIRCUIT COURT FOR ANNE
    ARUNDEL COUNTY VACATED; CASE REMANDED
    TO THAT COURT FOR FURTHER PROCEEDINGS IN
    CONFORMANCE WITH THIS OPINION; COSTS TO
    BE PAID BY APPELLANTS.
    21
    Circuit Court for
    Anne Arundel County
    Case No. C-02-CV-17-2227
    Argued 5/7/18
    IN THE COURT OF APPEALS
    OF MARYLAND
    No. 72
    September Term, 2017
    NANCY K. KOPP, ET AL.
    V.
    DENNIS R. SCHRADER, ET AL.
    Barbera, C.J.,
    Greene
    Adkins
    McDonald
    Hotten
    Getty
    Wilner, Alan M. (Senior Judge,
    Specially Assigned),
    JJ.
    Concurring and Dissenting Opinion
    by McDonald, J.,
    which Barbera, C.J., and Adkins, J., join.
    Filed: June 21, 2018
    Although I agree with much of the scholarly and very readable Majority opinion, I
    would decide this case differently. In my view, the Majority opinion’s analysis of the
    budget issue adds a new criterion for assessing conditions placed on appropriations in the
    State budget. That criterion elevates form over substance and is not required by the State
    Constitution or the case law. In addition, the Majority opinion relies on a dubious contract
    rationale for awarding a monetary judgment in favor of the Appellees – a theory that was
    not espoused by the Appellees and that appears for the first time in this case in the Majority
    opinion.
    If the only consequence of this decision were that Mr. Schrader and Ms. Peters
    received some compensation for the services they rendered after they each accepted a
    second consecutive recess appointment – even though they were aware at the time that the
    Legislature had eliminated the compensation for such an appointment – this decision would
    be of little import. However, the Majority opinion may well have unintended collateral
    consequences.
    Checks and Balances
    The State Constitution contemplates appointment of civil officers of the State – such
    as the Secretary of Health and the Secretary of Planning – by the Governor, subject to
    confirmation by the Senate, as part of the constitutional system of checks and balances.
    See Alfred S. Niles, Maryland Constitutional Law (1915) at 110 (“it is evident that the
    [constitutional] convention which framed the present Constitution was unwilling to confer
    the power of appointment to office upon the governor alone, except in cases of absolute
    necessity”); Dan Friedman, The Maryland State Constitution: A Reference Guide (2006)
    at 69-70 (noting the intention of the framers of the State Constitution “to carefully
    circumscribe the Governor’s appointment powers, and in every case possible, to temper
    those appointment powers with the advice and consent of the State Senate”).1
    I agree with the Majority opinion that there is a sort of loophole in the constitutional
    design that allows a Governor to maintain the Governor’s preferred candidates in office
    without Senate confirmation by withdrawing a nomination before rejection by the Senate
    and making repeat recess appointments. However, there is a check on the Governor’s use
    of that loophole – if the General Assembly chooses to exercise it. That check is the
    Legislature’s power under the State Constitution to strike, reduce, or condition
    appropriations in the State budget, including those related to the compensation of
    appointees like the Appellees. That is how a system of checks and balances works.2
    Conditions on Budget Appropriations and the Bayne Criteria
    As the Majority opinion indicates, it is well-established that, pursuant to Article III,
    §52(6) of the Maryland Constitution, the General Assembly may strike, reduce, or place
    1
    As the Majority opinion notes, Article II, §11 of the State Constitution provides
    that the Governor is to submit the name of a recess appointee to the Senate for confirmation
    at the beginning of the next session of the Senate if the Governor wishes to retain that
    person in the office. Majority slip op. at 2. The Constitution thus obviously contemplates
    that a recess appointee will ultimately be subject to Senate confirmation.
    2
    For example, in this case a repeat recess appointment of the same individual to the
    office of Secretary of Health, which had the effect of circumventing Senate confirmation
    of that individual, was “checked” by the Legislature’s elimination of the appropriation for
    such an appointment. Another individual, apparently acceptable to both the Governor and
    the Senate, was eventually nominated for the post and was confirmed by the Senate. Had
    the Legislature not exercised its budget authority, there might well have been a three-peat,
    or more, avoiding Senate confirmation.
    2
    conditions on appropriations made in the budget bill submitted by the Governor. Majority
    slip op. at 15-16. As the Majority opinion also concedes, the powers conferred by Article
    III, §52 generally take precedence over other provisions of the State Constitution, to the
    extent that there is any conflict. Maryland Constitution, Article III, §52(14).
    The leading authority on the General Assembly’s power to place conditions on
    appropriations in the State budget is Bayne v. Secretary of State, 
    283 Md. 560
    (1978). That
    case concerned a budget condition that restricted the expenditure of funds appropriated in
    the State budget to compensate Medicaid providers for abortions in specified
    circumstances. While that case primarily concerned whether the budget bill could be
    petitioned to referendum, the Court held that “[t]he General Assembly’s authority to restrict
    or strike out an item of appropriation necessarily includes the authority to condition or limit
    the use of the money appropriated 
    …” 283 Md. at 574
    . The Court adopted the following
    formula for assessing the validity of a condition placed on the budget by the General
    Assembly. The budget condition must:
    1. Be directly related to the expenditure of the sum appropriated;
    2. Not amend substantive legislation or administrative rules adopted
    pursuant to legislative mandate; and
    3. Be effective only during the fiscal year for which the appropriation
    is made.
    
    Id. In Bayne,
    the Court found that restriction on Medicaid provider compensation satisfied
    all three criteria. 
    Id. 3 Section
    30 of the Fiscal Year 2018 Budget Bill
    This case turns on the validity of §30 of the Fiscal Year 2018 Budget Bill, which
    was enacted by the General Assembly on March 28, 2017. Chapter 150, §30, Laws of
    Maryland 2017. The Majority Opinion quotes the four paragraphs of §30 in their entirety
    and there is no need to repeat that quotation here. See Majority slip op. at 3-4. In summary,
    §30 prohibits the expenditure of funds appropriated in the budget bill to pay the salary of
    a Secretary, Acting Secretary, Deputy Secretary, or Assistant Secretary of an agency under
    specified circumstances that would amount to circumvention of Senate confirmation of the
    appointment of an individual in charge of an agency. Pertinent to this case, §30 prohibits
    such an expenditure if an individual received a recess appointment to the position during
    2016 and whose nomination to the permanent post was either rejected by the Senate,
    withdrawn by the Governor, or otherwise not acted upon.             (It also prohibits such
    expenditures in other circumstances not pertinent to this case, such as when an individual
    serving as Acting Secretary of an agency continues to carry out the responsibilities of the
    position without being nominated to the office). Section 30 explicitly does not prohibit the
    employment, and presumably compensation, of such an individual in another agency or in
    a non-leadership position in the agency for which the individual received a recess
    appointment.
    Section 30 sets forth one set of the many conditions that the Legislature placed on
    the appropriations proposed in the Fiscal Year 2018 budget bill. Although §30 of the Fiscal
    Year 2018 budget bill happened to be triggered by the Governor’s subsequent decision to
    make two repeat recess appointments, there is nothing unusual about this provision.
    4
    Similar, although not identical, provisions have appeared in budget bills since 2004 as a
    check on the temptation a Governor might have to circumvent the confirmation process.3
    To assess the validity of §30, one must apply the Bayne criteria.
    Application of the Bayne Criteria to §30
    Application of the Bayne formula to §30 of the Fiscal Year 2018 budget bill is
    straightforward. First, §30 clearly relates specifically to the expenditure of funds for the
    salaries of a Secretary, Acting Secretary, Deputy Secretary, or Assistant Secretary of an
    agency in specified circumstances. Identical language could have been appended to the
    general appropriation of each department with a Secretary, Acting Secretary, Deputy
    Secretary, or Assistant Secretary throughout the budget bill, but thankfully for the reader
    (and the environment), this condition is clearly made applicable to all such appropriations
    but stated only once in the document.
    Second, the condition amends no substantive legislation or regulation. It simply
    eliminates an appropriation for compensation – an appropriation that would otherwise be
    3
    See Chapter 143, §32, Laws of Maryland 2016; Chapter 310, §34, Laws                  of
    Maryland 2015; Chapter 462, §31, Laws of Maryland 2014; Chapter 423, §30, Laws              of
    Maryland 2013; Chapter 148, §31, Laws of Maryland 2012; Chapter 395, §36, Laws              of
    Maryland 2011; Chapter 482, §35, Laws of Maryland 2010; Chapter 484, §36, Laws              of
    Maryland 2009; Chapter 335, §29, Laws of Maryland 2008; Chapter 487, §37, Laws              of
    Maryland 2007; Chapter 216, §38, Laws of Maryland 2006; Chapter 429, §46, Laws              of
    Maryland 2004.
    It is not unusual for a legislative body to enforce a constitutional advice and consent
    role through the exercise of its fiscal powers. Since 1863, Congress has included a similar
    provision restricting pay of holdover recess appointees in the federal Pay Act. See 5 U.S.C.
    §5503(a); see also 12 Stat. 642, 646 (1863).
    5
    made in the same budget bill – for repeat recess appointments. This is consistent with the
    substantive law concerning compensation of these officials, which provides that they are
    to receive the salaries appropriated in the budget but does not dictate what that
    appropriation should be. See Maryland Code, Health-General Article, §2-102(c) (Secretary
    of Health); State Finance & Procurement Article §5-201(e) (Secretary of Planning); see
    also State Personnel & Pensions Article (“SPP”), §8-104(c) (State pay rates “subject to any
    limitations included in the State budget”).4
    Finally, the condition is effective only during Fiscal Year 2018, as it applies only to
    funds appropriated in the Fiscal Year 2018 budget bill.
    The New Criterion in the Majority Opinion
    The Majority opinion appears to accept that §30 satisfies the second and third Bayne
    criteria – i.e., that it does not amend substantive law and that it is effective only during the
    fiscal year of the budget bill. See Majority slip op. at 17. However, the Majority opinion
    is concerned about whether the first of the Bayne criteria – whether the condition set forth
    in §30 “directly relates” to expenditure of the sum appropriated. The Majority opinion
    begins from the premise that, “commonly,” budgetary conditions “follow immediately the
    appropriation to which they apply” in the text of the budget bill. 
    Id. at 17-18.
    It then
    observes that §30 does not appear immediately after the text of a specific appropriation or
    expressly reference specific positions – in particular, the appropriations for the salaries of
    4
    The Majority opinion recites the statutory provision (SPP §8-102) that provides
    for an executive pay plan, but fails to acknowledge this limitation. See Majority slip op.
    at 14.
    6
    the Secretary of Health or Secretary of Planning – and concludes that §30 therefore does
    not relate directly to an appropriation. Majority slip op. at 18.
    It is true that many budget conditions physically appear in a budget bill immediately
    beneath one appropriation – in particular, when the condition affects only one appropriation
    – but that is not always the case. A brief perusal of any budget bill reveals that there are
    numerous conditions in the bill, apart from §30 and its past analogs, that affect several
    appropriations and that are not adjacent to any of the appropriations that they affect.5 In
    lieu of §30, the drafters could have appended the same language to every appropriation
    containing the salary of an agency head, thereby expanding an already lengthy bill. But
    the placement of §30 and these other sections within the document does not detract from
    their meaning or effectiveness.
    The Majority opinion appears to recognize this fact by hedging its assertion
    concerning its textual proximity test with the adverb “commonly,” and seems to concede
    that a cross-reference to the appropriations subject to the condition would suffice. But it
    apparently would require that cross-reference to be made by listing the conditioned
    appropriations and then proceeds as if textual proximity or some kind of listing is a strict
    requirement. Majority slip op. at 17-18. Again, the drafters could have listed in §30 every
    agency with a salary appropriation for a Secretary, etc., but such a formality would have
    added nothing to the meaning or clarity of §30.
    5
    See, e.g., Chapter 150, §§39, 40, 41, 42, 43, Laws of Maryland 2017.
    7
    The Majority opinion’s new criterion does not appear in Bayne. There is nothing
    inconsistent with Bayne or Article III, §52 of the Constitution for a budget condition that
    applies to several appropriations to be clearly and concisely expressed in a separate section,
    such as §30, when that section describes the appropriations that it conditions. Other such
    conditions appeared in the 2017 budget bill and in prior budget bills. 6 As was explained
    nearly 30 years ago:
    Although a limitation must directly relate to the expenditure of the
    sum appropriate[ed], there is no legal requirement that the limitation be
    an amendment to the particular item in the Budget Bill to which it
    relates. It is only a matter of practice that a limitation is ordinarily
    added as an amendment to a particular item in the Budget Bill. If a
    limitation is to apply to several or all items of appropriation, there is
    clearly no objection to adding the limitation to the bill as a separate
    section. The only requirement is that the amendment make it clear that
    it is a limitation on several or all appropriations, as the case may be.
    Letter of Assistant Attorney General Richard E. Israel7 to William S. Ratchford, Director,
    Department of Fiscal Services (January 29, 1991) (emphasis added).
    Here, §30 clearly applies to the appropriation for salaries in any department that has
    a Secretary, Deputy Secretary, etc. There are a finite number of such agencies with salary
    appropriations in the budget bill. The Department of Health and the Department of
    6
    See, e.g., Chapter 150, §47, Laws of Maryland 2017; Chapter 482, §45, Laws of
    Maryland 2010; Chapter 216, Laws of Maryland 2006.
    7
    The late Mr. Israel was a widely-respected expert on the history and interpretation
    of the budget provisions of the Maryland Constitution. See, e.g., Richard E. Israel, A
    History of the Adoption of the Maryland Executive Budget Amendment (2004), available at
    the Archives of Maryland Online,  (last visited June 5, 2018).
    8
    Planning are two. Section 30 thus directly applies to the appropriation for salaries in those
    two agencies. There is no mystery as to what appropriations §30 conditions. To the extent
    that the Majority would require that §30 redundantly list each department with a Secretary
    or Deputy Secretary, such a requirement would be as formalistic as its textual proximity
    test. It would not add to the clarity or meaning of the budget condition and is not required
    by Bayne.
    In applying a textual proximity/specific listing test, the Majority opinion would
    impose a drafting convention on the writers of budget conditions that we do not impose on
    the drafters of other legislation or on ourselves. It is not uncommon in the law for some
    provisions not to be in proximity to, or to specifically list, other provisions that they clearly
    modify, condition, or define. For example, in the reorganization of the Maryland Code
    known as code revision, statutory provisions defining terms and limiting the scope of other
    statutory provisions in the same article, or even in other articles of the code, are grouped
    together at the beginning of an article rather than being repeated throughout the article or
    the code. The definition and scope provisions do not list every other statutory provision
    containing a defined term or limited by the scope provision. See, e.g., Maryland Code,
    General Provisions Article, §1-101 et seq. (rules of interpretation applicable to statutory
    provisions in all articles of the code); State Finance & Procurement Article (“SFP”), §1-
    101 (definitions applicable throughout Division I of SFP); SFP §5-102 (limiting scope of
    title 5 of SFP in relation to other laws). We follow the same convention in drafting our
    rules of practice and procedure. See Title 1, Chapter 200, of the Maryland Rules (setting
    forth rules of construction, definitions, and methods for calculating deadlines applicable to
    9
    numerous other rules).        This very sensible method of drafting law avoids needless
    repetition of identical language in multiple locations throughout the statutory law and rules.
    Nothing prevents the drafters of the budget bill and its amendments from taking advantage,
    although perhaps not as elegantly, of this approach. Indeed, it has been employed for many
    years in drafting the budget bill.
    The Practice of Conditioning Multiple Salary Appropriations in One Section
    Like §30 and its analogs in many previous budget bills, there is another section that
    regularly appears in the annual budget bill, that conditions many appropriations for salaries,
    but that is not in textual proximity to, and does not explicitly list, all the appropriations that
    it potentially affects. That provision appears in §4 of the Fiscal Year 2018 budget bill.
    Chapter 150, §4, Laws of Maryland 2017.
    Section 4 provides that no funds appropriated in the budget bill shall be paid as
    compensation to an individual appointed to an office with respect to that office if the
    appointment would result in the individual holding two “offices of profit.”8 Under Article
    8
    Section 4 provides, in pertinent part:
    If any person holding an office of profit within the meaning of Article
    35 of the Declaration of Rights … is appointed to or otherwise becomes the
    holder of a second office within the meaning of Article 35 …, then no
    compensation or other emolument, … shall be paid from any funds
    appropriated by this bill to that person for any services in connection with
    the second office.
    10
    35 of the Maryland Declaration of Rights,9 an individual may not occupy more than
    one “office of profit.” As a member of the Majority correctly pointed out at oral argument
    in this case, an individual appointed to a second such office is deemed to automatically
    resign from the first office that he or she holds. See Hetrich v. County Commissioners of
    Anne Arundel County, 
    222 Md. 304
    (1960); Truitt v. Collins, 
    122 Md. 526
    (1914). The
    automatic removal from the first office occurs even if the individual is willing to
    voluntarily forgo compensation for the second office, as the second office remains one of
    profit despite the holder’s forbearance. See, e.g., Howard County Commissioners v.
    Westphal, 
    232 Md. 334
    , 339-40 (1963); 76 Opinions of the Attorney General 347, 349-50
    (1991). In eliminating compensation for the second office as a matter of law, regardless of
    the appointee’s decision whether to accept that compensation, §4 eliminates a primary
    characteristic of an office of profit and prevents the individual’s automatic removal from
    the first office.. See 76 Opinions of the Attorney General 347, 350 n.2 (1991) (describing
    purpose and operation of budget condition in 1991 budget bill that is identical to §4 of 2017
    budget bill). Thus, §4 has the effect of allowing a Governor the flexibility to appoint those
    whom the Governor prefers to positions of responsibility without inadvertently also
    9
    Article 35 of the Declaration of Rights provides, in pertinent part:
    That no person shall hold, at the same time, more than one office of
    profit, created by the Constitution or Laws of this State; …
    11
    removing them from office.10 For that reason, a version of §4 has appeared in budget bills
    for decades.11
    Like §30, the language of §4 appears just once in the budget bill, clearly conditions
    salary appropriations throughout the budget bill, is not in textual proximity to all of those
    appropriations, and does not expressly cross-reference all of the appropriations that it
    affects. Like §30, §4 was not peculiar to the Fiscal Year 2018 budget bill.
    Alternative Arguments for Ignoring §30
    The Majority opinion alludes to various alternative arguments offered by Mr.
    Schrader and Ms. Peters for ignoring §30, but does not address those arguments. I will
    follow that lead, as none of those arguments appears to be particularly compelling.
    The Contract Rationale
    In holding that Mr. Schrader and Ms. Peters may recover a monetary judgment
    against the State in this case, the Majority opinion concludes that sovereign immunity does
    not preclude such an award. The Majority opinion reasons that Mr. Schrader and Ms.
    10
    For example, the Majority opinion notes that, after receiving a recess appointment
    as Secretary of Health, Mr. Schrader was also appointed to the position of Special Advisor
    for Healthcare Financing and Medicaid, which apparently is the “head of the Medicaid
    program.” Majority slip op. at 5-6. The Secretary of Health is an office of profit. I do not
    purport to decide whether Special Advisor is also an office of profit for purposes of Article
    35 – although if the Majority opinion’s description is correct, it well could be. If it is, a
    Secretary of Health who accepted the position of Special Advisor would be deemed to have
    resigned as Secretary of Health, unless the compensation attached to the office of Special
    Advisor was eliminated by operation of the budget bill.
    11
    A version of that provision has conditioned the salary appropriations in every
    budget bill since at least 1985. See, e.g. Chapter 106, §21, Laws of Maryland 1985.
    12
    Peters asserted a claim for breach of contract and therefore came within the statutory
    exception to sovereign immunity for an award of contract damages.12 The Majority opinion
    spends only three sentences (and a footnote) outlining that theory. Majority slip op. at 19-
    20.
    The contract rationale is a deus ex machina for resolving this case. No contract
    claim was asserted in the complaint in this case. As best I can tell, such a theory was not
    presented to the Circuit Court. There is no mention of a breach of contract theory in the
    35-page opinion of the Circuit Court. Mr. Schrader and Ms. Peters did not assert such a
    theory before us, either in brief or at oral argument. Indeed, they reiterated several times
    that this is not an action for damages. It goes without saying that the State has had no
    opportunity to respond to this theory.13
    The timing of the repeat recess appointments perhaps explains why Mr. Schrader
    and Ms. Peters did not assert a breach of contract rationale. At the time Mr. Schrader and
    Ms. Peters received their second consecutive recess appointments, the Fiscal Year 2018
    12
    See Maryland Code, State Government Article, §12-201.
    13
    In its footnote, the Majority opinion argues that the contract rationale is not a new
    issue, but rather a new argument that may be raised on appeal and cites three cases for that
    proposition. Majority slip op. at 20 n. 12. An examination of those decisions reveals that,
    in each of the three cases, the new argument was raised by one of the parties in the Court
    of Special Appeals and briefed by both parties in that court and this Court (one of the cases
    ultimately skipped decision by the intermediate appellate court as this Court issued a
    bypass writ of certiorari).
    By contrast, in this case, the contract rationale is entirely an invention of the
    Majority opinion – a rationale based on a cause of action not asserted in the complaint and
    arguably disclaimed by the Appellees.
    13
    budget bill had already been enacted and explicitly stated that no funds were appropriated
    to fund such an appointment. Everyone was on notice of that fact. It is difficult to conceive
    that there was a meeting of the minds as to their compensation or the formation of a contract
    at that time.
    It certainly seems fair to find a way to pay Mr. Schrader and Ms. Peters for the
    services they performed while this controversy was ongoing,14 if there is a legal way to do
    so. There may be a mechanism for doing so, but finding a contractual remedy where no
    contractual right exists is not the way to do so. What unintended consequences might flow
    from this offhand holding? It has the potential to hamstring one method by which the
    Governor and Legislature, or the Board of Public Works, balance the State budget in times
    of fiscal distress. See 76 Opinions of the Attorney General 330 (1991) (describing various
    ways in which the Governor, Legislature, and Board of Public Works may eliminate
    appropriations in the State budget for State government positions).
    14
    The Majority opinion suggests that the Legislature could have resolved this
    dispute “simply, quickly, and cleanly” by filing a declaratory judgment action to challenge
    the constitutionality of the Governor’s exercise of his constitutional powers to make repeat
    recess appointments of Mr. Schrader and Ms. Peters instead of enacting §30. Majority slip
    op. at 1. Of course, the Governor made the repeat recess appointments on April 11, 2017
    after the Legislature had enacted §30 on March 28, 2017 as part of the budget bill. In any
    event, the same might be said of Appellees’ challenge to the Legislature’s exercise of its
    constitutional budgetary powers. Mr. Schrader and Ms. Peters did not file this action until
    more than four months after enactment of the budget bill containing §30. A more timely
    declaratory judgment action might have resolved the issue before they provided services
    without compensation.
    14
    Summary
    The Majority opinion would add a new criterion for evaluating budget conditions.
    It also recognizes a contractual right to compensation in dubious circumstances. These are
    not narrow holdings. In my view, they are also incorrect.
    Chief Judge Barbera and Judge Adkins have advised that they join this opinion.
    15