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Senators question constitutionality of public-private partnership bill, administration affirms support

The O’Malley administration affirmed its support on Wednesday for a controversial public-private partnership bill that threatens pending litigation against the State Center development in downtown Baltimore.

Administration representatives faced pointed questions from the Senate Budget and Taxation committee about an amendment tacked onto the bill by the House of Delegates last week that would retroactively affect a lawsuit filed by Baltimore business owners against the $1.5 billion State Center project.

The amended bill would expedite the appeal process for the losers in public-private partnership lawsuits by allowing them to appeal a ruling directly to the Maryland Court of Special Appeals, skipping the circuit court.

The coalition of business owners have claimed contracts were not competitively awarded as required by law and that the addition of new commercial and residential space would further increase the downtown area’s high vacancy rates.

Testifying in favor of the amended bill was Robert Brams of the Patton Boggs law firm, who served on the state commission that drafted the original bill.

“Any expedited procedure in the context of major contracts, major development projects where we’re trying to get infrastructure done and jobs done is better than no expedited process,” Brams said.

Administration officials argued that retroactive legislation was not unprecedented, but admitted it was uncommon.

The State Center project has been on hold since the lawsuit was filed in December 2010.

Committee members’ questions centered largely around the House Environmental Matters Committee amendment adopted late last week, which led to impassioned debate on the House floor.

Regardless of the State Center case, Sen. Nathaniel McFadden, D-Baltimore City, questioned whether the amended bill would set a precedent for any project moving forward.

“Am I correct? Am I correct?” McFadden asked administration officials, who confirmed that he was. “I thought I was correct,” McFadden said.

“Because this has been done in the past doesn’t make it right,” stated McFadden.

Opposition was echoed by Sen. Roger Manno, D-Montgomery. He sponsored the original bill, but said he would work against the amendment.

“I would have a real problem supporting the bill with this amendment,” said Manno.

Administration officials could not answer Manno’s questions about whether the amendments would have been proposed had the State Center lawsuit not been pending before the courts. Officials responded that the amendments were not from the governor’s office. Plaintiffs in the lawsuit have said the amendments were targeted at their case to deny them a public trial.

Testifying in opposition to the amended bill were several lawyers, including some representing plaintiffs in the State Center lawsuit. They said the amendment raised serious constitutional questions.

Representing the Maryland State Bar Association, Director of Legislative Relations Richard Montgomery said he would not be testifying were it not for the retroactive House amendment. Montgomery added that the association had no issue with the original bill.

Byron Warnken, a professor at the University of Baltimore School of Law, said he had “no dogs in this fight” and that while a constitutional argument could be made by both sides, lawmakers should consider “fundamental fairness.”

“You and I as a society have a very difficult time operating if in fact we operate according to the law, but we never know whether during that process the law will be changed,” said Warnken. “The fact that the constitutional question is up in the air is probably enough reason to not make retroactive legislation.”

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