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Follow up to Governor's Pardon Power

Lawyers on the Rocks podcast

Release Date: 02/12/2020

Our discussions resulted in some follow up research.  The quick and dirty result is that it seems possible that, based upon the Maryland Constitution, a governor may be challenged for an improper pardon.  See below:


Just want to be clear that I still think that the Maryland Governor can be charged for improperly using the pardon power.  See:

Sewell v. State, 239 Md. App. 571, at 625 (2018)
A. Official Misconduct
First, we review the elements necessary to prove HN3 official misconduct, which is a common-law misdemeanor [***41]  in Maryland. Leopold v. State, 216 Md. App. 586, 604, 88 A.3d 860 (2014) (citing Duncan  [**625]  v. State, 282 Md. 385, 387, 384 A.2d 456 (1978)). HN4 Misconduct in office is defined as "corrupt behavior by a public officer in the exercise of the duties of his [or her] office or while acting under color of" his or her office. Id. (quoting Duncan, 282 Md. at 387); see also Rollin M. Perkins & Roland N. Boyce, Criminal Law 543 (3d ed. 1982). Although it is a singular offense, the crime of official misconduct covers three modes of behavior: (1) misfeasance, (2) malfeasance, and (3) nonfeasance. State v. Carter, 200 Md. 255, 262-63, 89 A.2d 586  [*602]  (1952). "'Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do at all.'" Id. at 262 (quoting Bell v. Josselyn, 69 Mass. (1 Gray) 309, 311, 3 Gray 309 (1855)). By way of example, a public officer tasked with awarding government contracts can commit malfeasance by rewarding a political donor with a public contract that the officer had no authority to grant and may commit misfeasance by rewarding the donor with a contract that is within the officer's authority to grant. Perkins & Boyce, supra, at 545. Accordingly, a public officer commits malfeasance by corruptly exceeding the scope of his or her authority and commits misfeasance by acting within the scope of his or her authority but doing so [***42]  corruptly. Compare Piper v. Pearson, 68 Mass. 120, 123, 2 Gray 120 (1854) (holding that a magistrate was liable for finding the plaintiff in contempt in an action over which the magistrate had no authority to preside) with People v. Norton, 7 Barb. 477, 478, 480-81 (N.Y. App. Div. 1849) (explaining that, although the law may grant an officer "discretionary jurisdiction" to grant liquor licenses, that discretion cannot be "willfully abused[,]" and the officer may not grant or refuse to grant a license based on "corrupt and improper motives").

HN5 As in any other criminal prosecution, in a case of official misconduct, the burden of proof lies with the State to prove the official guilty beyond a reasonable doubt. Harryman v. State, 359 Md. 492, 505, 754 A.2d 1018 (2000). Over 150 years of decisional law confirms that, regardless what type of act (or omission) forms the basis of a charge of official misconduct, the State must prove that the public officer acted "willfully, fraudulently, or corruptly." Friend v. Hamill, 34 Md. 298, 304 (1871); see also Hiss v. State, 24 Md. 556, 561 (1866) (relying on Lord Mansfield for the proposition that a justice of the peace may be liable for a discretionary act only if he exercises his discretion "maliciously or corruptly"). This is because official misconduct covers only "corrupt behavior by a  [*603]  public officer" in the exercise of his or her duties. Duncan, 282 Md. at 387 (emphasis added).

HN6 Requiring that the State prove corrupt [***43]  intent in misfeasance cases shields public officers from liability for "the consequences of mistakes honestly made." Bevard v. Hoffman, 18 Md. 479, 483 (1862); see also People v. Feerick, 93 N.Y.2d 433, 714 N.E.2d 851, 857, 692 N.Y.S.2d 638 (N.Y. 1999) (explaining that the mens rea requirement protects officers from criminal liability for honest mistakes). As the Court of Appeals explained in 1862, "the nature of our institutions equally demands, that public officers, acting faithfully and honestly in the discharge of their duties, and within the limits of their constitutional powers, shall be protected from liability for mistake or errors of judgment from which none are exempt; provided that they are unmixed with fraud or corruption." Bevard, 18 Md. at 483 (emphasis added). The Court underscored this point later that century in Mincher v. State, ruling that HN7 when a public official is reposed with judgment and discretion in the discharge  [**626]  of his or her functions, that official may not be held liable, civilly or criminally, for misconduct in office "except for acts done willfully, fraudulently, or corruptly." 66 Md. 227, 235-36, 7 A. 451 (1886) (citing Friend, 34 Md. at 304; Bevard, 18 Md. at 484). A jury acquitted Mincher, a voter registration officer, of all charges except one. Id. at 231. The jury found him guilty of violating a voter registration statute for "knowingly making and publishing [] a false and misleading" [***44]  voter registration list. Id. at 231-32. Mincher claimed that the indictment was defective because it did not aver that he acted either willfully, fraudulently, or corruptly. Id. at 235-36. The Court of Appeals agreed that such proof is required "wherever the registration act devolves upon such officer the duty of exercising judgment in the discharge of their functions." Id. at 236. The Court concluded, however, that "[t]he duty of making out, completing, and publishing the two lists provided for in this section [of the statute] does not involve the exercise of any judgment whatever, nor is it left to the discretion of such officers to make out and publish the lists . . . it was only  [*604]  necessary for the count to charge, as it does, that the acts set out in it were unlawfully and knowingly done by the traverser." Id.

HN8 In the case of malfeasance, then, the conduct in question falls outside of the official's discretion and authority, and, if done willfully, is corrupt on its face. See id. at 235-36. The fact-finder can therefore infer the element of corruption without direct evidence of the official's intent to act corruptly because "wil[l]fulness and bad intent" are "necessary or probable accompaniments" of malfeasance. See Carter, 200 Md. at 263. For instance, [***45]  a jury could infer corrupt intent from the act of a public officer who, in his capacity as police lieutenant, accepted gifts from several persons he allowed to maintain and conduct a house of prostitution in his jurisdiction. See Hitzelberger v. State, 174 Md. 152, 164-65, 197 A. 605 (1938). In the case of misfeasance, however, because the conduct normally falls within the official's discretion and authority, the State must present evidence that the official intended to act corruptly—with a "sense of depravity, perversion, or taint." Perkins & Boyce, supra, at 542.

The distinctions between nonfeasance, malfeasance and misfeasance are not always clear in the cases that develop. See id. at 545 (observing that the distinction between malfeasance and misfeasance "is much less sharp in the actual cases than it is in legal theory, and . . . the courts have had little occasion to indulge in hairsplitting discussions of the problem"). For instance, consider the registration official in Mincher, 66 Md. at 235-36. One may argue that he committed misfeasance because his act (publishing a voter registration list) was within the scope of his authority. But because the official's duty to publish the names of registered voters was deemed ministerial—rather discretionary—his decision to willfully omit from the list the names [***46]  of some registered voters was beyond the scope of his authority and was, therefore, malfeasance. See id.

Chief Judge Marbury declared in Carter, that HN9 what matters is "the gravamen of the charge, and it is not particularly  [*605]  important what it is called." 200 Md. at 267. In that case, the indictment charged certain officials with corruptly permitting individuals to post improper, inadequate and insufficient bail, and the appellants claimed that the indictment should be dismissed because it "contained in one count three separate and distinct crimes, malfeasance, misfeasance, and nonfeasance in office, and therefore was duplicitous." Id. at 259. Judge  [**627]  Marbury instructed that the officials were charged with performing their duties corruptly and improperly and that "[w]hether this is called malfeasance or misfeasance or nonfeasance, it is a clear charge of misconduct in office, and it is the only charge contained in the indictment." Id. at 267; see also Chester v. State 32 Md. App. 593, 605, 363 A.2d 605 (1976) ("[A]ny corrupt violation by an officer in any of these three ways is a common-law misdemeanor known by some such name as 'misconduct in office' or 'official misconduct.'").

As these cases and the case before us illustrate, HN10 the measure of what constitutes official misconduct [***47]  is an imbricating continuum of proof that runs from evidence of conduct squarely within an officer's discretion undertaken with corrupt intent (misfeasance)—to evidence of conduct clearly exceeding an official's scope of authority such that corrupt intent can be assumed (malfeasance). Conduct that toes the sometimes murky line between what is and what isn't within an officer's scope of authority,8Link to the text of the note falls within the overlay on this continuum.  [*606]  One thing is certain: regardless of where on the spectrum between malfeasance and misfeasance that Sewell's alleged conduct falls, the ambit of his discretion remains central in the State's case for official misconduct.

Section 20. Power of Governor to grant reprieves and pardons, remit fines and forfeitures
He shall have power to grant reprieves and pardons, except in cases of impeachment, and in cases, in which he is prohibited by other Articles of this Constitution; and to remit fines and forfeitures for offences against the State; but shall not remit the principal or interest of any debt due the State, except, in cases of fines and forfeitures; and before granting a nolle prosequi, or pardon, he shall give notice, in one or more newspapers, of the application made for it, and of the day on, or after which, his decision will be given; and in every case, in which he exercises this power, he shall report to either Branch of the Legislature, whenever required, the petitions, recommendations and reasons, which influenced his decision.

but see: Governor had authority to sua sponte commute defendant's death sentences to life imprisonment without the possibility of parole, even though defendant did not apply for commutation, because the gubernatorial pardon power was plenary and did not depend upon a request by the grantee; the requirement that the Governor give notice of the application made for it, and of the day on, or after which, his decision will be given, is merely a notice requirement and not a condition precedent. Grandison v. State, 234 Md. App. 564, 174 A.3d 388 (2017), cert. denied, 139 S. Ct. 1350, 2019 U.S. LEXIS 1762, 203 L. Ed. 2d 588 (U.S. 2019).