Maryland Attorney General Opinion 97 OAG 058

58 [97 Op. Att’y

PUBLIC OFFICERS AND EMPLOYEES
ELECTED OFFICIALS – REMOVAL FROM OFFICE – DELEGATE’S
CONVICTION AND WAIVER OF APPEAL RIGHTS TRIGGERS
AUTOMATIC REMOVAL UNDER ARTICLE XV, § 2 OF THE
MARYLAND CONSTITUTION DESPITE CIRCUIT COURT’S
SUBSEQUENT REVISION OF SENTENCE TO PROBATION
BEFORE JUDGMENT

November 20, 2012
The Honorable Martin O’Malley
Governor
You have asked for our opinion as to whether Delegate
Tiffany Alston has been removed from office by operation of law
as a result of her recent criminal conviction. Specifically, you
have asked us to review the conclusion reached by Dan Friedman,
Counsel to the General Assembly, that Ms. Alston’s conviction
for misconduct in office constitutes an offense that triggers the
automatic removal provisions of Article XV, § 2 of the Maryland
Constitution. After a thorough review of Mr. Friedman’s analysis
of the issue and the response thereto from Ms. Alston’s counsel,
and after considering events that have transpired in the days since
Mr. Friedman issued his letter, we conclude that Ms. Alston was
removed from office, by operation of law, by virtue of her
conviction for official misconduct and her waiver of her rights of
appeal.
In reaching this conclusion we are mindful of the fact that
the trial judge, after sentencing Ms. Alston to probation,
community service, and restitution, subsequently granted Ms.
Alston’s motion to modify her sentence pursuant to Rule 4-345
and granted her probation before judgment after she had
demonstrated that she had completed her community service
obligations and paid restitution. The trial court’s exercise of its
revisory power, however, does not amount to a determination that
the conviction was wrongly imposed, as would be the case if the
trial court’s judgment were “reversed or overturned” on appeal.
Because Ms. Alston’s conviction was finally imposed, and was
not reversed or overturned on appeal, we agree with Mr.
Friedman’s conclusion that she was removed from office effective
October 9, 2012.
Gen. 58] 59
I
Background1
Ms. Alston’s Conviction and Sentencing
Tiffany Alston was first sworn in as a member of the
Maryland House of Delegates representing the 24th legislative
district on January 11, 2011. On or about September 23, 2011,
the grand jury for Anne Arundel County returned a five-count
indictment against Ms. Alston for using campaign funds
belonging to the campaign finance entity, “Friends of Tiffany
Alston,” for her private benefit, including payments to herself and
an employee of her law firm, and for her wedding expenses
(“Alston I”). The indictment indicates that each of the criminal
acts was alleged to have occurred between April 6 and December
23, 2010, before Ms. Alston was sworn into office.
On December 15, 2011, the grand jury returned an additional
two-count indictment against Ms. Alston (“Alston II”) charging
her with theft under $1,000 and common law misconduct in office
based on allegations that Ms. Alston used State money to pay an
employee for work at her private law firm. See Duncan v. State,
282 Md. 385, 387 (1978) (describing common law misconduct in
office as “corrupt behavior by a public officer in the exercise of
the duties of his office or while acting under color of his office”).
Unlike the Alston I indictment, the Alston II indictment alleged
criminal acts that occurred during Ms. Alston’s term of office.
The two cases were set for separate trial dates before the
Honorable Paul F. Harris, Jr. of the Circuit Court for Anne
Arundel County. Alston II was scheduled for trial first and, on
June 12, 2012, a jury returned a guilty verdict on both counts:
misdemeanor theft and misconduct in office. Judge Harris
deferred sentencing until November 5, 2012. Trial of Alston I
was scheduled to begin on October 9, 2012. Rather than proceed
to trial, however, on October 9, 2012, Ms. Alston entered into a
plea agreement to resolve both Alston I and sentencing in Alston
II.
For purposes of this opinion, the critical terms of the
agreement approved by Judge Harris are:
On the fraudulent misappropriation by a
fiduciary count of Alston I, Ms. Alston pled
nolo contendere or “no contest.” Judge

1
Because we have provided this Opinion on an expedited basis,
our description of the circumstances surrounding Ms. Alston’s
prosecution and conviction is based entirely on the facts as described
by Mr. Friedman and by Ms. Alston’s counsel.
60 [97 Op. Att’y
Harris accepted the nolo contendere plea, but
struck the guilty finding and stayed entry of
judgment pursuant to CP § 6-220(b)
(“probation before judgment”). Ms. Alston
was also given three years of unsupervised
probation and served with a civil citation in
the amount of $500.
On the misdemeanor theft charge of Alston
II, on which she had been found guilty by the
jury on June 12, Judge Harris also struck the
guilty finding and granted Ms. Alston
probation before judgment.
On the misconduct in office charge of Alston
II, Judge Harris sentenced Ms. Alston to one
year of incarceration, suspended, 3 years of
supervised probation, 300 hours of
community service, and restitution to the
State of Maryland in the amount of $800.
As part of the agreement, Ms. Alston waived all appellate rights.
Ms. Alston’s waiver is recorded on the criminal hearing sheets
pertaining to her charges.
Finally, the letter agreement also contained a provision
allowing Ms. Alston to “earn” a modification of her sentence for
the misconduct in office charge of Alston II:
The Defendant may seek a Modification of
Sentence requesting probation before
judgment on the misconduct in office
conviction. The State shall remain silent and
the Court agrees to bind itself to striking the
guilty conviction and granting Ms. Alston
probation before judgment on Count 2 in
case #K-11-2626 immediately upon (i)
completion of three hundred hours of
community service, (ii) payment of $800.00
in restitution, and (iii) payment of a non-
criminal civil citation fine in the amount of
$500.
Despite the quoted text of the letter agreement, Judge Harris
stated in open court, on October 9, 2012, that he was not bound to
grant the modification, though he would entertain it once she had
fulfilled the terms of her sentence. Ms. Alston promptly filed the
necessary motion for modification and asked that it be held sub
curia pending completion of the community service and payment
of the restitution.
Gen. 58] 61
Mr. Friedman’s Advice on the Suspension and Removal of Ms.
Alston
On October 10, 2012, Mr. Friedman advised Speaker Busch
that, by virtue of Ms. Alston’s having received a sentence for the
crime of misconduct in office, Ms. Alston had been “suspended
from elective office by operation of law without pay or benefits.”
Letter of Advice from Dan Friedman, Assistant Attorney General,
to the Honorable Michael E. Busch, Speaker of the House of
Delegates (Oct. 10, 2012). It is our understanding that Speaker
Busch relied upon this advice and has since taken the necessary
steps to effectuate the suspension. The propriety of Ms. Alston’s
initial suspension is not at issue and is not addressed in this
Opinion.
Because of the urgent need to ascertain Ms. Alston’s status,
Mr. Friedman provided the Speaker with expedited advice on the
pressing issue of Ms. Alston’s suspension and left for another day
the issue of whether Ms. Alston’s conviction had resulted in her
permanent removal from office. The need for advice on the
removal issue soon arose, however, and Mr. Friedman provided a
second letter of advice, dated November 1, 2012, in which he
concluded that Ms. Alston had been removed from office by
operation of law by virtue of her conviction on the misconduct in
office charge and her waiver of appellate rights with respect
thereto. It is the conclusion that Mr. Friedman reached in this
second letter of advice that you have asked us to review.
The Trial Court’s Modification of Ms. Alston’s Sentence
It is our understanding that a hearing on Ms. Alston’s motion
for modification was held on November 5, 2012, at which point
Ms. Alston stated that she had paid the restitution and had
completed her community service obligations. After the State
Prosecutor proffered evidence to the contrary, the case was
continued to November 13, 2012, at which point Ms. Alston
indicated that she had carried out additional community service
since her previous court appearance. Judge Harris granted the
motion for modification, struck the finding of guilt, and entered
probation before judgment on the one count—misconduct in
office—for which she had been sentenced. Ms. Alston remains
under three years of supervised probation.
62 [97 Op. Att’y
II
Analysis
A. The Relevant Constitutional Provision
Article XV, § 2 of the Maryland Constitution provides for
the suspension and removal of elected officials who are convicted
of certain crimes:
Any elected official of the State, or of a
county or of a municipal corporation who
during [her] term of office is convicted of or
enters a plea of nolo contendere to any crime
which is a felony, or which is a misdemeanor
related to [her] public duties and
responsibilities and involves moral turpitude
for which the penalty may be incarceration in
any penal institution, shall be suspended by
operation of law without pay or benefits from
the elective office. During and for the period
of suspension of the elected official, the
appropriate governing body and/or official
authorized by law to fill any vacancy in the
elective office shall appoint a person to
temporarily fill the elective office, provided
that if the elective office is one for which
automatic succession is provided by law,
then in such event the person entitled to
succeed to the office shall temporarily fill the
elective office. If the conviction becomes
final, after judicial review or otherwise, such
elected official shall be removed from the
elective office by operation of Law and the
office shall be deemed vacant. If the
conviction of the elected official is reversed
or overturned, the elected official shall be
reinstated by operation of Law to the elective
office for the remainder, if any, of the
elective term of office during which [she]
was so suspended or removed, and all pay
and benefits shall be restored.
Md. Const., Art. XV, § 2. This provision creates a two-step
process: An elected official who is convicted of a qualifying
crime is suspended; if the conviction is “reversed or overturned”
the elected official is reinstated to office, but if the conviction
“becomes final,” i.e., is upheld “after judicial review,” the
removal becomes permanent.2
2
During the 2012 legislative session, the General Assembly
unanimously proposed a constitutional amendment that substantially
Gen. 58] 63

B. Removal Analysis
Mr. Friedman concluded that Ms. Alston was removed from
office by virtue of having been convicted of common law
misconduct in office. Mr. Friedman expressed “no doubt” that
this is a qualifying crime under Article XV, § 2 and that, upon
Judge Harris’s imposition of a sentence, the charge became a
“conviction” and thus became a proper basis for her suspension
from the legislature under Article XV, § 2. See 62 Opinions of
the Attorney General at 371. These conclusions do not appear to
be in question here and we see no basis on which to doubt their
accuracy.3
The question you have asked us to review can be distilled to
whether Ms. Alston’s conviction has “become[] final, after
judicial review or otherwise,” thus causing her to be permanently
removed from elective office, or whether the trial court’s
subsequent modification of her sentence to probation before
judgment means that her conviction has been “reversed or
overturned,” thereby allowing Ms. Alston to be reinstated. It is
our view that the former is the case and that Ms. Alston’s
conviction was rendered final by virtue of her receiving a
conviction and, simultaneously, forfeiting her appellate rights and
by her failure to file any residual appeal she may have had within
the thirty days allowed under Rule 8-202(a). At that time, Ms.
Alston’s conviction was final and could no longer be “reversed or

modified Art. XV, § 2 by (1) accelerating the trigger for suspension
from “conviction,” which occurs at sentencing, 62 Opinions of the
Attorney General 365, 371 (1977), to the time of a guilty verdict; and
(2) mandating immediate and automatic removal for guilty pleas and
nolo contendere pleas for qualifying crimes. 2012 Md. Laws, ch. 147.
On November 6, 2012, the voters adopted the new constitutional
amendment by a greater than seven to one margin. See Unofficial 2012
Presidential General Election results for All State Questions (available
at http://elections.state.md.us/elections/2012/results/general/gen
_qresults_2012_4_00_1.html (last visited Nov. 19, 2012)) (reporting
that 88% voted to approve Question 3). The amendment will become
effective upon the Governor’s proclamation that it has been adopted by
the voters. Art. XIV, § 1.
3
We also do not express an opinion on Mr. Friedman’s conclusion
that the other charges on which Ms. Alston was found guilty could not
serve as the basis of suspension or removal. With respect to her
misdemeanor theft charge, Mr. Friedman concluded that the charge had
not become a “conviction” because Ms. Alston received probation
before judgment. With respect to her charge of misappropriation by a
fiduciary, Mr. Friedman stated that, while the issue “is not entirely
clear at this time,” he believed that, because the count related to the use
of her campaign funds, it was not “‘related to [her] public duties and
responsibilities.’”
64 [97 Op. Att’y
overturned” by an appellate court so as to allow her to be
reinstated. Rather, her conviction became final, not by “judicial
review,” but “otherwise,” by her waiver of, and failure to
exercise, her appeal rights.
1. Interpretation of Article XV
Inasmuch as this issue raises a matter of constitutional
construction, we believe it helpful to review the analysis that the
Court of Appeals has prescribed when interpreting “a particular
provision, be it statutory, constitutional or part of the Rules”:
We begin our analysis by first looking to the
normal, plain meaning of the language of the
statute, reading the statute as a whole to
ensure that no word, clause, sentence or
phrase is rendered surplusage, superfluous,
meaningless or nugatory. If the language of
the statute is clear and unambiguous, we need
not look beyond the statute’s provisions, and
our analysis ends. If, however, the language
is subject to more than one interpretation, or
when the language is not clear when it is part
of a larger statutory scheme, it is ambiguous,
and we endeavor to resolve that ambiguity by
looking to the statute’s legislative history,
case law, and statutory purpose, as well as
the structure of the statute.
People’s Ins. Counsel Div. v. Allstate Ins. Co., 408 Md. 336, 351
(2009) (internal quotation marks omitted). The interpretation of
Article XV invokes all of these interpretive steps.
We believe the plain language and structure of Article XV, §
2, when read as a whole, describes a binary outcome: When an
elected official is convicted of a qualifying crime, she is
suspended from office pending any appeal. In that event, “[i]f the
conviction of the elected official is reversed or overturned, the
elected official shall be reinstated by operation of Law.” If,
however, “the conviction becomes final, after judicial review or
otherwise, such elected official shall be removed from the elective
office by operation of Law and the office shall be deemed
vacant.” When these passages are read together, the natural
meaning thereof becomes clear: If the official wins her appeal,
she is reinstated; if she loses her appeal or fails to appeal
altogether, she is removed. This binary interpretation does no
violence to the words of Article XV and is consistent with how
we have previously characterized the effect of the provision. See,
e.g., 62 Opinions of the Attorney General 365, 368 (1977)
(describing the legislative history of Article XV and observing
Gen. 58] 65
that the final version of the amendment “established a suspension-
removal procedure under which suspension from office would
occur upon conviction of a crime and removal would occur if the
conviction were upheld on appeal”); 62 Opinions of the Attorney
General 464, 477 (1977) (observing that Article XV specifically
contemplates “the possible reinstatement to office of an official
whose conviction is overturned on appeal”).
When we apply this interpretation to the facts of Ms.
Alston’s prosecution as we understand them, her conviction
became final, not by “judicial review,” but “otherwise,” because
she waived her right to appeal her conviction. We realize in this
respect that criminal defendants retain certain limited rights to
appeal their convictions even in cases where they have seemingly
waived all rights of appeal. See, e.g., Md. Code Ann., Cts. & Jud.
Proc. § 12-302(e) (allowing for review of judgment entered
following a plea of guilty). But because Ms. Alston was found
guilty of, as opposed to having pled to, the charge that resulted in
her removal, she was required to file any such appeal—again, if
one remained available—within 30 days of her conviction, Md. R.
8-202, which Ms. Alston failed to do. Thus, by the time Judge
Harris exercised his revisory power and granted Ms. Alston
probation before judgment, the conviction had become final for
purposes of Article XV.
We are aware that the 1974 legislative history of Article XV,
§ 2 provides some support for the view Ms. Alston espouses,
namely, that the term “judicial review” is broader than “appeal.”
As initially introduced, the proposed constitutional amendment
would have required permanent removal immediately upon
conviction, “notwithstanding any appeal which may be taken.”
Senate Bill 671 (1974) (emphasis added). The Senate amended
the proposal to create the two-step process of suspension and
removal that we are now familiar with, and likewise made the
process dependent on the outcome of an “appeal”:
If, after exhaustion of any appeal as a matter
of right within the court system in which the
elected official is so convicted, the
conviction is upheld, such elected official
shall be removed from the elective office by
operation of law. . . . If the conviction of the
elected official is reversed or overturned on
any appeal as a matter of right as provided
above, the elected official shall be reinstated
by operation of law. . . .
Maryland Senate Journal, Vol. II at 1914 (1974) (emphasis
added). The House of Delegates appears to have amended the
proposal further to arrive at the current language, “becomes final,
after judicial review or otherwise.” Maryland House Journal,
66 [97 Op. Att’y
Vol. II at 4365 (1974). The Senate then concurred in the House’s
amendment and it was that version that was approved by the
voters. Maryland Senate Journal, Vol. II at 3072; see also 1974
Md. Laws, ch. 879.
We acknowledge that this history could be seen as evidence
that the Legislature intended to make a distinction between an
“appeal” and “judicial review,” as Ms. Alston contends, and,
consequently, that an argument could be made that the trial
court’s revisory power, though not an appeal, is encompassed
within the term “judicial review.” But we think such a
construction places too much weight on a distinction that, we
believe, was not intended.
As the Court of Appeals explained in Gisriel v. Ocean City
Board of Supervisors, it was not uncommon in the early 1970s for
the Judiciary and the Legislature alike to conflate the concepts of
“appeal” and “judicial review”:
Section 12-302(a) [of the Courts & Judicial
Proceedings Article] was enacted by the
General Assembly in 1973, and the opinion
in Shell Oil Co. v. Supervisor, [276 Md. 36
(1975)], was rendered two years later in
1975. Prior to the opinion in the Shell Oil
case, and at the time § 12-302(a) was
enacted, statutory circuit court actions for
judicial review of decisions by administrative
agencies or local legislative bodies were
regularly called “appeals” and treated as if
they fell within the appellate jurisdiction of
the circuit courts. See, e.g., Criminal Inj.
Comp. Bd. v. Gould, [273 Md. 486 (1975)]
(using, throughout the opinion, the terms
“appeal” and “appellate” jurisdiction
interchangeably with the term “judicial
review”).
345 Md. 477, 493 (1997). Although Gisriel, Shell Oil, and Gould
involved distinctions between the circuit court’s original and
appellate jurisdiction with respect to the review of administrative
agency action—an issue not at play here—the courts’ conflation
of the terms “appeal” and “judicial review” gives us reason to
doubt that the Legislature intended the meaning of “judicial
review” that Ms. Alston ascribes to it.
Perhaps more importantly, Ms. Alston’s interpretation would
require us to read the words “reversed or overturned” as including
the word “modified” and require us to understand “revers[ing]”
and “overturn[ing]” as actions that may be taken by a trial court.
Gen. 58] 67
In our view, these words are more normally and naturally
understood as actions taken exclusively by appellate courts. We
note in this respect that, while “judicial review” is still used to
refer to a court’s review of both agency decisions and lower court
decisions, See, e.g., S. Easton Neighborhood Ass’n v. Town of
Easton, 387 Md. 468, 476 (2005) (“Further judicial review of the
Circuit Court’s order upholding the Town Council’s decision to
close Adkins Avenue cannot be maintained as an action for
judicial review of an administrative agency’s decision.”), we are
not aware of any instance in which it has been understood to refer
to a court’s review of its own decision.
The Maryland Rules bear this out. The Rules do not use the
terms “reverse” or “overturn” to describe the circuit courts’
actions with regard to their own judgments. See, e.g., Md. R. 4-
332(l) (using “set aside” for purposes of writs of actual
innocence); 4-331 (using the terms “revise” and “set aside” for
purposes of motions for new trial). Rule 4-345—which formed
the basis for Judge Harris’s revision of Ms. Alston’s sentence—
uses many words to describe its effect but never “reverse” or
“overturn.” See generally Md. R. 4-345 (using terms “correct,”
“modify,” “reduce,” “vacate,” and “revise”). Given that the
circuit courts do not engage in “judicial review” of their own
decisions, we believe the term “judicial review,” as used in
Article XV, § 2, means “appeal.”
2. A Trial Court’s Modification of the Sentence it
Imposed Does Not Constitute Judicial Review and
Does Not “Reverse or Overturn” the Trial Court’s
Sentence.
We believe that the interpretation of Article XV that we
reach is consistent with our understanding of motions for
modification as collateral criminal remedies (a category which
also includes post-conviction, writs of mandamus and coram
nobis, and pardons and commutations) that may be granted after a
criminal conviction becomes final. See generally Michael A.
Millemann, Collateral Remedies in Criminal Cases in Maryland,
An Assessment, 64 Md. L. Rev. 968 (2005). Historically, the
power of Maryland trial judges to revise criminal sentences was
unique, both as compared to other states and other areas of the
law. See Steven Grossman & Stephen Shapiro, Judicial
Modification of Sentences in Maryland, 33 U. Balt. L. Rev. 1
(2003). So long as a motion for modification was filed within 90
days of sentence and held sub curia by the trial court, it could be
granted at any time thereafter. Id. at 4-7 (discussing Greco v.
State, 347 Md. 423 (1997); State v. Robinson, 106 Md. App. 720
(1995)).
In 2004, the rule was modified to create the current 5-year
limit on the trial court’s revisory power, but during that 5-year
68 [97 Op. Att’y
period, the trial judge remains free to modify any sentence on a
timely filed motion:
Upon a motion filed within 90 days after
imposition of a sentence . . . in a circuit court,
whether or not an appeal has been filed, the
court has revisory power over the sentence
except that it may not revise the sentence
after the expiration of five years from the
date the sentence originally was imposed on
the defendant and it may not increase the
sentence.
Md. R. 4-345(e)(1). Although the revisory power is now time-
limited, Rule 4-345 does not limit the types of crimes to which it
may be applied. As a result, the trial court could, upon the
defendant’s timely motion and at any time up to five years,
exercise its revisory power to strike the lengthy prison term of an
elected official convicted of manslaughter and grant him or her
probation before judgment. Under Ms. Alston’s reading of the
law, the fact that such a motion was pending would forestall
removal of the elected official, potentially for as long as four
years—the duration of an elective term of office. Md. Const.,
Art. XVII, § 1 (limiting the terms of elected officials to 4 years).
We believe that the potential for this and similar scenarios
illustrates that the term “judicial review” cannot be interpreted to
include the trial court’s exercise of revisory power, and that the
contrary conclusion would be impossible to reconcile with the
public policy that lies behind Article XV.
Furthermore, like other collateral criminal remedies, the
revisory power available under Rule 4-345 provides for remedies
that may be granted after a criminal conviction becomes final, not
before. See State v. Griffiths, 338 Md. 485, 496 (1995)
(describing Rule 4-345 as providing “a method of opening a
judgment otherwise final and beyond the reach of the court.”).
That Judge Harris “struck” Ms. Alston’s guilty verdict and
conviction and granted her probation before judgment does not
mean that the conviction never occurred for purposes of Article
XV. We realize that probation before judgment is not always
considered a conviction when imposed at trial. See Myers v.
State, 303 Md. 639, 647-48 (1985); but see Abrams v. State of
Maryland, 176 Md. App. 600, 612 (2007) (discussing Myers and
observing that, “[i]n later cases, whether a probation before
judgment constituted a ‘conviction’ again depended on the
context and purpose of the use of the term ‘conviction’”); id. at
617 (“[W]e hold that, where a probation before judgment subjects
a person to significant collateral consequences, such probation
before judgment constitutes a ‘conviction’ for purposes of coram
nobis relief.”). But in this respect, timing is important. Had
Gen. 58] 69
Judge Harris granted Ms. Alston probation before judgment up
front—as he did with respect to the guilty verdict on Ms. Alston’s
misdemeanor theft charge—she would not have received a
“conviction” and would not have been removed pursuant to
Article XV. But because Judge Harris sentenced Ms. Alston, she
was “convicted” for purposes of Article XV and removed from
office, and the court’s later exercise of revisory power—whether
within thirty days or thirty months after the conviction—cannot
not undo that fact. The bell cannot be unrung.
3. The Legislative Purpose of Article XV Weighs
Against the Interpretation Ms. Alston Advocates.
The reading we ascribe to Article XV furthers its primary
purpose, which is plainly to remove from office those elected
officials who are found guilty of crimes that undermine the public
trust in and the integrity of the General Assembly. 4 As the Court
of Appeals stated in People’s Counsel, “[i]n statutory
interpretation, our primary goal is always to discern the legislative
purpose, the ends to be accomplished, or the evils to be remedied
by a particular provision, be it statutory, constitutional or part of
the Rules.” People’s Ins. Counsel Div., 408 Md. at 351 (internal
quotation marks omitted).
It is important in this respect to recognize that Judge Harris
expressly stated—both in open court and in court documents—
that he was modifying Ms. Alston’s sentence because she had
fulfilled her rehabilitative obligations and not because he had
changed his view as to her criminal responsibility. Modifying
Ms. Alston’s sentence in this respect may have been worthwhile
from a correctional perspective; sentence modification can be a
“powerful incentive” toward rehabilitation or restitution. Judicial
Modification of Sentences in Maryland, 33 U. Balt. L. Rev. at 3.
And if Ms. Alston has paid her debt to society, it may make sense
to strike her conviction so that it will not impair her prospects for
future employment or even public service, if subsequently chosen
by the electorate. But the purposes served by Article XV, like
other professional responsibility provisions, are not punishment,
but preservation of the public trust. Cf. Attorney Grievance
Comm’n v. Gerald Isadore Katz, No. 86, Sept. Term 2011, at 12
(Md., Nov. 19, 2012) (purpose of attorney grievance process is

4
The General Assembly’s unanimous adoption of the proposed
constitutional amendment, and the voters’ approval of that amendment
by a greater than 7 to 1 margin, though not evidence of the legislature’s
intent in enacting Article XV, § 2, demonstrates that preserving the
integrity of the institution remains a uniformly held policy goal.
Unofficial 2012 Presidential General Election results for All State
Questions (available at http://elections.state.md.us/elections/2012/
results/general/gen_qresults_2012_4_00_1.html (last visited Nov. 19,
2012)) (reporting that 88% voted to approve Question 3).
70 [97 Op. Att’y
“not to punish the errant attorney, but rather . . . to maintain
public trust in the legal profession by demonstrating intolerance
for unprofessional conduct”) (internal quotation marks omitted);
compare 65 Opinions of the Attorney General 445, 449 (1980)
(observing that “the primary purpose of Article XV, § 2 clearly is
to provide for the suspension from office of a convicted official; it
is not concerned with the treatment of an official convicted after
his term of office”). As we observed about Article XV soon after
its approval:
It is essential to our government that public
officials have the confidence of the people.
That confidence cannot extend to an official
under conviction for malfeasance in office.
His rights are subordinate to the public weal.
The possibility that his conviction may
ultimately be reversed cannot weigh against
public dissatisfaction with, and public
mistrust of him pending appellate hearing.
Public policy demands a rigid construction of
this law as well as its enforcement.
62 Opinions of the Attorney General 368-69 (1977) (quoting State
v. Levi, 109 W. Va. 277, 279-80, 153 S.E 587, 588-89 (1930)).
We cannot see how allowing Ms. Alston to retain her seat despite
her guilty finding and conviction does anything to restore public
trust in our elected officials or the institutions in which they serve.
The voters’ recent approval of Question 3, we believe, is strong
evidence that the contrary is true, that the reinstatement of Ms.
Alston will undermine the same public values that Article XV
was intended to enforce. Question 3 amends Article XV to
accelerate the process by which officials found guilty of criminal
wrongdoing are removed from office. Just as the initial approval
of Article XV, § 2 “was proposed and ratified by the voters of this
State in 1974 following the convictions of certain elected
officials,” 62 Opinions of the Attorney General at 367-68 (citing
Green v. State, 25 Md. App. 679 (1975), and Maryland State Bar
Association v. Agnew, 271 Md. 543 (1974)), see also Letter of
Advice to Del. Jill P. Carter from Assistant Attorney General
Kathryn M. Rowe (Nov. 20, 2012), the approval of Question 3
came after a series of instances in which prominent officials were
found guilty of a jury of their peers but refused to leave office,
managing instead to remain in office for extended periods of time
prior to sentencing. The voters’ overwhelming approval of
Question 3, and the modifications to Article XV it proposed,
provides recent and resounding confirmation of the meaning we
ascribe to Article XV. 5

5
Because our conclusions are based on other grounds, it is
unnecessary to consider whether the ratification of the amendments to
Gen. 58] 71
* * *
Finally, we confirm Mr. Friedman’s conclusion that Ms.
Alston’s removal from elective office pursuant to Art. XV, § 2
applies only to the current term of office. That conclusion reflects
the interpretation long held by this Office that the term is part of
the office itself. See 83 Opinions of the Attorney General 109
(1998); Letter of Advice to Theodore P. Weiner from Assistant
Attorney General Linda H. Lamone (Aug. 15, 1986).
Accordingly, absent further developments, Ms. Alston will be
eligible to run for election in 2014 or beyond. However, that
same interpretation yields the conclusion that Ms. Alston may not
be re-appointed to her seat during the current term of office. See
Letter of Advice to Del. Jill P. Carter from Assistant Attorney
Kathryn M. Rowe (Nov. 20, 2012).
III
Conclusion
For all of these reasons, we think that the better and more
natural interpretation of the constitutional provision as applied to
this set of circumstances is that Ms. Alston’s suspension from
elective office became a final removal when she forfeited her
rights to appeal from the conviction. Therefore, in our view, she
was removed from office by operation of law on October 9, 2012.

Douglas F. Gansler
Attorney General

Adam D. Snyder
Chief Counsel
Opinions & Advice

Article XV, § 2 would alter the timing of Ms. Alston’s initial
suspension.