Can Maryland pass emergency legislation changing how absentee ballots are handled without violating the constitutional ban on emergency laws that change an officer's duties?

Plain-English summary

Governor Harry Hughes asked the Attorney General to review House Bill 82, an emergency bill that would have tightened the rules boards of canvassers had to follow when handling absentee ballots, including keeping ballots safe from tampering, rejecting certain ballots under specified circumstances, and storing ballots in a secure place instead of a ballot box. The Maryland Constitution bars emergency laws (which take effect immediately, without the usual waiting period) from "changing the ... duty of any officer." The opinion concluded that the added canvassing tasks did not amount to a prohibited "change in duties" because they did not substantially affect the board's primary responsibilities and were the kind of incidental additional duties that would naturally fall to canvassing board members anyway. The AG's office relied heavily on California case law construing a nearly identical provision in the California Constitution, since Maryland had little guiding precedent of its own on the point.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can Maryland pass emergency legislation changing how absentee ballots are handled without violating the constitutional ban on emergency laws that change an officer's duties?
According to this 1984 opinion, yes, at least for the specific changes at issue. The Attorney General approved House Bill 82, an emergency bill imposing new absentee-ballot safeguards on boards of canvassers, concluding that the added tasks did not "change" the board's duties within the meaning of Article XVI, §2 of the Maryland Constitution.

What counts as a prohibited "change in duties" under Article XVI, §2?
The opinion explained that additional duties imposed on a public officer by an emergency bill do not violate Article XVI, §2 if they are already within the general duties of the office, or if they do not substantially affect the officer's primary duties and would naturally devolve on the officer even without express mention in the bill.

Why did the opinion look to California case law?
The opinion noted that California's Constitution contains a provision, Article 4, §8, nearly identical to Maryland's Article XVI, §2, and that California appeared to be the only other state with such a restriction. In the absence of substantial Maryland precedent construing the provision, the AG's office found the California decisions "much more helpful."

Background and statutory framework

Article XVI, §2 of the Maryland Constitution bars any emergency law from "changing the ... duty of any officer," among other restrictions, so that the public and affected officials are not caught off guard by measures that take effect immediately rather than after the normal delay. The opinion analyzed House Bill 82's absentee-ballot canvassing requirements against Maryland case law holding that additional duties already within an officer's general responsibilities do not trigger the constitutional bar, and it drew on a series of California decisions interpreting that state's nearly identical constitutional provision to conclude that only a substantial change to an officer's primary duties, not an incidental addition naturally connected to the existing role, is constitutionally prohibited.

Citations

Statutes:

• Article XVI, §2 of the Maryland Constitution (bars emergency laws that change the duty of any officer)
• California Constitution, Art. 4, §8 (nearly identical restriction on emergency legislation)

Cases:

• Hammond v. Lancaster, 194 Md. 462, 477 (1950) (additional duties already within an officer's general duties do not violate Article XVI, §2)
• Dorsey v. Petrott, 170 Md. 230, 249 (1940) (purpose of Article XVI, §2 is to avoid uncertainty and confusion from emergency measures changing an officer's duty)
• County Commissioners v. Westphal, 232 Md. 334, 340-41 (1963) (rejecting a distinction between individual officers and boards or commissions under other constitutional provisions)
• Martin v. Riley, 123 P.2d 488 (Cal. 1942) (a change in the volume of an officer's duties not substantially affecting primary duties is not a prohibited "change of duties")
• Behneman v. Alameda-Contra Costa Transit Dist., 6 Cal.Rptr. 382 (1960) (following Martin v. Riley)
• Davis v. Los Angeles County, 84 P.2d 1034 (Cal. 1939) (no prohibited change in duties where added duties would naturally devolve on the officer)
• Flournoy v. Priest, 486 P.2d 689 (Cal. 1971) (emergency legislation changing procedures for discharging duties is not constitutionally prohibited)
• People v. Robertson, 655 P.2d 279 (Cal. 1982) (cited in support of the California line of cases)
• Riggin v. Lankford, 134 Md. 146 (1919) (election supervisors are public officers)
• Board of Canvassers of Elections v. Noll, 127 Md. 296 (1915) (canvassers perform ministerial functions)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATUTES

Constitutional Law-Emergency Legislation-"Change In Duties'-Standard For Determining Whether New Functions Amount To Prohibited Change In Duties.

March 7, 1984

The Honorable Harry Hughes
Governor

We have reviewed and hereby approve for constitutionality and legal sufficiency House Bill 82, an emergency bill, which alters various legal requirements with respect to absentee ballots. In so doing, we have concluded that the subject matter of House Bill 82 is a proper subject of emergency legislation and does not violate the prohibition in Article XVI, §2 of the Maryland Constitution against "changing the . . . duty of any officer . . . [by] emergency law."

I
Description of Bill

Among the changes House Bill 82 would bring to existing law are the following:

(1) the board of canvassers would be required to keep absentee ballots safe from tampering until the canvass is completed;

(2) the board would be required to reject certain absentee ballots under certain circumstances; and

(3) the board would be required to place absentee ballots "in a secure place to which the public has no access," rather than in a ballot box.

II.
Changes in Duties

Article XVI, §2 of the Constitution provides that:

"[N]o measure creating or abolishing any office, or changing the salary, term or duty of any officer, or granting any franchise or special privilege, or creating any vested right or interest, shall be enacted as an emergency law." (Emphasis added.)1

In our view, none of the provisions of House Bill 82 "change" the duty of board members within the meaning of Article XVI, §2.

Under Maryland cases, additional duties imposed by an emergency bill upon a public officer that are already within the general duties of his or her office do not violate Article XVI, §2. Hammond v. Lancaster, 194 Md. 462, 477 (1950). Arguably, some of the "duties" specified in House Bill 82 would merit this characterization. However, even if they did not, we do not believe that the legislation in question would offend Article XVI, §2.

In the past, in the absence of any guiding case law in Maryland, we have concluded that §2 does not prohibit emergency legislation conferring a "power" or "authority" on an officer, as opposed to imposing a "duty". We have also said that a duty imposed on an officer "incidental" to the conferral of a power is not within the prohibition.2 Such metaphysical distinctions, we believe, do not provide a sufficient legal guidepost to construing §2 in a workable fashion. We find much more helpful a series of decisions of California courts construing a constitutional requirement virtually indentical to Article XVI, §2.3

In Martin v. Riley, 123 P.2d 488 (Cal. 1942), a California appellate court held that an addition or subtraction in relation to the volume of duties required to be performed by an officer, not substantially affecting the primary duties of the office, is not such a "change of duties" as would prevent immediate effectiveness of legislation. See also Behneman v. Alameda-Contra Costa Transit Dist., 6 Cal.Rptr. 382 (1960). In Davis v. Los Angeles County, 84 P.2d 1034 (Cal. 1939), the court held that a prohibited "change in duties" did not occur where the legislation simply conferred such additional duties as would naturally devolve on the officer had no express mention been made of them in the measure and as otherwise would be incidental to his office. See also Flournoy v. Priest, 486 P.2d 689 (Cal. 1971) (emergency legislation changing procedures whereby an officer discharges his duties is not constitutionally prohibited); People v. Robertson, 655 P.2d 279 (Cal. 1982).

III
Conclusion

Gauged by these principles, House Bill 82 is clearly a proper emergency bill and not violative of Article XVI, §2.4 The addition to the duties of the board of canvassers does not substantially affect the primary duties of the board. Nor are the new functions those that might not naturally devolve on board members in light of the other changes to the law brought about by the bill.

For these reasons, we conclude that House Bill 82 is constitutional and legally sufficient.

Stephen H. Sachs, Attorney General

Robert A. Zarnoch
Assistant Attorney General

Editor's Note: House Bill 82 was signed into law as Chapter 2, Laws of Maryland 1984. The preceding Opinion was originally written as a bill review letter. Because of the importance and recurring nature of the issue addressed, it is published here in a slightly revised format.

1 The purpose of this provision of §2 of Article XVI is "to obviate the public and private uncertainty, disorder, and confusion which would result from an emergency measure which might . . . change the . . . duty of an officer." Dorsey v. Petrott, 170 Md. 230, 249 (1940).

2 We have also considered whether §2 applies only to individual officers rather than boards or commissions. However, such a distinction has been rejected with respect to other constitutional provisions. See County Commissioners v. Westphal, 232 Md. 334, 340-41 (1963).

3 California appears to be the only state other than Maryland whose Constitution prohibits emergency legislation changing the duties of any office. See California Constitution, Art. 4, §8.

4 We assume, without deciding, that members of the board of canvassers are "public officers". The board is composed of election supervisors, who are public officers. Riggin v. Lankford, 134 Md. 146 (1919). However, as canvassers they perform ministerial functions. Board of Canvassers of Elections v. Noll, 127 Md. 296 (1915).