Citation Numbers: 82 Op. Att'y Gen. 8
Judges: J. JOESPH CURRAN, JR.
Filed Date: 6/30/1997
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Bradlee:
You have requested our opinion on several issues related to plans of the Historic St. Mary's City Commission to reconstruct, on its original foundations, the first permanent Roman Catholic Chapel in the English Colonies. Your specific questions are as follows:
1. May a reconstructed Catholic Chapel, or the land on which the original Chapel stood, be given by the Commission to the Archdiocese of Washington, presumably for the site then to be used as a place of Catholic worship?
2. Do Article
3. If these sections do apply to the Commission, do they inhibit or prevent the Commission from proceeding with the reconstruction of the Chapel? If the reconstruction does not disturb any human remains, is a permit under these sections required? Did the Commission's activities in entering the tomb of Royal Governor Sir Lionel Copley require a permit?
Our opinion is as follows:
1. The Establishment Clause of the
2. Article
In light of our answer to your second question, we need not consider the third group of questions.
In general, the Commission's purpose "is to preserve and protect the archeological and historical record of Maryland's first colonial capital and to appropriately develop and use this historic and scenic site for the education, enjoyment, and general benefit of the public." ED, § 24-503(a). One of the Commission's particular purposes is to "enhance, where feasible, the . . . buildings that reflect and display the early colonial historic characteristics of the site." ED, § 24-503(b)(3). In an uncodified provision in Chapter 583, the General Assembly instructed the Commission to "[g]ive priority to the reconstruction of the first Roman Catholic Chapel in the English Colonies and . . . [r]equest the Historic St. Mary's City Foundation, a private non-profit corporation, to undertake the Chapel reconstruction and raise private funds for the project in order to avoid any constitutional problems with reconstruction of a religious structure and to expedite the reconstruction of this important historical structure." Chapter 583, Section 9.
Your letter indicates that the Commission is carrying out the legislative instruction: "The Historic St. Mary's City Foundation is poised to begin a $5 Million Dollar Capital campaign for the reconstruction of the Chapel, and has received their first $50,000 [contribution]. . . . The Commission and its staff [have] invested years in historical and archeological research . . . in order to assure that the reconstruction [will be] as historically faithful to the original Catholic Chapel as possible. It is our plan to reconstruct the Chapel as faithfully as we can, to make it resemble as closely as possible what it was — a Jesuit Chapel, the first Catholic Church in English-speaking America."
You have not asked us to comment on the wisdom, from a policy prospective, of the Commission's Catholic Chapel reconstruction plan, any transfer of the land or a reconstructed Chapel to the Archdiocese, or any other alternative for the site, nor would we do so. Rather, your request is limited to a legal issue: Would the Establishment Clause of the
The Establishment Clause prohibits governmental action "respecting the establishment of religion." A governmental practice that "touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; and must neither advance nor inhibit religion in its principal or primary affect; and it must not foster an excessive entanglement with religion." County of Allegheny v. American Civil LibertiesUnion,
The Establishment Clause does not allow government to provide assistance that amounts to "direct and substantial advancement of the sectarian enterprise." Wolman v. Walter,
We can think of no clearer violation of the Establishment Clause than for a government agency simply to give a valuable asset to a religious organization to further the organization's religious objectives.3 Therefore, the Commission may not donate the site of the Chapel, whether or not a reconstructed Chapel is built on it, to the Archdiocese of Washington for use as a place of Catholic worship.4
The Maryland Court of Appeals "has consistently held that the word `person' in a statute does not include the State, its agencies or subdivisions unless an intention to include these entities is made manifest by the Legislature." Unnamed Physicianv. Commission on Medical Discipline,
The Commission is a State agency. Therefore, we conclude that Article
In civil litigation, a plaintiff generally cannot evade a statute protecting the State's interest through the device of a suit against a State official. In State for the Use of Clark v.Ferling,
The same basic principle governs application of the criminal law to public officers carrying out their duties. For example, laws against carrying weapons are ordinarily not applicable to officers who carry weapons in the course of their official duties. 63C Am. Jur. 2d Public Officers and Employees § 369 (1997). Additionally, for example, public officers who take a human life while acting in the discharge of their official duties are not criminally liable. Id. See also 40 Am. Jur. 2d Homicide § 24 (1968) (no penal or criminal responsibility is incurred by a sheriff, warden, or other official in carrying out a sentence of death). As a practical matter, employees as well as officers are not subject to prosecution for carrying out activities in direct furtherance of an agency's statutory mission, with the agency's knowledge and approval. That fact negates the element of criminal intent that is generally a prerequisite to prosecution.
An employee would remain subject to prosecution, however, for otherwise criminal conduct that, although occurring in the course of employment, is not a lawful element of the job. Police officers, for example, can be prosecuted for unauthorized and excessive use of force.
An opinion of the Attorney General cannot assess the circumstances, if any, under which the archeological activities of a Commission employee on the Chapel site would be both prohibited by Article
Very truly yours,
J. Joseph Curran, Jr. Attorney General
Jack Schwartz Chief Counsel Opinions Advice
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Jane Hawley Eileen Roberts and David Finley v. City of ... , 24 F.3d 814 ( 1994 )
State v. Ziliak , 464 N.E.2d 929 ( 1984 )
Mayor of Baltimore v. Baltimore Gas & Electric Co. , 232 Md. 123 ( 1963 )
Unnamed Physician v. Commission on Medical Discipline , 285 Md. 1 ( 1979 )
Harden v. Mass Transit Administration , 277 Md. 399 ( 1976 )
State, Use, Clark v. Ferling , 220 Md. 109 ( 1959 )
Walser v. Resthaven Memorial Gardens, Inc. , 98 Md. App. 371 ( 1993 )
Wolman v. Walter , 97 S. Ct. 2593 ( 1977 )
State Commission on Human Relations v. Mayor of Baltimore , 280 Md. 35 ( 1977 )
Stanley v. Mellor , 168 Md. 465 ( 1935 )
Sloan v. Lemon , 93 S. Ct. 2982 ( 1973 )
Committee for Public Education & Religious Liberty v. ... , 93 S. Ct. 2955 ( 1973 )
Everson v. Board of Ed. of Ewing , 330 U.S. 1 ( 1947 )
Roemer v. Board of Public Works of Md. , 96 S. Ct. 2337 ( 1976 )
Lemon v. Kurtzman , 91 S. Ct. 2105 ( 1971 )
County of Allegheny v. American Civil Liberties Union , 109 S. Ct. 3086 ( 1989 )