Board of Sup'rs of Elections for Anne Arundel County v. Attorney General

Decision Date07 March 1967
Docket NumberNo. 10-A,10-A
Citation246 Md. 417,229 A.2d 388
PartiesBOARD OF SUPERVISORS OF ELECTIONS FOR ANNE ARUNDEL COUNTY et al. v. ATTORNEY GENERAL of Maryland et al. dv. . Order
CourtMaryland Court of Appeals

David M. Blum, William W. Cahill, Jr., and Mark D. Coplin, Baltimore (Weinberg & Green, Baltimore, and John A. Blondell, Glen Burnie, on the brief), for appellant Board of Supervisors of Elections for Anne Arundel County.

C. Maurice Weidemeyer, Annapolis, for Joshua F. Cockey, other appellant.

Francis B. Burch, Atty. Gen., Alan M. Wilner, Asst. Atty. Gen., and Robert F. Sweeney, Deputy Atty. Gen., for appellees Attorney General of Maryland et al.

Joseph Sherbow, Baltimore, for appellee Maryland State Bar Ass'n.

ORDER

PER CURIAM.

For reasons to be stated in an opinion to be filed later, it is ordered by the Court of Appeals of Maryland, six judges concurring, that the order and decree of the Circuit Court for Anne Arundel County appealed from, dated February 28, 1967 be, and it is hereby, affirmed.

It is further ordered that the mandate be issued forthwith.

Before HAMMOND, C. J., and HORNEY, MARBURY, OPPENHEIMER, BARNES, McWILLIAMS and FINAN, JJ.

HAMMOND, Chief Judge.

In June of 1965 Governor Tawes appointed a Commission to study the necessity for revision of the Constitution of Maryland to determine whether a convention should be held to prepare the revision and to suggest the procedures for the calling and holding of such a convention. The Commission concluded that a completely new constitution should be prepared by delegates to a convention and submitted to the voters of the State for adoption.

Pursuant to the recommendations of the Commission the Legislature by Ch. 501 of the Laws of 1966 provided for a special election to be held at the same time as the primary election of 1966 to take the sense of the voters on whether a convention should be convened, not earlier than September 1, 1967, and not later than September 1, 1968, to frame a new Constitution. By Ch. 500 of the Laws of 1966 it was provided that if a majority of those voting at the special election voted for a convention it should assemble on September 12, 1967, at such place and for such time as might thereafter be prescribed by law. Chapter 500 also provided that each County and each of the legislative districts of Baltimore City should have the same number of delegates in the convention as Ch. 2 of the Laws of the Special Session of October 11, 1965, prescribed for election to the House of Delegates at the General Election of 1966 from such county and legislative district.

The special election proposed by Ch. 501 was held on September 13, 1966, concurrently with the primary election. The vote was 160,280 for a constitutional convention and 31,680 against. Although the number of favorable votes was more than a majority of the total votes cast in the special election, that number was a minority of the total votes cast in the primary election.

When the General Assembly of 1967 began consideration of legislation to provide for the qualifications of delegates to the convention, the manner of their election, their compensation and the duration of and other matters relating to the convention, almost immediately it was confronted with problems, most of which stemmed from the prohibitions of the existing constitution against the holding of more than one office of profit or trust under the constitution or laws of the State. These legal questions, which included (1) the validity of Chs. 500 and 501 of the Laws of 1966, both of which were enacted as emergency measures, even though § 2 of Art. XVI of the Constitution provides that no law creating an office shall be enacted as an emergency law, and (2) the eligibility of members of the Legislature and other public officers to serve as delegates to the convention, caused grave concern to the General Assembly and to the Secretary of State, in his case for their bearing on the performance of his functions in relation to the elective process.

To obtain a solution to the dilemma, the Legislature enacted Ch. 1 of the Laws of 1967 which authorized the Attorney General on behalf of the General Assembly and the Secretary of State to institute a declaratory judgment proceeding under Art. 31A of the Code in the Circuit Court for Anne Arundel County against the Board of Supervisors of Elections of Anne Arundel County and such other defendants as the Attorney General deemed appropriate to obtain a declaration of the correct answer to nine questions, lettered (a) to (i) (several of the questions having various subdivisions). Question (a) was: 'Would a delegate to the constitutional convention be the holder of an office within the meaning of Articles 33 and 35 of the Declaration of Rights and Section 6 of Article I and Sections 11 and 17 of Article III of the Constitution of Maryland?' Questions (b) through (g) all were based on the premise that a delegate to the constitutional convention would be an officer and if it were held that he was not these questions, it was, and is, agreed, would not have to be answered. Question (h) was: 'In light of the fact that those voting 'for' the calling of a convention did not constitute a majority of those voting in the election, is the calling of a convention at this time mandatory?' Question (i) was: 'Can the calling of a convention be delayed by a period of two years?' 1

On February 17, 1967, suit was filed by the Attorney General in the Circuit Court for Anne Arundel County on behalf of the Legislature and the Secretary of State against the individuals constituting the Supervisors of Elections of Anne Arundel County. On February 21, a petition to intervene as plaintiff was filed by the Maryland State Bar Association, Inc. (which had been designated in Ch. 1 as an interested entity) and granted and on February 23 an individual taxpayer was allowed to intervene as a defendant.

The Attorney General and the Bar Association asked, inter alia, for a declaration that (1) a delegate is not the holder of an office, (2) a majority of persons voting at the election of September 13, 1966, voted in favor of calling a Constitutional Convention, and (3) the assembling of a convention may not be delayed. The Supervisors, on the contrary, answered and prayed the court to declare a delegate to be the holder of an office, that although a majority of those voting in the special election favored a convention, its calling either on September 12, 1967, or between September 1, 1967, and September 1, 1968, is not mandatory, and that the calling of a convention can be delayed for two years.

The intervening defendant urged that a delegate is the holder of an office, that the calling of a convention on September 12, 1967, is not mandatory, the matter being in the sole discretion of the General Assembly, that no special election was properly held for lack of adequate notice, particularly to independent voters and others not interested in the primary election, and since the General Assembly alone has the responsibility of determining whether to call a convention in 1967, the calling of such a convention may be delayed for two years. 2

The court (Evans, J.) declared on February 28 that (1) a delegate to the convention is not the holder of an office within the meaning of Articles 33 and 35 of the Declaration of Rights or the meaning of § 6 of Article I or §§ 11 and 17 of Article III of the Constitution of Maryland; (2) adequate notice of the special election was given; (3) a majority of the persons voting at the special election of September 13, 1966, voted in favor of a constitutional convention; (4) the assembling of a constitutional convention may not be delayed; and (5) by reason of the adjudication and declaration that a delegate would not be an officer, the remaining issues became moot.

Chapter 1 of the Laws of 1967 conferred jurisdiction on the Court of Appeals to review the judgment and determination of the Circuit Court for Anne Arundel County and provided that 'the decision of the Court of Appeals of Maryland upon such review shall have the same force and effect as any other final decision of the Court * * *.' An appeal was taken from Judge Evans' order and we advanced the case, hearing argument on March 6. On March 7 we affirmed the adjudications and declarations below by per curiam order, all the judges but Judge Barnes concurring. We now set out the reasons for our affirmance.

No question was raised below or on appeal as to the jurisdiction of the Circuit Court and the Court of Appeals to hear and decide the matter. We think it appropriate to say that in our opinion the Circuit Court had jurisdiction under §§ 1, 2, 5 and 6 of Art. 31A of the Code, the Uniform Declaratory Judgments Act. Under § 1 courts have power 'to declare rights, status, and other legal relations' whether or not further relief is or could be claimed. In the case filed in the Circuit Court there were conflicting claims and the parties were legally, although not personally, hostile. Section 6 of Art. 31A authorizes granting of relief in all cases in which there is an actual controversy between contending parties or in which the court is satisfied 'that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or * * * that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree shall serve to terminate the uncertainty or controversy giving rise to the proceedings.' The proceeding in which the Circuit Court granted declaratory relief met the tests of Art. 31A. Maryland Committee for Fair Representation v. Tawes, 228 Md. 412, 180 A.2d 656.

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