907 A.2d 175 (Md. 2006), 140, Schisler v. State

Docket Nº:140
Citation:907 A.2d 175, 394 Md. 519
Opinion Judge:CATHELL, J.
Party Name:Schisler v. State
Attorney:Andrew Radding and Gregory M. Kline H. Scott Jones of Adelberg, Budow, Dorf & Hendler, L.L.C., Baltimore, MD, David R. Thompson and Brynja M. Booth of Cowdrey, Thompson & Karsten, P.C., Easton, MD, on brief, for Appellants., Michael D. Berman, Deputy Chief of Civil Litigation (J. Joseph Curran, J...
Case Date:September 14, 2006
Court:Court of Appeals of Maryland
 
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Page 175

907 A.2d 175 (Md. 2006)

394 Md. 519

Kenneth D. SCHISLER, et al.

v.

STATE of Maryland.

No. 140.

Court of Appeals of Maryland

Sept. 14, 2006

Page 176

Andrew Radding and Gregory M. Kline, H. Scott Jones of Adelberg, Rudow, Dorf & Hendler, L.L.C., Baltimore, MD, David R. Thompson and Brynja M. Booth of Cowdrey, Thompson & Karsten, P.C., Easton, MD, on brief, for Appellants.

Michael D. Berman, Deputy Chief of Civil Litigation (J. Joseph Curran, Jr., Attorney General of Maryland, William F. Brockman and Cynthia G. Peltzman, Assistant Attorneys General, and Carl N. Zacarias, Staff Attorney, Baltimore, MD), on brief, for Appellee.

Argued before BELL, C.J., and RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

Page 177

CATHELL, J.

[394 Md. 522] This case arises from the denial by the Circuit Court for Baltimore City of a motion for a temporary restraining order and preliminary injunction. On June 14, 2006, the General Assembly convened in a Special Session to consider and pass Senate Bill 1. On June 22, 2006, Governor Robert L. Ehrlich, Jr. vetoed the Bill. On June 23, 2006, the General Assembly resumed its Special Session and voted to override the Governor's veto. Thus, Senate Bill 1 was enacted on June 23, 2006, upon veto override, as an "emergency bill" and was to take effect immediately. 1 Appellant, Kenneth D. Schisler, individually, as Chairman of the Public Service Commission and purportedly on behalf of those members of the PSC similarly [394 Md. 523] situated ("Commissioners"), and the Public Service Commission of Maryland ("PSC") (collectively the "Commission"), on June 26, 2006, filed a Complaint for a Declaratory Judgment and Temporary Restraining Order and Preliminary Injunction in the Circuit Court for Baltimore City. 2 Appellant sought to stay Sections 12 and 22 of Senate Bill 1–which terminated the Commissioners' appointments–from taking effect. On June 28, 2006, the Circuit Court denied relief to appellant. On June 29, 2006, appellant noted an appeal to this Court.

The appellant presents one question for our review:

"Did the Circuit Court of Baltimore City err by entering its June 28, 2006 order denying appellants' motion for a temporary restraining order?"

We hold that the Circuit Court for Baltimore City erred by denying appellant's complaint for a temporary restraining order. Sections 12 and parts of Section 22 of Senate Bill 1, as enacted by the General Assembly, are repugnant to the Maryland Constitution in that they permit the Legislative Branch of government to usurp the Executive's power to supervise the Executive Branch as set forth in Article II, § 1 of the Maryland Constitution, 3 usurps the power of the Governor to execute the laws as set forth in Article II, § 9 of the Maryland Constitution, 4 usurps the Executive's power to terminate officers of the Executive Branch as set forth in Article II, § 15 of the Maryland Constitution 5 and is otherwise in violation of Section 8 of the Declaration of Rights of Maryland. Therefore, [394 Md. 524] we shall hold that Section 12 and parts (as hereafter discussed) of Section 22 of Senate Bill 1 are null and void.

I. Facts

As stated, this case involves a challenge to the constitutionality of an Act of the General Assembly. On June 14, 2006, in response to an anticipated 72% increase in the cost of electricity by Baltimore Gas & Electric Company (BGE) facing a large number of Maryland citizens and in reaction to certain acts taken by the Public Service Commission, the General Assembly convened a Special Session and passed

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Senate Bill 1 as emergency legislation. 6 Governor Robert L. Ehrlich, Jr. vetoed the legislation and on June 23, 2006, the veto was overridden by more than a three-fifths majority of both the House of Delegates and the Senate. Senate Bill 1 was to become immediately effective pursuant to Article II, § 17(d) of the Maryland Constitution.

Senate Bill 1 makes various changes to the Public Utilities Article. 7 These changes ostensibly reconstitute the PSC, provide [394 Md. 525] current rate relief and establish processes by which rate increases may be studied.

The PSC is a statutorily created independent unit in the Executive Branch of State government. Md. Code (1998), § 2-101 of the Public Utility Companies Article ("PUC"). 8 PUC § 2-101 was not affected by the enactment of Senate Bill 1. Appellant challenges two provisions of Senate Bill 1, which directly affect the terms of office of the current Commissioners and the future appointment of interim Commissioners to the PSC–sections 12 and 22. 9

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PUC § 2-102, prior to the [394 Md. 526] enactment of Senate Bill 1, set out the membership provisions for the Commission. PUC § 2-102 provided for five commissioners, appointed by the Governor with the advice and consent of the Senate to five year, staggered terms, beginning on July 1 of the year in which they are appointed. 10 PUC § 2-103 [394 Md. 527]

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provides for the designation of a Chairman of the PSC from among the commissioners. The Governor designates the Chairman with the advice and consent of the Senate and the Chairman serves a five year term beginning on July 1 of the year appointed. 11 Prior to the enactment of Senate Bill 1, the Governor appointed the Commissioners and designated the [394 Md. 528] Chairman, subject to Senate confirmation, without being restricted to a list from the President of the Senate of Maryland and the Speaker of the House of Delegates.

All four incumbent Commissioners 12 were duly appointed by the Governor and confirmed by the Senate. Therefore, they are civil officers of the State serving various staggered terms of years. Section 12 of Senate Bill 1 attempts to terminate the positions of the Chairman and the Commissioners as of June 30, 2006. At present, they are in place pursuant to a stay granted by this Court, pending a final resolution of the issues in the case at bar.

Appellant contended below that Sections 12 and 22 of Senate Bill 1 violate Article II, § 15 of the Maryland Constitution; 13 Article 24 of the Maryland Declaration of Rights; [14 Article I, § 10 of the U.S. Constitution; 15 and Maryland Code (1984, 2004 Repl. Vol.), § 3-307 of the State Government Article. 16 The Circuit Court

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heard the case on June 27, 2006, and, [394 Md. 529] as we indicated earlier, issued a written order on June 28, 2006, denying appellant's motion for a temporary restraining order. The trial court stated:

"At this juncture, the Court believes that [appellant has] not demonstrated a likelihood of success on the merits. The General Assembly's authority to alter the terms of office of the Public Service Commissioners and to reconstitute the Commission with new appointees, chosen by the Governor from lists submitted by the legislative leaders, is not beyond its constitutional authority and does not run afoul of the federal constitution's dictates on separation of powers or bills of attainder. Nor does it violate Maryland law. See [Mayor of] Baltimore v. State, 15 Md. 376 (1860); Anderson v. Baker, 23 Md. 531, 627 (1865); Davis v. State, 7 Md. 151, 161 (1854); Little v. Schul, 118 Md. 454, 563-64 (1912); Town of Glenarden v. Bromery, 257 Md. 19, 27 (1970); and the statutory appointment process examples cited by defendant at pages 13-14 of its memorandum in opposition to the motion." [Footnote omitted.]

On June 29, 2006, pursuant to Section 19 of Senate Bill 1, supra, appellant filed a notice of appeal with this Court. The case was immediately set for oral argument which was held eight days later on July 7, 2006. Upon conclusion of the arguments we stayed certain of the provisions of Senate Bill 1 with an order noting that an opinion would follow.

[394 Md. 530] At oral argument the position of the Legislature was clearly presented during the following exchange between the Court and the State:

The Court: The Court of Special Appeals is authorized by the Constitution but not protected by it.

The State: Yes, your Honor.

The Court: . . .With the reasoning . . . that the State ascribes in this case to an Executive Branch agency, how would it differ? Does the General Assembly have the power if it doesn't like the decision of a three judge panel on the Court of Special Appeals to pass a statute abolishing the Court of Special Appeals and immediately pass a new statute recreating the Court of Special Appeals causing the appointment process to be such that those three judges get kicked off the Court of Special Appeals?

The State: . . . focusing purely on legislative power, I think that there is a colorable argument that, unpalatable as it may be, that the Legislature would have that power and that the remedy would be for the voters in the following November to exercise their power and say they disagreed with the Legislature. 17

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The Court: ... Could they [the Legislature] in one bill have terminated the terms of every officer appointed by the Governor other than ones whose terms are provided for in the Constitution?

[394 Md. 531] The State: Correct. I would have to answer your Honor's question, yes. The Legislature does have that power, wise or unwise, reasonable or unreasonable.

The Court: What happens to the separation of powers under Article 8? If they could do that?

The State: ... I would say in response to your Honor's question as a matter of pure State Constitutional Law, yes, unpalatable as it may be, the Legislature could do that. The remedy would be in November when the voters express their will.... [T]he powers of the Legislature preceded the Constitution. The Constitution simply directs that they exercise those powers.... [P]ower resides in the people, but in a democracy that power is given to the Legislature and the Legislature has...

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