Atkinson v. Anne Arundel Cnty.

• Decision Date: 28 September 2012
• Docket Number: No. 111,Sept. Term, 2011.,111
• Citation: 428 Md. 723,53 A.3d 1184
• Parties: O'Brien ATKINSON, IV, et al. v. ANNE ARUNDEL COUNTY, Maryland.
• Court: Maryland Court of Appeals

428 Md. 723

53 A.3d 1184

O'Brien ATKINSON, IV, et al.

v.ANNE ARUNDEL COUNTY, Maryland.

No. 111, Sept. Term, 2011.

Court of Appeals of Maryland.

Sept. 28, 2012.

Joel A. Smith (Christopher R. Ryon and David Gray Wright, Kahn, Smith & Collins, P.A., Baltimore, MD), on brief, for Appellants/Cross–Appellees.

David A. Plymyer, Deputy Co. Atty. (Jonathan A. Hodgson, Co. Atty., and William C. Dickerson, Senior Assistant Co. Atty., Anne Arundel County of Law, Annapolis, MD), on brief, for Appellee/Cross–Appellant.

Bruce R. Lerner, Esquire, Matthew Stark Rubin, Esquire, Bredhoff & Kaiser, P.L.L.C., Washington, D.C., for Amicus Curiae brief of Maryland State Fraternal Order of Police.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, LAWRENCE F. RODOWSKY, (retired, specially assigned), JJ.

RODOWSKY, J.

In 2002, the voters of Anne Arundel County adopted an amendment to the County Charter relating to the resolution by binding arbitration of collective bargaining impasses with the County's law enforcement employees and uniformed firefighters. In 2003, the County Council adopted an ordinance implementing that Charter provision. In 2011, the County Council amended the 2003 ordinance to provide, inter alia, that binding arbitration did not require the Council “to appropriate funds or enact legislation necessary to implement a final written award” in arbitration. An uncodified section of the 2011 Council bill also provided that, if any part of the 2011 ordinance were held invalid, the entire County Code section enacted by the 2003 ordinance, as amended through the 2011 ordinance, would be “deemed repealed by operation of law,” with the result that impasses would be addressed by a Code section that did not authorize binding arbitration.

The Petitioners are certain aggrieved members of the bargaining units that are affected by the 2011 ordinance and those members' unions.¹ They seek a declaratoryjudgment that the 2011 ordinance violates the 2002 Charter amendment.

The Respondent is Anne Arundel County, Maryland (the County), a charter county with an executive budget system. The County contends that the 2002 Charter amendment, properly construed to avoid constitutional issues, requires the County Executive to propose funding in the budget to comply with a binding award, but that the County Council may reduce or eliminate that proposed appropriation. If the 2011 ordinance violates the Charter, the County seeks, by counterclaim, a declaratory judgment that the 2002 Charter amendment is unconstitutional under Maryland Constitution, Article XI–A (the Home Rule Amendment), § 3 because the Charter amendment is not “charter material,” under Cheeks v. Cedlair Corp., 287 Md. 595, 415 A.2d 255 (1980), and its progeny. Alternatively, if the binding arbitration provision in the Charter is valid, but the revised implementing provisions in the [428 Md. 728]2011 amendments to the County Code are invalid, the County seeks a declaration that the 2003 and 2011 Code provisions dealing with binding arbitration destruct under uncodified § 3 of the 2011 ordinance.

The Circuit Court for Anne Arundel County held that the 2002 Charter amendment violated the Maryland Constitution. We granted Petitioners' application for certiorari and the County's Conditional Cross–Petition for certiorari prior to consideration of the case by the Court of Special Appeals. Atkinson v. Anne Arundel County, 424 Md. 291, 35 A.3d 488 (2012).

For the reasons that follow, we shall hold that the 2002 Charter amendment binds the County Council, and that portions of the 2011 ordinance, as well as its uncodified Section 3, violate the Charter and are invalid.

Historical and Legal Background

The tension between public employee unions and local governments, particularly those bound by an executive budget system, has surfaced in Maryland appellate cases since at least Mugford v. Mayor & City Council of Baltimore, 185 Md. 266, 44 A.2d 745 (1945). Review of these cases, and of the legal background of the Charter and ordinances of the County, is necessary to an understanding of the parties' arguments in the case before us.

Pre–2002 Charter Amendment

Mugford involved an agreement between a Teamsters' local union and the Department of Public Works of Baltimore City, purportedly acting on behalf of the City. In a taxpayers' action challenging the agreement, the trial court held it to be void, and no appeal was taken from that ruling. The trial court, however, concluded that the Central Payroll Bureau could collect union dues by payroll deduction from any employee who voluntarily agreed. This Court agreed, but it also observed:

“The City has no right under the law to delegate its governing power to any agency. The power of the City is prescribed in its charter, and the City Charter constitutes the measure of power that is possessed by any of its officials. To delegate such power to an independent agency would be a serious violation of the law. To recognize such delegation of power in any City department might lead to the delegation of such power in all departments, and would result in the City government being administered regardless of its charter.”

Id. at 271, 44 A.2d at 747.

The first case to reach this Court questioning binding arbitration between a local government and its employees was Maryland Classified Employees Ass'n. v. Anderson, 281 Md. 496, 380 A.2d 1032 (1977). Harford County had, by ordinance, provided for binding arbitration, pursuant to which an award was made in May 1975. Harford County did not fully implement the award, and certain employees sued to enforce it. This Court decided “that compensation of employees of a charter county may not be committed to binding arbitration unless so authorized by a public general law of Maryland or the organic law of that county.” Id. at 497, 380 A.2d at 1032. Applying the rationale of Mugford, we said that the Harford County “ordinance in question plainly attempted to bind the County in the exercise of legislative discretion over compensation of its public employees.” Id. at 511, 380 A.2d at 1040. This could not be done “without being authorized to do so by public general law or by the County Charter.” Id. at 513, 380 A.2d at 1041.²

In Griffith v. Wakefield, 298 Md. 381, 470 A.2d 345 (1984), firefighters employed by Baltimore County, inspired by Anderson, initiated, by voter petition, an amendment to the Baltimore County Charter that spelled out a system of binding arbitration. Taxpayers challenged the Charter amendment in an action that was decided after the voters had adopted the amendment. The challenge asserted that the amendment violated Maryland Constitution, Article XI–A, § 3, under the principles articulated in Cheeks v. Cedlair Corp., 287 Md. 595, 415 A.2d 255, to which we now turn.

In Cheeks, proponents of rent control for Baltimore City residential properties had initiated, by voter petition, an amendment to the City Charter that created a complete program for adopting and enforcing rent controls. The Charter amendment, as reproduced in Appendix A to the opinion in Cheeks, covers seventeen pages. Id., 415 A.2d at 265–73.Article XI–A, § 3, however, provides that “every charter [formed under that article] shall provide for an elective legislative body in which shall be vested the law-making power of said City or County.” Upon the adoption of a charter by a county, its County Council,“subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws.” Cheeks held that § 3, and other sections of Article XI–A, required that the proposed amendment be “ ‘charter material.’ ” Id. at 608, 415 A.2d at 262. This Court explained:

“[A] charter amendment within the context of Art. XI–A is necessarily limited in substance to amending the form or structure of government initially established by adoption of the charter. A charter amendment, therefore, differs in its fundamental character from a simple legislative enactment. Its content cannot transcend its limited office and be made to serve or function as a vehicle through which to adopt local legislation.

“The charter amendment proposed in this case was intended, not simply to create a new City agency with authority over matters pertaining to landlords and tenants, but rather to establish a comprehensive system for regulating rents within the City's residential housing market....

“We think it clear that the amendment is essentially legislative in character. Considered as a whole, the amendment is not addressed to the form or structure of government in any fundamental sense and is not, therefore, ‘charter material,’ as the lower court so succinctly stated. Unless §§ 1, 5 or 6 of Art. XI–A, either explicitly or implicitly, otherwise permit the voters to ‘legislate’ by charter amendment, notwithstanding §§ 2 and 3 of Art. XI–A, and to thereby directly exercise the City's police or general welfare powers, the amendment is invalid for insufficiency of subject matter in the sense that it is not a charter amendment within the contemplation of § 5.” ³

Id. at 607–08, 415 A.2d at 261–62 (citation omitted).

Returning to Griffith v. Wakefield, 298 Md. 381, 470 A.2d 345, the Baltimore County firefighters case, this Court applied Cheeks to invalidate the binding arbitration amendment to the Baltimore County Charter. The parties to the case now before us find support in different portions of the opinion in Griffith. The Petitioners refer us to the following passage:

“The Court's decision in Cheeks is dispositive of the issue presented in the case at bar. Like the charter amendment in Cheeks, the proposed charter amendment in the present case prescribes ‘in lengthy detail’ [footnote omitted] an entire system of binding arbitration for a select group of county employees; it leaves nothing for the determination of the County Executive or the County Council.”

Id. at 386, 470 A.2d at 348. The Griffith opinion then presented a two-page...