Bryan v. Makosky

• Decision Date: 07 April 2004
• Docket Number: No. 76,76
• Citation: 380 Md. 603,846 A.2d 392
• Parties: William O. BRYAN v. Linda J. MAKOSKY, et al.
• Court: Maryland Court of Appeals

846 A.2d 392

380 Md. 603

William O. BRYAN v. Linda J. MAKOSKY, et al.

No. 76, Sept. Term, 2003.

Court of Appeals of Maryland.

April 7, 2004.

David R. Thompson (Brynja M. Booth, Cowdrey, Thompson & Karsten, on brief), Easton, for appellant.

Christopher B. Kehoe (Alexis E. Kramer, Ewing, Dietz, Fountain & Kehoe, P.A., Easton, Anne C. Ogletree, Denton, on brief), for appellees.

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

WILNER, J.

This action tests whether Linda Makosky or William Bryan is the duly appointed member of the Talbot County Planning and Zoning Commission. Acting on Ms. Makosky's complaint and Mr. Bryan's counterclaim for declaratory and injunctive relief, the Circuit Court for Talbot County entered a declaratory judgment that Mr. Bryan's appointment on November 26, 2002, was illegal, null, and void, and that Ms. Makosky, an incumbent Commissioner at that time, continued in office as a member of the Commission. Although we do not agree with some of the underlying conclusions of the court, we agree with that result. We shall remand for the entry of a modified declaratory judgment.

BACKGROUND

At a special election held in November, 1973, the citizens of Talbot County, pursuant to Art. XI-A of the Maryland Constitution, adopted a charter form of government. In conformance with § 1A of Art. XI-A, the Charter took effect December 14, 1973. See also Talbot County Charter, § 801. The Charter provides for a five-member County Council, to be elected by the qualified voters of the county at the same time as the election of State officers, and directs that the terms of the council members begin at noon on the first Monday in December next following the election and end at noon on the first Monday in December in the fourth year thereafter. See Talbot County Charter, §§ 201, 204, and 205.

Section 404 of the Charter creates a Planning and Zoning Commission, to consist of five members appointed by the County Council. Section 404(a) specifies that the terms of the Commission members are to be five years, "except that the respective terms of the five members first appointed shall be on a staggered basis (of the five initial appointments, one member shall serve for one year, one for two years, one for three years, one for four years, and one for five years)." The section also provides that vacancies "shall be filled for the unexpired term in the manner of original appointment" and that "[e]ach member shall serve until his successor is appointed and qualified."

Article IX of the Charter contained a number of transitional provisions. Sections 902 and 903 provided that the members of the Board of County Commissioners holding office on the effective date of the Charter would become the members of the first County Council, to serve for one year, until noon on the first Monday in December, 1974. That provision dovetailed with § 204, providing for the election of the first elected County Council at the general election for State offices in November, 1974. The first Council, therefore, was in the nature of a holdover Council. Section 906 required that first Council, within 60 calendar days after taking office, to appoint a Planning and Zoning Commission as required by § 404. Section 909(3) provided that the members of the existing Planning and Zoning Commission "shall continue until the appointment of the new Planning and Zoning Commission provided for in Section 906 of this Charter."

The incumbent County Commissioners were sworn in and held their first meeting as the new County Council on December 14, 1973. At that meeting, they adopted a motion "for the interim to continue with the same members on the Planning and Zoning Commission and the Planning and Zoning Appeals Board that we presently have." No further appointments were made to the Planning and Zoning Commission by the holdover Council, which therefore failed to comply with the Charter mandate of appointing a new Commission with staggered terms.

In November, 1974, a new County Council was elected, and, at its first meeting on December 3, 1974, it appointed five persons to the Planning and Zoning Commission, with staggered terms—one for one year, one for two years, one for three years, one for four years, and one for five years. The minutes for that meeting reflect that the appointments were made "effective immediately, and to bring us in conformance with our Charter." The person appointed for a three year term was William Anderson.

A large part of the confusion and controversy in this case lies in the fact that various minutes, letters, and other documents pertaining to Planning and Zoning Commission appointments in the succeeding years record a number of different dates for either the initial appointment or the expiration of the terms. Many appointments were shown as running from, or to, December 1, one was shown as effective January 1, one as expiring June 30. The Planning Commission minute book shows the initial staggered appointments as running from November 29. Some appointments were described as "for a term to December" of a given year, without mention of a specific date, while others indicated no expiration date at all.

Mr. Anderson's initial term of three years expired in 1977. He continued to serve as a holdover until he was reappointed to the balance of a new five-year term on January 30, 1979. When that term expired in December, 1982, he again continued to serve as a holdover until his successor, Allen Baynard, was appointed in April, 1983. Mr. Baynard resigned in October, 1984, whereupon the Council appointed Carol Kabler for the remainder of his term, i.e., until December, 1987. At that time, Ms. Kabler was reappointed to a new five-year term. Both her certificate of appointment and a letter from the President of the County Council stated that the new term would commence on December 1, 1987. Ms. Kabler held over after the expiration of her term in December, 1992, but was reappointed in May, 1993. In November, 1997—just before the end of her then—current term—Ms. Kabler informed the Council that she did not wish to be reappointed. On December 16, 1997, the Council appointed Ms. Makosky in her place. The letter of appointment stated that her term would expire December 1, 2002.

In conformance with § 204 of the Charter, a new County Council was elected at the general election in November, 1998, and took office on the first Monday in December. That Council consisted of Ms. Spence and Messrs. Foster, Dyott, Harrison, and Higgins. For each of the years 1999, 2000, and 2001, the Council made one appointment to the Commission as a term expired. In September, 2002, the County Planning Officer informed the Council that Ms. Makosky's term would expire on December 20, 2002, and that she desired reappointment. Everyone seems to agree that the Planning Officer was mistaken in positing an expiration date of December 20.

On November 5, 2002, a general election occurred in which three new members— Mr. Duncan, Mr. Carroll, and Ms. Harrington—were elected in place of Messrs. Dyott, Harrison, and Higgins. On November 26, 2002, the "lame duck" Council, by a vote of 3-0, with Mr. Foster and Ms. Spence abstaining, purported to appoint petitioner William Bryan to Ms. Makosky's seat on the Commission, in the belief that her term ended on December 1.¹ The next day, Ms. Makosky filed a complaint for declaratory judgment and injunctive relief, alleging that her term did not expire until after that of the incumbent Council, that there would therefore be no vacancy on the Commission during the term of that Council, and that, accordingly, the appointment of Mr. Bryan was void.

On December 3, 2002, the newly elected Council had its first meeting, at which it adopted a motion declaring the purported appointment of Mr. Bryan void on the ground that the position was still then occupied by Ms. Makosky. Recognizing that Ms. Makosky had filed suit, the Council authorized the county attorney to obtain a judicial determination of Mr. Bryan's status. The Council did not purport to appoint Ms. Makosky to a new term but was content to allow her to hold over until the matter was resolved in court. Mr. Bryan then promptly filed a counterclaim against both Ms. Makosky and the County Council, asking the court, among other things, to declare that he was validly appointed to the Commission. Noting that the proper corporate defendant was the county, not the County Council, the county filed a motion to intervene, which, apparently without objection, was granted. The county and Mr. Bryan agreed that the case could be resolved on summary judgment, and they each filed a motion.

As the parties agreed that the Charter provisions controlled and that the County Council is without authority to appoint a person to fill a vacancy on the Commission that occurs after the term of the Council has ended, the court recognized that the issue depended on when Ms. Makosky's term ended. In that regard, the court looked to Ms. Makosky's immediate predecessor, Ms. Kabler, whose term, it held, was to end on December 1, 1997. The court did not explain how it reached that conclusion, but it presumably relied on some of the assorted documents that referred to a December 1 beginning or ending date. Nonetheless, the court noted that, in fact, Ms. Kabler remained in office as a holdover until Ms. Makosky was appointed on December 16, 1997, that there was some indication in the County Council's minutes that the appointment was to take effect January 1, 2003, and that, under the Charter, her term was to last for five years. From all of this, the court concluded:

"[Ms. Makosky's term] did not commence earlier than December 16, 1997, first, because the position was then occupied by Carol Kabler, and second, because it was to be effective January 1, 1998, and for a term of five years. Her term ended on January 1, 2003, notwithstanding the letter to her erroneously indicating

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