City of College Park v. Cotter, 148

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued Before MURPHY; COUCH; In City of New Carrollton v. Rogers; ELDRIDGE
• Citation: 309 Md. 573,525 A.2d 1059
• Parties: CITY OF COLLEGE PARK, et al. v. Joseph W. COTTER III. ,
• Docket Number: No. 148,148
• Decision Date: 01 September 1986

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309 Md. 573 525 A.2d 1059 CITY OF COLLEGE PARK, et al.
v.
Joseph W. COTTER III. No. 148, Sept. Term, 1986. Court of Appeals of Maryland. June 3, 1987.

[525 A.2d 1060]

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Morris Topf (Topf, Goldstein, Handler & White, P.C., on the brief), Bethesda, for appellants.

Ronald Willoner (Willoner, Calabrese & Rosen, College Park, and V. Charles Donnelly, Hyattsville, on the brief), for appellee.

Argued Before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH, ^* McAULIFFE and ADKINS, JJ.

COUCH, Judge.

We granted certiorari in this case to determine whether the City Council of College Park is prohibited from conducting any closed meetings under the Municipal Charter of

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College Park and the Maryland Sunshine Law, Maryland Code (1984, 1986 Cum.Supp.), State Government §§ 10-501--510. ¹ I

Joseph W. Cotter III (appellee), an elected member of the City Council of College Park ("City Council" or "Council"), filed suit in the Circuit Court for Prince George's County against the Mayor and seven members of the City Council (appellants). In his complaint, he alleged that the Council held closed meetings in violation of Article 10, section 24 of the Municipal Charter of College Park ("Municipal Charter" or "Charter"), which states: "All meetings of the Mayor and Council herein provided for, shall be open to the citizens of the city." ² Appellee requested a writ of mandamus "requiring said officials of the City of College Park and their agents to hold open, public meetings and enjoining them from locking the doors of the Municipal Center during meetings of the Mayor and Council." ³

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According to appellee, the Mayor and City Council have held at least twenty closed meetings in the two years preceding the instant suit. On many occasions, appellee contends, these meetings were held without prior notice to the public; when citizens did attend, they were removed from the meeting hall. Appellee notes that since he took office in December of 1985, four such closed meetings have been held. Appellee asserts that he has registered a protest with the Mayor and City Council and has excluded himself from three of these meetings on the ground that to attend them would violate his oath to uphold the Municipal Charter.

Answering the complaint, ⁴ the appellants do not dispute that closed meetings have been held on certain occasions during a [525 A.2d 1061] three year period beginning in 1983. ⁵ They argue, however, that these closed sessions, which have been "held to consult with City staff, especially the City Attorney, on very limited issues," ⁶ are permitted by the Maryland Sunshine Law ("Sunshine Law" or "the Act"). ⁷ They also contend that the Municipal Charter does not present a bar to such meetings. In their view, the Charter does not "in any way preclude executive sessions for the purpose of

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consultation with counsel or to discuss other issues which must properly be considered out of the public view."

After a hearing, the trial court enjoined the Mayor and City council from conducting any closed sessions or meetings as long as Article 10, section 24 of the Municipal Charter remained in force. The court reasoned:

"[U]nder the plain language of the [Maryland Sunshine Law] Section 10-504 (1984) conflict of laws provision, since Article X, Section 24, of the City Charter of College Park is more stringent [ (i.e., allows no exception to the open meeting requirement) ], it controls and all meetings of the Mayor and Council of College Park are required to be open meetings.

* * *

"Where the intent of a statute is expressed in clear and unambiguous language, as it is in Article X, Section 24, of the Charter of the City of College Park, the court must carry it into effect even if the court is of the opinion that the policy of the legislation is unwise, harsh or unjust."

The court added:

"If the City of College Park no longer wishes to require all meetings of the Mayor and Council to be open, it has available the Md.Ann.Code Art. 23A (1957) provisions for amending the Charter."

The appellants appealed the lower court's decision to the Court of Special Appeals and concurrently filed a petition for writ of certiorari with this Court. Before review by the intermediate appellate court, we granted appellants' petition. We shall affirm the judgment of the circuit court.

II

At the outset, we address appellee's contention that the instant appeal is moot. Shortly after the appellee filed his suit, the Mayor and City Council of College Park proposed an amendment to the open meeting provision in the Municipal

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Charter. ⁸ As amended, Article 10, section 24 would read as follows (emphasis added):

"All meetings of the Mayor and Council herein provided for shall be open to the citizens of the city. Nothing contained herein shall be construed to prevent the Mayor and City Council from holding executive (closed) session from which the public is excluded, in accordance with the safeguards provided by State law, but no ordinance, resolution, rule or regulation shall be finally adopted at such an executive meeting."

More than 1100 signatures of registered College Park voters were collected to bring the proposed amendment to a referendum vote. ⁹ The ballot asked voters whether they were "in favor of closed meetings of the Mayor and Council as permitted by and held in accordance with the safeguards of [525 A.2d 1062] the State of Maryland Sunshine Act." ¹⁰ On December 9, 1986, the voters defeated the proposed charter amendment. ¹¹

The appellee contends the referendum vote moots the present controversy. He reasons as follows: The vote represents the public's desire for open meetings. When the Charter provision in force is read as reflecting this desire, the appellants' contention that Article 10, section 24 permits closed sessions is no longer tenable. "Since there is no longer any controversy with regard to how the voters of

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College Park want the meetings of their Mayor and Council conducted, and the Mayor and Council are the peoples' duly elected representatives, there is no longer an existing controversy." We reject appellee's contention.

As a general rule, appellate courts do not give opinions on abstract propositions or moot questions. See, e.g., County Commissioners of Charles County v. Secretary of Health & Mental Hygiene, 302 Md. 566, 568, 489 A.2d 1127, 1128 (1985) (and cases cited therein). "A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide." Attorney General v. Anne Arundel County School Bus Contractors Association, 286 Md. 324, 327, 407 A.2d 749, 752 (1979) (citations omitted). When a party is seeking an injunction or similar relief, it will not "issue if the acts sought to be enjoined have been discontinued or abandoned." Id., 407 A.2d at 752 (citations omitted).

In the instant case, a controversy still exists between the opposing litigants. The referendum vote, although expressing the will of a majority of the interested voters of College Park, did not amend the Municipal Charter, thereby eliminating the controversy concerning the interpretation of the Charter provision in question. The vote did not prevent the appellants from still maintaining, which they do on appeal, ¹² that Article 10, section 24 permits closed meetings. This is simply not a case where the "acts sought to be enjoined have been discontinued or abandoned." Anne Arundel County School Bus, 286 Md. at 327, 407 A.2d at 752. Compare State v. Ficker, 266 Md. 500, 507, 295 A.2d 231, 235 (1972) (offending act sought to be enjoined has been abandoned). Had the referendum vote amended the Charter to explicitly prohibit closed meetings, or to prevent the appellants from pursuing their present position, we would have a very different situation. Since an effective

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remedy does exist (i.e., an injunction), we conclude the present appeal is not moot. III

We begin our analysis with the Maryland Sunshine Law, Md.Code (1984, 1986 Cum.Supp.), State Government §§ 10-501--510, which will bring the present controversy into focus. The Maryland Sunshine Law requires that meetings of public bodies, with limited exceptions, be open to the public. See Carroll County Education Association v. Board of Education of Carroll County, 294 Md. 144, 147, 448 A.2d 345, 347 (1982); Avara v. Baltimore News American Division, 292 Md. 543, 440 A.2d 368 (1982). ¹³ Section 10-502 expresses the legislative policy of the statute:

"It is essential to the maintenance of a democratic society that, except in special and appropriate circumstances:

1) public business be performed in an open and public manner; and

2) citizens be advised and aware of:

[525 A.2d 1063] (i) the performance of public officials; and

(ii) the deliberations and decisions that the making of public policy involves."

At the heart of the Act is section 10-505, which states that a public body ¹⁴ shall meet ¹⁵ in open session ¹⁶ whenever

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that body is carrying out an advisory, legislative, or quasi-legislative function. ¹⁷ The Act does, however, allow

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closed meetings to take place in limited circumstances. See Md.Code (1984, 1986 Cum.Supp.), State Government § 10-508(a). ¹⁸ For example, a public body may meet in closed session or [525 A.2d 1064] adjourn an open session to a closed session to consult with counsel, id. at § 10-508(a)(7), or to protect the privacy and reputation of individuals with respect to a matter that is not related to public business. Id. at § 10-508(a)(2). A public body that meets in closed session

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may not discuss or act on a matter not explicitly permitted under section 10-508(a). Id. at 10-508(b).

Before meeting in an open session, a public body must give reasonable advance notice to the public of the upcoming session. Id. at 10-506(a). See City of New Carrollton...