CLUB v. CITY BOARD OF ELECTIONS

• Decision Date: 15 September 2003
• Docket Number: No. 67,67
• Citation: 377 Md. 183,832 A.2d 804
• Parties: COMMUNITY AND LABOR UNITED FOR BALTIMORE CHARTER COMMITTEE (CLUB) et al. v. BALTIMORE CITY BOARD OF ELECTIONS, et al.
• Court: Maryland Court of Appeals

832 A.2d 804

377 Md. 183

COMMUNITY AND LABOR UNITED FOR BALTIMORE CHARTER COMMITTEE (CLUB) et al. v. BALTIMORE CITY BOARD OF ELECTIONS, et al.

No. 67, Sept. Term, 2002.

Court of Appeals of Maryland.

September 15, 2003.

Francis J. Collins (Kahn, Smith & Collins), Baltimore, for appellants.

Michael G. Raimondi, Chief Solicitor (Thurman W. Zollicofer, Jr., City Solicitor of Baltimore), Michael D. Berman, Deputy Chief of Litigation (J. Joseph Curran, Jr., Atty. Gen.), for appellees.

Argued before ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, LAWRENCE F. RODOWSKY, (Retired, Specially Assigned), JJ.

ELDRIDGE, J.

The issue in this case is whether the Baltimore City Council and its Judiciary and Policy Committee violated the Open Meetings Act, Maryland Code (1984, 1999 Repl.Vol., 2002 Supp.), §§ 10-502 et seq. of the State Government Article, when it considered Bill 02-0654.¹ This Bill, later designated as Question Q, proposed an amendment to the Baltimore City Charter restructuring the Baltimore City Council. It was different from another proposed charter amendment designated as Question P, that was to be placed on the ballot for the election scheduled for November 5, 2002.

The sponsors of Question P, the Association of Community Organizations for Reform Now ("ACORN"), along with three individual voters, the Community and Labor United for Baltimore Charter Committee ("CLUB"), and certain other civic groups (collectively referred to as "CLUB"), filed a complaint and a motion for a preliminary injunction against the Mayor and City Council of Baltimore, the State Board of Elections, and the Baltimore City Board of Elections, seeking to remove Question Q from the ballot. In the complaint, as amended, CLUB alleged that the City Council's meeting of August 8 violated various provisions of the Open Meetings Act. Therefore, CLUB asserted, the actions of the City Council following from that meeting, including the passage of the Bill designated as Question Q, were void.

After an evidentiary hearing and oral arguments, the Circuit Court for Baltimore City denied CLUB's request for a preliminary injunction on September 26, 2002. CLUB immediately noted an appeal, and this Court issued a writ of certiorari on the same day. After oral argument on September 30, 2002, we issued an order reversing the Circuit Court's judgment and ordering the removal of Question Q from the ballot. We shall now state our reasons for that order.

I.

A.

The Baltimore City Council is a legislative body required to conduct its business in accordance with the requirements of the Open Meetings Act. §§ 10-501, 10-502. In addition, the Standing Committees of the City Council are also subject to the Open Meetings Act. The legislative purpose and policy of the Open Meetings Act is clearly stated in § 10-501, that (emphasis added)

"[i]t 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 allowed to observe:

(i) the performance of public officials; and

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

A public body, as defined in § 10-502, must meet in open session, which the general public is entitled to attend, except as otherwise provided for in the Open Meetings Act. §§ 10-505, 10-507, 10-508.² The Open Meetings Act further specifies that the public body must provide adequate notice of the meeting. § 10-506.³ Acceptable methods for providing notice include "publication in the Maryland Register; ... delivery to representatives of the news media [or] ... posting ... the notice at a convenient public location." § 10-506(c). A public body is required to prepare written minutes of its meetings. § 10-509. These minutes are required to include the following information, § 10-509(c)(1):

"(i) each item that the public body considered;

(ii) the action that the public body took on each item; and

(iii) each vote that was recorded." If the public body meets in closed session, the presiding officer must conduct a recorded vote on closing the meeting and make a written statement of the reason for closing the meeting. § 10-508(d)(2). In addition, § 10-509(c)(2) states, in pertinent part, that

"[i]f a public body meets in closed session, the minutes for its next open session shall include:

(i) a statement of the time, place, and purpose of the closed session;

(ii) a record of the vote of each member as to closing the session;

(iii) a citation of the authority under this subtitle for closing the session; and

(iv) a listing of the topics of discussion, persons present, and each action taken during the session."

The Open Meetings Act provides for sanctions in cases of non-compliance. In particular, it provides that if a court "finds that a public body willfully failed to comply with § 10-505, § 10-506, § 10-507, or § 10-509(c) of [the Open Meetings Act] and that no other remedy is adequate, [the court may] declare void the final action of the public body." § 10-510(d)(4).

B.

The genesis of the case at bar lies in two alternative proposals to change the structure of the Baltimore City Council.⁴ Prior to the new proposals, the Baltimore City Council was comprised of eighteen council members, in six three-member districts, and a council president elected at large. CLUB supported what became known as Question P, which would restructure the City Council such that it would have fourteen single member districts and a president elected at large. Bill 02-0654, which later became known as Question Q, if passed at the November 2002 election, would have restructured the City Council into seven two-member districts and a president elected at large. If, however, both questions were placed on the ballot, and both passed, the Baltimore City Solicitor advised that they would nullify each other as being mutually irreconcilable, and that the structure of the Baltimore City Council would remain unchanged.

ACORN, one of the petitioners here, had obtained over 10,000 signatures of registered voters in Baltimore City to have Question P placed on the ballot in the November 2002 election. This process was completed approximately one week before the August 8 meeting of the City Council. At the time of this meeting, Bill 02-0654 had been in the Judiciary and Policy Committee of the City Council since April, 2002, and had not come out of the Committee. The purpose of calling a meeting of the City Council on August 8 was to discuss, among other business, Bill 02-0654, and "to assess the votes still needed to get the bill out of Committee and to ultimately pass the bill in the Council." The bill was one of the matters discussed at the meeting. The City Council met again on August 12, 2002, when the bill was moved from committee and passed by the Council. The Mayor signed the Bill on August 16, 2002.

Even though the President of the City Council, Sheila Dixon, generally gave public notice of the regularly scheduled Monday, and occasionally, Thursday night meetings of the Council, no notice of the August 8 meeting was given by the President to anyone other than council members. Following instructions, Dixon's assistant made telephone calls to inform the other eighteen members of the City Council of a meeting on Thursday, August 8. The calls were made between August 2 and August 7. Dixon had indicated that she did not want the media to be present at the August 8 meeting "because of her fear of how the media might portray the Council when it was having heated discussions." Nonetheless, Councilman Harris informed a member of ACORN and a reporter employed by the Baltimore Sun of the scheduled meeting. The Sun published a report about the scheduled August 8 meeting on August 7.

Six council members, including four of the seven who made up the Judiciary and Policy Committee, were expected to be present. Thus, a quorum of the Judiciary and Policy Committee was anticipated to be present at the August 8 meeting. The trial court also found that

"20. The stated intention of councilmembers to be present at, or absent from, a meeting is not an accurate indicator of who will actually be present. Frequently, not all the members who indicate they will be present actually attend, but sometimes more members are present at the meeting than indicated an intention to be present.

* * *

"22. A quorum of the City Council is ten.

"23. Physically present in the President's Conference Room at the time of the meeting on August 8, 2002, for some period of time were Council President Dixon, and the following Council members: Welch, Harris, Pugh, Garey, Spector, Curran, Carter, Cain and Reisinger.

"24. The August 8, 2002 meeting was held in the City Council President's Conference Room in City Hall.

"25. At the August 8, 2002, meeting the number of councilmembers present was not constant. [The President's assistant] was instructed by the President to keep track of councilmembers present in the meeting. * * *

"26. At the August 8, 2002, meeting the City Council President's Press Secretary ... was instructed to open the meeting to the public if ten or more councilmembers were present in the room at one time."

One of the appellants, Sultan Shakir, and two reporters were outside the meeting room, and were in contact with the President's assistant and press secretary as they attempted to gain admission to the meeting. The trial court found that "[t]here came a point in time during the course of the meeting when [the press secretary] informed Mr. Shakir and the two reporters that ten councilmembers were present and they could enter the meeting room." Approximately one minute after Shakir and two reporters entered the meeting room, the President determined that ten members of the Council were not present and closed the meeting. The Council did not vote to close the meeting.

The Council met again on Monday, August 12, 2002. The City...