Floyd v. Balt. City Council, 1687, Sept. Term, 2017

• Decision Date: 04 June 2019
• Docket Number: No. 1687, Sept. Term, 2017,1687, Sept. Term, 2017
• Citation: 241 Md.App. 199,209 A.3d 766
• Parties: Joan FLOYD v. BALTIMORE CITY COUNCIL, et al.
• Court: Court of Special Appeals of Maryland

241 Md.App. 199

209 A.3d 766

Joan FLOYD

v.BALTIMORE CITY COUNCIL, et al.

No. 1687, Sept. Term, 2017

Court of Special Appeals of Maryland.

June 4, 2019

Argued by: John C. Holzer of Towson, MD. for Appellant.

Argued by: Andre M. Davis City Solicitor (Benjamin Bor, Matthew Nayden, Adam Levine, Baltimore City Department of Law on the brief) all of Baltimore, MD. for Appellee.

Fader, C.J., Friedman, James A. Kenney, III (Senior Judge, Specially Assigned), JJ.

Kenney, J.

In December 2016, Baltimore City enacted legislation known as "Transform Baltimore," which was its first comprehensive rezoning plan since 1971. Appellant, Joan Floyd, has challenged the legislation under the Open Meetings Act, Md. Code Ann. (2014, 2018 Supp.), General Provisions ("GP") §§ 3-301 et seq. (the "Act"), alleging that the Baltimore City Council (the "Council") and the Land Use and Transportation Committee (the "Committee")¹ , had violated the Act with respect to several meetings conducted near the time of the bill's passage. The Circuit Court for Baltimore City, finding no actionable violations of the Act, entered judgment in favor of the appellees.

In her timely appeal, appellant presents five questions² , which we have consolidated and reordered as:

1. Did the trial court err in granting the City's Motion to Quash Subpoenas based on legislative privilege?

2. Did the trial court err in not considering online audio-visual recordings of certain Committee and Council meetings?

3. Did the trial court err in determining that there was no violation of the minutes requirement of the Act in the Committee's October 20, 2016 meeting?

4. Did the trial court err in determining that there was no violation of the notice or minutes requirements of the Act in the Council luncheon meeting on October 24, 2016?

For reasons that follow, we answer the first three questions in the negative and the fourth in the affirmative.

FACTUAL AND PROCEDURAL BACKGROUND

Bill 12-0152, the legislation known as "Transform Baltimore," was introduced in the Baltimore City Council on October 22, 2012, and assigned to the Land Use and Transportation Committee. Over the next four years, the Committee conducted over 80 public hearings and considered hundreds of amendments to its text and zoning map in open session. On October 19 and 20, 2016, the Committee met in open session, and, on October 20, voted to recommend Bill 12-0152 "favorable with amendments." The online-posted minutes of that meeting reflected the following:

A motion was made by Councilmember Kraft, seconded by Councilmember Middleton, that Bill 12-0152 be recommended Favorable with Amendments. The motion for carried by the following vote:

Yes: 6 – Reisinger, Kraft, Branch, Clarke, Henry, and Middleton Absent: 1 – Mosby

On the evening of October 24, 2016, the full Council convened in open session to consider Bill 12-0152.³ Some proposed amendments were adopted by the Council; some were not. Ultimately, the Council voted favorably on Bill 12-0152 with amendments. The official minutes reflecting the Council's votes on amendments and the final vote were recorded in the Council's Journal and posted online on the Council's Legistar website.

Earlier on October 24, there was a "luncheon meeting" of the Council hosted by Mayor Stephanie Rawlings-Blake in the Mayor's executive conference room. No minutes of that "luncheon meeting" were recorded.

On December 2, 2016, appellant, along with others, filed a "Petition for Enforcement of the Open Meetings Act" against the Council and Committee. The petition alleged that the Council and Committee violated the Act's provisions with respect to the Committee meetings of October 19 and 20, 2016 and the Council's luncheon meeting of October 24, 2016.

The Council passed Bill 12-0152 on December 5, 2016, and the Mayor signed it into law that same night.⁴ The new zoning code and accompanying zoning map took effect on June 5, 2017.

The circuit court denied the City's motion to dismiss on February 22, 2017, and trial was set for June 9, 2017. On June 2, 2017, appellant served the City with subpoenas to compel testimony of Council President Bernard C. "Jack" Young, Council member and Committee Chairman Edward Reisinger, and the Director of Legislative Affairs for the Council President, Kara Kunst. The City moved to quash the subpoenas for the Council members on the grounds of legislative privilege, and it moved in limine to limit the testimony of Ms. Kunst to only those matters related to the Council's compliance with the requirements of the Act. The circuit court, finding that "legislative privilege applies," granted both motions.

At trial, appellant and Ms. Kunst both testified. When the proceedings closed, the court stated that it had "some reviewing to do" and would issue a written ruling. On June 30, 2017, the court entered judgment in favor of the City. It found that appellant had "failed to produce any evidence to support the[ ] claim that [the City] committed any actionable violation of the Open Meetings Act," and that "[w]hile the process was not perfect ... there is no indication that the errors were the result of anything more than human error ... [that] does not give rise to a cause of action."

STANDARD OF REVIEW

When a cause of action is based on a violation of the Open Meetings Act, there is a statutory presumption that the public body did not violate the Act, and the complainant has the burden of proving the violation. See GP § 3-401(c).⁵

In our review of an action tried without a jury, we:

must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court's determination, it is not clearly erroneous and cannot be disturbed. Questions of law, however, require our non-deferential review. When the trial court's decision involves an interpretation and application of Maryland statutory and case law, [we] must determine whether the lower court's conclusions are legally correct. Where a case involves both issues of fact and questions of law, [we] will apply the appropriate standard to each issue.

Clickner v. Magothy River Ass'n Inc. , 424 Md. 253, 266-67, 35 A.3d 464 (2012) (cleaned up); Md. Rule 8-131(c).

We review the trial court's ruling on a motion to quash subpoenas under an abuse of discretion standard. See Doe v. Maryland Bd. of Social Workers , 154 Md. App. 520, 527-28, 840 A.2d 744 (2004) ; WBAL-TV Div., Hearst Corp. v. State , 300 Md. 233, 247, 477 A.2d 776 (1984) (holding no abuse of discretion in denial of TV station's motion, based on a qualified First Amendment privilege, to quash summons by the State to produce the unbroadcast portions of a videotaped interview with criminal defendant for possible use at trial).

Generally, an abuse of discretion occurs "where no reasonable person would take the view adopted by the [trial] court." Metheny v. State , 359 Md. 576, 604, 755 A.2d 1088 (2000) (internal quotations omitted). When, however, the ruling "involves an interpretation and application of Maryland statutory and case law, we must determine whether the trial court's conclusions are legally correct under a de novo standard of review." Johnson v. Francis , 239 Md. App. 530, 542, 197 A.3d 582 (2018) (internal quotations omitted).

DISCUSSION

I.Legislative Privilege

As indicated, the City moved to quash the subpoenas for the two Council members based on legislative privilege and moved in limine to limit the testimony of Ms. Kunst to administrative details. The trial court, finding that "legislative privilege applies," granted the motions.

Contentions

Because the Act expressly authorizes a court to determine whether a public body's violation of the Act was willful, appellant contends that direct examination of the members of a public body is required. And, for that reason, "legislative privilege" has no place in an Open Meetings case, because it would allow "[a]ny public body composed of legislators ... [to] effectively violate the Act with impunity." It is her position that legislative privilege is "anathema to enforcement of the Act."

More specifically, she argues that Council President Young and Committee Chairman Reisinger were "uniquely positioned and qualified to elucidate the proceedings of these two public bodies" over which they presided. By restricting her ability to elicit testimony from the Council members, the trial court prevented her from obtaining information from competent witnesses, which severely prejudiced her efforts to succeed on her claim.

Citing Community and Labor United For Baltimore Charter Committee v. Baltimore City Bd. of Elections , 377 Md. 183, 832 A.2d 804 (2003) (which we will refer to as " CLUB " in this opinion), she contends that both Mr. Young and Mr. Reisinger had been Council members during the period of 2002-03 when the facts underlying that case occurred and would have particular insight into how, or if, the Council had taken any post- CLUB steps to reform their procedures and to comply with the Act. In addition, their involvement, in what she characterizes as a prior willful violation of the Act in CLUB , would be circumstantial evidence of a willful violation in this case.

She further argues that she needed the testimony of Mr. Young and Mr. Reisinger because Ms. Kunst, a staff member, was not competent to testify on matters relating to the Act. Even if she was qualified to "support and possibly to implement the policy of the [Council] and [Committee] regarding the [Act]," she was not qualified "to make or explain that policy." Nor was she competent to testify "as to what [Council] and Committee members themselves discussed, and with whom, during the ‘recess’ between the evening meetings of October 20 and 24, 2016."

The City responds that the court correctly quashed the subpoenas based on the well-developed doctrine of legislative privilege, which protected Mr. Young and Mr. Reisinger from having to testify about actions taken within the sphere of...