Getty v. Board of Elections

• Decision Date: 21 June 2007
• Docket Number: No. 139, Sept. Term, 2005.,139, Sept. Term, 2005.
• Citation: 399 Md. 710,926 A.2d 216
• Parties: Joseph M. GETTY and James Harris v. CARROLL COUNTY BOARD OF ELECTIONS and Dana Lee Dembrow.
• Court: Court of Special Appeals of Maryland

926 A.2d 216

399 Md. 710

Joseph M. GETTY and James Harris v. CARROLL COUNTY BOARD OF ELECTIONS and Dana Lee Dembrow.

No. 139, Sept. Term, 2005.

Court of Appeals of Maryland.

Per Curiam Order June 2, 2006.

June 21, 2007.

Joseph M. Getty (Law Office of Joseph M. Getty, Manchester, MD), on brief;

Donald B.W. Messenger (Mesenger Law Firm, LLC, Beltsville, MD), on brief, for Appellants.

Dana Lee Dembrow, Sykesville, MD, on brief; Richard C. Murray, Westminster, MD, on brief, for Appellees.

Argued Before BELL, C.J., RAKER, WILNER^*, CATHELL, BATTAGLIA, GREENE and JOHN C. ELDRIDGE, (Retired, specially assigned), JJ.

BELL, Chief Judge.

The instant case concerns the election of local public officials in the State of Maryland. Specifically, at the core of this action is the issue of the authority of the Circuit Court for Carroll County, by its approval of an agreement ("Consent Order") between a private party and an executive agency, to modify the method of election of Carroll County commissioners.¹ Article VII of the Maryland Constitution, captioned "Sundry Officers," governs the method of election of commissioners in a county commissioner form of local government. It provides:

"Section 1. The County Commissioners of each county not governed by Article XI-A of this Constitution² may be elected by the voters of commissioner districts established therein, or by the voters of the entire county [at-large], or by a combination of these methods of election, as provided by the General Assembly by law."

"Section 2. The number, compensation, and powers and duties of the County Commissioners of each county not governed by Article XI-A of this Constitution shall be such as now are or may be hereafter prescribed by law."

(Emphasis added). Because we conclude that, as ordained by the Constitution, the power and authority to designate the method of election ultimately, and exclusively, lies with the Legislature, we shall hold that the Circuit Court's approval of the Consent Order authorizing a change in the method of election of county commissioners was a clear violation of Article VII, §§ 1 and 2 of the Maryland Constitution.

I.

In the case sub judice, the Carroll County Board of Elections ("the Board"), in an attempt to expand the number of county commissioners in order to implement district, instead of at-large, representation, entered into a Consent Order with Dana Lee Dembrow ("Dembrow"), a registered voter in Carroll County, Maryland. Under that Consent Order, the County committed to the adoption of a redistricting plan creating five commissioner districts in the County, and, thus, in effect, to create a new method of election of commissioners for the November 7, 2006 General Election.

Carroll County currently has, and has had since its formation,³ a commissioner form of government, with three county commissioners. The three persons elected to serve on the County's Board of Commissioners historically were elected at-large. In 2003, however, House Bill 290 (2003), mandating the expansion of the Carroll County Board of Commissioners ("the CCBC") from three members to five, providing for their election by district, rather than at-large, and establishing a process for the creation of five commissioner districts in the County, was introduced in the Maryland General Assembly, adopted by both houses and signed by the Governor, as Chapter 417, 2003 Laws of Maryland. Section 2 of Chapter 417 conditioned the Act's becoming effective on its approval by referendum of the legally qualified voters of Carroll County at the next general election.⁴ The Act was referred at the 2004 General Election, and it was approved by Carroll County voters and codified as Public Local Laws of Carroll County § 3-101. As enacted, the legislation provided, as relevant:

"(a) The Board of County Commissioners for Carroll County consists of five Commissioners to be elected by Commissioner District.

* * *

"(c) Redistricting Committee.

"(1) On or before May 1, 2005, and on or before May 1 following the release of each decennial census of the United Stated thereafter, the County Commissioners shall appoint a Commission Redistricting Committee.

"(2) (i) The Commission Redistricting Committee shall consist of seven members.

"(ii) Of the seven members:

"1. Three shall be recommended by the County Republican Central Committee;

"2. Three shall be recommended by the County Democratic Central Committee; and

"3. One shall be recommended by the County Board of Elections.

"(3) The Commission Redistricting Committee shall recommend:

"(i) The establishment of five Commissioner districts in the county of substantially equal population; and

"(ii) Provisions for staggered terms of office for the Board of County Commissioners.

"(4) On or before December 1, 2005, and on or before December 1 following the release of each decennial census of the United States thereafter, the Commission Redistricting Committee shall report its recommendations to the Carroll County Legislative Delegation to the General Assembly for consideration at the following legislative session."

(Emphasis added).

As § 3-101 required, and in accordance with its prescription, the incumbent members of the CCBC appointed the seven members⁵ of the Commission Redistricting Committee ("the Committee"). The Committee's function was to make recommendations to the Carroll County Legislative Delegation ("the Delegation") as to the boundaries of the proposed five commissioner districts, "for consideration at the following legislative session."

The Committee drafted two alternative redistricting plans, designated as Option 1 ("the Wheatley Plan") and Option 2. Under Option 1, or the Wheatley Plan, Carroll County was divided into a central Westminister district; a northern district consisting of Taneytown and Manchester; a southwestern district consisting of New Windsor, Union Bridge and Mount Airy; a southeastern district consisting of Sykesville and Eldersburg; and an eastern district consisting of Hampstead and Finksburg. Under Option 2, the five districts created were a central Westminister district; a northeastern district containing Hampstead and Manchester; a northwestern district containing Taneytown, New Windsor and Union Bridge; a southwestern district containing Mount Airy and Sykesville; and a southeastern district containing Eldersburg and stretching from the Howard County line to the south side of Md. 140. In this delineation, Finksburg was split between the northeastern and southeastern districts. These plans were the subject of several public hearings, at which the Committee solicited and received input from the Carroll County citizenry.

At its final meeting on June 30, 2005, by a vote of 4 to 2,⁶ the Committee adopted and, therefore, recommended Option 2. It completed and submitted its Final Report, including the Committee's Guidelines, minutes of both its meetings and the public hearings, and map configurations, to the Carroll County Delegation on August 23, 2005.

Thereafter, the Carroll County Delegation held two public hearings on the Committee Report, one on October 25, 2005 and the other on December 13, 2005. At the latter meeting, the Delegation rejected the Committee's recommendation of Option 2 and adopted, instead, by a vote of 5 to 2, the Wheatley Plan.⁷ The Wheatley Plan, as P.L.L. § 3-101(c)(4) required, was introduced, on January 30, 2006, "at the following legislative session," as House Bill 491. Due to the closeness of the election at which the plan was to be implemented, House Bill 491 was introduced as emergency legislation. Although it passed the House of Delegates and the Senate Education, Health and Environmental Affairs Committee ("the Senate Committee"), on sine die, the Maryland General Assembly adjourned without completing action on the bill.

In response to the Delegation's failure to secure the passage of House Bill 491 and acting on the advice of the Attorney General,⁸ on April 17, 2006, the Board determined that the election of the five county commissioners would be conducted at-large and not by district. It did so on the basis that no delineation of commissioner districts had been at the time lawfully created by the General Assembly.

II.

Having learned of the Board's decision, Dembrow, the plaintiff below and one of the appellees in this appeal, filed, in the Circuit Court for Carroll County, a Complaint for Declaratory Judgment and Writ of Mandamus, naming the Board as defendant.⁹ Specifically, Dembrow sought to compel the Board "to implement the directive of a certain voter referendum adopted by the voters of Carroll County, Maryland in November 2004 requiring the election of county commissioner by district in the 2006 elections."¹⁰

In response to Dembrow's Complaint, the Board held two emergency meetings to discuss the pending litigation, at the second of which Dembrow was in attendance. Having heard from Dembrow with regard to the nature of his Complaint and the relief he sought, the Board unanimously voted to enter into the Consent Order with Dembrow "to seek jointly at the earliest possible time an Order of the Circuit Court authorizing the conduct of [Carroll County] elections using commissioner district boundaries as designed, approved and recommended by the Redistricting Committee, also known as `Option 2.'" The Circuit Court expedited its review of the Consent Order "in order to afford [the Board] as much time as possible to plan and conduct orderly elections in the fall of 2006 as required by law and dictated in part by a certain voter referendum...." Based solely on the "joint and abbreviated presentations by counsel," no notice to the public having been given and no evidentiary hearings having been held, the Circuit Court issued its Order approving the Consent Order and marking the action "as settled and dismissed with prejudice." As approved, the Consent Order provided, as pertinent:

"1. [The Board] withdraws its determination of ...