Maryland State Administrative Bd. of Election Laws v. Talbot County, 74

Citation316 Md. 332,558 A.2d 724
Decision Date01 September 1988
Docket NumberNo. 74,74
CourtCourt of Appeals of Maryland

Ralph S. Tyler, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen., Jack Schwartz, Asst. Atty. Gen., all on brief), Baltimore, Diana G. Motz (Frank, Bernstein, Conaway & Goldman, both on brief), Baltimore, for petitioners.

Roger D. Redden (Kurt J. Fischer, Piper & Marbury, all on brief), Baltimore, Anne C. Ogletree (Hairston, Gorman, Ogletree & Greenleaf, both on brief), Denton, for respondents.

Argued Before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, BLACKWELL, and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland, retired, Specially Assigned, JJ.



For reasons to be stated in an opinion later to be filed, it is this 7th day of October, 1988:

ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that that part of the judgment of the Circuit Court for Talbot County declaring Section 216 of the Talbot County Charter unconstitutional and enjoining the placement of the Detention Center Initiative on the November 8, 1988 General Election Ballot is affirmed. As to this part of the judgment, the mandate shall be issued forthwith, and it is further:

ORDERED that judgment of this Court, as to that part of the judgment of the Circuit Court relating to attorney fees, expenses, and costs, will await filing of the Court's opinion in this case.

MURPHY, Chief Judge.

At issue in this case is the constitutionality of § 216 of the Talbot County Charter which authorizes voter-initiated legislation upon petition of ten percent of the County's registered voters. 1 In a declaratory judgment action, the Circuit Court for Talbot County (Wise, J.) found this provision of the charter to be violative of Article XI-A of the Maryland Constitution (the Home Rule Amendment) and enjoined placement of a direct legislative initiative involving a county detention center on the November 8, 1988 General Election ballot. By per curiam order dated October 7, 1988, we affirmed that part of the court's judgment. We now give our reasons for that determination.


On May 12, 1987, the County Council of Talbot County voted to locate a new County Detention Center at the so-called "car-wash" site in the Town of Easton, a location approximately 700 feet from the existing county jail. A number of citizens and community organizations expressed their disapproval of this site at a public meeting and by writing letters to the Council and to a local newspaper. The Council declined to change its decision. Thereafter, purporting to exercise their direct voter-initiative rights under § 216, the protesters gathered over 2,000 signatures in support of a bill to add a new subsection to the Talbot County Code to provide: "That no detention center, jail, or other correctional facility be constructed, and operated within five hundred (500) feet of a church, school, cultural building, library, recreational area, or residence." 2

On June 17, 1988, the County Council and James M. Slay filed a declaratory judgment action in the Circuit Court for Talbot County naming the County Board of Supervisors of Elections (the local board) and the Maryland State Administrative Board of Election Laws (SABEL) as defendants. The plaintiffs sought to have § 216 declared unconstitutional as in violation of Article XI-A of the Maryland Constitution, to have the initiative declared void, and to enjoin SABEL and the local board from placing the initiative on the ballot.

Earlier, the Political Action Committee of Ward Four, an unincorporated association, and Gerald Gibson sued the County Council, seeking a declaratory judgment as to their rights and remedies with respect to the site of the proposed new jail, its construction, and the legality of the expenditure of taxpayer funds for the jail. The suit also sought to enjoin the County Council from entering into any contract for the construction of the new jail. On July 1, 1988, the County Council and Slay filed an amended complaint naming, as additional defendants, the Political Action Committee of Ward Four, Gerald Gibson, and John A. Henry (the private defendants). The amended complaint identified the Political Committee as composed of registered voters and taxpayers actively engaged in furthering the aims of the detention center initiative. It identified Gibson as the Committee's Treasurer, a signatory to the initiative petition, one of the individuals primarily responsible for the circulation and filing of the petition, and a plaintiff in the aforementioned suit against the Council. Henry was also identified as a signatory to the petition and an active proponent of its purpose.

SABEL and the private defendants each moved to dismiss the action filed against them, claiming that the issue sought to be adjudicated by the County and Slay was not justiciable for lack of a proper adverse party. Both motions were denied. Thereafter, the County and Slay and the private defendants each moved for summary judgment. On August 23, 1988, the circuit court issued a declaratory judgment, holding § 216 of the charter to be unconstitutional under Cheeks v. Cedlair Corp., 287 Md. 595, 415 A.2d 255 (1980), and enjoining placement of the initiative on the ballot. SABEL and the private defendants appealed. We granted certiorari prior to decision by the Court of Special Appeals to consider the important questions raised in the case.


The Maryland Uniform Declaratory Judgments Act, Maryland Code (1973, 1984 Repl.Vol.) § 3-401 et seq. of the Courts and Judicial Proceedings Article, provides in § 3-409(a) that:

"... a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if:

(1) An actual controversy exists between contending parties;

(2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or

(3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it."

We have said time and again that the existence of a justiciable controversy is an absolute prerequisite to the maintenance of a declaratory judgment action. See Boyds Civic Ass'n v. Montgomery County, 309 Md. 683, 689, 526 A.2d 598 (1987); Hatt v. Anderson, 297 Md. 42, 45, 464 A.2d 1076 (1983). As we observed in Boyds, 309 Md. at 690, 526 A.2d 598, a justiciable controversy is one where there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded. SABEL and the private defendants argue that the circuit court erred in not dismissing the case for lack of justiciability. We disagree.

Justiciability encompasses a number of requirements. See Reyes v. Prince George's County, 281 Md. 279, 288, 380 A.2d 12 (1977). For example, the issue presented to the court must be "ripe" for decision; a court should not decide moot, theoretical or abstract questions. Hamilton v. McAuliffe, 277 Md. 336, 353 A.2d 634 (1976); Liss v. Goodman, 224 Md. 173, 167 A.2d 123 (1961); Davis v. State, 183 Md. 385, 37 A.2d 880 (1944). Moreover, the plaintiffs must have standing to bring the suit. Montgomery County v. Board of Elections, 311 Md. 512, 536 A.2d 641 (1988); Citizens P. & H. Ass'n v. County Exec., 273 Md. 333, 329 A.2d 681 (1974). And there must be an "actual controversy" which exists between the parties. § 3-409(a)(1).

SABEL and the private defendants contend that the "wrong plaintiffs" are suing the "wrong defendants." The Council, they argue, is an improper plaintiff because it is bound to uphold the County Charter and because the legality of a presumptively valid charter provision cannot be attacked by the political subdivision which enacted it, citing Harford County v. Schultz, 280 Md. 77, 85, 371 A.2d 428 (1977). They further claim that Slay, who is a taxpayer and registered voter of Talbot County, has no standing to sue because he is the County Attorney of Talbot County and, as such, may not attack the validity of a charter provision.

Harford County v. Schultz, supra, involved a challenge by the County to a charter amendment which had been proposed by the Harford County Council. Noting that the County's rights, status, or other legal relations had not been adversarily affected by its own deliberately intended enactment of an amendment to its own charter, we dismissed the case for want of justiciability. 280 Md. at 87. In the present case, the County Council and Slay attack a charter provision which was enacted in 1973 by the Talbot County Charter Commission and subsequently approved by the County's voters. As we noted in Schultz, in the usual case the County defends an attack on a charter provision. 280 Md. at 86, 371 A.2d 428. Here, the Council claims that it cannot be expected to defend a charter provision which it did not enact and which totally undermines its constitutional authority under the Home Rule Amendment to be the primary legislative body in Talbot County. Since the focus of the Council's constitutional attack is upon § 216 of the County Charter, it urges that it had the requisite standing to maintain the declaratory judgment action.

As to Slay's standing to bring the action, the private defendants point out that under § 402(b) of the charter, the County Attorney is "the chief legal officer of the County, conducts all the law business of the County and is the legal advisor ... for the Council"; and that he is required to represent the County "in all legal action in which the County is a party." 3 SABEL and the private defendants rely on State v. Burning Tree Club, 301 Md. 9, 481 A.2d 785 (1984) to support their argument that a County...

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