Montgomery County v. Board of Supervisors of Elections for Montgomery County, 95

• Decision Date: 19 September 1986
• Docket Number: No. 95,95
• Citation: 311 Md. 512,536 A.2d 641
• Parties: MONTGOMERY COUNTY, Maryland et al. v. BOARD OF SUPERVISORS OF ELECTIONS FOR MONTGOMERY COUNTY et al. Sept. Term 1986.
• Court: Maryland Court of Appeals

Page 512

311 Md. 512

536 A.2d 641

MONTGOMERY COUNTY, Maryland et al. v. BOARD OF SUPERVISORS OF ELECTIONS FOR MONTGOMERY COUNTY et al.

No. 95 Sept. Term 1986.

Court of Appeals of Maryland.

Sept. 19, 1986.

Opinion Feb. 5, 1988.

Joyce R. Stern, Sr. Asst. Co. Atty. (Paul A. McGuckian, Co. Atty., Clyde H. Sorrell, Deputy Co. Atty., Rockville, and Sharon M. Pegnato, pro se, on the brief, of Derwood), for appellant.

Devin John Doolan (Marianne K. Renjilian and Furey, Doolan & Abell on the brief), all of Chevy Chase, for appellee Montgomery County Council.

John P. Diuguid (Diuguid & Epstein, on the brief), Washington, D.C., for appellee Bd. of Supervisors of Elections for Montgomery County.

[536 A.2d 642] Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH, ^* McAULIFFE and ADKINS, JJ.

PER CURIAM ORDER

For reasons to be stated in an opinion later to be filed, it is this 19th day of September, 1986

ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the judgment of the Circuit Court for Montgomery County is reversed and the Board of Supervisors of Elections for Montgomery County is enjoined from printing proposed Charter amendments B and C on the official ballots to be used at the November 4, 1986 general election; costs to be paid by Montgomery County, Maryland; and it is further

ORDERED that the mandate shall issue forthwith.

ELDRIDGE, Judge.

This opinion sets forth the reasons underlying this Court's earlier order enjoining the Board of Supervisors of Elections for Montgomery County from placing proposed charter questions B and C, amending Sections 215 and 110 of the Montgomery County Charter, respectively, on the official ballot for the November 4, 1986, general election.

The Maryland Constitution, Article XI-A, § 1, provides inter alia that a county charter shall be subject to the public general laws of Maryland. If a provision of a county charter, including a charter amendment, conflicts with any public general law, the charter provision may not be given effect. See East v. Gilchrist, 296 Md. 368, 374, 463 A.2d 285 (1983), and cases there cited; Wilson v. Bd. of Sup. of Elections, 273 Md. 296, 328 A.2d 305 (1974); Schneider v. Lansdale, 191 Md. 317, 61 A.2d 671 (1948). This case involves the claimed invalidity of two proposed charter amendments adopted by the Montgomery County Council as part of Resolution 10-2112 on July 29, 1986. Pursuant to Maryland Constitution, Art. XI-A, § 5, setting forth the procedure for amending charters, the resolution was to be submitted to the voters at the November 4, 1986, general election. See also, Maryland Code (1957, 1986 Repl.Vol.), Art. 33, §§ 23-1 to 23-11, and § 16-13 of the Montgomery County Code. Resolution 10-2112 contained seven proposed amendments to the Montgomery County Charter. As previously indicated, the two proposed amendments involved in this litigation are to § 215 and § 110 of the Charter.

Existing § 215 provides that the County Executive appoints "all members of boards and commissions unless otherwise prescribed by state law or this Charter." Section 215, under the proposed amendment, would provide that the section should not be construed to authorize the County Executive to appoint members of the Montgomery County Planning Board. ¹ Existing section 110 provides that the County's zoning, planning and subdividing powers are exempt from veto by the County Executive. Section 110, under the proposed amendment, would provide that the section should not be construed to authorize the County Executive to veto master plans or master plan amendments that have been approved by the County Council. ²

On August 11, 1986, "Montgomery County," at the direction of the County Executive, filed this action in the Circuit Court for Montgomery County against the Board of Supervisors of Elections of Montgomery County. Sharon Pegnato, a Montgomery County taxpayer, was also a plaintiff in the action. The plaintiffs sought to enjoin the placement of the two proposed amendments to §§ 215 and 110 on the November 1986 ballot. They also sought declaratory relief in the form of a court order declaring the proposed amendments invalid. On September 2, 1986, the Montgomery County Council was permitted to intervene as a party-defendant.

Before the circuit court, the plaintiffs argued that the two proposed amendments directly conflicted with public general laws. Specifically, the plaintiffs contended that § 215 conflicted with Maryland Code (1957, 1987 Repl.Vol.), Art. 28, § 2-101, which grants to the County Executive the authority to appoint two members of the Planning Commission. Section 110, they stated, conflicted with Code (1957, 1987 Repl.Vol.), Art. 28, § 7-108(d)(2), which grants to the County Executive the authority to veto master plans and master plan amendments, subject to a legislative override. The plaintiffs argued that, because of the conflict with public general laws, the Board of Supervisors of Elections should be enjoined from placing the proposed amendments on the November 1986 ballot and that the proposed amendments should be declared invalid.

On September 4, 1986, the circuit court declared that the proposed charter amendments were not invalid, and it denied the requested injunctive relief. ³ The plaintiffs took an appeal to the Court of Special Appeals, and, before any further proceedings in the intermediate appellate court, all parties petitioned this Court for a writ of certiorari. We issued the writ on September 15, 1986, and advanced oral argument to September 19, 1986. On September 19th, at the conclusion of oral argument, we reversed the judgment of the circuit court and enjoined the Board of Supervisors of Elections from placing the proposed amendments on the ballot.

As previously pointed out, under Art. XI-A of the Maryland Constitution, if a charter amendment conflicts with a public general law, the public general law prevails. The proposed amendment to § 215 of the Montgomery County Charter provides that the section should not be construed to authorize the County Executive to appoint members of the Montgomery County Planning Board. In contrast, a public general law (Art. 28, § 2-101) provides that the County Executive has authority to appoint two members of the Planning Commission. The proposed amendment to § 110 states that the section should not be construed to authorize the County Executive to veto master plans or master plan amendments. In contrast, a public general law (Art. 28, § 7-108(d)(2)) provides that the County Executive has the authority to veto master plans and master plan amendments. Facially, the proposed charter amendments conflict with Art. 28, §§ 2-101 and 7-108(d)(2) of the Maryland Code.

In response to this facial conflict, the defendant Montgomery County Council makes two arguments. The County Council contends that even if there is a conflict with public general law, the proposed charter amendments should nevertheless go on the ballot; if approved by the voters, the new charter provisions would simply be "inoperative" until there was a change in public general law. Alternatively, the County Council asserts that there really is no conflict. In our view, neither argument is meritorious.

A.

The County Council argues that "[e]ven if the Court were to find a current conflict ... [between the proposed charter amendments and public general law] the proposed charter amendments should go on the ballot because they are proper charter material and are, at worst, 'inoperative' until State law changes...." (County Council's brief p. 18). The County Council relies on the following language from Wilson v. Bd. of Sup. of Elections, supra, 273 Md. at 302, 328 A.2d 305:

"[I]f there is a conflict between a charter provision and a public general law the charter provision would be inoperative.... A charter provision which is otherwise valid, but inoperative because of such a conflict, would become operative if the conflict were eliminated by the repeal of the public general law. Likewise, a charter provision otherwise valid and operative, because of lack of conflict, would become inoperative if a later public general law created a conflict...."

The County Council reasons that, because a proposed charter amendment in conflict with public general law is not "invalid" but simply "inoperative," under the Wilson language a court should never enjoin placing the proposed conflicting charter amendment on the ballot.

The County Council's argument is flatly contrary to Maryland cases. Our cases have consistently taken the position that the submission to the voters of a proposed charter amendment, in conflict with public general law, should be enjoined. See, e.g., Wilson v. Bd. of Sup. of Elections, supra, 273 Md. at 300, 328 A.2d 305; Schneider v. Lansdale, supra, 191 Md. 317, 61 A.2d 671; Jones v. Broening, 135 Md. 237, 108 A. 785 (1919); Williams v. Broening, 135 Md. 226, 108 A. 781 (1919); Montgomery County v. Board of Supervisors of Elections, 53 Md.App. 123, 451 A.2d 1279, cert. denied, 294 Md. 352 (1982). ⁴

For example, in Schneider v. Lansdale, supra, the plaintiffs sought to enjoin the Board of Supervisors of Elections of Montgomery County from submitting a proposed charter to the voters. The plaintiffs claimed that a provision of the proposed charter was inconsistent with State law. The defendants contended that enjoining the submission of the proposed charter violated separation of powers and that, therefore, the Court had no authority to enjoin submission of the charter to the voters. Responding to this argument, the Court stated (191 Md. at 322, 61 A.2d at 673):

"[W]e have before us the contention ... that the courts cannot interfere with the legislative processes, and that enjoining the submission to the voters of a proposed charter is such interference.... But in this State we have actually passed upon the validity of proposed constitutional or charter amendments, and have...