Schisler v. State

• Decision Date: 31 December 2007
• Docket Number: No. 3033, Sept. Term, 2006.,3033, Sept. Term, 2006.
• Citation: 938 A.2d 57,177 Md. App. 731
• Parties: Kenneth SCHISLER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

938 A.2d 57

177 Md. App. 731

Kenneth SCHISLER v. STATE of Maryland.

No. 3033, Sept. Term, 2006.

Court of Special Appeals of Maryland.

December 31, 2007.

Gregory M. Kline and Andrew Radding (H. Scott Jones, Adelberg, Rudow, Dorf & Hendler, LLC, on the brief), Baltimore. (David R. Thompson, Brynja M. Booth, Cowdrey, Thompson & Karsten, PC, on the brief), Easton, for appellant.

William F. Brockman (Douglas F. Gansler, Attorney General, on the brief), Baltimore, for appellee.

Panel: JAMES R. EYLER, RAYMOND G. THIEME (Ret., specially assigned) and LAWRENCE F. RODOWSKY (Ret., specially assigned), JJ.

JAMES R. EYLER, J.

Kenneth D. Schisler, individually and as Chairman of the Maryland Public Service Commission (PSC), and on behalf of all members of the PSC similarly situated, and the PSC, appellants,¹ filed a complaint in the Circuit Court for Baltimore City against the State of Maryland, an appellee, challenging, as unconstitutional, certain provisions of legislation enacted by the General Assembly in June, 2006. After the circuit court denied appellants' request for preliminary injunctive relief, appellants appealed to the Court of Appeals, and the Court of Appeals determined that the challenged provisions violated the State Constitution and ordered the circuit court to enter a permanent injunction in favor of appellants. On remand, appellants filed an amended complaint, adding Governor Robert L. Ehrlich, Jr., President of the Senate Thomas V. Mike Miller, Jr., and Speaker of the House of Delegates Michael E. Busch, Jr., additional appellees, and also added new claims, including a claim for attorney's fees incurred in the litigation. Upon motion by appellees, the circuit court dismissed the amended complaint.

On appeal, appellants raise the sole issue of whether the circuit court erred in dismissing their amended complaint. We conclude that the addition of new claims and new defendants was barred by the law of the case doctrine and that the causes of action copied from the original complaint did not support an award of attorney's fees. Thus, we shall affirm.

Factual Background

Procedural History

Following this overview, we shall address relevant matters in greater detail. On June 26, 2006, appellants filed a complaint against the State of Maryland seeking a declaratory judgment and temporary and permanent injunctive relief against enforcement of certain provisions of legislation enacted during a Special Session of the Maryland General Assembly. The legislation in question, Senate Bill 1 ("S.B. 1"), was enacted on June 23, 2006, in response to anticipated increased energy costs affecting Maryland citizens. Appellants alleged that certain provisions of S.B. 1 violated the Maryland Constitution, Maryland Declaration of Rights, and the United States Constitution. The challenged provisions of the legislation, sections 12 and 22, removed the Chairman and Commissioners of the PSC from office as of June 30, 2006, and provided for their replacement on or after July 1, 2006. See 2006 (Special Session) Md. Laws ch. 5, §§ 12, 22.

On the same day they filed their complaint, appellants filed a motion for a temporary restraining order and preliminary injunction. On June 28, the circuit court denied appellants' motion for interim injunctive relief, and appellants noted a direct appeal to the Court of Appeals.

On July 7, the Court of Appeals heard argument and, that afternoon, issued an order enjoining enforcement of sections 12 and 22 of S.B. 1, pending further order of the Court. On September 14, 2006, the court issued a decision in appellants' favor, holding that the challenged provisions violated separation of powers principles under the Maryland Declaration of Rights and Maryland Constitution. Despite the fact that the appeal was from the denial of a preliminary injunction, the Court, presumably concluding that its decision required no further evidentiary proceedings, ordered the circuit court to issue a permanent injunction against enforcement of those provisions. On October 16, 2006, the Court issued its mandate. The Court reversed the decision by the circuit court and remanded the case with instructions to "render a declaratory judgment and permanent injunction consistent with this opinion."

On October 10, 2006, after the Court of Appeals issued its decision, appellants filed an amended complaint. Appellants added as defendants Governor Ehrlich, Senate President Miller, and House Speaker Busch, and also added new claims under state and federal law, including an express request for attorney's fees. On November 27, 2006, appellees moved to dismiss the amended complaint, and on January 27, 2007, the circuit court granted the motion. Appellants then appealed to this Court.

Senate Bill 1

On June 14, 2006, the Maryland General Assembly convened a Special Session to address an anticipated 72% increase in energy rates by Baltimore Gas & Electric Company (BG & E). The result of that Special Session was S.B. 1. On June 22, 2006, Governor Ehrlich vetoed the bill, but on June 23, 2006, the General Assembly overrode the veto by a three-fifths majority vote in both the House and Senate. S.B. 1 was an "emergency bill" and became immediately effective pursuant to article II, section 17(d) of the Maryland Constitution. S.B. 1 addressed the anticipated increase in energy rates, created processes by which rate increases could be studied, terminated the terms of office of the existing Chairman and Commissioners on the PSC, and altered the criteria for appointment to the PSC

The PSC is an independent unit in the Executive Branch of the state government with statutorily conferred duties and powers. See Maryland Code (1998, 2007 Supp.) §§ 2-101 and 2-112 of the Public Utility Companies Article. Under the law as it existed prior to enactment of S.B. 1, the five Commissioners were appointed by the Governor, with the advice and consent of the Senate, to five year, staggered terms, beginning on July 1 of the year each was appointed. See Maryland Code (1998, 2007 Supp.) § 2-102 of the Public Utility Companies Article. The Governor designated one of the five Commissioners as Chairman, with the advice and consent of the Senate, and the Chairman served a five year term, beginning on July 1 of the year appointed. See Maryland Code (1998, 2007 Supp.) § 2-103 of the Public Utility Companies Article. At the time of appellants' suit, all five incumbent Commissioners were duly appointed by the Governor and confirmed by the Senate.

Pursuant to the terms of section 12 of S.B. 1, the term of office of the Chairman and each Commissioner of the PSC was to terminate on June 30, 2006, and on July 1, 2006, the Senate President and the House Speaker were to present two lists of names to the Governor, one list from which the Governor would select a new Chairman, and a second list from which the Governor would select four new Commissioners. See 2006 (Special Session) Md. Laws ch. 5, § 12(1)-(2). If the Governor failed to appoint a new Chairman and new Commissioners by July 15, 2006, section 12 provided that the Senate President and the House Speaker would appoint members to the PSC See id. § 12(3)(i). Section 12 of S.B. 1 expressly retained the "holdover" provisions in sections 2-102(d)(3) and 2-103(b)(2) of the Public Utility Companies Article, providing that the Chairman and Commissioners remain in their positions until a successor qualifies.

Section 22 of S.B. 1 provided that if any provisions of the act were declared invalid, the provisions were severable. See 2006 (Special Session) Md. Laws ch. 5, § 22(a). Section 22 provided specifically that if the provisions in section 12 were held invalid, then the terms of the Chairman and the Commissioners would be eliminated and they would serve at the pleasure of the Attorney General, who was authorized to terminate their service and appoint their successors. Id. § 22(b). Section 22 further provided that the Attorney General was to appoint the new Chairman and Commissioners in accordance with the remaining provisions of section 12. Id. § 22(c).

Allegations in Complaint

On June 26, 2006, appellants filed a complaint for a declaratory judgment and injunctive relief to prevent implementation of sections 12 and 22 of S.B. 1. In their complaint, appellants claimed sections 12 and 22 of S.B. 1 infringed on the Governor's power to remove civil officers for incompetency or misconduct under Article II, section 15 of the Maryland Constitution, and violated appellants' due process rights under Article 24 of the Maryland Declaration of Rights. Appellants also claimed the removal provisions of S.B. 1 constituted an unlawful bill of attainder under Article I, section 10 of the United States Constitution. The complaint did not contain a claim based on a violation of 42 U.S.C. § 1983. The complaint did not contain an express claim for attorney's fees but did contain a claim for "costs and such other and further relief as the nature of this case may require."

Court of Appeals Opinion

On September 14, 2006, the Court of Appeals reversed the circuit court's denial of appellants' motion for a temporary restraining order and preliminary injunction.² In a plurality opinion authored by Judge Dale R. Cathell, joined by Chief Judge Robert M. Bell, Judge Clayton Greene, Jr., and in part, Judge Alan M. Wilner, the Court concluded that sections 12 and 22(b) and (c) of S.B. 1 violated (1) Article 8 of the Maryland Declaration of Rights, regarding separation of powers among the legislative, executive, and judicial branches of government; (2) Article II, section 1 of the Maryland Constitution, regarding the Governor's power to supervise executive branch employees; (3) Article II, section 9, regarding the Governor's power to execute the laws; and, (4) Article II, section 15, regarding the Governor's power to remove appointed civil officers in the executive branch of government. See Schisler v. State, 394 Md. 519, 602-03, 907 A.2d...