State v. Falcon
| Decision Date | 20 January 2017 |
| Docket Number | No. 28, Sept. Term, 2016,28, Sept. Term, 2016 |
| Citation | 451 Md. 138,152 A.3d 687 |
| Parties | STATE of Maryland, et al. v. Jamie FALCON, et al. |
| Court | Court of Special Appeals of Maryland |
Julia Doyle Bernhardt, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Patrick B. Hughes, Asst. Atty. Gen., Baltimore, MD), on brief, for petitioners.
T. Sky Woodward (Marc A. Nardone, Bradley Arant Boult Cummings LLP of Washington, DC; Gregory M. Kline, Law Office of Gregory M. Kline, LLC of Severna Park, MD), all on brief, for respondents.
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Alan M. Wilner (Senior Judge, Specially Assigned), JJ.
Opinion by Watts, J.
This case involves an alleged violation of the separation of powers doctrine. Specifically, the case concerns the allegation that the General Assembly usurped the power of the Governor of Maryland by amending Md. Code Ann., Educ. (1978, 2014 Repl. Vol., 2015 Supp.) ("ED (2015)") § 3–110(b), which governs the School Board Nominating Commission of Anne Arundel County ("the Nominating Commission") to, among other things, eliminate the ability of the Governor to appoint members to the Nominating Commission. The Nominating Commission's purpose "is to select nominees to be recommended to the Governor as qualified candidates for appointment to the Anne Arundel County Board of Education [ ("the School Board") ]." Md. Code Ann., Educ. (1978, 2014 Repl. Vol., 2016 Supp.) ("ED (2016)") § 3–110(b)(1)(ii).
Before 2016, ED (2015) § 3–110(b)(2) provided that the Nominating Commission would consist of eleven members, five of whom were to be appointed by the Governor, and six of whom were to be appointed by various specified entities. In 2016, through Chapter 35 of the 2016 Laws of Maryland ("Chapter 35"), the General Assembly amended, among other statutory provisions, ED (2015) § 3–110(b)(2), to increase the number of members of the Nominating Commission from eleven to thirteen, to eliminate the Governor's ability to appoint five members, and to grant appointment authority to various specified entities for the resulting seven new appointments. See 2016 Md. Laws 600–02 (Vol. I, Ch. 35, H.B. 172). In other words, the amendment to ED (2015) § 3–110(b)(2) changed the Nominating Commission from a body, some of whose members were appointed by the Governor, and some of whose members were appointed by various specified entities, to a body that is completely comprised of members who are appointed by various specified entities other than the Governor. Through Chapter 35, the General Assembly also ended the terms of the Governor's five appointees to the Nominating Commission early, causing the appointments to terminate as of June 1, 2016. See id. at 605.
Four of the five gubernatorial appointees filed suit in the Circuit Court for Anne Arundel County ("the circuit court"), contending that the General Assembly removed them from their positions as members of the Nominating Commission in violation of Article II, § 15 of the Maryland Constitution (Suspension and Removal of Officers) and Article 8 of the Maryland Declaration of Rights (Separation of Powers). The circuit court agreed and issued a preliminary injunction against implementation and enforcement of certain portions of Chapter 35, including those portions amending ED (2015) § 3–110(b)(2) to alter the membership and appointment process for members of the Nominating Commission and ending the terms of the current gubernatorial appointees on June 1, 2016. The State of Maryland ("the State") and Governor Lawrence J. Hogan, Jr. ("Governor Hogan"), Appellants, noted an appeal to the Court of Special Appeals, and, while the case was pending in that Court, filed in this Court a petition for a writ of certiorari .
This Court granted the petition. The petition raises the issues of whether the circuit court erred in enjoining the implementation of portions of Chapter 35 by concluding that Chapter 35 violated Article II, § 15 of the Maryland Constitution and Article 8 of the Maryland Declaration of Rights, and by treating members of the Nominating Commission as "civil officers" within the meaning of Article II, § 15. We hold that the circuit court erred in issuing the preliminary injunction because Chapter 35 does not violate Article II, § 15 of the Maryland Constitution or Article 8 of the Declaration of Rights, but rather restructures or reconstitutes the Nominating Commission and prospectively changes the appointment process to grant appointment power to specified entities other than the Governor; and that terminating the terms of the gubernatorial appointees as part of the restructuring is permissible.
Given that Chapter 35 does not constitute a violation of Article II, § 15 of the Maryland Constitution or Article 8 of the Declaration of Rights, but instead restructures or reconstitutes the Nominating Commission, we need not reach the issue of whether members of the Nominating Commission are civil officers under Article II, § 15.
The Governor appoints members of the School Board. See ED (2016) § 3–110(a)(2). Prior to 2007, when a vacancy on the School Board occurred, the Anne Arundel County School Board Nominating Convention, a private association, submitted a list of nominees; and, as a matter of custom, the Governor usually appointed a School Board member from the list of nominees. In 2007, however, that process changed with the establishment of the Nominating Commission, through an amendment to Md. Code Ann., Educ. § 3–110. See 2007 Md. Laws 2700 (Vol. IV, Ch. 454, H.B. 1114).
From 2007 until 2016, ED (2015) § 3–110(b)(2) provided for the membership of, and appointments to, the Nominating Commission as follows:
ED (2015) § 3–110(b)(3) provided for the designation of the chair of the Nominating Commission, as well as length of terms, as follows:
ED (2015) § 3–110(b)(4) provided for staffing of the Nominating Commission as follows: "The Department of Legislative Services shall provide staff for the Commission."
ED (2015) § 3–110(b)(5) set forth the nomination process for the School Board, providing:
ED (2015) § 3–110(a)(2) provided: "Except for the student member, the Governor shall appoint a member of the [School B]oard from a list of nominees submitted by the ... Nominating Commission ... as provided in subsection (b) of this section." A School Board member would then "serve for the remainder of the member's term, ... subject to the approval or rejection of the registered voters of the county at the next general election." ED (2015) § 3–110(c)(1). In the general election, voters "vote[d] for the [School Board] member's retention or removal." ED (2015) § 3–110(c)(3)(i). ED (2015) § 3–110(c)(4) stated: "If the voters reject the retention of the member, or the vote is tied: (i) The position shall become vacant 10 days after certification of the election returns; and (ii) The member serves until a successor is appointed and qualifies." (Paragraph breaks omitted). In other words, in the event of a rejection of retention or a tied vote on the retention of a School Board member, the position automatically became vacant, and the nomination process would begin again.
In 2016, at the request of the Anne Arundel County Administration, House Bill 172 was introduced, proposing amendments to ED (2015) § 3–110(b). See 2016 Md. Leg. Sess. H.B. 172 at 1 (First Reader), available at http://mgaleg.maryland.gov/2016RS/bills/hb/hb0172f.pdf [https://perma.cc/N2M5–ZWC9]. As originally introduced on January 21, 2016, House Bill 172 sought to alter the membership of the Nominating Commission by allowing certain chambers of commerce to appoint a member of the Nominating Commission. Specifically, House Bill 172 sought to:
alter[ ] the membership of the [ ] Nominating Commission [ ] to provide that, beginning on a certain date and every certain number of years thereafter, one member shall be appointed by certain chambers of commerce on a rotating basis in a specified order; alter[ ] the term of the member appointed by a chamber of commerce; provid[e] for the termination of the term of a certain member of the Commission; and generally relat[e] to the membership of the ... Nominating Commission[.]
Id. At that time, House Bill 172 proposed eliminating ED (2015) § 3–110(b)(2)(iv)(2), which provided that the Annapolis and Anne Arundel County Chamber of Commerce appointed one member to the Nominating Commission, in favor of a new subparagraph (b)(2)(v) that was to provide as follows:
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