Sugarloaf Citizens Ass'n, Inc. v. Gudis

• Decision Date: 30 May 1990
• Docket Number: No. 59,59
• Parties: SUGARLOAF CITIZENS ASSOC., INC. et al. v. Michael GUDIS and County Council of Montgomery County, Maryland. Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 558

319 Md. 558

573 A.2d 1325

SUGARLOAF CITIZENS ASSOC., INC. et al. v. Michael GUDIS and County Council of Montgomery County, Maryland.

No. 59 Sept. Term 1989.

Court of Appeals of Maryland.

May 30, 1990.

Ralph Gordon (Albert O. Cornelison, Jr., C. Holly Trimmer, Gordon, Simmons & Cornelison, all on brief), Frederick, for petitioners.

Marc P. Hansen, Sr. Asst. County Atty. (Clyde H. Sorrell, County Atty., both on brief), Rockville, for respondents.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

ADKINS, Judge.

On 7 July 1987 four members of the Montgomery County Council voted in favor of siting a mass-burn resource recovery facility (RRF--a type of incinerator) in the Dickerson area of the county. One of the four members so voting was respondent Michael Gudis (Gudis). ¹ The three remaining councilmembers voted to locate the facility in the Shady Grove area. Later at the same meeting, the council (by vote of 4-1, with Gudis again in the majority) adopted Resolution No. 11-382. Resolution No. 11-382 amended the County's Ten Year Solid Waste Management Plan to include in it the Dickerson mass-burn facility.

The Dickerson site involved land owned by Potomac Electric Power Co. (PEPCO)--land that presumably would have to be leased or purchased by the County to permit operation of the mass-burn facility. The County would also need to coordinate other matters with PEPCO in order to operate the facility. At the time of the July 1987 vote, Councilmember Gudis owned an amount of PEPCO stock sufficient to bring him within the purview of the ethics provisions of the Montgomery County Code, Chapter 19A. ²

Prior to 7 July 1987 Gudis had obtained from the Montgomery County Ethics Commission a waiver of the conflict-of-interest provision (note 2, supra ) that otherwise would have prevented him from voting for the Dickerson site. ³

On 5 October 1987 petitioners, The Sugarloaf Citizens Association, Inc., Lynn Lipp, and Beverly Thoms, all allegedly taxpayers in Montgomery County (and the latter two residents of the Dickerson area) (collectively Sugarloaf), sued Gudis and the county council in the Circuit Court for Montgomery County. They asked that court to "void the action of the Council in approving" the Dickerson site and in adopting Resolution No. 11-382.

The circuit court declined to do so. It held that "the evidence before the Court supports the proposition that Mr. Gudis'[s] vote was properly cast, since he did, in fact, have a waiver from the Ethics Commission." The Court of Special Appeals affirmed, although it did not reach the question of the validity of the waiver. It held "that no private right of action, implied or otherwise, exists under section 19A-22(b) of the Montgomery County Code." Sugarloaf Citizens Ass'n v. Gudis, 78 Md.App. 550, 560, 554 A.2d 434, 439 (1989) [footnote omitted]. Additionally, the intermediate appellate court ruled that even if Sugarloaf had common law taxpayer standing to challenge Resolution No. 11-382, its "disregard for the primary jurisdiction doctrine presents an alternative basis for affirming the trial court's order dismissing [the] action." Id. at 561, 554 A.2d at 439.

We affirm the judgment of the Court of Special Appeals, but for reasons totally different from those given by that court. We conclude that § 19A-22(b) of the Montgomery County Code is unconstitutional. Since Sugarloaf relies on that subsection as authority for the court's power to strike down the legislative action here in question, Sugarloaf cannot prevail.

I.

Montgomery County, like other jurisdictions throughout the State, is faced with substantial solid waste disposal problems. As of April 1985, three principal alternatives were under study:

1. Processing the County's solid waste into fuel which would be burnt in PEPCO's generating plant at Dickerson [RDF];

2. Burning the County's solid waste in a resource recovery facility [near Shady Grove] and selling the resulting energy to PEPCO [RRF]; and

3. Landfilling baled refuse at Travillah Quarry, or expanding the existing landfill.

Because two of these options involved PEPCO, and because Gudis owned PEPCO stock, he had twice (prior to April 1985) asked the ethics commission to waive the conflict-of-interest provisions of the County Code. See n. 3, supra. The commission denied both requests. Similar action had been taken with respect to other county officials including Lewis Roberts, the Chief Administrative Officer.

In August 1985 Roberts submitted another waiver request to the commission. This one was accompanied by a memorandum from the director of the County's Department of Environmental Protection. The memorandum purported to demonstrate that

no conceivable [solid waste disposal] decision could significantly affect PEPCO finances. In fact, law and policy will compel an exactly zero effect, not merely a small effect.

Memorandum from John L. Menke to Lewis T. Roberts (31 July 1985).

On the strength of this, the commission reconsidered its prior denials. Eventually, by vote taken on 2 December 1985 and announced on 10 December (by way of a press release), it granted waivers to Gudis and Roberts, as well as to another PEPCO stockholder. The waiver stated that the council was considering the following solid waste disposal alternatives:

1. expansion of the existing landfill;

2. siting a new landfill at the Travillah Quarry;

3. construction of a resource recovery facility with sale of electricity to PEPCO [RRF]; and 4. installation of a refuse derived fuel (RDF) system at the existing PEPCO plant in Dickerson.

The commission observed that selection of either option 3 or 4 would result in "some form of contractual relationship with PEPCO." It explained that

[t]o provide the greatest opportunity to public officials owning PEPCO stock to participate in future decisions regarding these proposals, the Montgomery County Ethics Commission has determined that those officials who wish to exercise their authority to participate in policy decisions regarding such matters may do so if they publicly disclose their ownership of this stock and the number of shares they own.... ⁴

Some three months later, at PEPCO's request, the council began to explore a new and different concept--constructing a RRF at Dickerson instead of at Shady Grove. On 7 October 1986 the county executive recommended the Dickerson RRF as the best alternative. This raised the possibility of sale or lease of PEPCO property, a possibility that the County apparently had not considered previously, and that had not been presented to the ethics commission when the waivers were granted.

So matters stood on 7 July 1987 when, as we have recounted, Gudis cast the deciding vote in favor of the Dickerson site and also voted to adopt Resolution No. 11-382--the councilmanic action that authorized use of the Dickerson site for the RRF. It is that action, of course, that Sugarloaf seeks to nullify.

II.

The foundation of Sugarloaf's attack on the siting vote and its implementing resolution is § 19A-7(a) of the Montgomery County Code. As we have seen, this subsection disqualifies a councilmember from voting in a matter in which the member has a "financial interest." Sugarloaf contends that because Gudis had such an interest by virtue of his stockholdings in PEPCO, and because the waiver of disqualification granted him by the ethics commission was not valid, Gudis was precluded from voting. Sugarloaf asserts, therefore, that the actions resulting from that vote cannot stand.

In its complaint, Sugarloaf relied substantially on § 19A-22 of the County Code. In pertinent part that section reads:

(a) Upon direction by the [ethics] commission or at the initiative of the county attorney, the county attorney may file a petition for injunction or any other appropriate relief in the circuit court for Montgomery County, or in any other court having proper venue, for the purpose of requiring compliance with the provisions of this [ethics law] chapter.

(b) In addition, the court may issue an order to cease and desist from the violation, and can void an official action taken by an official or employee with a conflict of interest prohibited by this chapter when the action arose from or concerned the subject matter of the conflict and the legal action was brought within ninety (90) days of the occurrence of the official action, if the court deems voiding the action to be in the best ... interest of the public [emphasis supplied].

Because of this reliance, the Court of Special Appeals thought that "the genesis for [Sugarloaf's] cause of action [was] the Montgomery County Ethics Law." Sugarloaf, 78 Md.App. at 555, 554 A.2d at 436 [footnote omitted]. The intermediate court held that "no private right of action, implied or otherwise, exists under section 19A-22(b) of the Montgomery County Code." Id. at 560, 554 A.2d at 439 [footnote omitted].

Whether § 19A-22(b) creates an implied or express private cause of action is not critical to our decision and is a question we do not address. ⁵ A taxpayer or other person specially damaged has standing: to seek to enjoin the implementation of an unconstitutional statute, Painter v. Mattfeldt, 119 Md. 466, 87 A. 413 (1913); "to restrain the action of a public official, which is illegal or ultra vires, and may injuriously affect the taxpayer's rights and property," Inlet Associates v. Assateaque House, 313 Md. 413, 441, 545 A.2d 1296, 1310 (1988); Citizens P & H Ass'n v. County Exec., 273 Md. 333, 339, 329 A.2d 681, 684 (1974); or to redress a public wrong, Becker v. Litty, 318 Md. 76, 91, 566 A.2d 1101, 1108 (1989). The complaint filed by Sugarloaf in essence seeks that sort of relief, via the invalidation of Resolution No. 11-382. The complaint alleged citizen and taxpayer status. It did not allege, in terms, special damages,...