Broadcast Equities, Inc. v. Montgomery County

³⁷⁰ HOLLANDER, Judge. In this appeal, Broadcast Equities, Inc. (“BEI”), appellant, lodges a broad challenge to the legality of Chapter 27 of the Montgomery County Code, entitled Human Relations and Civil Liberties. In particular, BEI focuses on those provisions that deal with discrimination in employment. On August 28, 1996, appellant filed a complaint in the Circuit Court for Montgomery County seeking a declaratory judgment that Montgomery County Code § 27 et seq. violates the United States Constitution, the Maryland Constitution, and 42 U.S.C. § 1983 .

The defendants below, who are appellees in this case, are: Montgomery County (the “County”); the Montgomery County Human Relations Commission (the “Commission”); the Hearing Panel for the Commission; the Hearing Examiner, Philip Tierney; the Montgomery County Attorney, Charles W. Thompson; and David E. Stevenson, an Assistant Montgomery County Attorney. Appellees answered the complaint and subsequently moved for summary judgment. Appellant then moved for partial summary judgment. After a hearing on both motions, the court granted appellees’ motion for summary judgment and denied appellant’s motion for partial summary judgment.

Appellant noted a timely appeal and presents a plethora of questions, which we'have reordered: I. DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT SECTIONS 27-17 THROUGH 27-26 OF THE MONTGOMERY COUNTY CODE ARE NOT “LOCAL LAWS” UNDER ARTICLE XI-A OF THE MARYLAND CONSTITUTION?

II

DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT SECTIONS 27-17 THROUGH 27-26 OF THE MONTGOMERY COUNTY CODE VIOLATE THE HOME RULE PROVISION OF THE MARYLAND CONSTITUTION?

III

DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT MONTGOMERY COUNTY ³⁷¹ CODE SECTIONS 27-17 THROUGH 27-26 CONFLICT WITH MARYLAND LAW?

IV

DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT MONTGOMERY COUNTY HAS CREATED A PRIVATE RIGHT OF ACTION WHERE NONE EXISTS? V. DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT THE MONTGOMERY COUNTY CODE CANNOT BE ENFORCED RETROACTIVELY AGAINST BEI?

VI

DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT MONTGOMERY COUNTY’S ATTEMPTS TO ENFORCE CHAPTER 27 OF THE MONTGOMERY COUNTY CODE AGAINST BEI VIOLATE BEI’S CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAWS?

VII

DID THE TRIAL COURT ERR IN RULING THAT BEI IS REQUIRED TO EXHAUST ITS ADMINISTRATIVE REMEDIES PRIOR TO CHALLENGING THE VALIDITY OF CHAPTER 27 OF THE MONTGOMERY COUNTY CODE AND PRIOR TO CLAIMING VIOLATIONS UNDER 42 U.S.C. § 1983 AND THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION?

VIII

DID THE TRIAL COURT ERR IN RULING THAT BEI’S CLAIMS UNDER 42 U.S.C. § 1983 AND THE UNITED STATES CONSTITUTION ARE NOT RIPE FOR JUDICIAL REVIEW? We shall answer questions I, II, IV, V, VI, VII, and VIII in the negative and question III in the affirmative. Therefore, for the reasons that follow, we shall reverse in part and affirm in part. ³⁷² Factual Background BEI, a Virginia corporation, is a subsidiary of the Christian Broadcasting Network (“CBN”). Between January 1990 and January 1993, BEI operated a radio station in Silver Spring under the name of WNTR Radio (‘WNTR”).

In January 1990, WNTR employed Richard J. Mangus as a senior producer and as an “bn call” control board operator. Mangus’s employment at WNTR ended on November 29, 1990. The facts and circumstances of Mangus’s departure from WNTR are the subject of intense dispute. On October 1, 1991, almost a year after his departure from WNTR, Mangus filed a Complaint of Alleged Discrimination in Employment with the Commission, stating: “I believe I was discriminated against and my employment terminated based on my sexual orientation (homosexual).” BEI, on the other hand, contends that Mangus resigned.

On October 24, 1991, the Commission notified BEI of Mangus’s complaint. In its response of March 24, 1992, BEI denied any discrimination by either BEI or WNTR. 1 Appellant asserted in its response that WNTR’s personnel records, including those pertaining to Mangus’s employment, were destroyed in a fire at the radio station on February 28, 1991. 2 On October 26, 1992, BEI contracted to sell WNTR to Capital Kids Radio, Inc., a Maryland corporation. That sale became final on or about January 29,1993. Almost three years after Mangus filed his complaint with the Commission, its investigator informed BEI, by letter dated August 23, 1994, that the investigation was nearing completion and that the evidence gathered up to that point was “leading to a finding of reasonable grounds to believe ³⁷³ discrimination occurred in the termination of [Mangus’s] employment.” The letter also invited BEI to provide additional evidence and requested that BEI contact the Commission if it was interested in exploring a negotiated settlement.

By letter dated September 14, 1994, BEI responded, through CBN’s associate general counsel. In its letter, BEI stated that its files indicated that there had been no contact with the Commission regarding the case for more than two and a half years, and that BEI had “presumed that this investigation was terminated long ago.” In addition, BEI stated that it would not explore a negotiated settlement until the Commission provided BEI with evidence of the alleged discrimination. In a reply letter dated September 27, 1994, the Commission’s investigator indicated that much of the evidence was provided by witnesses to conversations and remarks by WNTR’s management. On March 23, 1995, the Commission’s acting executive director issued a written determination that the record supported Mangus’s allegation of discrimination based on sexual orientation and that reasonable grounds existed to believe that BEI had engaged in an unlawful employment practice, as defined in the County Code.

Subsequent conciliation efforts were unsuccessful and, on January 17, 1996, the Commission’s executive director certified the March 23, 1995, determination for public hearing. Accordingly, on May 14, 1996, the County Attorney filed a Statement of Charges, which included a prayer for relief, seeking either (1) reinstatement at a radio station owned by CBN, and back pay retroactive to December 1, 1990 or (2) back pay, retroactive to December 1, 1990, in the amount of $134,592.24. In addition, the Statement of Charges sought damages for humiliation and embarrassment in the amount of $1,000.00, and “such other affirmative or prospective relief as, in the judgment of the Panel, is necessary to effectuate the purposes of the Law, or is deemed necessary to eliminate the effects of the discriminatory practice or practices found to have been committed in this case.” ³⁷⁴ On May 17, 1996, the Commission’s Office of Zoning and Administrative Hearings issued a notice that public hearings on the case would begin on September 23, 1996. That notice spawned BEI’s complaint for declaratory relief, filed on August 28,1996.

The administrative hearing was stayed pending resolution of the declaratory action. In its complaint for declaratory relief, appellant sought a declaration that enforcement of Chapter 27 of the County Code against BEI: (1) violated BEI’s rights to Due Process and Equal Protection under the federal Constitution; (2) violated 42 U.S.C. § 1983 ; (3) was “unconstitutional under the Constitution of the State of Maryland”; and (4) violated BEI’s rights to freedom of association, freedom of religion, and freedom of speech under the United States Constitution. In addition, BEI sought a permanent injunction barring appellees from proceeding against BEI, and a temporary injunction to prevent the Commission from holding the hearing scheduled for September 23, 1996. The complaint also sought attorney’s fees, costs, and other relief.

Appellees answered the complaint and, on June 30, 1997, they filed a motion for summary judgment, seeking a declaration that the applicable County Code provisions are valid and a dismissal of appellant’s complaint. On July 18, 1997, appellant filed a motion for partial summary judgment, again requesting a declaration that certain provisions of Chapter 27 violate the Maryland Constitution and an injunction barring appellees from proceeding against BEI in any administrative hearing. After the trial court held argument on the parties’ respective motions on October 22, 1997, it granted appellees’ motion and denied appellant’s motion. On November 3, 1997, the court issued a Final Declaratory Judgment and Order that stated, in pertinent part: The Court agrees with [appellees] that at this stage of proceedings all claims except [appellant’s] challenge on its face to the validity of the employment discrimination provisions in Chapter 27 of the Montgomery County Code, § 27- ³⁷⁵ 17 et seq., are premature.

As to all claims under Maryland law other than the facial challenge, plaintiff must exhaust administrative remedies before seeking judicial relief. As to all federal claims, including the claims under 42 U.S.C. § 1983 , the Court finds that they are not ripe for judicial review, as [appellant] has not been denied any property right or liberty interest protected by the Constitution and laws of the United States. The Court further agrees, for the reasons stated by [appellees], that [appellant’s] facial challenge to the validity of the employment discrimination laws must be denied. [Appellant] has not shown that the challenged laws are not authorized by Article XI-A of the Maryland Constitution or by the Express Powers Act, Art. 25A, Md.Code Ann., and [appellant] has not shown that the challenged laws are inconsistent with or in conflict with any public general law of Maryland. [Appellant’s] request for injunctive relief as to all claims is therefore DENIED. [Appellant’s] request for a declaratory judgment that Montgomery County’s employment discrimination laws, § 27-17 et seq., Montgomery County Code, are invalid is hereby DENIED, and the Court DECLARES that these laws are not invalid or unenforceable because they are not authorized by the Maryland Constitution or the Express Powers Act or are inconsistent with or in conflict with the public general laws of Maryland. We will include additional facts in our discussion.

Discussion A. Introduction Chapter 27 of the Montgomery County Code is a comprehensive statutory scheme aimed at eliminating discrimination in the County in the areas of employment, housing, and public accommodation. Section 27-1 sets forth a statement of public policy; §§ 27-2 through 27-6 establish the Commission and the duties and membership requirements of the agency and its ³⁷⁶ personnel; § 27-6A is a general definitions section; and § 27-7 provides for administration and enforcement, including the filing of complaints, investigation, conciliation, hearings, decisions, and available relief. Sections 27-17 through 27-26 cover discrimination in employment as follows: § 27-17 (Declaration of policy); § 27-18 (Definitions); § 27-19 (Unlawful employment practices); § 27-20 (Rights of complainant; civil action by county attorney); § 27-21 (Procedure for complaints against county); § 27-22 (Notice to be posted; reports and records); § 27-23 (Reports and records of person being investigated, etc.); § 27-24 (Action against licensee, etc., found in violation of division); § 27-25 (Penalties and monetary awards); § 27-26 (Standards of proof). Appellant’s challenge includes both a broad assertion that the entire statutory scheme is unconstitutional as well as specific challenges to particular provisions of the County Code.

Before analyzing appellant’s claims, we must first consider the applicable standard of review. B. Standard of Review Under the Declaratory Judgment Act, Md.Code (1974, 1995 RepLVol.), § 3-409 of the Courts and Judicial Proceedings Article (“C.J.”), a court may grant a declaratory judgment 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. (b) Special form of remedy provided by statute. — If a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle. ³⁷⁷ Thus, when an administrative remedy is statutorily directed, the administrative remedy must ordinarily be exhausted before resorting to court action. See generally Zappone v. Liberty Life Ins.

Co., 349 Md. 45, 60-66 , 706 A.2d 1060 (1998) (explaining that exhaustion requirements depend upon extent of administrative remedies afforded by statute); see also Holiday Point Marina Partners v. Anne Arundel County, 349 Md. 190, 198-204 , 707 A.2d 829 (1998); Abington Center Assocs. v. Baltimore County, 115 Md.App. 580, 592-93 , 694 A.2d 165 (1997). Nevertheless, so long as an administrative remedy is not deemed to be “exclusive,” but instead is either “primary” or “concurrent,” the Court has recognized an exception to the exhaustion requirement when a party asserts a facial constitutional challenge to the validity of a statute. See Holiday Point, 349 Md. at 201 , 707 A.2d 829 ; Insurance Comm’r v. Equitable Life Assur. Soc’y, 339 Md. 596, 620-24 , 664 A.2d 862 (1995). “[T]he ‘constitutional exception’ ... permits a judicial determination without administrative exhaustion when there is a direct attack upon the power or authority (including whether it was validly enacted) of the legislative body to adopt the legislation from which relief is sought.” Harbor Island Marina, Inc. v. Board of County Comm’rs, 286 Md. 303, 308 , 407 A.2d 738 (1979); see also Holiday Point, 349 Md. at 201-02 , 707 A.2d 829 ; Equitable Life, 339 Md. at 621 , 664 A.2d 862 .

On the other hand, if the statutory remedy is “exclusive,” exhaustion is required, even if the declaratory action presents a facial constitutional challenge. Holiday Point, 349 Md. at 203 , 707 A.2d 829 ; Equitable Life, 339 Md. at 623 , 664 A.2d 862 . As the Court of Appeals explained in Zappone, “sometimes opinions in this area seem to use the word ‘exclusive’ when the court actually means ‘primary.’ ” Zappone 349 Md. at 63 n. 7, 706 A.2d 1060 . Montgomery County Code § 27-7(g) provides for judicial review: Appeal.

Any person aggrieved by a subsection (f) of section 27-7 decision and order may appeal to the circuit court [sic] for Montgomery County for review of such action pursuant ³⁷⁸ to chapter 1100, subtitle B, of the Maryland Rules of Procedure. [3] A § 27 — 7(f) decision and order is one made by the hearing panel. It is uncontroverted that appellant has not exhausted its administrative remedies. The parties agree, however, that this case falls within the narrow exception regarding a facial constitutional challenge. We note that the Court of Appeals has reviewed a facial State constitutional challenge to the Prince George’s County anti-employment discrimination ordinance under the constitutional exception without exhaustion of remedies.

See National Asphalt Pavement Ass’n v. Prince George’s County, 292 Md. 75 , 77 n. 2, 437 A.2d 651 (1981); see also County Council v. Investors Funding Comp., 270 Md. 403 , 312 A.2d 225 (1973) (involving facial constitutional challenge to Montgomery County “Fair Landlord-Tenant Relations” ordinance even though no enforcement action was involved); Board of County Comm’rs v. Schuhly, 72 Md.App. 702, 708-09 , 532 A.2d 716 (1987) (explaining that a facial constitutional attack would be available, without exhaustion of administrative remedies, to challenge a zoning statute that provided for judicial review under the former B Rules), cert. denied, 311 Md. 719 , 537 A.2d 273 (1988). Accordingly, because there is no express statutory language in the County Code indicating that the B Rules provide the exclusive remedy here, we will consider appellant’s facial constitutional challenge. In addition, exhaustion of administrative remedies is not required before we can consider appellant’s due process claims based upon the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983 . See Felder v. Casey, 487 U.S. 131, 146-47 , 108 S.Ct. 2302 , 101 L.Ed.2d 123 (1988); Patsy v. Board of Regents, 457 U.S. 496 , 102 S.Ct. ³⁷⁹ 2557, 73 L.Ed.2d 172 (1982); Maryland Reclamation Assocs. v. Harford County, 342 Md. 476, 492-93 , 677 A.2d 567 (1996); Maryland-Nat’l Capital Park & Planning Comm’n v. Crawford, 307 Md. 1, 12-14 , 511 A.2d 1079 (1986).

We shall consider appellant’s federal claims in Part VIII of our opinion. C. The Express Powers Act Montgomery County is a charter home rule county pursuant to Article XI-A of the Maryland Constitution, which is known as the Home Rule Amendment. McCrory Corp. v. Fowler, 319 Md. 12, 16 , 570 A.2d 834 (1990). The Home Rule Amendment “does not confer legislative powers directly upon the charter counties.” Beretta U.S.A Corp. v. Santos, 122 Md.App. 168, 186 , 712 A.2d 69 (1998).

The Court said in Ritchmount Partnership v. Board of Supervisors, 283 Md. 48, 56 , 388 A.2d 523 (1978) that Art. XI-A “does not constitute a grant of absolute autonomy to local governments.” See also McCrory, 319 Md. at 17 , 570 A.2d 834 ; Beretta, 122 Md.App. at 187 , 712 A.2d 69 . Instead, Section 2 of Article^ XI-A requires the General Assembly to adopt legislation delegating express powers to the charter counties. See Ritchmount, 283 Md. at 57 , 388 A.2d 523 ; Beretta, 122 Md.App. at 186 , 712 A.2d 69 . In 1918, in response to the constitutional directive of the Home Rule Amendment, the General Assembly enacted the Express Powers Act, which is now codified at Md.Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.), Art. 25A.

See Prince George’s County v. Board of Supervisors, 337 Md. 496, 503-04 , 654 A.2d 1303 (1995); McCrory, 319 Md. at 16-17 , 570 A.2d 834 ; Eastern Diversified Properties, Inc. v. Montgomery County, 319 Md. 45, 49-50 , 570 A.2d 850 (1990); Board of Election Laws v. Talbot County, 316 Md. 332, 344 , 558 A.2d 724 (1988); Cheeks v. Cedlair Corp., 287 Md. 595 , 600 & n. 2, 415 A.2d 255 (1980); County Comm’rs v. Supervisors of Elections, 192 Md. 196, 204 , 63 A.2d 735 (1949). Section 5 of the Express Powers Act recognizes the authority of a charter home rule county and Baltimore City to enact local ordinances to maintain “the peace, good government, health and welfare ³⁸⁰ of the county,” Md.Code, Art. 25A, § 5(S), and gives charter counties and Baltimore City “a wide array of legislative and administrative powers over local affairs.” Ritchmount, 283 Md. at 57 , 388 A.2d 523 ; see also Beretta, 122 Md.App. at 186 , 712 A.2d 69 . Thus, the charter counties have concurrent authority to enact ordinances aimed at eradicating employment discrimination. See National Asphalt, 292 Md. at 80-81 , 437 A.2d 651 ; McCrory, 319 Md. at 20 , 570 A.2d 834 .

Nevertheless, that broad grant of authority “cannot authorize a county to enact an ordinance that is not a ‘local law’ under Article XI-A of the Constitution.” McCrory, 319 Md. at 22 n. 3, 570 A.2d 834 . “[A] local law, ‘in subject matter and substance’ is ‘confined in its operation to prescribed territorial limits----’ A general law, on the other hand, ‘ “deals with the general public welfare, a subject which is of significant interest not just to any one county, but rather to more than one geographical subdivision, or even to the entire state.” ’ ” Id. at 18 , 570 A.2d 834 (quoting Steimel v. Board of Election Supervisors, 278 Md. 1, 5 , 357 A.2d 386 (1976) (quoting Cole v. Secretary of State, 249 Md. 425, 435 , 240 A.2d 272 (1968))). “In prohibiting the General Assembly from enacting public local laws for Baltimore City and charter home rule counties on subjects covered by the Express Powers Act, Section 4 of Article XI-A states that ‘[a]ny law so drawn as to apply to two or more of the geographical subdivisions of this State shall not be deemed a Local Law, within the meaning of this Act.’ ” McCrory, 319 Md. at 17 , 570 A.2d 834 . Other than this limitation, Article XI-A does not attempt to define the distinction between a local law and a general law. Instead, that question is left to the “ ‘application of settled legal principles to the facts of particular cases in which the distinction may be involved.’ ” Id. (quoting Dasch v. Jackson, 170 Md. 251, 260 , 183 A. 534 (1936)).

BEI maintains that, before 1995, there was no express authority for counties to enact laws relating to employment discrimination. Thus, appellant maintains that, at the relevant ³⁸¹ time, §§ 27-17 through 27-26 of the County Code violated the Home Rule Amendment and the Express Powers Act. Appellant’s argument is without merit. In 1995, the General Assembly amended the Express Powers Act regarding the charter counties’ authority to address employment discrimination. 1995 Md. Laws Chap. 278.

The Act now provides, in pertinent part: The following enumerated express powers are granted to and conferred upon any county or counties which hereafter form a charter under the provisions of Article XI-A of the Constitution, that is to say: (A) Local Legislation ❖ ❖ ❖ ❖ (4) To provide for the enforcement of local employment discrimination laws or public accommodations discrimination laws by fines or penalties that do not exceed $5,000 for any offense. Md.Code, Art. 25A, § 5(A). The express purpose of the 1995 amendment is to increase the maximum penalty that a charter county may impose under local laws relating to employment discrimination or in public accommodations; making stylistic changes; and generally relating to authorized penalties under local discrimination laws enacted by counties with charter home rule. 1995 Md. Laws Chap. 278. In 1981, however, the Court observed in National Asphalt that the General Assembly did not preempt the field of employment discrimination.

To the contrary, it acknowledged that the charter counties are permitted to enact legislation on the subject. National Asphalt, 292 Md. at 79-81 , 437 A.2d 651 ; see also McCrory, 319 Md. at 20 , 570 A.2d 834 . Indeed, such authority is an exercise of the County’s police power under Art. 25A § 5(S). See Investors Funding, 270 Md. at 440-41 , 312 A.2d 225 (upholding county ordinance ³⁸² authorizing money damages, civil penalties, and other remedial relief for violation of landlord-tenant ordinance); Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 160-61 , 252 A.2d 242 (1969) (explaining that county’s authority to enact housing ordinance that prohibited discrimination based upon race was a valid exercise of police power under Art. 25A § 5(S)); Holiday Universal Club v. Montgomery County, 67 Md.App. 568, 573-74 , 508 A.2d 991 (same, regarding discrimination in public accommodations), cert. denied, 307 Md. 260 , 513 A.2d 314 (1986), appeal dismissed, 479 U.S. 1049 , 107 S.Ct. 920 , 93 L.Ed.2d 973 (1987); see also Beretta, 122 Md. App. at 194 , 712 A.2d 69 (discussing powers under Art. 25A, § 5(S)).

Therefore, there is no merit to appellant’s argument that, prior to 1995, County Code §§ 27-17 through 27-26 violated the Express Powers Act. D. McCrory and Its Progeny Relying on McCrory, 319 Md. at 12 , 570 A.2d 834 , appellant broadly asserts that County Code §§ 27-17 through 27-26 are not local laws and are therefore invalid. McCrory involved a certified question from the federal district court concerning County Code § 27-20(a). That provision authorized private civil actions in circuit court for unlimited money damages due to violations of the County’s anti-discrimination ordinance.

The Court held that § 27-20(a) was not a local law and was, therefore, unconstitutional. McCrory, 319 Md. at 24 , 570 A.2d 834 . Appellant thus argues that the County’s entire employment discrimination law was invalidated by McCrory. Appellant also contends that both this Court in Gunpowder Horse Stables, Inc. v. State Farm Automobile Insurance Co., 108 Md.App. 612 , 673 A.2d 721 (1996), and the federal district court in Weathersby v. Kentucky Fried Chicken National Management Co., 804 F.Supp. 756 (D.Md.1992), aff'd, 16 F.3d 414 (4th Cir.1994), interpreted McCrory as invalidating the County’s employment discrimination law.

We disagree with appellant’s contentions. McCrory acknowledged that the field of employment discrimination has not been preempted by the State, and it ³⁸³ expressly limited its holding to § 27-20(a) of the County Code. The Court said: We hold, therefore, that an ordinance attempting to combat employment discrimination by creating a new private judicial cause of action is not a “local law” under Article XIA of the Maryland Constitution, and thus is not within the power of Montgomery County to enact. 319 Md. at 24, 570 A.2d 834 . 4 In Gunpowder, a motorist was injured in an automobile accident involving the defendant’s horses, which had escaped onto the highway. The sole basis of liability was a Baltimore County ordinance which, with certain exceptions, created a form of absolute liability on the owners of animals.

The ordinance did not require the owner’s knowledge of the animal’s propensities. Thus, “[t]he burden of proof ... [was] less rigorous than under common law negligence or strict liability. In sum, [the ordinance] create [d] an alternative and new cause of action.” Id. at 626, 673 A.2d 721 . We then analyzed the ordinance in light of McCrory and declared that it was not a local law, because it created a “theory of liability not recognized by the General Assembly or the common law.” Gunpowder, 108 Md.App. at 633 , 673 A.2d 721 .

In our discussion of McCrory , we observed that the issue in that case involved a section of the County Code that permitted a private citizen to bring an action in the circuit court for unlimited money damages. We explained: The Court [in McCrory ] declared that in Maryland, “the creation of new causes of action in the courts has traditionally been done either by the General Assembly or by this Court under its authority to modify the common law of this ³⁸⁴ State.” The Court went on to add that “the creation of new judicial remedies has traditionally been done on a statewide basis.” Because, the Court reasoned, employment discrimination was a statewide problem, the county anti-discrimination ordinance “affect[ed] ‘matters of significant interest to the entire state’ and c[ould not] qualify as a ‘local law 5 under Article XI-A.” Id. at 632, 673 A.2d 721 (quoting McCrory, 319 Md. at 19-20 , 570 A.2d 834 ) (citations omitted). In our view, appellant has taken Gunpowder’s analysis of McCrory out of context. It is clear from our discussion in Gunpowder that we merely observed that McCrory invalidated the provision permitting private citizens to bring private causes of action in the circuit court and to obtain unlimited damages for violation of the anti-employment discrimination ordinance.

As we have already discussed, McCrory did not invalidate the entire antidiscrimination ordinance. Similarly, appellant’s reliance on Weathersby is unavailing. Weathersby actually involved two cases. One was a state court action that concerned, inter alia, alleged violations of the Montgomery County ordinance at issue here.

See Weathersby v. Kentucky Fried Chicken Nat'l Management Co., 86 Md.App. 533 , 587 A.2d 569 (1991) (“Weathersby I ”), rev’d on other grounds, 326 Md. 663 , 607 A.2d 8 (1992). The other case involved a federal employment discrimination claim that was adjudicated in the federal district court. Weathersby, 804 F.Supp. at 756 (“Weathersby II”). In Weathersby I, the appellant appealed the dismissal of one count of her complaint that was based upon the Montgomery County ordinance.

Between the time of trial and the appeal, the Court of Appeals decided McCrory . Accordingly, on appeal, we held that the appellant’s claim on that count was not viable because, under McCrory , she was not permitted to bring a private cause of action in the circuit court for a violation of Montgomery County’s anti-discrimination ordinance. Weathersby I, 86 Md. App. at 550-51 , 587 A.2d 569 . ³⁸⁵ Subsequently, in its recitation of the facts in Weathersby II, the federal district court discussed the result in Weathersby I . BE I seizes upon a passage from Weathersby II to support its argument that McCrory invalidated the entire County ordinance at issue here.

Appellant quotes the following text from the decision in Weathersby II: Section 27-19(a) of the Montgomery County Code makes it an unlawful employment practice for an employer to discriminate against any individual because of the individual’s race, color, religious creed, ancestry, national origin, age, sex, marital status, handicap or sexual orientation. Section 27-19(b) prohibits an employer from retaliating against any person on account of that person’s lawful opposition to a violation of, inter alia, section 27-19(a). Section 27-20(a) creates a private right of action in favor of any person who has been subjected to an act of discrimination outlawed by the Montgomery County civil rights law. In affirming the circuit court’s dismissal of Count II (reprisal), the Court of Special Appeals did not reach the merits because the statute on which that claim was based had been struck down as unconstitutional by the Court of Appeals of Maryland, the state’s highest court, during the pendency of Weathersby’s appeal.

See McCrory Corp. v. Fowler, 319 Md. 12 570 A.2d 834 (1990) (finding Montgomery County anti-discrimination ordinance unconstitutional because not a “local law” and therefore ultra vires as exceeding authority of Montgomery County Council). Weathersby II, 804 F.Supp. at 759 . Curiously, appellant neither cites nor discusses this Court’s opinion in Weathersby I . Instead, appellant relies on a factual recitation of the procedural history of the state case, which was not even decided in the federal court action.

In this Court’s opinion in Weathersby I , we observed: Thus, the Court [in McCrory] held that enactment of the [Montgomery County] ordinance violated the Express Powers Act. In effect, § 27-20(a) was declared a nullity and it ³⁸⁶ could, not provide the basis for a cause of action for reprisal under § 27-19(b). Weathersby I, 86 Md.App. at 550 , 587 A.2d 569 (emphasis added). Thus, we did not state in our opinion in Weathersby I that McCrory invalidated the entire anti-employment discrimination ordinance.

Instead, as the above-quoted passage makes clear, McCrory merely invalidated § 27-20(a), which authorized private parties to file a private cause of action in the circuit court. Appellant’s reliance on the federal court’s factual rendition in Weathersby II of our opinion in Weathers-by I is out of context and unpersuasive. Contrary to appellant’s assertions, no court has held that McCrory invalidated the entire Montgomery County anti-employment discrimination ordinance. Appellant argues in the alternative that, even if McCrory only invalidated § 27-20, the County Code cannot be enforced against BE I because it did not contain a severability clause.

We reach a different conclusion. The question of whether an invalidated provision is severable is a question of legislative intent. Sugarloaf Citizens Assoc. v. Gudis, 319 Md. 558, 573-74 , 573 A.2d 1325 (1990). There is a strong presumption that a legislative body intends its enactments to be severed, if possible.

Id. at 574 , 573 A.2d 1325 ; State v. Burning Tree Club, Inc., 315 Md. 254, 297 , 554 A.2d 366 , cert. denied, 493 U.S. 816 , 110 S.Ct. 66 , 107 L.Ed.2d 33 (1989). In determining whether the provision is severable, we ask: “[W]hat would have been the intent of the legislative body, if it had known that the statute could be only partially effective.” Turner v. State, 299 Md. 565, 576 , 474 A.2d 1297 (1984); see also Sugarloaf, 319 Md. at 574 , 573 A.2d 1325 . We recognize that the Montgomery County Council has adopted a general severability provision for all of its legislation. See Montgomery County Code § 1-202 (proclaiming that, unless the county council expressly provides otherwise, “[i]f a provision is held invalid or inapplicable, the remainder of the code or the law remains in effect”).

Nevertheless, such a provision “ ‘is an aid merely, not an inexorable command.’ ” ³⁸⁷ Anne Arundel County v. Moushabek, 269 Md. 419, 428 , 306 A.2d 517 (1973) (quoting Sanza v. Board of Censors, 245 Md. 319, 338 , 226 A.2d 317 (1967)). The provision that the Court held invalid in McCrory was not “inseparably connected in substance” to the remainder of the ordinance. Mayor of Baltimore v. O’Conor, 147 Md. 639, 654 , 128 A. 759 (1925); see also Sugarloaf, 319 Md. at 576 , 573 A.2d 1325 . Nor did the invalidation of County Code § 27-20 render the remainder of the ordinance “impractical and useless without the invalid portions.” Heubeck v. Mayor of Baltimore, 205 Md. 203, 212 , 107 A.2d 99 (1954); see also Sugarloaf, 319 Md. at 576 , 573 A.2d 1325 .

Moreover, if the Montgomery County Council had been informed that § 27-20(a) was invalid, we believe that it would have proceeded to adopt the remainder of the ordinance. Accordingly, we conclude that § 27-20(a) is severable. Therefore, we need not consider appellant’s argument that Chapter 27, which was reenacted in 1994, cannot be applied retroactively to conduct or events that occurred in 1990. E. Local Laws Next, we consider appellant’s various challenges to specific provisions of Chapter 27 on the grounds that they aré not local laws.

Definition of Employer Appellant asserts that the ordinance is not a local law because it is not limited in geographic scope to Montgomery County. Specifically, BE I challenges County Code § 27-18(b), which provides: Employer includes any person, whenever [sic] situated, who employs more than six (6) employees within the county, either for compensation or on a volunteer basis, or who recruits individuals within the county to apply for employment within the county or elsewhere; the term shall include Montgomery County and its instrumentalities and agencies. Appellant argues that the word “elsewhere” subjects employers outside of Montgomery County to liability for violations ³⁸⁸ that occur outside of Montgomery County, and thus is not a local law. Appellant raised this issue below.

On appeal, however, appellant only raised this issue in its reply brief. From our review of the record, it is apparent that appellees never responded to appellant’s argument below, either in pleadings or at oral argument. Similarly, in denying appellant’s motion for summary judgment and in granting summary judgment for appellees, the trial court did not address appellant’s challenge that the statute, on its face, was invalid because it was not limited in scope to Montgomery County. Whenever possible, we construe an ordinance to avoid a constitutional conflict.

Tidewater/Havre de Grace, Inc. v. Mayor of Havre de Grace, 337 Md. 338, 352 , 653 A.2d 468 (1995); Burns v. Mayor of Midland, 247 Md. 548, 554 , 234 A.2d 162 (1967); Gunpowder, 108 Md.App. at 618 , 673 A.2d 721 . Moreover, we look at the challenged provision in light of the entire statutory scheme and the purpose behind each section. Howard Research & Dev. Corp. v. Concerned Citizens, 297 Md. 357, 364 , 466 A.2d 31 (1983); Gunpowder,