Citizens Against Slots at the Mall v. PPE Casino Resorts Maryland, LLC

JOHN C. ELDRIDGE (Retired, Specially Assigned), J. This is the latest in a series of opinions and orders by this Court involving the constitutional provision and the implementing legislation authorizing a limited number of “video lottery terminals,” commonly known as “slot machines,” at specified Maryland facilities, including a facility in the area of northern Anne Arundel County. 1 See Ch. 5 of the 2007 Special Session of the General Assembly proposing new Article XIX of the Maryland Constitution, ratified at the general ¹⁷⁹ election in November 2008; Ch. 4 of the 2007 Special Session of the General Assembly, codified in Maryland Code (1984, 2009 Repl.Vol., 2012 Supp.), §§ 9-1A-01 through 9-1A-36 of the State Government Article. See also Ch. 1 of the 2012 Second Special Session of the General Assembly, approved by the Governor August 15, 2012, which proposes an expansion of commercial gaming and which provides, inter alia, for a referendum on such expansion in November 2012, pursuant to Article XIX, § 1(e) of the Maryland Constitution. The principal issues in these appeals are whether the Circuit Court’s judgment was appealable and whether an Anne Arundel County zoning ordinance, authorizing video lottery facilities in certain areas of Anne Arundel County, was subject to referendum under § 308(a) of the Anne Arundel County Charter. 2 The zoning ordinance, which was Bill No. 82-09, authorized video lottery facilities as a “conditional use” in a ¹⁸⁰ “W-l Industrial Park zoning district” and in a “Regional Commercial Complex” of Anne Arundel County. The authorized area under Bill No. 82-09 would encompass the particular area of northern Anne Arundel County where the video lottery facility was tentatively to be located.

The Circuit Court for Anne Arundel County in this case filed a judgment declaring “that Bill No. 82-09 is an interdependent and legally inseparable piece of an appropriation package for maintaining State and local government and, therefore, is not subject to referendum.... ” The Circuit Court, however, rejected all other challenges to a referendum on Bill No. 82-09. Both sides took appeals from the Circuit Court’s judgment, and both filed in this Court petitions for writs of certiorari which we granted. Citizens Against Slots v. PPE Casino, 415 Md. 114 , 999 A.2d 179 (2010). On July 20, 2010, after the filing of briefs and oral argument, this Court issued an order which (1) denied a motion to dismiss the appeals, thereby holding that the Circuit Court’s judgment was appealable, and (2) reversed the Circuit Court’s judgment and remanded the case to that court with instructions to order that Bill No. 82-09 “be placed on the ballot at the November 2010 general election,” in accordance with the referendum provisions of the Anne Arundel County Charter.

See Citizens Against Slots v. PPE Casino, 415 Md. 117 , 999 A.2d 181 (2010). This opinion gives the reasons for the Court’s order. 3 ¹⁸¹ I. The constitutional amendment and implementing legislation authorizing video lottery facilities in various Maryland locations has been described in several recent opinions of this Court, and we shall not here repeat in detail what was set forth in those opinions. See Stop Slots v. State Board of Elections, 424 Md. 163 , 34 A.3d 1164 (2012); Smigiel v. Franchot, 410 Md. 302 , 978 A.2d 687 (2009); Laurel Racing v. Video Lottery, 409 Md. 445 , 975 A.2d 894 (2009). Of particular importance in the present case are two provisions of Article XIX of the Maryland Constitution.

They are Article XIX, § l(c)(3)(i), authorizing a video lottery facility in “Anne Arundel County, within 2 miles of MD Route 295,” and Article XIX, § 1(c)(5), stating that “[a] video lottery facility shall comply with all applicable planning and zoning laws of the local jurisdiction.” Prior to the enactment of Bill No. 82-09, video lottery facilities were not permitted uses under Anne Arundel County zoning law. On December 7, 2009, the Video Lottery Facility Location Commission “award[ed] a Video Lottery Operation License for 4,750 video lottery terminals to [appellee] PPE Casino Resorts Maryland, LLC, contingent on zoning approval.” The license was for a video lottery facility “to be located at the intersection of Route 100 and Arundel Mills Boulevard, located within two miles of Route 295, at Arundel Mills Mall in Hanover, Maryland.” Anne Arundel County Bill No. 82-09, permitting video lottery facilities in certain areas, including the above-described location at Arundel Mills Mall, was passed by the Anne Arundel County Council on December 21, 2009, and signed by the County Executive on December 22, 2009. Upon the enactment of Bill No. 82-09, the appellant Citizens Against Slots at the Mall, along with others opposed to a video lottery facility at Arundel Mills Mall, began a petition drive to place Bill No. 82-09 on the ballot, pursuant to the referendum provisions in § 308(a) of the Anne Arundel County Charter. 4 ¹⁸² See n. 2, supra. On February 4, 2010, the first group of petition signatures was filed with the Anne Arundel County Board of Elections.

Also on February 4, 2010, counsel for PPE Casino Resorts wrote to the County Board of Elections, contending that Bill No. 82-09 “may not be submitted to a referendum under Section 308 of the Anne Arundel County” Charter because it is an “ordinance[ ] making an appropriation for the maintenance of the County government.” Counsel for PPE Casino Resorts argued that, “because Bill 82-09 was enacted pursuant to a statewide initiative and because its rejection could undermine the implementation of that initiative, it may not be submitted to a public referendum at the County level.” The Anne Arundel County Board of Elections, after being advised by its counsel that “Bill 82-09 addresses only zoning issues, [and] does not make any appropriation of funds,” rejected the contentions of PPE Casino Resorts and decided that Bill No. 82-09 was subject to referendum under § 308 of the Anne Arundel County Charter. On April 1, 2010, the Anne Arundel County Board of Elections certified that enough valid signatures in favor of the referendum on Bill No. 82-09 had been filed with the Board and that Bill No. 82-09 “qualifies to be placed on the ballot for the 2010 Gubernatorial General Election ballot.” While the petition drive was taking place, the appellee PPE Casino Resorts, which opposed the referendum, along with other appellees opposed to the referendum, commenced the present action by filing in the Circuit Court for Anne Arundel County a complaint for a declaratory judgment against the Anne Arundel County Board of Elections, challenging the Board’s review of the petitions and the signatures. Citizens Against Slots filed a motion to intervene, and the motion was granted. On April 7, 2010, after the Board of Elections’ certification, PPE Casino Resorts filed a second amended complaint, and later a third amended complaint, seeking both ¹⁸³ judicial review of the certification by the Anne Arundel County Board of Elections and a declaratory judgment.

Also, the State Board of Elections was added as a defendant. Hearings before the Circuit Court took place at various times during the latter part of May 2010 and early June 2010. PPE Casino Resorts argued that Bill No. 82-09 was not subject to a referendum under § 308(a) of the Anne Arundel County Charter because it was a component of an appropriation package, and § 308(a) stated: “No ordinance making any appropriation for current expense for maintaining the County government ... shall be subject to rejection or repeal under this section.” 5 PPE Casino Resorts also claimed that the circulator’s affidavit on the pages of the petition was defective. Finally, PPE Casino Resorts sought to introduce in the Circuit Court what it described as evidence of “fraud, misrepresentation, and forgery in the Petition and Petition signature-gathering process.” Citizens Against Slots objected to the evidence, and the Circuit Court sustained the objection because the evidence was not presented to the administrative agency, i.e. the Anne Arundel County Board of Elections, and was not contained in the administrative record.

The Circuit Court on June 25, 2010, filed an extensive opinion and declaratory judgment dealing with the various issues raised by the parties. As previously mentioned, the Circuit Court held that Bill No. 82-09 was not subject to referendum because the Bill was “interdependent and legally inseparable from a larger appropriation package.” The court explained: “The Maryland Education Trust Fund Act generates revenue for a constitutionally mandated purpose and will maintain State and local government. To further its purpose, it establishes the process for collecting and depositing revenue into a trust fund account. VLT [Video Lottery Terminals] ¹⁸⁴ facilities are a necessary element to this revenue raising measure.

The State Gaming Commission awarded a VLT license to PPE, conditioned on the location receiving the proper zoning. Subsequent to the preliminary award, the County Council passed Bill 82-09, specifically conditioning the VLT use on a property being in compliance with the location requirements specified under Article XIX. If Bill 82-09 was subject to referendum, the constitutional and legislative purposes set forth under Article XIX and the Maryland Education Trust Fund Act would be delayed and thwarted, if not fatally undermined. Therefore, given Bill 82-09’s interdependent and legally inseparable nature from a constitutionally mandated appropriation law to maintain public education, Bill 82-09 is not subject to referendum.” The principal authority relied upon by the Circuit Court was Kelly v. Marylanders For Sports Sanity, 310 Md. 437 , 530 A.2d 245 (1987).

Citizens Against Slots filed a notice of appeal to the Court of Special Appeals on June 28, 2010, and filed a “precautionary” notice of “direct appeal” to the Court of Appeals on June 30, 2010. 6 PPE Casino Resorts filed timely notices of cross-appeal, and both sides filed certiorari petitions which this Court granted. PPE Casino Resorts also filed a motion to dismiss Citizens Against Slots’ appeal.

II

PPE Casino Resorts’ motion to dismiss is based on Maryland Code (1974, 2006 Repl.Vol., 2012 Supp.), § 12-302(a) of ¹⁸⁵ the Courts and Judicial Proceedings Article, which provides that the general appeals statute (§ 12-301of the Courts and Judicial Proceedings Article) does not apply to certain types of cases and that the right to appeal in such cases must be granted by some other law. Section 12-302(a) states: “(a) District Court, administrative agency, or local legislative body. — (Unless a right to appeal is expressly granted by law, § 12-301 of this subtitle does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of the District Court, an administrative agency, or a local legislative body.” The phrase in § 12-302(a), referring to “the exercise of appellate jurisdiction in reviewing the decision of ... an administrative agency, or a local legislative body,” has been construed to mean “ordinary statutory judicial review of adjudicatory decisions by administrative agencies and local legislative bodies,” Gisriel v. Ocean City Elections Board, 345 Md. 477, 492 , 693 A.2d 757, 765 (1997), cert. denied, 522 U.S. 1053 , 118 S.Ct. 702 , 139 L.Ed.2d 645 (1998). For discussions of § 12-302(a), including its scope and history, see, e.g., Dvorak v. Anne Arundel County Ethics Commission, 400 Md. 446, 450-459 , 929 A.2d 185, 187-193 (2007); Murrell v. Baltimore, 376 Md. 170, 184-196 , 829 A.2d 548, 556-564 (2003); Kant v. Montgomery County, 365 Md. 269, 272-279 , 778 A.2d 384, 386-389 (2001); Prince George’s County v. Beretta, 358 Md. 166, 173-183 , 747 A.2d 647, 651-656 (2000); Gisriel v. Ocean City Elections Board, supra, 345 Md. at 485-500 , 693 A.2d at 761-768 ; Cardinell v. State, 335 Md. 381, 415-424 , 644 A.2d 11, 28-32 (1994) (dissenting opinion, which was later adopted by the Court in State v. Green, 367 Md. 61, 75-79 , 785 A.2d 1275, 1283-1285 (2001)). PPE Casino Resorts argued that the present case, involving judicial review of a decision by an administrative agency, namely the Anne Arundel County Board of Elections, fell within § 12-302(a).

Consequently, the argument continued, § 12-301 of the Courts and Judicial Proceedings Article did not authorize an appeal. PPE Casino Resorts further argued ¹⁸⁶ that no other statute authorized an appeal in the case and that, therefore, there was no appellate jurisdiction. More specifically, PPE Casino Resorts pointed to Title 6 of the Election Article, relating to “Petitions,” and § 6-209 of Title 6 which provides for judicial review in a circuit court. Title 6, however, contains no express provision for an appeal from a circuit court’s judgment to either the Court of Special Appeals or the Court of Appeals.

The principle reflected in § 12-S02(a) of the Courts and Judicial Proceedings Article, that the general appeals statute does not authorize an appeal from a trial court judgment reviewing, inter alia, the decision of an administrative agency, originated as part of a judicially created doctrine in 1837. See Wil. & Susq. R.R. Co. v. Condon, 8 G. & J. 443, 448-449 (1837). The principle, as applied to administrative agencies and local legislative bodies, was embodied in a statute with the enactment of the Courts and Judicial Proceedings Article in 1973.

During the period from 1837 until the present, there have been literally hundreds of cases decided by this Court involving appeals from trial court judgments in actions for judicial review of decisions by state and county election officials or agencies. None of these cases, as far as we are aware, has applied the jurisdictional principle embodied in § 12-302(a) to appeals from judgments reviewing the decisions of state or county election officials or agencies. 7 As the State Board of ¹⁸⁷ Elections and the Anne Arundel County Board of Elections pointed out in the present case, if PPE Casino Resorts’ motion to dismiss were meritorious, “several seminal decisions of this Court never should have been decided.” (Joint brief of Election Boards at 4, n. 3). More importantly, if there were no appellate jurisdiction in numerous election cases decided by this Court and the Court of Special Appeals, the ramifications could be extremely disruptive. A “judgment made by a court lacking jurisdiction to enter it is void.” County Commissioners v. Carroll Craft, 384 Md. 23, 44 , 862 A.2d 404, 417 (2004).

See also Tshiwala v. State, 424 Md. 612, 621-622 , 37 A.3d 308, 313 (2012); Carey v. Chessie Computer, 369 Md. 741, 755-757 , 802 A.2d 1060, 1068-1069 (2002). Where, over a long period of time, there have been many opinions of this Court concerning a particular subject matter, and a legal principle or statute may arguably appear to be applicable to that subject matter, but none of our opinions have applied the principle or statute to the subject matter, it is reasonable to infer that the principle or statute was not intended to apply. See Schochet v. State, 320 Md. 714, 734 , 580 A.2d 176, 185 (1990) (“Despite the many cases in this Court involving [the criminal statute at issue], none has been a prosecution based on [the type of conduct before the Court].... This is a strong indication that such conduct is not within the contemplation of [the statute]”).

Similarly, the absence in this Court’s election opinions of any discussion of the principle created in 1837, and embodied in § 12-302(a), is a strong indication that the principle does not apply to such cases. Title 12, subtitle 2, of the Election Article of the Code furnishes additional confirmation that the non-appealability principle of § 12-302(a) was not intended to apply to decisions ¹⁸⁸ of county election boards. Sections 12-201 and 12-202(a) of the Election Article provide as follows: “Subtitle 2. Judicial Review of Elections. “§ 12-201.

Scope of subtitle. This subtitle applies to an issue arising in an election conducted under this article. “§ 12-202. Judicial challenges. (a) In general. — If no other timely and adequate remedy is provided by this article, a registered voter may seek judicial relief from any act or omission relating to an election, whether or not the election has been held, on the grounds that the act or omission: (1) is inconsistent with this article or other law applicable to the elections process; and (2) may change or has changed the outcome of the election.” Section 12-203 deals with the judicial review procedure and expressly authorizes an appeal.

The section states: “§ 12-203. Procedure. “(a) In general. — A proceeding under this subtitle shall be conducted in accordance with the Maryland Rules, except that: (1) the proceeding shall be heard and decided without a jury and as expeditiously as the circumstances require; (2) on the request of a party or sua sponte, the chief administrative judge of the circuit court may assign the case to a three-judge panel of circuit court judges; and (3) an appeal shall be taken directly to the Court of Appeals within 5 days of the date of the decision of the circuit court. (b) Expedited appeal. — The Court of Appeals shall give priority to hear and decide an appeal brought under subsection (a)(3) of this section as expeditiously as the circumstances require.” ¹⁸⁹ Consequently, to the extent that the other provisions in the Election Article fail to provide for judicial review of a county election board’s decision on “an issue arising in an election conducted under” the Election Article, § 12-202 of that Article authorizes judicial review. Where a provision in the Election Article authorizes judicial review but fails to authorize an appeal, such as in Title 6, and if it were assumed, arguendo, that the general appeals statute would not authorize an appeal, the “remedy” would not be “adequate” in the words of § 12-202(a).

In that hypothetical situation, § 12-203(a)(3) would authorize an appeal. Sections 12-202(a) and 12 — 203(a)(3) of the Election Article, by broadly authorizing judicial review and an appeal under the Election Article in any case where no other adequate remedy was provided by the Article, show that the Legislature had no intention of applying the non-appealability principle of § 12-302(a) to cases under the Election Article. Moreover, county election boards are significantly different from the local government administrative agencies involved in the cases applying the non-appealability principle embodied in § 12-302(a). One difference between a county election board and most other local administrative agencies is that a county election board is a state agency and not an agency of the county.

State Ethics Commission v. Antonetti, 365 Md. 428 , 448 n. 11, 780 A.2d 1154 , 1166 n. 11 (2001); Rucker v. Harford County, 316 Md. 275, 284 , 558 A.2d 399, 403 (1989). Each county election board “is subject to the direction and authority of the State Board and is accountable to the State Board for its actions in all matters regarding” the election law. Maryland Code (2002, 2010 RepLVol.), § 2-201(a)(2) of the Election Article. See also County Council v. Montgomery Ass’n, 274 Md. 52, 62 , 333 A.2d 596, 602 (1975) (The “pervasive state administrative control of the election process, on both the statewide and local' levels, is a compelling indication that the General Assembly ... intended that the conduct and regulation of elections be strictly a state function”).

Consequently, in circuit court actions to review administrative decisions under the election laws, ordinarily the administrative decisions ¹⁹⁰ are effectively those of both the county election boards and the State Board. Moreover, § 2-105 of the Election Article grants to the State Board the right to “join as a party” in “any judicial proceeding in which a local board is a party.” Circuit court judgments in actions for judicial review of decisions by the State Board are appealable under the State Administrative Procedure Act, Maryland Code (1984, 2009 RepLVol.), § 10-223 of the State Government Article. We hold, therefore, that § 12-302(a) of the Courts and Judicial Proceedings Article has no application to cases arising under the Election Article. Where the Election Article authorizes judicial review but is silent regarding an appeal, such as in Title 6, the general appeals statute, § 12-301 of the Courts and Judicial Proceedings Article, authorizes an appeal.

Where the Election Article does not provide for judicial review, §§ 12-201 through 12-203 of the Election Article authorize judicial review and an appeal. 8 ¹⁹¹ III. The Anne Arundel County zoning ordinance known as Bill No. 82-09, which permitted video lottery facilities in certain areas, was clearly not an “ordinance making any appropriation for current expense for maintaining the County government” within the meaning of § 308(a) of the Anne Arundel County Charter, authorizing a referendum on ordinances except those making an appropriation. 9 Bill No. 82-09 was simply not an appropriation ordinance. It contained no financial provisions. Instead, Bill No. 82-09 was a typical zoning enactment and, therefore, was subject to a referendum under the Anne Arundel County Charter.

Just recently, in Doe v. Maryland State Board of Elections, 428 Md. 596, 610 , 53 A.3d 1111, 1119 (2012), this Court reiterated that an appropriation act, within the meaning of the state constitutional referendum provision which is similar to ¹⁹² § 308(a) of the Anne Arundel County Charter, is “ ‘a lawful legislative act whose primary object is to authorize the withdrawal ... of a certain sum of money for a specified public object or purpose,’ ” quoting Dorsey v. Petrott, 178 Md. 230, 245 , 13 A.2d 630, 637-638 (1940). An appropriation act, for referendum purposes, also includes a tax statute. See Baltimore County C.A.U.T. v. Baltimore County, 321 Md. 184, 201 , 582 A.2d 510, 518 (1990) (“the flat holding of our cases [is] that a law imposing or providing for a tax levy for maintaining the government is not referable to the voters”). See also, e.g., Kelly v. Marylanders For Sports Sanity, supra, 310 Md. at 457 , 530 A.2d at 254 .

(The appropriation “ ‘exception was intended to include all laws providing revenue for and/or appropriating monies to any organized department of the State’ ” for “ ‘the exercise of State functions,’ ” quoting then Attorney General Robinson, 12 Op. Att’y Gen. 228, 236 (1927)); Bayne v. Secretary of State, 283 Md. 560, 570 , 392 A.2d 67, 72 (1978); Bickel v. Nice, 173 Md. 1, 10-11 , 192 A. 777, 781-782 (1937); Winebrenner v. Salmon, 155 Md. 563, 567 , 142 A. 723, 724-725 (1928). Neither the Circuit Court nor PPE Casino Resorts disputed the conclusion that Bill No. 82-09 itself was not an appropriation act. The Circuit Court stated that “it agrees with all parties that Bill 82-09 is not an appropriation bill....” Nevertheless, as earlier pointed out, the Circuit Court viewed the zoning ordinance as “interdependent and legally inseparable from a larger appropriations package.” The “larger appropriations package,” according to the Circuit Court, consisted of Article XIX of the Maryland Constitution, which was proposed by the General Assembly in 2007 and ratified by the voters in 2008, and statutes enacted by the General Assembly in 2007 to implement Article XIX.

Article XIX provided for licenses to operate video lottery terminals at five locations within the State “for the primary purpose of raising revenue for (i) Education for the children of the State in public schools ..., (ii) Public school construction and public school capital improvements ...,” as well as other programs. The implementing