City of Takoma Park v. Citizens for Decent Government

SMITH, Judge. We shall here give the reasons for our reversal by per curiam order on September 14, 1984, of a trial judge’s decision that a proposed question be printed on the general election ballot in Montgomery County. Montgomery County is a charter county under Md. Const, art. XI-A. Maryland Code (1957, 1981 Repl.Vol.) Art. 25A, § 5 grants charter counties broad powers to enact local legislation.

On February 13, 1984, the County Council enacted Bill 65-83 which modified Montgomery County Code (1972, 1977 Repl.Vol.) Ch. 27 dealing with “Human Relations and Civil Liberties.” This legislation prohibited discrimination in employment, housing and public accommodations on the basis of sexual orientation. It further prohibited housing discrimination against families with children. The bill was signed by the County Executive on February 24, 1984. It became effective on May 24, 1984.

We held in Ritchmount Partnership v. Board, 283 Md. 48, 64 , 388 A.2d 523, 533 (1978), 1 that Const, art. XI-A, § 1 ⁴⁴² conferred upon the citizens of a charter county the right to reserve unto themselves by express charter provision the power to refer legislation enacted by a county council. Montgomery County Charter § 114 provides, with exceptions not pertinent here, that any legislation enacted by the County Council shall be submitted to a referendum of the voters upon petition of 5% of the qualified voters of the County. Section 115 provides in pertinent part: “Any petition to refer legislation to the voters of the county shall be filed with the board of supervisors of elections within seventy-five days following the date on which the legislation shall become law.

When a referendum petition has been filed, the legislation to be referred shall not take effect until thirty days after its approval by a majority of the qualified voters of the county voting thereon.” Montgomery County Code (1972, 1977 Repl.Vol.) Art. III, § 16-4 specifies that “[t]he board of supervisors of elections of the county, established by public general law, shall constitute a special board of election supervisors for the conduct of any referendum on any public local law, or part thereof, as provided in section 115 of the Charter----” It is then provided: “Sec. 16-5. Petition-Form. “A petition for referendum on any legislation, or part thereof, enacted by the council and subject to referendum ⁴⁴³ under the charter, shall be composed of one or more sheets, each in substantially the following form: REFERENDUM PETITION “We, the undersigned registered voters of Montgomery County, Maryland, do hereby petition for a referendum vote on [the provisions (identifying them briefly) of] the Act entitled ‘An Act [inserting title],’ enacted by the County Council for Montgomery County, Maryland, at its [month and year] legislative session.” At about the same time the bill in question became law a petition signed by a number of voters was filed with the board of supervisors of elections. That petition recited: “We the undersigned registered voters of Montgomery County, Maryland, do hereby petition for a referendum vote on certain provisions of Bill No. 65-83 enacted by the Montgomery County Council on 2/14/84 to amend chapter 27 of the Montgomery County Code 1972, as amended. Those certain provisions hereby petitioned for a referendum vote are any mention or definition within the bill of the terms, ‘sexual orientation, homosexuality, heterosexuality, or bisexuality.’ ” Bill 65-83 recited in its title that it was “AN ACT to amend Article I, Title ‘Commission on Human Relations’ of Chapter 27, Title ‘Human Relations and Civil Liberties’ of the Montgomery County Code 1972, as amended, by repealing and reenacting, with amendments” a number of sections thereafter specified.

The title to the act covers something in excess of one page of double spaced typing in elite type. Under date of June 28 the election supervisors informed the County Council that the petitions filed contained the requisite number of signatures and thus the supervisors “certifie[d] that said petition on Council Bill 65-83 is valid, requiring that a referendum be held thereon.” On July 2 the attorney to the election supervisors advised the president of the County Council: ⁴⁴⁴ “As attorney for the Montgomery County Board of Supervisors of. Elections, I would like to make it clear that in certifying the petition to you, neither I nor the Board have passed upon the legal sufficiency or form of the petition, it having been the view of the Board, based upon past practice, that its function was that of verifying the required number of signatures of registered voters.” On July 18 the County Attorney of Montgomery County addressed a letter to the chairman of the board of supervisors of elections in which he referred to the July 2 letter and said that “as a result of [that] letter and in light of the questions that have been raised concerning the referendum petition it appealed] to [him] that the Board should undertake a review of the legal sufficiency and form of those petitions.” The Board responded on July 26 with a letter to the president of the County Council in which it advised, “After due deliberations the Board determined that the aforementioned petition does not comply with relevant legal requirements as to form,” and that the Board “by unanimous vote determined that the Petition in question should not be certified as a valid petition requiring referendum.” On August 1, 1984, Citizens for Decent Government and two individuals, all sponsors of the petitions in question, filed a complaint against the supervisors of elections, the County Council, and the County Executive. The complaint prayed: that the defendants “be temporarily and permanently enjoined from withdrawing their certification of Plaintiffs’ petition and from recognizing and enforcing the challenged provisions of Bill 65-83 until a referendum vote has been conducted”; that “the Defendant Board’s action in withdrawing certification of Plaintiff’s [sic] petition be declared void and that the Defendants, and each of them, be mandatorily enjoined, by Writ of Mandamus [sic] to perform their respective functions in placing the petitioned issue on the November, 1984 ballot, pursuant to County law”; and “[t]hat declaratory relief be granted Plaintiff [sic] with regard to the legal sufficiency of its petition, both as to ⁴⁴⁵ form and content .... ” On August 22 appellants City of Takoma Park, Robert M. Coggin, and the Suburban Maryland Lesbian/Gay Alliance were permitted to intervene as defendants.

Plaintiffs and defendants moved for summary judgment. The motion of the plaintiffs was granted and that of the defendants was denied. The trial judge held: (1) “the Board [of Supervisors of Elections] exceeded its authority when it reversed itself”; (2) the Montgomery County Code permits challenges to selected portions of proposed legislation; and (3) the form of the petition complied with the requirements of the County Code, “[t]here [being], in the Court’s opinion, more than adequate notice to persons who were asked to sign the petition.” On August 30 an order was entered directing “that the Board shall certify as ‘valid,’ to the County Council and the County Executive, the Petition seeking referendum of portions of Bill No. 65-83”; “that the County Executive and the County Council shall otherwise comply with the directions of the County Charter and the County Code upon receipt of the validation notice from the Board,” and “that the provisions of Bill No. 65-83 shall stand suspended until the matter has been presented to the voters at the next general election, and a result thereof is reported as provided by the County Charter and Code----” An immediate appeal was entered to the Court of Special Appeals. We issued a writ of certiorari prior to hearing in the intermediate appellate court.

Considerable attention was directed in the trial court and more in brief and argument before us to the issue of whether the board of supervisors of elections had the right to reconsider its opinion. That interesting academic question was irrelevant once an action for declaratory judgment was brought and the trial court was requested to determine whether the petition was a proper one to go on the ballot. It then became necessary that the trial court pass upon and adjudicate the issues raised. Mauzy v. Hornbeck, 285 Md. 84, 90-91 , 400 A.2d 1091, 1095 (1979), and the numerous cases there cited.

One of the cases there cited is Woodland ⁴⁴⁶ Beach Ass’n v. Worley, 253 Md. 442 , 252 A.2d 827 (1969), where Judge Singley said for the Court: “As Judge (later Chief Judge) Prescott indicated in Shapiro [v. County Comm., 219 Md. 298, 303-04 , 149 A.2d 396, 398-99 (1959)], if there is a justiciable issue presented by the bill of complaint or declaration seeking declaratory relief under the Act, a declaration should be given even if it is not the declaration sought by the plaintiff and, indeed, is entirely or partially contrary to the theory of the plaintiff on which declaratory relief is sought.” 253 Md. at 448 , 252 A.2d at 830 . In the view we take of this case the only issue with which we need concern ourselves is the sufficiency of the referendum petition. The proponents of referendum argue that the petition here is in substantial compliance with the requirements of Montgomery County Code Art. Ill, § 16-5. They contend they went beyond the requirement of a brief description of the challenged provision by including the exact language.