Duckworth v. Deane

ELDRIDGE, J. These appeals are from a judgment of the Circuit Court for Baltimore City in which the Circuit Court denied three motions to intervene in an action challenging the constitutionality of a Maryland statute. The statute, Maryland Code (1984, 2004 Repl.Vol.), § 2-201 of the Family Law Article, states: “Only a marriage between a man and a woman is valid in this State.” The case at bar presents no issue as to the constitutionality of § 2-201. Instead, the issues in these appeals concern only the matter of intervention. On March 11, 2005, we issued an order affirming the judgment of the Circuit Court denying intervention.

This opinion sets forth the reasons for that affirmance. I. The case began on July 7, 2004, when nineteen plaintiffs filed a complaint in the Circuit Court for Baltimore City against the Clerks of the Circuit Courts for Baltimore City, Prince George’s County, St. Mary’s County, Washington County, and Dorchester County. The complaint identified the plaintiffs as “nine Maryland lesbian and gay couples and one Maryland gay man.” Four of the couples resided in Baltimore City; three of them resided in Prince George’s County; one couple resided in Dorchester County, and the “gay man” resided in Washington County. As to the ninth couple, the complaint stated that one resided in St. Mary’s County and the other resided in Costa Rica.

The complaint alleged that each of the nine couples applied to the defendant Clerks of Court in Baltimore City, Prince George’s County, Dorchester County, or St. Mary’s County for a marriage license submitting “all of the paperwork and fees necessary to obtain a marriage license,” but that each of the ⁵³⁰ Clerks of Court “refused to issue a marriage license ... for the sole reason that [the applicants] are a same-sex couple.” The complaint also stated that the Washington County resident “seeks the right to marry” a person of the same sex, but that the “office of the Washington County Circuit Court Clerk will not issue marriage licenses to same-sex couples.” The complaint went on to allege numerous disadvantages which the plaintiffs purportedly suffered by not being able to marry. The plaintiffs asserted that § 2-201 of the Family Law Article violated Articles 46 and 24 of the Maryland Declaration of Rights. 1 The plaintiffs sought a declaratory judgment that § 2-201 was in violation of Articles 46 and 24, and an injunction “[e]njoining Defendants from refusing to issue marriage licenses to Plaintiff couples or other same-sex couples because they are same-sex couples.” The defendants, represented by the Attorney General of Maryland, filed an answer which, inter alia, admitted that § 2-201 does “not permit the issuance of a [marriage] license to same sex couples,” admitted that the defendants will not issue marriage licenses to same sex couples,” and denied that “ § 2-201 violates the Maryland Constitution.” The defendants requested that the Circuit Court deny the injunctive relief sought and enter a declaratory judgment that “ § 2-201 is constitutional under Articles 46 and 24 of the Maryland Declaration of Rights.” As mentioned earlier, three separate motions to intervene were filed in the case. The first was filed by the appellant Robert P. Duckworth, Clerk of the Circuit Court for Anne ⁵³¹ Arundel County, who sought intervention represented by his own privately retained counsel. Duckworth asserted that he had a “right” to intervene because he “is charged with issuing marriage licenses” and, “[i]f plaintiffs are successful, this Court will create uncertainty with regard to Mr. Duckworth’s conduct of his office and, whether or not he complies with this Court’s order, he would be subject to potential civil and criminal claims.” Duckworth characterized this as a “personal interest.” Alternatively, Duckworth sought permissive intervention “because (1) his defense to the relief sought by the Plaintiffs has a question of law in common with the instant action; (2) the statute subject to review in this action affects him personally; and (3) Plaintiffs’ action relies for ground of claim or defense on a constitutional provision affecting Mr. Duckworth.” Duckworth alleged that he “believes each of the Court Clerks sued in this action is sympathetic to Plaintiffs’ cause,” that the defendants are represented by the Attorney General’s Office, and that “Duckworth and his counsel ... doubt that office’s commitment to the defense of traditional marriage in Maryland.” Duckworth raised one argument which had not been raised by the Attorney General representing the defendants, namely Duckworth’s contention that the Circuit Court for Baltimore City “lack[ed] subject matter jurisdiction” to rule upon the constitutionality of § 2-201 of the Family Law Article.

The second motion for intervention was filed by eight members of the General Assembly of Maryland. Five were members of the House of Delegates and three were members of the Senate, and they sought intervention represented by their privately retained counsel. They also claimed that they had a right to intervene, and, alternatively, they sought permissive intervention. The eight General Assembly members expressed “doubt” about the Attorney General’s “commitment to the defense of ... § 2-201,” and they indicated that their “interest in their legislative authority” would not be adequately represented by the Attorney General.

The eight members claimed an interest in the subject matter, stating: ⁵³² “As legislative supporters of ... § 2-201 and the policy which it reflects, Intervenors’ ability to regulate marriage will be affected by this case. Intervenors have an official interest to intervene here where their legislative authority to regulate marriage is threatened by encroachments proscribed by the separation of powers provision of the Maryland Constitution----If the Court finds ... § 2-201 unconstitutional, Intervenors have an interest in appealing that decision.” The legislators went on to suggest that a judicial decision invalidating § 2-201 of the Family Law Article would be a “judicial encroachment” upon the authority of the General Assembly and would violate the separation of powers principle contained in Article 8 of the Maryland Declaration of Rights. 2 Like the argument in the Duckworth motion, the eight members of the General Assembly contended that the Circuit Court for Baltimore City “lacks subject matter jurisdiction” to decide the constitutionality of § 2-201 of the Family Law Article. The eight legislators also suggested that the Attorney General would not raise this jurisdictional issue. The third motion to intervene was filed pro se by Toni Marie Davis, a resident of Baltimore City, who also claimed a right to intervene and, alternatively, sought permissive intervention.

Davis asserted “that the out come of this action will affect not only my everyday life, but the everyday lives of every resident in Maryland.” Davis continued: “[T]he homosexual life style is against my religion, which is protected under the first Amendment of the U.S. Constitution. And the out come of this case will affect my ability to protect my religious beliefs and interest in not allowing a ⁵³³ person or group of people to force me to acknowledge [their] chosen way of living, [their] life style.” The Circuit Court, by two orders filed on September 21, 2004, and one order filed on September 30, 2004, denied all three motions to intervene. Mr. Duckworth, the eight legislators, and Ms. Davis all filed timely notices of appeal to the Court of Special Appeals. Prior to argument in the Court of Special Appeals, this Court issued a writ of certiorari.

Duckworth v. Deane, 384 Md. 448 , 863 A.2d 997 (2004).

II

Maryland Rule 2-214 provides in pertinent part as follows: “Rule 2-214. Intervention. (a) Of right. Upon timely motion, a person shall be permitted to intervene in an action: (1) when the person has an unconditional right to intervene as a matter of law; or (2) when the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented by existing parties.

(b) Permissive. (1) Generally. Upon timely motion a person may be permitted to intervene in an action when the person’s claim or defense has a question of law or fact in common with the action.” Duckworth’s argument in this Court, that his motion to intervene should have been granted, is based upon the intervention-of-right provision in Rule 2-214(a) and upon the Declaratory Judgment Act, Maryland Code (1974, 2002 Repl.Vol.), § 3-405 of the Courts and Judicial Proceedings Article. 3 On ⁵³⁴ appeal, Duckworth does not rely on the permissive intervention provision of Rule 2—214(b). Moreover, Duckworth makes it clear that he does not desire to intervene with representation by the Attorney General.

Instead, he insists that he had a right to intervene with his own privately retained counsel. Duckworth argues that he has “an interest” in the matter, within the meaning of Rule 2-214(a), because, as a Clerk of a Circuit Court, he is involved in the issuance or refusal to issue marriage licenses, and because, according to his oath of office, he must do so in accordance with the Maryland Constitution. Duckworth states that, if he declines to issue marriage licenses to same sex couples, he might be subject to criminal or civil actions which might result in criminal or civil penalties or damages. He repeatedly labels this asserted interest as “personal.” Consequently, the issue in Duckworth’s appeal is not the broad one of whether he had a right to intervene.

Rather, as acknowledged by Duckworth’s counsel at oral argument before us, the only issue is the narrower one of whether Duckworth had a right to intervene represented by his own privately retained counsel. The eight members of the General Assembly argue that they had a right to intervene pursuant to Rule 2—214(a)(1) and (2), that, alternatively, the trial court abused its discretion in denying permissive intervention, and that as a third alternative, the Declaratory Judgment Act, Code (1974, 2002 Repl. ⁵³⁵ Vol.), § 3-405(a) of the Courts and Judicial Proceedings Article, “mandates that intervention be granted.” (Brief of the legislator appellants at 14). 4 The legislators’ argument based on the Declaratory Judgment Act was not made in the trial court, and is advanced for the first time on appeal. The eight members of the General Assembly claim that they had a right to intervene because the “Legislature ha[s] plenary power over the subject matter of marriage contracts,” and that “individual legislators must have a right to intervene ... to protect their legislative authority.” (Id. at 4). The legislators state that they “have an affected interest in defending the policy and the constitutionality of ... § 2-201 as a valid exercise of legislative power.” (Id. at 6).

The eight General Assembly members contend that the existing parties and the Attorney General might not adequately represent the legislators’ interest because the Attorney General is not raising the questions of subject matter jurisdiction, justiciability and separation of powers. (Id. at 9). They also suggest that the existing parties, represented by the Attorney General, may not appeal from an adverse decision by the trial court. The legislators’ alternative argument, that the trial court abused its discretion in denying permissive intervention, is based on the same contentions underlying their argument concerning a right to intervene under Rule 2-214(a).

It should be noted, as pointed out by the appellees, that none of these eight legislators was a member of the General Assembly when § 2-201 of the Family Law Article was enacted by Ch. 213 of the Acts of 1973. Moreover, neither the General Assembly, nor either house of the General Assembly, nor the presiding officers of the General Assembly have authorized the eight legislators to intervene in the litigation. On appeal, Toni Marie Davis’s argument is essentially the same as the argument set forth in her motion to intervene, namely that the outcome of the litigation will affect her and all other residents of Maryland, that “the homosexual life style is ⁵³⁶ against my religion, which is protected under the first Amendment of the United States Constitution,” and that the outcome of the case “will affect my ability to protect my ... religious beliefs in not allowing a person or group of people to force me to acknowledge [their] ... way of living.” (Brief of Toni Marie Davis at 5).

III

A. With regard to Duckworth’s appeal, even if it could be assumed arguendo that he had a right to intervene, it is clear that he had no right to intervene by his privately retained counsel. In light of Duckworth’s description of his “interest” and his allegations, any right of intervention, which he might have had, would have been intervention represented by the Attorney General of Maryland. Nonetheless, Duckworth has consistently disclaimed any desire for intervention with representation by the Attorney General. Maryland Code (1984, 2004 Repl.Vol.), § 6-106(b) and (c) of the State Government Article, provides as follows: “(b) Counsel for officers and units.

Except as otherwise provided by law, the Attorney General is the legal adviser of and shall represent and otherwise perform all of the legal work for each officer and unit of the State government.” “(c) Other counsel generally prohibited. Except as provided in subsection (d) of this section or in any other law, an officer or unit of the State government may not employ or be represented by a legal adviser or counsel other than the Attorney General or a designee of the Attorney General.” Judge Marvin Smith for this Court, in commenting upon the role of the Attorney General under the Constitution and the above-quoted statutory provision, emphasized (State v. Burning Tree Club, 301 Md. 9, 34, 37, 481 A.2d 785, 794, 796 (1984)): “It is clear from the constitutional and statutory provisions which we have cited that the Attorney General is first ⁵³⁷ and foremost the lawyer of the State. His duties include prosecuting and defending cases on behalf of the State in order to promote and protect the State’s policies, determinations, and rights. He is the legal advisor to all State departments and agencies other than those for which specific exception is made by statute. “We hold that under the Constitution and statutes of Maryland the Attorney General ordinarily has the duty of appearing in the courts as the defender of the validity of enactments of the General Assembly.” Although there are several exceptions to the statutory requirement that “an officer ... of the State government may not employ or be represented by a legal adviser or counsel other than the Attorney General” (§ 6—106(c)), none of the exceptions is applicable under the circumstances of this case.

Nevertheless, Duckworth attempts to circumvent the legal requirement of representation by the Attorney General by calling his asserted interest in the litigation “personal.” Duckworth’s interest, however, as described in his motion to intervene and briefs, relates entirely to the performance of his duties as a state official. Duckworth’s interest is wholly based upon his statutory responsibility, as Clerk of the Circuit Court for Anne Arundel County, over the issuance of marriage licenses. He is in the same position as the defendant Clerks of the Circuit Courts for Baltimore City, Prince George’s County, St. Mary’s County, and Dorchester County, except that there were no allegations that any of the plaintiffs, or any other “same-sex couple,” had applied to Duckworth for a marriage license and had been refused a marriage license. Duckworth’s attempt to evade § 6—106(b) and (c) of the State Government Article, by calling his interest “personal,” is disingenuous.

An individual acting “personally” has no legal authority to issue a marriage license in Maryland. See §§ 2-401 and 2-402 of the Family Law Article. Section 6-106(b) and (c) of the State Government Article is dispositive of ⁵³⁸ Duckworth’s attempt to intervene with privately retained counsel. Duckworth’s calling his interest “personal” does not render § 6-106(b) and (c) inapplicable. 5 B. The arguments advanced by the eight legislators and Toni Marie Davis provide no basis for reversal of the Circuit Court’s orders denying intervention. 6 (1) The legislators’ reliance on Rule 2-214(a)(1), permitting intervention “when the person has an unconditional right to intervene as a matter of law,” is misplaced.

We have pointed out on several occasions that Rule 2-214 was based on Rule 24 of the Federal Rules of Civil Procedure, and that “intervention decisions under Rule 24 ... serve as a guide to interpreting the Maryland intervention rule.” Coalition v. Annapolis Lodge, 333 Md. 359 , 368 n. 10, 635 A.2d 412 , 418 n. 10 (1994), and cases there cited. The federal counterpart to Maryland Rule 2-214(a)(1) is Rule 24(a)(1) of the Federal Rules of Civil Procedure, which applies only when a statute or ordinance specifically confers an unrestricted right to intervene in a particular type of case. See, e.g.,