Maryland State Administrative Board of Election Laws v. Talbot County

COLE, Judge, dissenting: I dissent for reasons set forth in my dissenting opinion in Cheeks v. Cedlair Corp., 287 Md. 595, 632 , 415 A.2d 255 (1980). ORDER PER CURIAM. For reasons to be stated in an opinion later to be filed, it is this 7th day of October, 1988: ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that that part of the judgment of the Circuit Court for Talbot County declaring Section 216 of the Talbot County Charter unconstitutional and enjoining the placement of the Detention Center Initia ³³⁶ tive on the November 8, 1988 General Election Ballot is affirmed. As to this part of the judgment, the mandate shall be issued forthwith, and it is further: ORDERED that judgment of this Court, as to that part of the judgment of the Circuit Court relating to attorney fees, expenses, and costs, will await filing of the Court’s opinion in this case.

MURPHY, Chief Judge. At issue in this case is the constitutionality of § 216 of the Talbot County Charter which authorizes voter-initiated legislation upon petition of ten percent of the County’s registered voters. 1 In a declaratory judgment action, the Circuit Court for Talbot County (Wise, J.) found this provision of the charter to be violative of Article XI-A of the Maryland Constitution (the Home Rule Amendment) and enjoined placement of a direct legislative initiative involving a county detention center on the November 8, 1988 General Election ballot. By per curiam order dated October 7,1988, we affirmed that part of the court’s judgment. We now give our reasons for that determination. 1 On May 12, 1987, the County Council of Talbot County voted to locate a new County Detention Center at the so-called “car-wash” site in the Town of Easton, a location approximately 700 feet from the existing county jail.

A ³³⁷ number of citizens and community organizations expressed their disapproval of this site at a public meeting and by writing letters to the Council and to a local newspaper. The Council declined to change its decision. Thereafter, purporting to exercise their direct voter-initiative rights under § 216, the protesters gathered over 2,000 signatures in support of a bill to add a new subsection to the Talbot County Code to provide: “That no detention center, jail, or other correctional facility be constructed, and operated within five hundred (500) feet of a church, school, cultural building, library, recreational area, or residence.” 2 On June 17, 1988, the County Council and James M. Slay filed a declaratory judgment action in the Circuit Court for Talbot County naming the County Board of Supervisors of Elections (the local board) and the Maryland State Administrative Board of Election Laws (SABEL) as defendants. The plaintiffs sought to have § 216 declared unconstitutional as in violation of Article XI-A of the Maryland Constitution, to have the initiative declared void, and to enjoin SABEL and the local board from placing the initiative on the ballot.

Earlier, the Political Action Committee of Ward Four, an unincorporated association, and Gerald Gibson sued the County Council, seeking a declaratory judgment as to their rights and remedies with respect to the site of the proposed new jail, its construction, and the legality of the expenditure of taxpayer funds for the jail. The suit also sought to enjoin the County Council from entering into any contract for the construction of the new jail. On July 1, 1988, the County Council and Slay filed an amended complaint naming, as additional defendants, the Political Action Committee of Ward Four, Gerald Gibson, and John A. Henry (the private defendants). The amended complaint identified the Political Committee as composed of registered voters and taxpayers actively engaged in furthering the aims of the ³³⁸ detention center initiative.

It identified Gibson as the Committee’s Treasurer, a signatory to the initiative petition, one of the individuals primarily responsible for the circulation and filing of the petition, and a plaintiff in the aforementioned suit against the Council. Henry was also identified as a signatory to the petition and an active proponent of its purpose. SABEL and the private defendants each moved to dismiss the action filed against them, claiming that the issue sought to be adjudicated by the County and Slay was not justiciable for lack of a proper adverse party. Both motions were denied.

Thereafter, the County and Slay and the private defendants each moved for summary judgment. On August 23, 1988, the circuit court issued a declaratory judgment, holding § 216 of the charter to be unconstitutional under Cheeks v. Cedlair Corp., 287 Md. 595 , 415 A.2d 255 (1980), and enjoining placement of the initiative on the ballot. SABEL and the private defendants appealed. We granted certiorari prior to decision by the Court of Special Appeals to consider the important questions raised in the case.

IL The Maryland Uniform Declaratory Judgments Act, Maryland Code (1973, 1984 Repl.Vol.) § 3-401 et seq. of the Courts and Judicial Proceedings Article, provides in § 3-409(a) that: “... a court may grant a declaratory judgment or decree in a civil case, 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.” ³³⁹ We have said time and again that the existence of a justiciable controversy Is an absolute prerequisite to the maintenance of a declaratory judgment action. See Boyds Civic Ass'n v. Montgomery County, 309 Md. 683, 689 , 526 A.2d 598 (1987); Hatt v. Anderson, 297 Md. 42, 45 , 464 A.2d 1076 (1983). As we observed in Boyds, 309 Md. at 690 , 526 A.2d 598 , a justiciable controversy is one where there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded. SABEL and the private defendants argue that the circuit court erred in not dismissing the case for lack of justiciability.

We disagree. Justiciability encompasses a number of requirements. See Reyes v. Prince George's County, 281 Md. 279, 288 , 380 A.2d 12 (1977). For example, the issue presented to the court must be “ripe” for decision; a court should not decide moot, theoretical or abstract questions.

Hamilton v. McAuliffe, 277 Md. 336 , 353 A.2d 634 (1976); Liss v. Goodman, 224 Md. 173 , 167 A.2d 123 (1961); Davis v. State, 183 Md. 385 , 37 A.2d 880 (1944). Moreover, the plaintiffs must have standing to bring the suit Montgomery County v. Board of Elections, 311 Md. 512 , 536 A.2d 641 (1988); Citizens P. & H. Ass’n v. County Exec., 273 Md. 333 , 329 A.2d 681 (1974). And there must be an “actual controversy” which exists between the parties. § 3-409(a)(1). SABEL and the private defendants contend that the “wrong plaintiffs” are suing the “wrong defendants.” The Council, they argue, is an improper plaintiff because it is bound to uphold the County Charter and because the legality of a presumptively valid charter provision cannot be attacked by the political subdivision which enacted it, citing Harford County v. Schultz, 280 Md. 77, 85 , 371 A.2d 428 (1977).

They further claim that Slay, who Is a taxpayer and registered voter of Talbot County, has no standing to sue because he is the County Attorney of Talbot County and, as such, may not attack the validity of a charter provision. Harford County v. Schultz, supra, involved a challenge by the County to a charter amendment which had been ³⁴⁰ proposed by the Harford County Council. Noting that the County’s rights, status, or other legal relations had not been adversarily affected by its own deliberately intended enactment of an amendment to its own charter, we dismissed the case for want of justiciability. 280 Md. at 87 . In the present case, the County Council and Slay attack a charter provision which was enacted in 1973 by the Talbot County Charter Commission and subsequently approved by the County’s voters.

As we noted in Schultz , in the usual case the County defends an attack on a charter provision. 280 Md. at 86 , 371 A.2d 428 . Here, the Council claims that it cannot be expected to defend a charter provision which it did not enact and which totally undermines its constitutional authority under the Home Rule Amendment to be the primary legislative body in Talbot County. Since the focus of the Council’s constitutional attack is upon § 216 of the County Charter, it urges that it had the requisite standing to maintain the declaratory judgment action. As to Slay’s standing to bring the action, the private defendants point out that under § 402(b) of the charter, the County Attorney is “the chief legal officer of the County, conducts all the law business of the County and is the legal advisor ... for the Council”; and that he is required to represent the County “in all legal action in which the County is a party.” 3 SABEL and the private defendants rely on State v. Burning Tree Club, 301 Md. 9 , 481 A.2d 785 (1984) to support their argument that a County Attorney may not maintain a suit which challenges the validity of a charter provision.

In Burning Tree, the Attorney General of Maryland instituted a declaratory judgment action challenging the constitutionality of a state statute. We determined that the Attorney General, who brought the suit in his official capacity, lacked standing to challenge the ³⁴¹ statute as he was under no duty to administer it and therefore was not placed in the “dilemma” of administering an unconstitutional statute. 301 Md. at 25 , 481 A.2d 785 . We also held that the Attorney General had no common law powers to challenge state statutes even when such action was in the public interest, and that the Attorney General “ordinarily” has a duty to defend a state statute’s validity. Id. at 34, 36 , 481 A.2d 785 .

A home rule county charter is a local constitution, Ritchmount Partnership v. Board, 283 Md. 48 , 388 A.2d 523 (1978), and the role of the County Attorney is therefore somewhat analogous to that of the Attorney General. However, Burning Tree is not applicable in this case because Slay has brought this action, not in his official capacity, but as an individual citizen and taxpayer. The circuit court so found, concluding that Slay’s status as County Attorney (a part-time position) “would not work a forfeiture of Ms voting and citizenship rights.” We agree with the circuit court that, in the circumstances of this case, Slay’s rights as a citizen and taxpayer are not negated by his position as County Attorney. SABEL and the private defendants argue in the alternative that even if Slay is acting in his individual, rather than official capacity, he has not shown sufficient damage to maintain taxpayer standing.

Slay asserted in the complaint that the expenditure of public funds to place the invalid and void initiative on the ballot could result in increased taxes or other pecuniary loss to him. Slay’s claim is almost identical to that of the taxpayer-plaintiff in Sun Cab Co. v. Cloud, 162 Md. 419 , 159 A. 922 (1932). In that case, the plaintiff alleged that the proposed referendum was void because many of the signatures on the petition were forged or invalid. He claimed standing to sue based on the fact that he and other taxpayers would be “put to wrongful expense for the publication of the referendum and the printing of it on the ballots of the next general election.” Id. at 422 , 159 A. 922 .

In finding the requisite ³⁴² taxpayer standing, we said, at 426-27, 159 A. 922 , that “according to the settled practice, taxpayers interested in avoiding the waste of funds derived from taxation which would be involved in conducting [a] void referendum may make application to the court for the remedy.” Other of our cases hold that the taxpayer need not allege facts which necessarily demonstrate that taxes will be increased; rather the test is whether the taxpayer reasonably may sustain a pecuniary loss or a tax increase, i.e., whether there has been a showing of potential pecuniary damage. See State v. Burning Tree Club, Inc., 315 Md. 254, 292 , 554 A.2d 366 (1989); Inlet Associates v. Assateaque House, 313 Md. 413, 441 , 545 A.2d 1296 (1988); Citizens P. & H. Ass’n v. County Exec., 273 Md. 333, 338-343 , 329 A.2d 681 (1974). The amount of the potential pecuniary loss is irrelevant. Citizens, supra, 273 Md. at 344 , 329 A.2d 681 .

The damages alleged by Slay in this case are essentially the same as those alleged in Sun Cab Co. Therefore, we hold that Slay has satisfied the taxpayer-standing test by showing a potential pecuniary loss if the initiative was placed on the November 8, 1988 ballot. Because Slay has standing as a taxpayer, and the case could proceed with Slay as the only plaintiff, we need not determine whether the County also has standing to bring the suit. See Montgomery County v. Board of Elections, 311 Md. 512, 516, n. 3 , 536 A.2d 641 (1988), a case involving two proposed charter amendments where a taxpayer sought a declaratory judgment that the amendments were invalid and an injunction prohibiting placement of the proposals on the ballot. There, the lower court had ruled that the County Executive, also a plaintiff, lacked standing to sue; we declined to consider the issue because the taxpayer’s standing by itself was sufficient.

To the same effect, see State’s Atty v. City of Balto., 274 Md. 597, 602 , 337 A.2d 92 (1975). SABEL and the private defendants also assert that they are the “wrong defendants,” i.e., that there is no “actual controversy” between them and the plaintiffs. The private defendants contend that they have no interest in upholding ³⁴³ and no legal duty to defend the constitutionality of § 216. Similarly, SABEL maintains with reliance upon Harford County v. Schultz, supra, that it “has no interest one way or the other in the outcome of this proceeding.” 280 Md. at 85 , 371 A.2d 428 .

Both argue, in essence, that the requirements of § 3-409 of the Courts Article as to justiciability have not been satisfied and that the case must be dismissed. It is clear that a defendant in a declaratory judgment action must possess the “... right, authority, or power to place the plaintiffs rights in jeopardy. In other words, the opposition to the plaintiffs demand must be by some one named a defendant who is legally competent to place the plaintiffs rights in jeopardy.” 1 W. Anderson, Actions for Declaratory Judgments 58 (1951). The private defendants, in exercising their purported rights under § 216 of the County Charter, have placed the plaintiffs’ interests in jeopardy, for their actions challenge the Council’s role as the primary legislative body in Talbot County.

The private defendants qualify under § 8-409(a)(3) as adversary parties who have a “concrete interest” in the rights afforded to them under § 216. Their activities in this regard threaten the legal status and/or rights of the Council and Slay as a taxpayer. The private defendants are not, therefore, uninterested in championing the constitutionality of § 216, for they have asserted rights afforded to them under that section to initiate legislation. There is no requirement in the Declaratory Judgments Act that the private defendants have a legal duty to defend the case, or that for purposes of determining justiciability, no injunctive or other affirmative relief was prayed against them (the prayer for injunction being directed only against the local board and SABEL which controlled the local election machinery).

The private defendants have presented a spirited defense of the constitutionality of § 216,