McCrory Corp. v. Fowler

ELDRIDGE, Judge. Pursuant to the Maryland Uniform Certification of Questions of Law Act, 1 the United States District Court for the District of Maryland has certified to this Court the following two questions concerning a Montgomery County ordinance: “(1) Did enactment of Section 27-20(a) of the Montgomery County Code, which creates a private cause of action for employment discrimination entitling a claimant to sue for damages, injunctive or other civil relief, exceed the authority delegated to chartered home rule counties by the Express Powers Act, Md.Ann.Code art. 25A, Section 5 (1987)? “(2) If enactment of Section 27-20(a) did not exceed the authority delegated by the Express Powers Act, is it nevertheless invalid under Article XI-A, Section 3 of the Maryland Constitution because it conflicts with or is preempted by the laws and policies of the State as set forth in Article 49B of the Maryland Code?” The United States District Court further stated that “the form of the Court of Appeals’ response” should not be dependent on the above formulation of the questions, and that it “hopes that the Court of Appeals will feel free to render its opinion in the manner which it deems most appropriate.” ¹⁴ We hold that, although the Montgomery County ordinance is not preempted by Art. 49B of the Maryland Code, 2 nevertheless it is not a “local law” under Article XI-A of the Maryland Constitution. Thus, the Express Powers Act, Code (1957, 1987 Repl.Vol.), Art. 25A, did not and could not authorize Montgomery County to enact the ordinance. Robert Fowler, a white male, managed a store for McCrory Corporation.

Fowler alleged that one of McCrory’s managers told him not to hire any more black persons or persons under thirty-five years of age, and that when Fowler requested McCrory executives to repudiate this directive, they refused to do so. Thereafter, Fowler claimed, he was harassed and eventually constructively discharged in retaliation for his protest. Fowler brought an action for money damages against McCrory in the Circuit Court for Montgomery County, asserting a cause of action under 42 U.S.C. § 1981 and a common law cause of action for abusive discharge. At McCrory’s request, the case was removed to the United States District Court for the District of Maryland.

Fowler filed an amended complaint in the United States District Court, deleting the common law abusive discharge count and adding a count under § 27-20(a) of the Montgomery County Code, which creates a private cause of action to remedy violations of a county anti-employment discrimination ordinance. Fowler was granted leave to file a second amended complaint, in which he added a cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. McCrory filed a motion to dismiss the cause of action based upon § 27-20(a) of the Montgomery County Code, arguing, inter alia, that the section exceeds the authority delegated to chartered home rule counties. ¹⁵ Section 27-20(a) is part of a legislative scheme enacted by the Montgomery County Council to combat discrimination. Chapter 27, Article I, of the Montgomery County Code establishes the Montgomery County Commission on Human Relations and provides for its jurisdiction.

Sections 27-1 through 27-7B of Article I concern the administration, duties and procedures of the Commission. The remaining sections of Article I are divided into four divisions, with each division addressing a different area of discrimination: Places of Public Accommodation, Real Estate, Employment, and “Racial and Religious Intimidation.” This case involves the third division, employment, codified at §§ 27-17 through 27-26. Section 27-19(a) 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. Fowler contended that McCrory violated this section by engaging in unlawful employment discrimination based on race and age.

Section 27 — 19(b) prohibits retaliation against any person on account of that person’s lawful opposition to a violation of, inter alia, § 27-19(a). Fowler claimed that McCrory engaged in unlawful retaliation against him. Section 27-20(a) creates the cause of action at issue in this case: “Any person who has been subjected to any act of discrimination prohibited under this division shall be deemed to have been denied a civil right and shall be entitled to sue for damages, injunction or other civil relief, including reasonable attorney’s fees; provided, however, that no suit shall be commenced until forty-five (45) days after a complaint alleging such an act of discrimination has been filed with the commission____” In this suit under the above-quoted ordinance, Fowler is seeking over $1.8 million in compensatory and punitive damages. ¹⁶ Montgomery County has chartered home rule under Article XI-A of the Maryland Constitution. Article XI-A was proposed by Ch. 416 of the Laws of Maryland of 1914 and ratified by the voters on November 2, 1915.

The Article, known as the Home Rule Amendment, enabled counties, which chose to adopt a home rule charter, to achieve a significant degree of political self-determination. Its purpose was to transfer the General Assembly’s power to enact many types of county public local laws to the Art. XI-A home rule counties. See generally, e.g., Bd. of Election Laws v. Talbot County, 316 Md. 332, 344 , 558 A.2d 724 (1989); Griffith v. Wakefield, 298 Md. 381, 384 , 470 A.2d 345 (1984): Town of Forest Heights v. Frank, 291 Md. 331, 342 , 435 A.2d 425 (1981); Cheeks v. Cedlair Corp., 287 Md. 595, 597-598 , 415 A.2d 255 (1980). As the Court explained in State v. Stewart, 152 Md. 419, 422 , 137 A. 39, 41 (1927) (emphasis supplied): “The wisdom of incorporating in the organic law of the state such provisions as are contained in this article had been urged for a number of years prior to its adoption, the reasons assigned by its proponents being that a larger measure of home rule be secured to the people of the respective political subdivisions of the state in matters of purely local concern, in order that there should be the fullest measure of local self-government, and that these local questions should thus be withdrawn from consideration by the General Assembly, leaving that body more time to consider and pass upon general legislation, and to prevent the passage of such legislation from being influenced by what is popularly known as ‘log-rolling’; that is, by influencing the attitude and vote of members of the General Assembly upon proposed general laws by threatening the defeat or promising the support of local legislation in which a particular member might be peculiarly interested.” Sections 1 and 1A of Article XI-A empower Baltimore City and the counties of Maryland to adopt a charter form of local government.

Section 2 directs the General Assem ¹⁷ bly to provide a grant of express powers for charter home rule counties. The General Assembly followed that directive and enacted the Express Powers Act by Ch. 456 of the Laws of Maryland of 1918, codified as Code (1957, 1987 Repl.Vol.), Art. 25A. Section 3 of Article XI-A provides (emphasis supplied): “From and after the adoption of a charter by the City of Baltimore, or any County of this State, as hereinbefore provided, the Mayor of Baltimore and City Council of the City of Baltimore or the County Council of said County, subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said city or county ... upon all matters covered by the express powers granted as above provided____” Article XI-A “does not constitute a grant of absolute autonomy to local governments.” Ritchmount Partnership v. Board, 283 Md. 48, 56 , 388 A.2d 523, 529 (1978). This Court’s decisions and the above-quoted passage make it clear that the Home Rule Amendment limits the Montgomery County Council to enacting “local laws” on matters covered by the Express Powers Act.

Thus, it is first necessary to determine whether § 27-20(a) of the Montgomery County Code is a “local law.” 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.” As this Court has pointed out, “[a]part from that limitation, [Article XI-A] attempts no definition of the distinction between a local law and a general law, but leaves that question to be determined by the application of settled legal principles to the facts of particular cases in which the distinction may be involved.” Dasch v. Jackson, 170 Md. 251, 260 , 183 A. 534, 537-538 (1936). ¹⁸ In Steimel v. Board, 278 Md. 1, 5, 357 A.2d 386, 388 (1976), we stated that 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.’ ” Steimel, 278 Md. at 5 , 357 A.2d at 388 , quoting Cole v. Secretary of State, 249 Md. 425 , 240 A.2d 272 (1968). Moreover, the Court has held that “some statutes, local in form,” are “general laws, since they affect the interest of the whole state.” Cole v. Secretary of State, 249 Md at 434, 240 A.2d at 278 . Several decisions by this Court illustrate that laws, which may appear to be local in form, might not constitute “local laws” under Article XI-A. In Gaither v. Jackson, 147 Md. 655 , 128 A. 769 (1925), the Court held that a state statute providing for gubernatorial appointment of auctioneers in Baltimore City, with payment by the auctioneers of license fees and duties to the State, was not a “local law” under Article XI-A. The Court emphasized that “a law is not necessarily a local law merely because its operation is confined to Baltimore City or to a single county, if it affects the interests of the people of the whole state.” 147 Md. at 667 , 128 A. at 773 . The state law, which Baltimore city sought to repeal by ordinance, did not constitute a “local law affecting only the people of Baltimore City because it provides revenue for the whole State.” Ibid.

In Dasch v. Jackson, supra, 170 Md. 251 , 183 A. 534 , this Court held that a state statute concerning the licensing of paper hangers in Baltimore City was not a “local law” within the meaning of Article XI-A. The statute imposed “taxes or fees designed to produce a surplus payable into the general funds of the State ... and to that extent affects to some extent the people of the whole State.” 170 Md. at 261 , 183 A. at 538 . Furthermore, the statute affected “the right of persons not residing in the City of Baltimore as well as the right of . persons residing within that city to ¹⁹ engage in the business of paper hanging in Baltimore City, either as contractors or journeymen.” Ibid. Norris v. Baltimore, 172 Md. 667 , 192 A. 531 (1937), involved a statute requiring the use of voting machines in Baltimore City. While the statute was only operative in Baltimore City, the Court held that it was not a local law under Art. XI-A, saying ( 172 Md. at 682 , 192 A. at 538 ): “[Although it is only effective within a limited area, it regulates the manner in which citizens of the state residing in that area may exercise rights which affect the citizens of the whole state; for, while it applies only to elections held in Baltimore, the result of elections held there may determine what persons are to administer the government of the state, what laws are to regulate the conduct of its inhabitants, who are to represent it in the national senate, and who is to serve as the chief executive of the nation.

It is not therefore