Porten Sullivan Corp. v. State

ADKINS, Judge. Among the several provisions of Article III, § 29 of the Maryland Constitution is the declaration that “every Law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title.” This case involves the “one-subject” mandate. We shall hold that Chapter 244, Acts of 1989, violates that constitutional command. We shall further hold that the measure’s “ethics” provisions are severable from its “tax” provisions and that the latter survive the constitutionally required demise of the former.

I. Chapter 244 is an emergency measure that became effective 5 May 1989. Its legislative beginnings were modest: HB 889, designed to extend the life of a Prince George’s County energy tax, and HB 890, intended to do the same for a special transfer tax in Prince George’s County. In the Senate, however, the two uncomplicated and brief tax measures found themselves embodied in a greatly-amended version of HB 890 that also enacted extensive ethical regulations pertaining to the Prince George’s County Council. It was only after this metamorphosis that HB 890 became Chapter 244.

Section 1 of the Act (as printed in the session laws) consists of some four and one-half pages. Most of the first four pages contain what we shall designate the “ethics” portion of the statute. That portion chiefly adds a new subtitle 6 to Title 6 of Article 40A of the Maryland Code— ³⁹⁰ the Public Ethics Law. Subtitle 6 is applicable only in Prince George’s County, but within that geographical area, its provisions are far-reaching.

Subtitle 6 focuses on “applications.” Section 6-601(d) tells us that “Application” means application for: (1) A special exception or variance to a provision of a zoning regulation or ordinance; (2) An amendment to a zoning regulation or ordinance; (3) Approval of a site plan; or (4) An amendment to a master plan. Obviously, an “application” is made by an “applicant.” Section 6-601(c)(l) defines that word as (1) A title owner, contract purchaser, or lessee of land that is the subject of an application; (ii) A trustee that has an interest in land that is the subject of an application [with certain exceptions]; or (iii) A holder of any interest in a business entity that has an interest in land that is the subject of an application. Moreover, (2) “Applicant” includes: (i) The spouse or children of an applicant; or (ii) Any corporation, partnership, limited partnership, joint venture, or other business organization in which a person or entity, as defined under paragraph (1) of this subsection, holds an interest. With these definitions in mind, we proceed to the heart of subtitle 6, § 6-603: (a) During the 36-month period before the filing of an application, and during the pendency of an application, if a member of the County Council receives money, goods, ³⁹¹ or services from an applicant or [a broadly defined] agent of an applicant,[ 1 ] the County Council member: (1) Shall make a full public disclosure in writing of the money, goods, or services before any proceeding on the application; and (2) May not vote or participate in any way in the proceeding on the application.

(b)(1) At the time an application is filed, the applicant shall file an affidavit, under oath, that: (1) Discloses the name of any member of the County Council whose candidacy the applicant has promoted during the 36-month period preceding the filing of the application; or (ii) States that the applicant has not promoted the candidacy of any member of the County Council during the 36-month period. (2) If the applicant promotes the candidacy of any member of the County Council during the time that the application is pending, the applicant shall file an amended affidavit disclosing the name of the member or members whose candidacy was promoted. (3) At any time after an application is filed, any agent who has knowledge of any application that has been filed in which the agent has promoted the candidacy of any member of the County Council during the 36-month period preceding the filing of the application, shall file an affidavit, under oath, that discloses the name of the member of the County Council that the agent has promoted.[ 2 ] ³⁹² Various enforcement mechanisms are provided in addition to councilmanic disqualification and both councilmanic and applicant disclosure. Section 6-604(a)(l) allows the State Ethics Commission to seek court-enforced compliance.

Section 6-604(b) makes violation of subtitle 6 a misdemeanor. Section 6-604(a)(2) purports to authorize judicial abrogation of County Council action taken “in violation of this subtitle ... if the court deems voiding the action to be in the best interest of the public.”* * 3 The remaining half page of Section 1, plus some ten lines earlier on, contain the “tax” provisions which the title describes as extending the termination date applicable to a certain increase in the maximum allowable transfer tax in Prince George’s County [and] extending the termination date for the Prince George’s County energy tax. Three additional sections of the Act make the “ethics” provisions prospective only; authorize use of the transfer tax proceeds to fund the “ethics” provision; and declare the Act to be an emergency measure. The Act’s short title proclaims the measure to be AN ACT concerning Prince George’s County Council — Ethics and Taxing Authority. ³⁹³ As we have seen, Chapter 244 began its legislative life in considerably less comprehensive form.

House Bills 889 and 890, the seeds that ultimately flowered into this sweeping enactment, were sponsored by the Prince George’s County delegation, introduced on 2 February 1989, and referred to the Ways and Means Committee. A Prince George’s County energy tax, originally authorized by Chapter 700, Acts of 1987, was due to expire on 30 June 1989. House Bill 889 would have extended the authorization for that tax. A fiscal note pertaining to HB 889 indicates that “Prince George’s County revenues will be reduced by $24.7 million beginning in FY 90” should the bill not be enacted.

The revenue from the energy tax was devoted to the funding of public education. House Bill 890, in its introductory form, proposed to repeal the termination date of a .5 percent increase in the transfer tax in Prince George’s County. The transfer tax increase from 1 percent to 1.5 percent had been authorized by Chapter 151, Acts of 1984, but was to expire (by virtue of a previous extension granted by Chapter 538, Acts of 1987) on 1 July 1989. According to a letter from the Prince George’s County Executive and the chairwoman of the County Council to Prince George’s legislators, an additional five years with the .5 percent increase would generate $70 million.

Loss of that revenue would adversely affect education and public safety in the county, those two budgetary areas making up about 70 percent of the county budget. A fiscal note on HB 890 estimated that if the extra .5 percent remained in effect during FY 1990, the County would receive $13.4 million in revenues — revenues that would otherwise be lost. With the support of the Prince George’s County government as well as its House delegation, HBs 889 and 890 received favorable reports, with minor amendments, in the Ways and Means Committee. They passed the House of ³⁹⁴ Delegates on 6 March 1989, by a vote of 116-1.

On the following day they arrived in the Senate and were referred to the Budget and Taxation Committee. While HBs 889 and 890 were moving through the House, so was HB 891. This bill also was sponsored by the Prince George’s County delegation. It would have authorized the county, “by ordinance, to impose and provide for the collection of development impact fees for financing, in whole or in part, the capital costs of additional or expanded transportation projects required to accommodate new construction or development.” A fiscal note estimated “$2.5 to $3 million annually in new revenues from the imposition of impact fees.” House Bill 891 emerged from the Constitutional and Administrative Law Committee and passed the House of Delegates on 22 March.

In the Senate it was referred to the Finance Committee. During the week that HB 891 passed the House, newspapers reported that Walter H. Maloney, Esquire, a Prince George’s County lawyer (and now an appellee in this case), had attempted to disqualify five members of the Prince George’s County Council from voting on a zoning application. Maloney claimed that the applicant had been successful before the Council because it had donated $7,950 to Councilmembers. This situation seems to have attracted the attention of Prince George’s County Senators, for Senator Komenda, Chairman of the County’s Senate delegation, requested that committee action on HBs 889, 890, and 891 be deferred.

On 30 March Maloney appeared before the County Senators and explained his concerns about the conflict of interest problem. He also outlined sweeping proposed legislation that would require the sort of disclosure and council-manic disqualification eventually incorporated in Chapter 244. The County Senators decided to support extension of the energy tax for one year and the transfer tax increase for one year. This was to be done via HB 890, to which Maloney’s proposed “ethics” provisions were to be added.

House Bills 889 and 890 were rereferred to the County ³⁹⁵ Senators. House Bill 890 was amended as proposed by those Senators. House Bills 889 and 891 died. What had been essentially a one-page bill concerning “Prince George’s County — Transfer Tax” was now transmogrified into lengthy emergency legislation extending to “Prince George’s County Council — Ethics and Taxing Authority.” In that form, HB 890 passed the Senate on 6 April 1989, after suspension of the rules.

On 8 April, with but two days remaining in the 1989 session, a divided Prince George’s County House delegation endorsed the bill. It passed the House on 10 April, the last day of the 1989 session, and thus became Chapter 244. 4 II. The “ethics” component of Chapter 244 soon came to the attention of developers operating in Prince George’s County. Appellant Porten Sullivan Corporation (Porten Sullivan) is a Maryland corporation which sometimes is involved in zoning matters in Prince George’s County.

On 26 July 1989 (later joined by one of its employees, a resident of the County), it sued appellees, the State of Maryland (the State), Prince George’s County (the County), and various others. The complaint alleged that Chapter 244 violated the first amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights in numerous ways; the equal protection guarantees of the fourteenth amendment and Article 24 of the Maryland Declaration of Rights; Article III, § 29 of the Maryland Constitution; the Home Rule Amendment of Article XI-A of the Maryland Constitution; and the separation of powers required by Article 8 of the Declaration of Rights. Appellee Walter Maloney, a citizen, resident, taxpayer, and property owner in Prince George’s County, was permitted to intervene as a defendant. ³⁹⁶ After answers and cross-motions for summary judgment had been filed, the Circuit Court for Prince George’s County upheld Chapter 244 in all respects, denied all relief to Porten Sullivan and its employee, and granted the defendants’ motions for summary judgment. We granted Porten Sullivan’s petition for certiorari before any proceedings were had in the Court of Special Appeals and now reverse.

III

A. As we have indicated, we base our decision on the one-subject requirement included in Article III, § 29 of the Maryland Constitution. As to that, Porten Sullivan’s position is straightforward. The “tax” measures have been treated as subjects of separate legislation in the past. The “tax” provisions now contained in Chapter 244 have nothing to do with development control or ethics.

They are revenue measures the proceeds of which have been used to fund education, drug programs, and other needs of Prince George’s County. The special “ethics” portions of Chapter 244 have nothing to do with taxation or revenue raising. “It is simple sophistry to join, as one subject, ethics and taxing authority.” Brief for Appellant Porten Sullivan at 46. The State responds that the subject here is the management of public affairs in Prince George’s County. Moreover, it avers, measures like the transfer tax and the impact fees were opposed by developers because they discouraged growth.

They were supported by anti-growth citizens’ groups. The ultimate package was a compromise designed to address the general problem of development in Prince George’s County, through stringent ethics provisions combined with some revenue measures, but not the anti-growth impact fee. The County presents a variation on this theme, contending that the single subject of Chapter 244 is “the functions and duties of the Prince George’s County Council.” The ³⁹⁷ Act is not invalid, the County contends, merely “because it combines tax measures with an ethics program which may be funded with the proceeds of those taxes.” Maloney views the Act as a zoning reform measure to which a couple of tax provisions have been appended. Like the State, he insists that the single subject of the Act is “the management of public affairs in Prince George’s County, whether such affairs include taxes, zoning, or ethical behavior on the part of public officials.” We must review these contentions in light of the history of Article III, § 29, and our cases construing it.

We also look to the construction of similar provisions in the Constitutions of our sister states. B. The “one-subject” restriction of § 29 entered our Constitution in 1851, but perusal of the debates of the 1851 Constitutional Convention reveals little about the purpose of the provision. The one-subject requirement was included, with other language, in an amendment proposed by Mr. Stewart of Caroline County. 1 Debates and Proceedings of the Maryland Reform Convention to Revise the State Constitution 305 (1851). Mr. Stewart explained that “[i]n Louisiana, every law embraced one subject, and the object of the law was expressed in the title page.” Id. at 312.

But the discussion of his amendment centered on other aspects, particularly portions that, it was thought, would promote ease of access to the laws and reduction of confusion caused by lack of codification. Id. at 314. We learn little more from the proceedings of the 1864 and 1867 conventions. At each of them, the one-subject rule was included in the recommendations of the Committee on the Legislative Department (and in the Constitution eventually adopted) but at neither of them was it discussed. 1 The Debates of the Constitutional Convention of the State of Maryland 474 (Bayly 1864); Proceedings of the State Convention of Maryland to Frame a New Constitution ³⁹⁸ 107 (Colton 1867).

The 1967 Constitutional Convention Commission Report sheds a bit more light on the matter. Although the constitution drafted by the Constitutional Convention Commission (and in substance adopted by the Convention) was not ratified by the voters, § 3.15 of the draft document included the requirement that “[e]very law enacted by the General Assembly shall embrace only one subject, which shall be described in its title.” The Commission believed that the reasons for requiring a single subject and a descriptive title are still' valid and that the requirement is desirable. The absence of such a provision might in some instances make it necessary for a legislator to acquiesce in an undesirable bill in order to secure useful and necessary legislation. Report of the Constitutional Convention Commission 141 (1967).

One reason for the relatively limited discussion, in Maryland constitutional history, of the reasons for the single-subject rule may be that it is one that has been applied for centuries. During Roman times, there was a prohibition against proposing laws that contained more than one subject. Corwin, The “Higher Law” Background of American Constitution Law, 42 Harv.L.Rev. 149, 160 n. 36 (1928); Ruud, “No Law Shall Embrace More Than One Subject,” 42 Minn.L.Rev. 389, 389 (1958). Illinois was the first American state to deal with the problem of omnibus bills through constitutional means.

In 1818, it adopted a constitutional provision which “limited bills appropriating salaries for members of the legislature and for officers of the government to that subject.” Ruud, supra, at 389. Michigan was next to address the single-subject rule. In 1843, it “adopted a constitutional amendment limiting laws authorizing the borrowing of money or the issuance of state stock to a single object.” Id. at 390. In 1844, New Jersey became the first state to have a general constitutional provision addressing the one-subject rule.

Id. ³⁹⁹ As of 1982, “forty-one state constitutions provide[d] that an act shall not embrace more than one subject or object.” Sutherland Statutory Construction § 17.01 (4th ed. 1985). Many states recognize that a purpose of the one-subject rule is “to prevent ‘riders’ from being attached to bills that are popular and so certain of adoption that the rider will secure adoption not on its own merits, but on the merits of the measure to which it is attached.” Ruud, supra, at 391. See, e.g., Gellert v. State, 522 P.2d 1120, 1122 (Ala.1974) (purpose of one-subject requirement is to prevent logrolling); Floridians Against Casino Takeover v. Let’s Help, 363 So.2d 337, 339 (Fla.1978) (single-subject rule allows people to express separate approval or disapproval of statutory sections); Kane County v. Carlson, 116 Ill.2d 186, 214 , 107 Ill.Dec. 569, 580 , 507 N.E.2d 482, 493 (1987) (purpose of rule is to prohibit combining of provisions which on their own may not have enough support to pass); Jackson v. State, 194 Ind. 248, 252 , 142 N.E. 423, 424 (1924) (purpose of single-subject provision includes preventing passage of law based on strength of unrelated measure); Garten Enterprises, Inc. v. Kansas City, 219 Kan. 620, 622 , 549 P.2d 864, 867 (1976) (single-subject requirement prevents “a matter of legislative merit from being tied to an unwanted matter ..., and [promotes] the lessening of improper influences which may result from intermixing objects of legislation in the same act which have no relation to each other”); Shrout v. Rinker, 148 Kan. 820, 822 , 84 P.2d 974, 976 (1938) (single-subject provision prevents “two or more unrelated subjects being covered in an act[,] so that members of the legislature [do not] feel that they should vote for a bill which contain[s] a provision to which they [are] opposed in order to secure the enactment of the bill with some provisions they consider[ ] important”); State v. Dooley, 261 La. 295, 308 , 259 So.2d 329, 333 (1972) (one purpose of single-subject rule is “so that a legislator will not for the purpose of voting on the bill have to weigh the validity of two objects foreign to each other”); Kelly v. Williams, 346 ⁴⁰⁰ S.W.2d 434, 436 (Tex.Civ.App. 1961) (prevention of “riders” is recognized purpose of Texas one-subject rule). An additional purpose of the single-subject rule is to “protect the integrity of the governor’s veto power.” Williams, State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement, 48 U.Pitt.L.Rev. 797, 809 (1987).

In Brown v. Firestone, the Supreme Court of Florida said that a purpose of the one-subject rule is to prevent “a practice under which the legislature could include in a single act matters important to the people and desired by the Governor and other matters opposed by the Governor or harmful to the welfare of the state, with the result that in order to obtain the constructive or desired matter the Governor had to accept the unwanted portion. The veto power of the chief executive [would] thereby [be] severely limited if not destroyed and one of the intended checks on the authority of the legislature [would be] able to be negated in practice.” 382 So.2d 654, 663-664 (Fla.1980) (quoting Green v. Rawls, 122 So.2d 10, 13 (Fla.1960)). See House Bill No. 1353, 738 P.2d 371, 372 (Colo.1987) (single-subject rule “enables governor to consider each single subject of legislation separately and independently in determining whether to exercise his veto power”); Turner v. Wright, 11 Ill.2d 161, 172 , 142 N.E.2d 84, 90 (1957) (“by limiting the contents of a bill to a single subject it outlaws legislative ‘riders,’ and so protects the veto power of the Governor against encroachment”); Commonwealth v. Barnett, 199 Pa. 161, 171-172 , 48 A. 976, 977 (1901) (“by joining a number of different subjects in one bill the governor was put under compulsion to accept some enactments that he could not approve, or to defeat the whole, including others that he thought desirable or even necessary”). The California Supreme Court has said that although it has not yet recognized any relationship between the one-subject rule and the governor’s veto power, “it cannot be denied that as a practical matter the broader the definition ascribed to the term ‘single subject’ ..., the more ⁴⁰¹ circumscribed is the Governor’s power to veto legislation.” Harbor v. Deukmejian, 43 Cal.3d 1078, 1094 , 240 Cal.Rptr. 569, 577-578 , 742 P.2d 1290, 1298-1299 (1987).

Like the courts of our sister states, this Court has explored the purpose of the single-subject provision of the Maryland Constitution. Our predecessors first discussed it in Davis v. State, 7 Md. 151 (1854). The case involved Chapter 200, Acts of 1854, and the rights of an inspector of ground black-oak bark. The Court held that the statute did not violate that portion of what was then Article III, § 17, which read: “Every law enacted by the legislature shall embrace but one subject, and that shall be described by the title.” To the Court, the object of this constitutional provision is obvious and highly commendable.

A practice had crept into our system of legislation, of engrafting, upon subjects of great public benefit and importance, for local or selfish purposes, foreign and often pernicious matters, and rather than endanger the main subject, or for the purpose of securing new strength for it, members were often induced to sanction and actually vote for such provisions, which if they were offered as independent subjects, would never have received their support. In this way the people of our State, have been frequently inflicted with evil and injurious legislation. Besides, foreign matter has often been stealthily incorporated into a law, during the haste and