Save Our Streets v. Mitchell

ORDER (Save Our Streets v. Mitchell) For the reasons to be stated in an opinion later to be filed, it is this 29th day of September, 1998, ORDERED, by the Court of Appeals of Maryland, that the judgment of the Circuit Court for Montgomery County enjoining the Board of Supervisors of Elections for Montgomery County from printing the proposed “Speed Bump” Amendment to the Montgomery County Charter on the official ballots to be used for the November 3rd, 1998 General Election is affirmed. Costs to be paid by appellants; mandate to issue forthwith. ORDER (Hiter v. Harford County) For reasons to be stated in an opinion later to be filed, it is this 29th day of September, 1998, ORDERED, by the Court of Appeals of Maryland, that that part of the judgment of the Circuit Court for Harford County enjoining the Board of Election Supervisors of Harford County from placing on the ballot the proposed referendum to add section 710 and section 711 to the Harford County charter is affirmed. As to this part of the Judgment a mandate shall be issued forthwith; costs to be paid by the appellants.

ELDRIDGE, Judge. These cases involve the validity of charter amendments proposed, pursuant to Article XI-A, § 5, of the Maryland Constitution, by petitions of the voters of Montgomery and Harford Counties respectively. 1 This opinion sets forth the ²⁴⁰ reasons underlying this Court’s orders of September 29, 1998, affirming injunctions issued by the Circuit Courts for Montgomery and Harford Counties which enjoined the Counties’ Boards of Election Supervisors from placing the proposed charter amendments on the ballots for the 1998 general election. l — l As this opinion encompasses two distinct appeals, the facts and procedural history of each case are set forth separately. A. In the summer of 1998, an organization called Save Our Streets submitted to the Board of Supervisors of Elections for Montgomery County a petition to place a proposed amendment to the Montgomery County Charter on the ballot for the general election to be held on November 3, 1998. 2 The Board of Election Supervisors reviewed the petition and found that it contained the requisite number of signatures. 3 The proposed amendment would have amended § 311 of the Montgomery ²⁴¹ County Charter by prohibiting the expenditure of county funds to install or maintain speed bumps on county roads and streets. In addition, the proposed amendment would have required the removal of any previously installed speed bump within one year of the amendment’s effective date, unless seven of the nine county council members approved the retention of the bump subsequent to a public hearing on the issue.

On September 9, 1998, Douglas Mitchell and several other individuals filed in the Circuit Court for Montgomery County a complaint seeking a declaratory judgment and injunctive relief. The plaintiffs alleged that the charter amendment proposed by Save Our Streets was unconstitutional and that, therefore, the Board of Election Supervisors should be enjoined from placing the amendment on the general election ballot. The case was tried before the Circuit Court on September 22, 1998. At the conclusion of the trial, the Circuit Court declared that the “proposed Speed Bump Amendment” was “contrary to Article XI-A of the Maryland Constitution” and enjoined the Board of Election Supervisors from placing the proposed amendment on the general election ballot.

Save Our Streets and the Board of Election Supervisors immediately noted appeals to the Court of Special Appeals. On September 23, 1998, prior to any proceedings in the Court of Special Appeals, this Court issued a writ of certiorari. Save Our Streets v. Mitchell, 351 Md. 284 , 718 A.2d 233 (1998). B. On August 10, 1998, an organization named Friends of Harford County, Inc., submitted to the Board of Supervisors of Elections of Harford County a petition to place a proposed amendment to the Harford County Charter on the 1998 general election ballot. 4 The Board of Election Supervisors ²⁴³ reviewed the petition and found that it contained the requisite number of signatures.

The proposed amendment would have added new sections pertaining to land-use planning and zoning, to be numbered §§ 710 and 711 of Article VII of the county charter. The proposed new § 710, entitled “Adequate Public Facilities,” would have established various adequacy standards for “increased or more intensive use or development of public and/or private property” in the County. To implement these standards, § 710 would have imposed a one-year moratorium on approval by the County of any development proposal. The moratorium would have been comprehensive, including, inter ²⁴⁴ alia, prohibitions on the issuance of building permits and grading permits as well as approval of subdivision plats and site plans.

After the one-year moratorium would have expired, § 710 would have prohibited any development that did not meet the adequacy standards. These standards concerned school capacity for residential development and capacity regarding roads, police, fire, and emergency medical response services, and recreational facilities and public open space for both residential and commercial development. Section 710 would have permitted exemptions to its limitations if a proponent of development could prove, by clear and convincing evidence,' that the proposed development would “not impact or affect the adequacy standards.” The proposed new § 711 would have granted standing, in any proceeding involving zoning, land ■ use, development or construction, to any community association representing property owners who own property within two miles of any property involved in a proceeding and to any non-profit corporation in the County formed to represent the interests of citizens relating to zoning, land use, or development. In addition, proposed § 711 would have entitled any such community association or non-profit corporation which prevailed in a proceeding to be reimbursed by the County for attorneys’ and experts’ fees.

To provide funds for such reimbursement, § 711 would have required the County Executive and Council to levy fees on the issuance of concept plans, preliminary subdivision plans, and grading and building permits. The proposed charter amendment was forwarded to the Harford County Council for the Council to decide on the language of the ballot question which would describe both sections of the amendment. On August 17, 1998, the Council voted for the specific wording to be used on the ballot. The approved language for the ballot question differed in several ²⁴⁵ respects from the original draft prepared for the Council by an assistant county attorney.

Two actions were filed in the Circuit Court for Harford County on September 18, 1998, challenging the propriety of placing the proposed charter amendment on the general election ballot. The first was a petition for a writ of mandamus filed by the Friends of Harford County, which alleged that the ballot description of the proposed amendment was misleading to the public and that the Council should be compelled to reinstate the original language prepared by an assistant county attorney. The second was an action for a declaratory judgment and injunctive relief filed by the Harford County Chamber of Commerce and several other plaintiffs against the Board of Election Supervisors, the County Council, and the County. The Chamber of Commerce alleged that the proposed charter amendment was invalid under Article XI-A of the Maryland Constitution and should not be placed on the general election ballot.

The trial of both cases was held in the Circuit Court on September 22, 1998, at which time the court granted appellant Grace Hiter’s motion to intervene as a party defendant in the action filed by the Chamber of Commerce. Ms. Hiter was coordinator of the petition drive for the Friends of Harford County and chairman of the Ballot Issue Committee organized to support the placement of the proposed amendment on the general election ballot. The Circuit Court on September 23, 1998, issued an extensive declaratory judgment, declaring that proposed §§ 710 and 711 were “legislative in nature” and therefore could not validly be included in the Harford County Charter. This declaration rendered moot the action filed by the Friends of Harford County to reinstate the ballot language as originally drafted.

The Circuit Court’s declaratory judgment, however, went on to discuss and rule upon the question of whether the Friends of Harford County would have had standing to maintain its action if the action were not moot. In addition to the declaratory judgment, the Circuit Court issued two orders. First, it ²⁴⁶ enjoined the Board of Election Supervisors from placing the proposed charter amendment on the ballot. Second, it dismissed as moot the action filed by the Friends of Harford County.

On September 24, 1998, Ms. Hiter timely noted an appeal to the Court of Special Appeals, and, on the same day, this Court issued a writ of certiorari. Hiter v. Harford County Chamber of Commerce, 351 Md. 284 , 718 A.2d 233 (1998). C. The oral arguments in both the Montgomery County and the Harford County appeals were heard by this Court on September 29, 1998. At the conclusion of oral arguments, we issued an order affirming the judgment of the Circuit Court for Montgomery County.

We also issued an order affirming that portion of the judgment of the Circuit Court for Harford County which enjoined the Board of Election Supervisors of Harford County from placing on the ballot the proposed §§ 710 and 711 charter amendment. We now shall set forth the reasons for these orders, and we shall dispose of the remainder of the appeal in the Harford County cases.

II

The plaintiffs attacked the proposed charter amendments in Montgomery and Harford Counties on essentially the same grounds. The plaintiffs argued that the proposed amendments contained legislative schemes and thus were not proper charter material under Article XI-A of the Maryland Constitution. 5 Relying on Board v. Smallwood, 327 Md. 220 , ²⁴⁷ 608 A.2d 1222 (1992), Griffith v. Wakefield, 298 Md. 881 , 470 A.2d 345 (1984), and Cheeks v. Cedlair Corp., 287 Md. 595 , 415 A.2d 255 (1980), the plaintiffs asserted that a charter amendment must address the “form and structure” of county government. They argued that a proposed charter amendment which is essentially local legislation in disguise exceeds the power of the voters to amend their county charter because the Maryland Constitution does not permit voters to initiate local legislation. 6 ²⁴⁸ The defendants, relying upon Smallwood , argue that charter amendments placing limits on governmental powers address the form and structure of county government and are valid under Article XI-A of the Constitution. They contend that the proposed amendments here involved place limitations upon governmental powers and, therefore, constitute proper charter material under our opinion in the Smallwood case.

This Court has “repeatedly explained that a county charter is equivalent to a constitution.” Smallwood, 327 Md. at 237 , 608 A.2d at 1230 . See Haub v. Montgomery County, 353 Md. 448, 450 , 727 A.2d 369, 370 (1999); Bd. of Election Laws v. Talbot County, 316 Md. 332, 341 , 558 A.2d 724, 728 (1989); Griffith v. Wakefield, supra, 298 Md. at 385 , 470 A.2d at 347-348 ; County Exec., Prince Geo’s Co. v. Doe, 291 Md. 676, 680 , 436 A.2d 459, 461 (1981); Cheeks v. Cedlair Corp., supra, 287 Md. at 606 , 415 A.2d at 261 ; Ritchmount Partnership v. Board, 283 Md. 48, 58 , 388 A.2d 523, 530 (1978), and cases there cited. Therefore, the “basic function” of a charter is “to distribute power among the various agencies of government, and between the government and the people who have delegated that power to their government.” Smallwood, 327 Md. at 237 , 608 A.2d at 1230 . As Chief Judge Murphy stated for the Court in Cheeks, 287 Md. at 607 , 415 A.2d at 261 : “A charter is thus a permanent document intended to provide a broad organizational framework establishing the form and structure of government in pursuance of which the ²⁴⁹ political subdivision is to be governed and local laws enacted.

It is the organic, the fundamental law....” Although § 6 of Art. XI-A of the Maryland Constitution reserves to the people of a charter county the power to amend the charter, this power is limited by §§ 2 and 3. See Cheeks, 287 Md. at 608-610 , 415 A.2d at 262 . Section 2 specifies that the General Assembly shall, “by public general law,” grant “express powers” to the governments of charter counties and that such powers “shall not be enlarged or extended by any charter formed under the provisions” of Article XI-A. 7 Section 3 provides that each charter county shall have a county council, which is “an elective legislative body in which shall be vested the law-making power” of the county. Section 3 of Article XI-A goes on to state that the county council shall have “full power to enact local laws ... upon all matters covered by the express powers granted” pursuant to § 2.

Therefore, in Cheeks , and again in Griffith, we “contrasted” the ability to adopt or amend a charter, which is the “power to organize a local government, reserved to the people of a charter county ... under Article XI-A,” with the power to enact legislation. Griffith, 298 Md. at 385 , 470 A.2d at 348 . In Cheeks , we explained in detail that the county council alone, and not the voters of the county, has the power to initiate local legislation. 287 Md. at 612-614 , 415 A.2d at 264-265 . Furthermore, we held that such legislative power cannot be exercised by means of an amendment to the charter ( 287 Md. at 607 , 415 A.2d at 261 ): “[A] charter amendment within the context of Art. XI-A is necessarily limited in substance to amending the form or structure of government initially established by adoption of the charter.

A charter amendment, therefore, differs in its fundamental character from a simple legislative enactment. ²⁵⁰ Its content cannot transcend its limited office and be made to serve or function as a vehicle though which to adopt local legislation.” Accordingly, in both Cheeks and Griffith, we invalidated “attempts by the voters to initiate detailed legislation through the guise of charter amendments.” Smallwood, 327 Md. at 289 , 608 A.2d at 1231 . In Smallwood , however, we upheld those portions of proposed charter amendments that were sufficiently fundamental in nature to be included in a charter. A brief review of the facts of each case illustrates the distinction between proposed charter amendments which delineate the basic form and structure of the local government and are, therefore, proper charter material, and those proposed charter amendments which are legislative in nature. Cheeks involved a proposed amendment to the Baltimore City Charter that would have established a tenant-landlord commission to implement a comprehensive system of rent control. 8 The proposed charter amendment prescribed “in lengthy detail, the powers and duties of the Commission in administering the system of rent control.” Cheeks, 287 Md. at 602 , 415 A.2d at 258 .

The Court held that the amendment was “essentially legislative in character” as it constituted an exercise of governmental power “in all respects similar to the enactment of a local law.” Cheeks, 287 Md. at 608 , 415 A.2d at 262 . Thus, we held that the proposed amendment was not proper charter material; rather, it was an attempt to “divest” the City Council of “its acknowledged ... power to legislate on the subject of rent control.” Cheeks, 287 Md. at 609 , 415 A.2d at 262 . In Griffith, we invalidated a proposed charter amendment to create a comprehensive system of collective bargaining and binding arbitration for Baltimore County and a single group of county employees, firefighters. The proposed amendment set ²⁵¹ forth a “complete and specifically detailed legislative scheme” that left “nothing for the determination of the ...

County Council.” 298 Md. at 386, 388 , 470 A.2d at 348, 349 . The “binding arbitration feature of the amendment” would have “divest[ed] the elected officials of Baltimore County of any discretion in reaching an agreement on ‘the wages, benefits, hours and working conditions’ of the fire fighters.” 298 Md. at 388 , 470 A.2d at 349 (quoting the proposed amendment). The Court held that the amendment was invalid because, like the proposed amendment in Cheeks , it was “ ‘essentially legislative in character.’ ” 298 Md. at 388 , 470 A.2d at 349 , quoting Cheeks, 287 Md. at 608 , 415 A.2d at 262 . In Smallwood , however, this Court upheld the facial validity of proposed charter amendments that would have placed a percentage cap on the amount by which the Anne Arundel and Baltimore County Councils could raise the local property taxes in their respective counties.

In explaining that such amendments were not essentially legislative in nature, we relied on a distinction that we had made previously in Griffith between proposed charter amendments that “ ‘authorize, or preclude, specified types of enactments by legislative bodies,’ ” and thus are ordinarily valid, and those that constitute specific legislative schemes, and thus are ordinarily invalid. 327 Md. at 239 , 608 A.2d at 1231 , quoting 298 Md. at 389 , 470 A.2d at 350 . Unlike the proposed amendments in Cheeks and Griffith, the proposed amendments in Smallwood were “not back-door attempts by the voters” to “enact detailed legislation.” 327 Md. at 240 , 608 A.2d at 1232 . The Court noted that they did not “divest the county councils of the ability to set the property tax rates.” Ibid. Instead, the proposed amendments “would have merely precluded a particular type of enactment by the legislative body.” Ibid.

The Smallwood opinion also pointed out that “[ljimitations imposed by the people on their government are fundamental elements of a constitution.” 327 Md. at 237-238 , 608 A.2d at 1230-1231 , and authorities there cited. The proposed amendments in Small-wood, were fundamental in nature because they “directly involved the relationship between the people and the govern ²⁵² ment by limiting the power of the government to tax.” 327 Md. at 237 , 608 A.2d at 1230 . Accordingly, we held “that a provision in a county charter placing restrictions upon the county council’s revenue raising authority is a fundamental aspect of the form and structure of government and thus is proper charter material.” 327 Md. at 241 , 608 A.2d at 1232 . It is important to stress that our holding in Smallwood was precisely phrased.

We did not state that any proposed charter amendment which is articulated as a limitation on governmental power is valid under Article XI-A. Nor did we state that the proposed amendments addressed in Smallwood were constitutional merely because they were expressed as limitations on governmental power. 9 Rather, they were constitutional limitations because they pertained to “a fundamental aspect of the form and structure of government.” 327 Md. at 241 , 608 A.2d at 1232 . The distinction between the fundamental, general nature of a charter and the specificity characteristic of county council legislative enactments authorized by a charter framework, is essential to the system of representative democracy provided for in Article XI-A of the Maryland Constitution. County charters are, in effect, constitutions for county governments,