Schaeffer v. Anne Arundel County

KARWACKI, Judge. This case involves a challenge to the procedures followed in connection with the enactment of an Anne Arundel County ordinance that became effective July 1, 1989. Robert C. Schaeffer, the appellant, is a taxpayer and resident of Anne Arundel County. He seeks to have the ordinance declared void ab initio due to an alleged defect in the timing of notices published in The Capital.

The issues presented are whether Appellant’s claim is barred by laches, whether Anne Arundel County complied with the required notice procedures, and whether voiding the ordinance would violate the Contracts Clause of the United States Constitution. I On September 10, 1993, Schaeffer filed a complaint for declaratory judgment and injunctive relief in the Circuit Court for Anne Arundel County, challenging the enactment of Anne Arundel County Bill No. 36-89 (“the ordinance”), as it amended certain provisions of the Anne Arundel County Retirement Plan for Appointed and Elected Officials. 1 In its answer, Appellee Anne Arundel County asserted, inter alia, laches as an affirmative defense. ⁷⁸ Joseph J. McCann, another appellee, filed a motion to intervene, asserting that (1) he, together with other, similarly-situated beneficiaries of the Anne Arundel County Retirement Plan for Appointed and Elected Officials, possessed a material and cognizable interest in the outcome of the case; 2 and (2) his interests were substantively distinct, if not adverse to, the interests of both Schaeffer and the County. The trial court granted McCann’s motion to intervene as a party defendant. In his answer, McCann also asserted laches as an affirmative defense.

All of the parties filed motions for summary judgment. After a hearing, Judge Eugene M. Lerner granted summary judgment in favor of the County and McCann, ruling that laches barred Schaeffer’s action. Schaeffer appealed that decision to the Court of Special Appeals. Before consideration of the case by the intermediate appellate court, we issued a writ of certiorari on our own motion to consider the following questions: (1) whether Schaeffer’s claims were barred by laches; (2) whether the County complied with the notice requirements of Maryland Const.

Art. XI-A, § 3; and (3) whether voiding the ordinance would violate the Contracts Clause of the U.S. Constitution. We shall answer the first question in the affirmative and affirm the judgment of the Circuit Court for Anne Arundel County. II Schaeffer contends that the County Council failed to publish notice of the proposed legislation as mandated by Art. XI-A, § 3, applicable to charter counties such as Anne Arundel, and that such a failure renders the legislation unconstitutional and void ab initio. Art. XI-A, § 3 provides that a chartered ⁷⁹ county council must publish “the title or a summary of all laws and ordinances proposed once a week for two consecutive weeks prior to enactment followed by publication once after enactment in at least one newspaper of general circulation in the county, so that the taxpayers and citizens may have notice thereof.” The County Council published the first notice in The Capital on May 8, 1989.

That notice contained an error in the positioning of the bill number, which was printed on the ■wrong line above the title and summary of the Bill. The notice was republished in proper form on May 10,1989, and on May 15, 1989, the final notice was published in the same paper. On the evening of May 15, 1989, the Council passed the proposed legislation, and the County Executive signed the bill into law on May 17, 1989. The enacted ordinance was advertised as required by Article XI-A, § 3 in The Capital on June 9, 1989.

Schaeffer argues that, because there was an error in the first notice, proper notice was given only five days prior to enactment. Even assuming that the May 8 notice was legally sufficient, he asserts that the County published notice less than fourteen days before enactment of the ordinance. The County responds first that the May 8 notice was indeed effective and, second, that the County did comply with Art. XI-A, § 3, because that section requires publication a set number of times, not for a particular duration. If, however, strict compliance is not found, the County contends that it substantially complied with the purpose of Art. XI-A, § 3 and gave sufficient notice.

In addition, the County asserts that Schaeffer’s claims are barred by laches. McCann also contends that laches bars Schaeffer’s action, as the complaint was filed more than four years after the enactment of the ordinance, and McCann and others relied in good faith on the benefits conferred by the ordinance. He points out that Schaeffer is not attacking the power of the County to adopt an ordinance such as that at issue here but is merely raising a defect in the enactment procedure. Pointing to numerous authorities from other jurisdictions, McCann urges ⁸⁰ us to distinguish procedural challenges for laches purposes.

Further, McCann asserts that benefits have accrued to and vested in McCann and other beneficiaries under the ordinance and that, under the Contracts Clause of the U.S. Constitution, the legislation may not be voided retroactively. Schaeffer responds to the laches argument by asserting that it does not apply when a plaintiff disputes the constitutionality of an ordinance. In effect, he contends that this ordinance is susceptible to attack at any time, without regard to laches. Ill As a threshold matter, we disagree with Schaeffer’s assertion that laches does not apply here.

The challenge in this case must be distinguished from a claim that the municipality had no power to enact an ordinance or that the ordinance is intrinsically void. Schaeffer contends that the ordinance is void due merely to a procedural defect in its enactment, -with no substantive objection to its validity, but adopting such a position would put all ordinances at risk of procedural challenges decades after enactment. At the latest, Schaeffer had constructive knowledge of any defect in enactment procedures when the notice of enactment was published on June 9, 1989. We cannot allow plaintiffs to take a “wait and see” approach to ordinances, challenging an ordinance many years after enactment on procedural grounds.

Laches remains applicable when a challenge to enactment procedures is involved with no substantive objection. See, e.g., Citizens for Responsible Gov’t v. Kitsap County, 52 Wash.App. 236, 239 , 758 P.2d 1009, 1011 (1988) (“an ordinance that is clearly a usurpation of power ... can be attacked at any time ... However, defects and irregularities in the mode of enactment of an ordinance do not pertain to the nature of the ordinance itself.... [CJhallenges to such defects may be precluded by ... laches.”); Benequit v. Borough of Monmouth Beach, 125 N.J.L. 65, 68 , 13 A.2d 847, 849 (1940) (“Assuming that the ordinance was not published in a qualified newspaper, such ⁸¹ irregularity was merely procedural and the prosecutrix ... was guilty of laches which bars her right to complain.”). 3 Choosing the applicable measure of impermissible delay for cases where an equitable remedy is sought is most straightforward in cases when there are concurrent legal and equitable remedies and the applicable statute of limitations for the legal remedy is equally applicable to the equitable one. See Rettaliata v. Sullivan, 208 Md. 617, 621 , 119 A.2d 420, 422 (1956); Dugan v. Gittings, 3 Gill 138, 161-62 (1845).

Schaeffer’s cause of action finds its origin in Baltimore v. Gill, 31 Md. 375 (1869), where we held that a taxpayer may bring an action in equity to enjoin an illegal or ultra vires act by a municipality or other political unit which would result in the expenditure of public funds. Id. at 395 . The damage sustained by the taxpayer is the potential increase in the amount of taxes to be paid by reason of the municipal acts. See Baltimore v. Employers’ Assoc. of Md., 162 Md. 124, 131 , 159 A. 267, 270 (1932).

In most cases involving an exclusively equitable remedy, we refer to the limitations period for the cause of action at law most analogous to the one in equity. “The authorities indicate that even when the remedy for a claimed right is only in equity, the period of limitations most nearly apposite at law will be invoked by an equity court, provided there is not present a more compelling equitable reason — such as fraud or other inequitable conduct which would cause injustice if the bar were interposed — why the action should not be barred.” Stevens v. Bennett, 234 Md. 348, 351 , 199 A.2d 221, 223-24 (1964) (citations omitted). See also Hall v. Barlow Corp., 255 ⁸² Md. 28 , 255 A.2d 873 (1969); Desser v. Woods, 266 Md. 696 , 296 A.2d 586 (1972); Bowie v. Ford, 269 Md. 111 , 304 A.2d 803 (1973). Generally, if there is no action at law directly analogous to the action in equity, the three-year statute of limitations found in Maryland Code (1974, 1989 Repl.Vol., 1994 Cum.Supp.), § 5-101 of the Courts and Judicial Proceedings Article will be used as a guideline. See Washington Suburban Sanitary Comm’n v. C.I. Mitchell & Best Co., 303 Md. 544, 562 , 495 A.2d 30, 39 (1985).

We explained this principle in Washington Suburban, a case in which developers brought an action seeking declaratory and injunctive relief against the collection of a “System Expansion Offset Charge” (“SEOC”) imposed by the Washington Suburban Sanitary Commission (“WSSC”). The developers contended that the WSSC lacked the authority to adopt the new charge and, in the alternative, that even if the WSSC had such authority, the charge as adopted was unreasonable and void. We held that the suit would not be barred by laches when the statute of limitations applicable to legal actions was analogized: “SEOC was first adopted June 13, 1979, to be effective July 1 of that year. Plaintiffs brought this suit on September 17, 1981.

On analogy to the general three-year statute of limitations applicable to actions at law, laches does not apply here. See Desser v. Woods, 266 Md. 696, 704 , 296 A.2d 586, 591 (1972).” Id. at 562, 495 A.2d at 39 . The WSSC had briefed the laches argument, and proposed that the analogy be drawn instead to the thirty-day limit for appealing certain actions of the WSSC to the Maryland Public Service Commission. We rejected that argument on the basis that the WSSC’s authority to adopt the SEOC was not subject to the jurisdiction of the Public Service Commission, and concluded that the correct analogy was to the general statute of limitations: “Where, as here, the claim under consideration properly invokes the original jurisdiction of the circuit court, the ⁸³ analogy for laches should not be to a time limit for initiating a special statutory administrative remedy applicable to a different theory of the case. “[AJnalogy is properly made to the three-year statute ...” Id. at 563 , 495 A.2d at 39 .

See also Payne v. Prince George’s County Dep’t of Social Servs., 67 Md.App. 327 , 507 A.2d 641 (1986). As Schaeffer’s claim is not analogous to an action at law with a special statute of limitations, we shall use the general three-year statute of limitations applicable to actions at law. The circuit court found that the latest possible date of accrual for this action was June 9,1989, the date of publication of the ordinance after enactment. Schaeffer’s claim was filed more than three years after that date and the trial court ruled that laches barred that equitable action.

Furthermore, unlike the defense of limitations in an action seeking a legal remedy, the defense of laches to the assertion of an equitable remedy must be evaluated on a case by case basis, as laches is an inexcusable delay, without necessary reference to duration in asserting an equitable claim. See Sinclair v. Weber, 204 Md. 324, 337 , 104 A.2d 561, 567 (1954); Connelly v. Connelly, 190 Md. 79, 84 , 57 A.2d 276, 278 (1948); Kaliopulus v. Lumm, 155 Md. 30, 38-39 , 141 A. 440, 444 (1928); Boggs v. Dundalk Realty Co., 132 Md. 476, 481 , 104 A. 45, 47 (1918); Lawson v. Mullinix, 104 Md. 156, 170-71 , 64 A. 938, 944 (1906); Sinclair v. Auxiliary Realty Co., 99