Sharp v. Howard County

RODOWSKY, Judge. Nestled among the farms and residences of the Glenelg area of Howard County is a private airstrip with a turf runway where two or three light aircraft are stored out of doors. Litigation of various sorts involving this airstrip, between its owners and its protesting neighbors, has continued for nearly twenty years. The case now before us is the latest zoning appeal.

Our concern here, however, is not with the merits. The issue on certiorari is whether the circuit court judge who heard this zoning appeal was required to recuse himself because, in 1973, he prepared restrictive covenants creating the airstrip. We conclude, as explained below, that the circuit judge should not have heard the appeal. The tale begins in 1971 or 1972 when C. Raymond Somerlock (Somerlock), an electrical engineer who holds a commercial pilot’s license, started actively to pursue his idea of acquiring a piece of property on which to build a residence and private airstrip.

He located in Glenelg forty-five available acres that he considered suitable for his goal. Sometime in 1972 Judge James Macgill had held in Masek v. Board of Appeals, Law No. A-5923 in the Circuit Court for Howard County, “that private aircraft landing fields ²⁰ were permitted as a matter of right under the Howard County zoning regulations.” Schaefer v. Levy, Law No. A-12605, slip op. at 1 (Cir.Ct. Howard County Oct. 14, 1985) (Memorandum opinion of Judge Morris Turk). 1 Within thirty days after the entry of judgment in the Masek case, a motion for reconsideration was filed under former Maryland Rule 625a, 9B Md.Code (1957, 1971 Repl.Vol.) 349. In early 1973 Somerlock and others jointly entered into a contract for the purchase of the forty-five acres. On September 13,1973, Judge Macgill granted the motion for reconsideration and revised his earlier opinion, “holding instead that private airstrips were not permitted by the Howard County zoning regulations.” Turk at 2. “Presumably unaware of this decision, the group which had contracted to purchase the land ... executed a Declaration of Covenants on September 21, 1973.” Id.

Those covenants were prepared by Raymond J. Kane, Jr., a member of the Maryland Bar practicing in Howard County. The covenants contemplate that the forty-five acres would be laid out in a row of eight lots, of approximately equal size, stretching east to west as depicted on an accompanying plat. The covenantors were the original grantees of the eight lots. The covenants contemplate that the grantees’ deeds will create an easement along the southernmost 150 feet of the eight parcels, and, in the covenants, the grantees declare that that easement “shall be used for the purposes of an airstrip and related uses and appurtenances.” The covenantors also agreed to share equally the cost of development and maintenance of the airstrip.

The covenants run with the land. Settlement of the acquisition of the forty-five acre subdivision was held on September 25, 1973. Subsequently, the ²¹ deeds and declaration of covenants were recorded in the Land Records of Howard County. Use of the airstrip commenced in early 1974.

Zoning enforcement officials of Howard County, relying on the ultimate holding in the Masek case, issued a cease and desist order in April 1974. In September of that year a new section was added to the Howard County zoning regulations permitting private airstrips if authorized by a special exception. “However, having not obtained such a permit, and in violation of the cease and desist order, the Covenantors continued using the airstrip from 1974 through 1976.” Turk at 4. The Circuit Court for Howard County (Macgill, J.) in December 1976 enjoined the owners of the eight lots from using their land for a private airstrip. “Between 1975 and 1977, the owners of all of the lots on several occasions applied for a special exception use permit. In each instance, their application was denied.” Turk at 4.

In September 1978 the airstrip owners applied to the Board of Appeals in Case No. 973-C for a special exception for a private airstrip, invoking a new zoning regulation that had been adopted in October of 1977. That application was denied. The owners appealed to the circuit court which ultimately remanded for reconsideration. That judgment was appealed to the Court of Special Appeals which affirmed in July 1982.

Lawton T Sharp Farm, Inc. v. Somerlock, 52 Md.App. 207 , 447 A.2d 500 , cert. denied, 294 Md. 622 (1982). Hearings resumed before the Board of Appeals in June 1983 pursuant to the remand. Meanwhile, Marvin and Mary Alice Schaefer, husband and wife (the Schaefers), had purchased one of the eight lots. They sought a judgment declaring the restrictive covenants to be invalid.

The opinion by Judge Turk of October 1985 sustained the validity of the covenants. That judgment appears not to have been appealed. The resumed hearings in BA 973-C resulted in the grant of a special exception for the private airstrip by the Board ²² of Appeals in the fall of 1983. That grant was appealed by protestants to the Circuit Court for Howard County where the special exception was affirmed.

That judgment was in turn appealed to the Court of Special Appeals which reversed and remanded with instructions to reverse the order of the Board of Appeals granting the special exception. Fiol v. Howard County Bd. of Appeals, 67 Md.App. 595 , 508 A.2d 1005 , cert. denied, 307 Md. 406 , 514 A.2d 24 (1986). The Court of Special Appeals based its reversal on the fact that the Schaefers had requested to withdraw their lot from the petition pending before the Board of Appeals. As a result, the Board could not grant the special use permit.

Fiol expressly disclaimed deciding whether the Schaefers’ withdrawal from the special exception petition breached the declaration of covenants and, if so, what remedies might be available. The remaining airstrip owners then sued the Schaefers for an injunction to compel them to comply with the covenants by signing a petition for a special exception. Levy v. Schaeffer [sic], No. 86-CA-3694 (Cir.Ct. Howard County May 11, 1987). Judge Raymond G. Thieme issued the injunction in May 1987, and the Schaefers appealed the judgment.

In July 1987 a petition for special exception, signed by all of the owners, including the Schaefers, was filed with the Board as BA 87-42E. While that petition was pending, the Schaefers’ appeal was heard and decided by the Court of Special Appeals which, in an unreported opinion, affirmed Judge Thieme’s injunction. Case No. BA 87-42E resulted in the grant of the special exception by the Board of Appeals in March 1989. Protesting property owners, Robert V.L. Sharp et al., the petitioners in this Court, appealed to the Circuit Court for Howard County.

The zoning appeal was assigned for hearing to Judge Raymond J. Kane, Jr. who, as a practicing attorney, had drafted the restrictive covenants in 1973. Judge Kane had been appointed a judge of the District Court of Maryland in ²³ 1977 and a judge of the Circuit Court for Howard County in 1982. Counsel for the protestants 2 respectfully requested that Judge Kane recuse himself. Counsel referred to Judge Kane’s prior representation of Somerlock “in the creation of covenants that bound several separately owned lots [and] actually created the easement of the airstrip right of way.” Counsel invoked and read from Maryland Rule 1231, the Maryland Code of Judicial Conduct, Canon 3C(l)(b).

It reads: “C. RECUSAL. (1) A judge should not participate in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness concerning it.” The protestants’ counsel disclaimed “implying that [Judge Kane] would be biased in any way.” Counsel for the airstrip owners took no position on the motion, opining that it was something which the court would have to decide for itself. The owners’ attorney pointed out that his clients would not suffer any prejudice from a decision on the motion one way or the other. Judge Kane assured counsel and the parties that he was not predisposed to rule for or against anyone.

He said that he did not recall the content of the covenants. He agreed that he had performed the professional service when reminded of it in a conversation with counsel for the parties in chambers, alerting him to the motion which would be made on the record. Judge Kane concluded that his “limited ²⁴ association with this property ... would [not] affect one iota [his] ability to preside in the case.” He did not believe that his having drawn up some covenants years ago “would even create [an] appearance of impropriety.” The recusal motion was denied. Judge Kane sustained the Board of Appeals in granting the special exception and the protestants appealed.

The Court of Special Appeals affirmed in an unreported opinion. One issue raised on appeal was the denial of the recusal motion. The Court of Special Appeals, focusing on the words “matter in controversy” in Canon 3C(l)(b), reminded the protestants “that it is the grant of the special exception by the Board, not the underlying covenants, which was the matter in controversy. As an attorney, Judge Kane had not sought the special exception from the Board.” The protestants petitioned this Court for the writ of certiorari which we granted, limiting the writ to the following question: “Where an attorney authors a legal document that binds a group of persons together in a common enterprise, may that attorney, after becoming a judge, preside over a case involving an appeal from an essential administrative approval given for the conduct of that enterprise?” Briefing and arguing as respondents in this Court are Howard County, Maryland and the owners of the airstrip, Enos C. Levy et al. The problem before us is the construction and application to the facts here of Canon 3C(l)(b).

The Canon’s general rule is stated in paragraph (1), namely that “[a] judge should not participate in a proceeding in which the judge’s impartiality might reasonably be questioned.” The remaining subparagraphs simply present specific illustrations of the general rule, without limiting the generality of its application. Thus, subparagraph (a) advises that the general rule applies where “the judge has a personal bias or prejudice concerning a party, or personal knowledge of ²⁵ disputed evidentiary facts concerning the proceeding.” Subparagraphs (c) and (d) deal with significant financial interest “in the subject matter in controversy” and with a judge’s relationship by marriage or blood to a party, counsel, or material witness. In the language of Canon 3, the issue here is whether Judge Kane “served as lawyer in the matter in controversy.” If so, the parties agree that recusal would be mandatory. I In accord with the consensus of the parties here, an apparent majority of courts interpret Canon 3C to require mandatory recusal in certain situations.

Leslie W. Abram-son, Judicial Disqualification Under Canon 3C of the Code of Judicial Conduct 10 (1986); see Los v. Los, 595 A.2d 381, 384 (Del.1991); In re Estate of Risovi, 429 N.W.2d 404 , 406-07 & n. 3 (N.D.1988) (applying a slightly different version of Canon 3C). These decisions may well be influenced by federal cases applying a statute which is derived from Canon 3C but which is drafted in clearly mandatory language. 28 U.S.C. § 455 (1988); see Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 , 108 S.Ct. 2194 , 100 L.Ed.2d 855 (1988). Canon 3C is also influenced by Canon 3D which reads: “Where recusal would be required by Canon 3C(l)(c) or Canon 3C(l)(d), the judge may disclose on the record the basis of the recusal.

If the lawyers, after consultation with their clients and independently of the judge’s participation, all agree on the record that the judge ought to participate notwithstanding the basis for recusal, the judge may participate in the proceeding.” By permitting the parties to waive disqualification under subsections (c) and (d), Canon 3D implies that waiver is not permitted under subsections (a) and (b). We agree that, if Judge Kane “served as [a] lawyer in the matter in controversy,” recusal would be mandatory. ²⁶ II Petitioners submit that the Court of Special Appeals’ application of Canon 3C(l)(b) was too narrow. They argue that the matter in controversy here is not the application for a special exception, but it is the airstrip itself. They argue that the covenants “served as the legal glue” which kept together the airstrip enterprise of eight contiguous landowners and that the covenants furnished the minimum acreage required for the special exception use.

Indeed, petitioners point out that Judge