State v. Falcon

Opinion by Watts, J. This case involves an alleged violation of the separation of powers doctrine. Specifically, the case concerns the allegation that the General Assembly usurped-the power of the Governor of Maryland by amending Md. Code Ann., Educ. (1978, 2014 Repl. Vol., 2015 Supp.) (“ED (2015)”) § 8-110(b), which governs the School Board Nominating Commission of Anne Arun-del County (“the Nominating Commission”) to, among other things, eliminate the ability of the Governor to appoint members to the Nominating Commission.

The Nominating Commission’s purpose “is to select nominees to be recommended to the Governor as qualified candidates for appointment to the Anne Arundel County Board of Education [ (“the School Board”) ].” Md. Code Ann., Educ. (1978, 2014 Repl. Vol., 2016 Supp.) (“ED (2016)”) § 3-110(b)(l)(ii). Before 2016, ED (2015) § 3-110(b)(2) provided that the Nominating Commission would consist of eleven members, five of whom were to be appointed by the Governor, and six of whom were to be appointed by various specified entities.

In 2016, through Chapter 35 of the 2016 Laws of Maryland (“Chapter 35”), the General Assembly amended, among other statutory provisions, ED (2015) § 3-110(b)(2), to increase the number of members of the Nominating Commission from eleven to thirteen, to eliminate the Governor’s ability to appoint five members, and to grant appointment authority to various specified entities for the resulting seven new appointments. See 2016 Md. Laws 600 -02 (Vol. I, Ch. 35, H.B. 172). In other words, the amendment to ED (2015) § 3-110(b)(2) changed the Nominating Commission from a body, some of whose members were appointed by the Governor, and some of whose members were appointed by various specified entities, to a body that is completely comprised of members who are ¹⁴² appointed by various specified entities other than the Governor.

Through Chapter 35, the General Assembly also ended the terms of the Governor’s five appointees to the Nominating Commission early, causing the appointments to terminate as of June 1, 2016. See id. at 605. Four of the five gubernatorial appointees filed suit in the Circuit Court for Anne Arundel County (“the circuit court”), contending that the General Assembly removed them from their positions as members of the Nominating Commission in violation of Article II, § 15 of the Maryland Constitution (Suspension and Removal of Officers) and Article 8 of the Maryland Declaration of Rights (Separation of Powers). The circuit court agreed and issued a preliminary injunction against implementation and enforcement of certain portions of Chapter 35, including those portions amending ED (2015) § 3-110(b)(2) to alter the membership and appointment process for members of the Nominating Commission and ending the terms of the current gubernatorial appointees on June 1, 2016.

The State of Maryland (“the State”) and Governor Lawrence J. Hogan, Jr. (“Governor Hogan”), Appellants, noted an appeal to the Court of Special Appeals, and, while the case was pending in that Court, filed in this Court a petition for a writ of certiorari. This Court granted the petition. The petition raises the issues of whether the circuit court erred in enjoining the implementation of portions of Chapter 35 by concluding that Chapter 35 violated Article II, § 15 of the Maryland Constitution and Article 8 of the Maryland Declaration of Rights, and by treating members of the Nominating Commission as “civil officers” within the meaning of Article II, § 15. We hold that the circuit court erred in issuing the preliminary injunction because Chapter 35 does not violate Article II, § 15 of the Maryland Constitution or Article 8 of the Declaration of Rights, but rather restructures or reconstitutes the Nominating Commission and prospectively changes the appointment process to grant appointment power to specified entities other than the Governor; and that terminating the terms of the gubernatorial appointees as part of the restructuring is per ¹⁴³ missible.

Given that Chapter 35 does not constitute a violation of Article II, § 15 of the Maryland Constitution or Article 8 of the Declaration of Rights, but instead restructures or reconstitutes the Nominating Commission, we need not reach the issue of whether members of the Nominating Commission are civil officers under Article II, § 15. BACKGROUND Statutory Background The Governor appoints members of the School Board, See ED (2016) § 3-110(a)(2). Prior to 2007, when a vacancy on the School Board occurred, the Anne Arundel County School Board Nominating Convention, a private association, submitted a list of nominees; and, as a matter of custom, the Governor usually appointed a School Board member from the list of nominees. In 2007, however, that process changed with the establishment of the Nominating Commission, through an amendment to Md. Code Ann., Educ.

(1978, 2006 Repl. Vol.) § 3-110. See 2007 Md. Laws 2700 (Vol. IV, Ch. 454, H.B. 1114).

From 2007 until 2016, ED (2015) § 3-110(b)(2) provided for the membership of, and appointments to, the Nominating Commission as follows: (i) The Commission consists of 11 members who shall be appointed in accordance with this paragraph. (ii) The Governor shall appoint five members, one from each legislative district that lies in whole or in part in Anne Arundel County. (iii) The County Executive of Anne Arundel County shall appoint one member from the county at large. (iv) The following organizations shall each appoint one member: 1.

The Teachers Association of Anne Arundel County; 2. The Annapolis and Anne Arundel County Chamber of Commerce; ¹⁴⁴ 3. The Anne Arundel County Council of Parent Teacher Associations; 4. The Anne Arundel County Community College Board of Trustees; and 5.

The Association of Educational Leaders (AEL). ED (2015) § 3—110(b)(3) provided for the designation of the chair of the Nominating Commission, as well as length of terms, as follows: (i) The Governor shall designate as chair of the Commission one of the five members appointed by the Governor under paragraph (2)(ii) of this subsection. (ii) The term of the chair of the Commission is 4 years. (iii) The Governor may reappoint the chair of the Commission for a second term.

(iv) The term of a member of the Commission is 4 years. ED (2015) § 3-110(b)(4) provided for staffing of the Nominating Commission as follows: “The Department of Legislative Services shall provide staff for the Commission.” ED (2015) § 3-110(b)(5) set forth the nomination process for the School Board, providing: Beginning January 1, 2008, for each nomination to the [School B]oard, the Commission shall submit to the Governor a list of nominees that contains: (i) At least two names for each vacancy; or (ii) If there are fewer than two applicants for a vacancy, the number of names that is equal to the number of applicants for the vacancy. ED (2015) § 3-110(a)(2) provided: “Except for the student member, the Governor shall appoint a member of the [School Bjoard from a list of nominees submitted by the ... Nominating Commission ... as provided in subsection (b) of this section.” A School Board member would then “serve for the remainder of the member’s term, ... subject to the approval or rejection of the registered voters of the county at the next general election.” ED (2015) § 3-110(c)(l).

In the general election, voters “vote[d] for the [School Board] member’s ¹⁴⁵ retention or removal.” ED (2015) § 3-110(c)(3)(i). ED (2015) § 3-110(c)(4) stated: “If the voters reject the retention of the member, or the vote is tied: (i) The position shall become vacant 10 days after certification of the election returns; and (ii) The member serves until a successor is appointed and qualifies.” (Paragraph breaks omitted). In other words, in the event of a rejection of retention or a tied vote on the retention of a School Board member, the position automatically became vacant, and the nomination process would begin again. In 2016, at the request of the Anne Arundel County Administration, House Bill 172 was introduced, proposing amendments to ED (2015) § 3-110(b).

See 2016 Md. Leg. Sess. H.B. 172 at 1 (First Reader), available at http://mgaleg.maryland. gov/2016RS/bills/hb/hb0172f.pdf [https://perma.cc/N2M5-ZWC 9]. As originally introduced on January 21, 2016, House Bill 172 sought to alter the membership of the Nominating Commission by allowing certain chambers of commerce to appoint a member of the Nominating Commission.

Specifically, House Bill 172 sought to: alter[ ] the membership of the [ ] Nominating Commission [] to provide that, beginning on a certain date and every certain number of years thereafter, one member shall be appointed by certain chambers of commerce on a rotating basis in a specified order; alter[ ] the term of the member appointed by a chamber of commerce; provid[e] for the termination of the term of a certain member of the Commission; and generally relat[e] to the membership of the ... Nominating Commission!.] Id. At that time, House Bill 172 proposed eliminating ED (2015) § 3-110(b)(2)(iv)(2), which provided that the Annapolis and Anne Arundel County Chamber of Commerce appointed one member to the Nominating Commission, in favor of a new subparagraph (b)(2)(v) that was to provide as follows: Beginning July 1, 2016, and every 2 years thereafter, one member shall be appointed by a chamber of commerce based in Anne Arundel County on a rotating basis in the following order: ¹⁴⁶ 1. The West Anne Arundel County Chamber of Commerce; 2.

The Northern Anne Arundel County Chamber of Commerce; 3. The Southern Anne Arundel Chamber of Commerce; 4. The Greater Crofton Chamber of Commerce; 5. The Greater Severna Park and Arnold Chamber of Commerce; and 6.

The Annapolis and Anne Arundel County Chamber of Commerce, 2016 Md. Leg. Sess. H.B. 172 at 2-3 (First Reader). The only other proposed amendment to ED (2015) § 3-110(b) was to decrease the term of a Nominating Commission member appointed by a Chamber of Commerce to two years, instead of four years.

See 2016 Md. Leg. Sess. H.B. 172 at 3 (First Reader). Later, House Bill 172 underwent substantial amendment.

See 2016 Md. Leg. Sess. H.B. 172 at 2-6 (Third Reader), available at http://mgaleg.maryland.gov/2016RS/ bills/hb/hb 0172t.pdf[https://perma.cc/H7YZ-SMS9], As amended, among other things, House Bill 172 eliminated the process by which the Governor appointed members to the Nominating Commission, established a process by which members of the Nominating Commission were to be appointed by various groups, and was to take effect on June 1, 2016, See id. at 2-4, 6. Significant to this case, Section 2 of House Bill 172 provided as follows: “That the terms of the members of the ...

Nominating Commission ,.. who were appointed by the Governor and are in office on the effective date of this Act shall terminate on June 1, 2016.” Id. at 6. The General Assembly passed the amended version of House Bill 172 and presented it to Governor Hogan for signature. Governor Hogan vetoed House Bill 172. In a letter to the Speaker of the House dated April 5, 2016, Governor Hogan explained the reasons for his veto, in pertinent part, as follows: ¹⁴⁷ On its face, House Bill 172 is unconstitutional because it only terminates the terms of the Governor’s members of the ...

Nominating Commission. This action by the [General Assembly] violates the separation of powers doctrine as outlined by the Court of Appeals in Schisler v. State, 394 Md. 519 [, 907 A.2d 175 ] (2006). While the General Assembly may change the appointment method of prospective members of a governmental body, it cannot abrogate the Governor’s authority under Article II, Section 15 of the Maryland Constitution by terminating his current appointees prior to the expiration of their terms. ... Section 2 of House Bill 172 ... provides for premature termination, ie., removal, of the Governor’s incumbent members, an improper reconstitution of the [Nominating] Commission that the Court of Appeals has found to be an unconstitutional “usurpation of executive power in violation of Article II, [Sections] 1, 9 and 15 of the Maryland Constitution” and a “violation of Article 8 of the Declaration of Rights of Maryland.” Schisler, 394 Md. at 596 [, 907 A.2d at 220 ].

Ultimately, the Governor’s appointees must remain in office until the end of their terms, unless terminated earlier by the Governor pursuant to Article II, Section 15 of the Maryland Constitution. 2016 Md. Leg. Sess. H.B. 172, Veto Letter (Apr. 5, 2016), available at http://mgaleg.maryland.gov/2016RS/veto_Jetters/ HB0172.pdf[https://perma.cc/F76M-8PC8] (fourth alteration in original). On April 7 and 8, 2016, the Maryland House and Senate, respectively, voted to override Governor Hogan’s veto, As a result, House Bill 172 became Chapter 35.

See 2016 Md. Laws 599 (Vol. I, Ch. 35, H.B, 172). Chapter 35’s stated purpose was as follows: FOR the purpose of altering the membership of the ... Nominating Commission ... ; requiring each member of the Commission to be a resident of Anne Arundel County; prohibiting, with a certain exception, a member of the Commission from being an employee of a county school board; altering the method of selecting and the term of the ¹⁴⁸ chair of the Commission; authorizing the reappointment of a member of the Commission; specifying the terms of certain members of the Commission; prohibiting a member of the Commission from serving more than a certain number of years; altering the entity required to provide staff for the Commission; requiring the affirmative vote of a certain number of members of the Commission for the approval of any action; prohibiting a member of the Commission from voting by proxy; requiring the Commission to require each applicant for a certain nomination to complete an application that includes certain information and a certain declaration; requiring the Commission to consult the Maryland Judiciary Case Search to verify certain statements; requiring a certain member of the [School] Board [ ] to resign effective a certain number of days after certification of certain election results; prohibiting a certain member of the [School] Board from continuing to serve under certain circumstances; providing for the termination of the terms of certain members of the Commission; and generally relating to the [School] Board [ ] and the ...

Nominating Commission^] Id. at 599-600 Section 2 of Chapter 35 provided that the terms of the Nominating Commission members whom the Governor had appointed would terminate on June 1, 2016. See id. at 605 . On June 1, 2016, Chapter 35 became effective, amending ED (2015) § 3-110(b) and (c). ED (2016) § 3-110(b)(2) and (3) provide for the membership of, and appointments to, the Nominating Commission as follows: (2) The Commission consists of the following 13 members: (i) Three members appointed by the County Executive of Anne Arundel County from the county at large: 1.

One of whom shall be a parent of a child enrolled in the Anne Arundel County public school system; and 2. No more than one of whom may be a current employee of Anne Arundel County; (ii) One member appointed by the Teachers Association of Anne Arundel County; ¹⁴⁹ (iii) One member appointed by the Annapolis and Anne Arundel County Chamber of Commerce; (iv) One member appointed by the Anne Arundel County Community College Board of Trustees; (v) One member appointed by the Association of Educational Leaders (AEL); (vi) Two members appointed by the Anne Arundel County Council of Parent Teacher Associations who may not: 1. Be affiliated with a teachers’ union or association; or 2. Be a current employee of Anne Arundel County; (vii) One member appointed by the Anne Arundel County Branch of the National Association for the Advancement of Colored People (NAACP); (viii) One member appointed by CASA de Maryland; (ix) One member appointed by the Anne Arundel Special Education Citizens’ Advisory Committee who is a parent of a child with special needs in the Anne Arundel County public school system; and (x) Beginning June 1, 2016, and every 2 years thereafter, one member appointed by a chamber of commerce based in Anne Arundel County on a rotating basis in the following order: 1.

The West Anne Arundel County Chamber of Commerce; 2. The Northern Anne Arundel County Chamber of Commerce; 3. The Southern Anne Arundel Chamber of Commerce; 4. The Greater Crofton Chamber of Commerce; and 5.

The Greater Severna Park and Arnold Chamber of Commerce. (3) (i) Each member of the Commission must be a resident of Anne Arundel County. (ii) Except for the members appointed under paragraph (2)(ii) and (v) of this subsection, a member of the Commission may not be a current employee of a county school board. ¹⁵⁰ To summarize, with Chapter 35, the General Assembly increased the number of members from eleven to thirteen; eliminated the Governor’s ability to appoint five members; enabled the County Executive of Anne Arundel County to appoint three members instead of one; enabled the Anne Arundel County Council of Parent Teacher Associations to appoint two members instead of one; enabled one appointment by each of the following: the Anne Arundel County Branch of the National Association for the Advancement of Colored People, CASA de Maryland, the Anne Arundel Special Education Citizens’ Advisory Committee, and one among a rotating list of the chambers of commerce of Anne Arundel County; and required that all members of the Nominating Commission be residents of Anne Arundel County. In short, the General Assembly created two new memberships, eliminated the Governor’s ability to appoint five members, allotted the resulting seven new appointments among various entities, and required that all members of the Nominating Commission be residents of Anne Arundel County.

ED (2016) § 3—110(b)(4) provides for the selection and term of the chair of the Nominating Commission as follows: “(i) The Commission shall select a chair from among its members, (ii) The term of the chair of the Commission is 2 years.” (Paragraph break omitted). Thus, the General Assembly removed the Governor’s ability to designate the chair of the Nominating Commission from among the gubernatorial appointees, and decreased the chair’s term from four years to two years. ED (2016) § 3—110(b)(5) provides for term lengths and term limits as follows: (i) Except as provided in subparagraph (ii) of this paragraph, the term of a member of the Commission is 4 years. (ii) The term of a member appointed by a chamber of commerce under paragraph (2)(x) of this subsection is 2 years.

(iii) A member may be reappointed but may not serve more than 8 years. ¹⁵¹ Thus, the General Assembly created an eight-year term limit on membership. ED (2016) § 3—110(b)(6) provides for staffing as follows: “The [School] Board [] shall provide staff for the Commission.” Thus, the General Assembly replaced the Department of Legislative Services with the School Board as the entity responsible for providing staff to the Nominating Commission. And, ED (2016) § 3-110(b)(7) and (8) provide for a super majority vote to take action, prohibit proxy voting, and set forth School Board nomination application requirements as follows: (7) (i) The affirmative vote of at least eight members of the Commission is required for the approval of any action. (ii) A member of the Commission may not vote by proxy.

(8) (i) The Commission shall require each applicant for nomination to complete an application that includes: 1. The full name and address of the individual; 2. Any former name used by the individual; 8. A statement as to whether the individual has any conviction for a crime that: A. Relates to the responsibilities of a member of the [School B]oard; and B. Has not been expunged or otherwise shielded; 4.

A statement as to whether the individual has been adjudged bankrupt or insolvent; and 5. A declaration that the statements made in the application are true, correct, and complete to the best of the individual’s knowledge and belief. (ii) The Commission shall consult the Maryland Judiciary Case Search to verify the statements made by the applicant under subparagraph (i) of this paragraph. These provisions are new—ie., they have no counterpart in ED (2015) § 8-110.

Like ED (2015) § 3-110(b)(5), ED (2016) § 3-110(b)(9) provides for the same nomination process for the School Board: ¹⁵² Beginning January 1, 2008, for each nomination to the [School B]oard, the Commission shall submit to the Governor a list of nominees that contains: (i) At least two names for each vacancy; or (ii) If there are fewer than two applicants for a vacancy, the number of names that is equal to the number of applicants for the vacancy. And, like ED (2015) § 3-110(a)(2), ED § 3-110(a)(2) provides that, “[efccept for the student member, the Governor shall appoint a member of the [School B]oard from a list of nominees submitted by the ... Nominating Commission ... as provided in subsection (b) of this section.” As to the terms of service of School Board members, like ED (2015) § 3-110(c)(l), ED (2016) § 3-110(c)(l) provides that, after appointment, a School Board member “serves for the remainder of the member’s term, ... subject to the approval or rejection of the registered voters of the county at the next general election.” And, like ED (2015) § 3-110(c)(3)(i), ED (2016) § 3-110(c)(3)(i) provides that, at the general election, voters shall “vote for the [School Board] member’s retention or removal.” ED (2016) § 3-110(c)(4), however, now provides: If the voters reject the retention of the member, or the vote is tied: (i) The position shall become vacant 10 days after certification of the election returns; (ii) The member shall resign from the [School B]oard effective 10 days after certification of the election returns; and (iii) The member may not continue to serve on the [School B]oard. As a result, ED (2016) § 3-110(c)(4)(ii) requires a School Board member who loses a retention election or who receives a tied vote in a retention election to resign, as opposed to serving until a successor is appointed, as required under ED (2015) § 3-110(c)(4)(ii).

As such, currently, in the event of a rejection of retention or a tied vote on the retention of a ¹⁵³ School Board member, the position automatically becomes vacant, the School Board member must resign, and the nomination process begins. This Case Governor Hogan appointed Jamie Falcon (“Falcon”), Appel-lee, to the Nominating Commission, effective July 1, 2015, for a term of four years, to serve until June 30, 2019. Governor Hogan also designated Falcon as the Chair of the Nominating Commission. Governor Hogan appointed Kam R. Gast (“Gast”), Susannah Warner Kipke (“Kipke”), and Joan Maynard (“Maynard”), Appellees, to the Nominating Commission, effective July 1, 2015, for terms of four years each, to serve until June 30, 2019.

On May 6, 2016—after the General Assembly voted to override Governor Hogan’s veto of House Bill 172 on April 7 and 8, 2016, but before Chapter 35 become effective on June 1, 2016—Falcon, Gast, Kipke, and Maynard, four of the five gubernatorial appointees to the Nominating Commission (together, “the Appointees”), filed in the circuit court a “Verified Complaint for Declaratory Judgment and for a Temporary Restraining Order and Preliminary and Permanent Injunctive Relief’ against the State. In the complaint, the Appointees contended that, through Chapter 35, the General Assembly removed them from their positions as members of the Nominating Commission in violation of Article II, § 15 of the Maryland Constitution (Suspension and Removal of Officers) and Article 8 of the Maryland Declaration of Rights (Separation of Powers). The Appointees argued that they are “civil officers” under Article II, § 15 and that the General Assembly had violated the separation of powers doctrine by usurping the Governor’s exclusive authority to remove civil officers whom the Governor had appointed, as established by Article II, § 15 of the Maryland Constitution, which provides, in relevant part, that “[t]he Governor ... may remove for incompetency, or misconduct, all civil officers who received appointment from the Executive for a term of years.” The Appointees noted that Chapter 35 removed only the gubernatorial appointees, not ¹⁵⁴ any other members of the Nominating Commission, and asserted that Chapter 35 did not reconstitute the Nominating Commission. As such, in the complaint, the Appointees sought a declaratory judgment that Chapter 35 violated Article II, § 15 of the Maryland Constitution and Article 8 of the Maryland Declaration of Rights.

The Appointees also sought injunctive relief in the form of: a temporary restraining order; a preliminary injunction preventing Chapter 35 from taking effect and preventing the State from implementing Chapter 35 during the pendency of the litigation; and a permanent injunction preventing Chapter 35 from taking effect and preventing the State from implementing Chapter 35 permanently. On May 10, 2016, the circuit court conducted a hearing on the request for a temporary restraining order, and on May 11, 2016, the circuit court entered an order denying the request for a temporary restraining order. On May 17, 2016, the State filed an opposition to the request for a preliminary injunction, contending that the Appointees were not entitled to declaratory or injunctive relief because the State had sovereign immunity, which it had not waived. The State further asserted that a plaintiff could bring suit for declaratory and injunctive relief only against the “specific government official who is responsible for action under the statute, not against the State itself.” (Citations and internal quotation marks omitted).

The following day, on May 18, 2016, the Appointees filed an amended complaint, naming Governor Hogan in his official capacity as an additional defendant, and alleging that Governor Hogan “is responsible for taking care that the Laws are faithfully executed.” 1 (Citation, brackets, and internal quotation marks omitted). On May 23, 2016, the circuit court conducted a hearing on the request for a preliminary injunction. After hearing argument from the parties, the circuit court granted the request ¹⁵⁵ for a preliminary injunction and ruled orally from the bench, in pertinent part, as follows: The Court just believes this is so similar to Schis[ ]ler, [ 394 Md. 519 , 907 A.2d 175 ,] the timing, the other facts, it appears the [G]eneral [Assembly is merely crafting a way to oust current members appointed by the Governor. Article 2 § 15, II, just it appears to the Court that it just completely violates the separation of powers.

And though the [State] argue[s] that there were substantive changes to the regulation aimed at reconstitution, the Court is just not satisfied that this is really the end goal of the [G]eneral [Assembly. The new process ... it really appears to the Court that this is the [General Assembly] finding a way to basically nominate whoever they want to the positions by doing through these groups. ... I just can’t get around the fact that [ ] it is only the five gubernatorial appointees. So, the Court does believe that they are [civil] officers. ...

So the role is not purely advisory, they play a key part in the appointment process. [[Image here]] The injunction is preliminary, I will grant it. I will order that the [Appointees] shall not be terminated from their position. I will order that the new board not take place without those five members of the Governor’s—who has previously been appointed to their term. I will require [the Appointees’ counsel] to prepare an order and submit it to the Court within two days.

On May 25, 2016, the Appointees submitted to the circuit court a proposed order that enjoined Chapter 35 in its entirety. On the same day, the State objected to the Appointees’ proposed order and submitted an alternative proposed order. The State contended that, even under the circuit court’s view of the law, many provisions of Chapter 35 did not raise separation of powers concerns, were severable, and should be permitted to go into effect. On May 27, 2016, the circuit court issued a brief memorandum, stating that it believed that the proposed order submitted by the State “most accurately re ¹⁵⁶ flect[ed] the holding and intention of the Court” and that it would sign that order.

As such, on May 27, 2016, the circuit court adopted and issued the State’s proposed order, which provided as follows: The [Appointees] have established they meet the requirements for preliminary injunctive relief: (1) the [Appointees] have established a likelihood of success on the merits, (2) the balance of convenience weighs in favor of the [Appointees], (3) the [Appointees] will suffer irreparable harm in the absence of a preliminary injunction, and (4) a preliminary injunction is in the public interest. It is likely that the [Appointees] will establish that the following provisions of 2016 Md. Laws ch. 35 (House Bill 172) violate Article 8 of the Maryland Declaration of Rights and Article II, § 15 of the Maryland Constitution: (1) 2016 Md. Laws ch. 35 (House Bill 172) § 2, providing that “the terms of the members of the ... Nominating Commission ... who were appointed by the Governor and are in office on the effective date of this Act shall terminate on June 1, 2016” and (2) those portions of 2016 Md. Laws ch. 35 (House Bill 172) § 1 that amend [ED (2015) ] § 3-110(b)(2) to alter the membership and appointment process for members of the ... Nominating Commission[.] Accordingly, it is the 27th day of May 2016, by the Circuit Court for Anne Arundel County, ORDERED that the Motion for Preliminary Injunction is GRANTED.

It is further ORDERED that, during the pendency of this litigation, implementation and enforcement of the following provisions of 2016 Md. Laws ch. 35 (House Bill 172) are enjoined, subject to further order of the Court: (1) 2016 Md. Laws ch. 35 (House Bill 172) § 2, providing that “the terms of the members of the ... Nominating Commission ... who were appointed by the Governor and are in office on the effective date of this Act shall terminate on June 1, 2016” and (2) those portions of 2016 Md. Laws ch. 35 (House Bill 172) § 1 that amend [ED (2015) ] § 3-110(b)(2) to alter ¹⁵⁷ the membership and appointment process for members of the ... Nominating Commission!!.] On May 31, 2016, the State noted an appeal to the Court of Special Appeals. On June 3, 2016, while the case was pending in the Court of Special Appeals, the State filed in this Court a petition for a writ of certiorari.

On July 11, 2016, this Court granted the petition. See State v. Falcon, 448 Md. 724 , 141 A.3d 185 (2016). STANDARD OF REVIEW In reviewing a trial court’s decision to issue a preliminary injunction, this Court considers the following factors: (1) the likelihood that the plaintiff will succeed on the merits; (2) the balance of convenience determined by whether greater injury would be done to the defendant by granting the injunction than would result by its refusal; (3) whether the plaintiff will suffer irreparable injury unless the injunction is granted; and (4) the public interest. Schade v. Md. State Bd. of Elections, 401 Md. 1, 36 , 930 A.2d 304, 325 (2007) (citations and internal quotation marks omitted).

This Court reviews “the exercise of the trial court’s discretion to grant or deny a request for injunctive relief under an abuse of discretion standard; however, we give no such deference when we find an obvious error in the application of the principles of equity.” El Bey v. Moorish Sci. Temple of Am., Inc., 362 Md. 339, 354-55 , 765 A.2d 132, 140 (2001) (citations and internal quotation marks omitted); see also City of Bowie v. MIE Props., Inc., 398 Md. 657, 677 , 922 A.2d 509, 521 (2007) (“We generally review the issuance of an injunction by a trial court for an abuse of discretion.” (Citation omitted)). “[E]ven with respect to a discretionary matter, [however,] a trial court must exercise its discretion in accordance with correct legal standards.” Ehrlich v. Perez, 394 Md. 691, 708 , 908 A.2d 1220, 1230 (2006) (citation and internal quotation marks omitted). Where a trial court’s determination as to one of the factors for issuing a preliminary injunction involves a purely legal question, i.e., a question of law, we review the ¹⁵⁸ trial court’s decision as to that factor without deference. See id. at 708 , 908 A.2d at 1230 (“We review de novo a trial [court]’s decision involving a purely legal question. ...

In the present case, the [trial cjourt’s determination of the likelihood of success on the merits is a question of law. Consequently, we apply the de novo standard to that factor[.]” (Citations omitted)). DISCUSSION The Parties’ Contentions The State contends that, under Schisler, 394 Md. 519 , 907 A.2d 175 , the removal of gubernatorial appointees, by itself, does not violate Article II, § 15 of the Maryland Constitution. The State argues that Chapter 35 is consistent with the separation of powers doctrine and Article II, § 15 of the Maryland Constitution because the power of appointment is not an intrinsically executive function, ie., a power that is exclusive to the Governor; instead, under Article II, § 10 of the Maryland Constitution, the General Assembly may prescribe a different mode of appointment.

The State asserts that the General Assembly may restructure or reconstitute a statutorily-created entity and prospectively change the appointment process to grant the appointment power for that entity to someone other than the Governor, even if doing so would terminate the existing gubernatorial appointees. The State contends that Chapter 35 changes the number and composition of the Nominating Commission, and creates a new appointment process that applies prospectively to all future appointees. According to the State, through Chapter 35, the General Assembly did not give itself the power to choose replacements for the Appointees or prevent the Appointees from being reappointed, but rather reassigned the appointment power from the Governor to other entities. The State argues that the Appointees draw an “artificial distinction” by pointing out that the General Assembly terminated only the Appointees’ membership on the Nominating Commission, and left intact the other six existing appointments—ie., the ap ¹⁵⁹ pointments by entities other than the Governor—because terminating the other existing appointments would not have given the General Assembly any more authority to terminate the Appointees’ membership on the Nominating Commission than it already had.

The State further contends that, even assuming that, through Chapter 35, the General Assembly were “removing” the Appointees, such a removal does not violate Article II, § 15 because members of the Nominating Commission are not “civil officers.” The Appointees respond that Chapter 35 is unconstitutional and violates the separation of powers doctrine and Article II, § 15 of the Maryland Constitution because the General Assembly has impermissibly usurped the Governor’s constitutional removal power by terminating only their appointments. According to the Appointees, the removal of civil officers who are appointed by the Governor for a term of years is a constitutional power that is reserved exclusively to the Governor, and cannot be exercised by the General Assembly. The Appointees contend that, under Schisler, 394 Md. 519 , 907 A.2d 175 , the General Assembly may abolish or reconstitute a commission, but may not terminate only the gubernatorial appointees on a commission. The Appointees argue that, in this case, the General Assembly impermissibly terminated only their appointments, left intact the other appointments— ie., appointments by entities other than the Governor—and that such actions were not taken to reconstitute the Nominating Commission.

The Appointees assert that the General Assembly had the authority to set up the appointment process however it chose, but that, once the General Assembly vested the Governor with the power to appoint members of the Nominating Commission, the gubernatorial appointees could be removed only by the Governor. The Appointees contend that they are “civil officers” under Article II, § 15, subject only to the Governor’s constitutional removal power because the term “civil officer” is interpreted broadly in Schisler, 394 Md. 519 , 907 A.2d 175 , to include any officer other than a military officer. ¹⁶⁰ Law The School Board and the Nominating Commission Like ED (2015) § 3-110(a)(2), ED (2016) § 3-110(a)(2) provides that, “[ejxcept for the student member, the Governor shall appoint a member of the [School Bjoard from the list of nominees submitted by the ... Nominating Commission[.j” Similarly, both ED (2015) § 8-110(g)(l) and ED (2016) § 3-110(g)(1) provide that the president of the School Board “is entitled to receive $8,000 annually as compensation and, except for the student member, the other [School Bjoard members are entitled to receive $6,000 each annually as compensation.” 2 By contrast, both before and after Chapter 35, members of the Nominating Commission have not been entitled to compensation. See ED (2015) § 3-110(b); ED (2016) § 3-110(b).

And, as discussed above, prior to Chapter 35, the Nominating Commission consisted of eleven members, five of whom were appointed by the Governor. See ED (2015) § 3-110(b)(2). The Separation of Powers Doctrine The separation of powers doctrine is embodied in Article 8 of the Maryland Declaration of Rights, which provides: “[Tjhe Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.” “Article 8 of the Maryland Declaration of Rights explicitly prohibits one branch of government from assuming or usurping the power of any other branch.” State v. Callahan, 441 Md. 220, 235 , 107 A.3d 1143, 1151 (2015) (brackets, citation, and internal quotation marks omitted). The separation of powers doctrine does not, however, require “absolute separation” or “strict lines of demarcation” among the three branch ¹⁶¹ es of government.

Merchant v. State, 448 Md. 75, 96-97 , 136 A.3d 843, 856-57 (2016) (citations omitted). Indeed, the separation of powers doctrine “may constitutionally encompass a sensible degree of elasticity[,]” provided that that constitutional elasticity is not “stretched to a point where, in effect, there no longer exists a separation of governmental power[.]” Id. at 97 , 136 A.3d at 857 (citations omitted). Article II, § 15 and Schisler v. State Article II, § 15 of the Maryland Constitution provides: The Governor may suspend or arrest any military officer of the State for disobedience of orders, or other military offense; and may remove him in pursuance of the sentence of a Court-Martial; and may remove for incompetency, or misconduct, all civil officers who received appointment from the Executive for a term of years. This Court most recently addressed Article II, § 15 ten years ago, in Schisler, 394 Md. 519 , 907 A.2d 175 , a case that is key to the issues before the Court in this case.

Because Schisler is a significant case, we shall discuss it in some detail. We first observe that Schisler is a plurality opinion, and the parties in this case disagree on the meaning and interpretation of the opinion. As to plurality opinions, this Court has applied the following test for determining the precedential value of a case that lacks a majority opinion by the Supreme Court: “When a fragmented [Supreme] Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” State v. Norton, 443 Md. 517, 539-40 , 117 A.3d 1055, 1068 (2015) (citation and internal quotation marks omitted); see also Derr v. State, 434 Md. 88,