Sugarloaf Citizens Assoc., Inc. v. Gudis

ADKINS, Judge. On 7 July 1987 four members of the Montgomery County Council voted in favor of siting a mass-burn resource recovery facility (RRF — a type of incinerator) in the Dickerson area of the county. One of the four members so voting was ⁵⁶² respondent Michael Gudis (Gudis). 1 The three remaining councilmembers voted to locate the facility in the Shady Grove area. Later at the same meeting, the council (by vote of 4-1, with Gudis again in the majority) adopted Resolution No. 11-382.

Resolution No. 11-382 amended the County’s Ten Year Solid Waste Management Plan to include in it the Dickerson mass-burn facility. The Dickerson site involved land owned by Potomac Electric Power Co. (PEPCO) — land that presumably would have to be leased or purchased by the County to permit operation of the mass-burn facility. The County would also need to coordinate other matters with PEPCO in order to operate the facility. At the time of the July 1987 vote, Councilmember Gudis owned an amount of PEPCO stock sufficient to bring him within the purview of the ethics provisions of the Montgomery County Code, Chapter 19A. 2 Prior to 7 July 1987 Gudis had obtained from the Montgomery County Ethics Commission a waiver of the conflict-of-interest provision (note 2, supra) that otherwise would have prevented him from voting for the Dickerson site. 3 ⁵⁶³ On 5 October 1987 petitioners, The Sugarloaf Citizens Association, Inc., Lynn Lipp, and Beverly Thoms, all allegedly taxpayers in Montgomery County (and the latter two residents of the Dickerson area) (collectively Sugarloaf), sued Gudis and the county council in the Circuit Court for Montgomery County.

They asked that court to “void the action of the Council in approving” the Dickerson site and in adopting Resolution No. 11-382. The circuit court declined to do so. It held that “the evidence before the Court supports the proposition that Mr. Gudis’[s] vote was properly cast, since he did, in fact, have a waiver from the Ethics Commission.” The Court of Special Appeals affirmed, although it did not reach the question of the validity of the waiver. It held “that no private right of action, implied or otherwise, exists under section 19A-22(b) of the Montgomery County Code.” Sugarloaf Citizens Ass’n v. Gudis, 78 Md.App. 550, 560 , 554 A.2d 434, 439 (1989) [footnote omitted].

Additionally, the intermediate appellate court ruled that even if Sugarloaf had common law taxpayer standing to challenge Resolution No. 11-382, its “disregard for the primary jurisdiction doctrine presents an alternative basis for affirming the trial court’s order dismissing [the] action.” Id. at 561 , 554 A.2d at 439 . We affirm the judgment of the Court of Special Appeals, but for reasons totally different from those given by that court. We conclude that § 19A-22(b) of the Montgomery County Code is unconstitutional. Since Sugarloaf relies on that subsection as authority for the court’s power to strike down the legislative action here in question, Sugarloaf cannot prevail.

I. Montgomery County, like other jurisdictions throughout the State, is faced with substantial solid waste disposal problems. As of April 1985, three principal alternatives were under study: ⁵⁶⁴ 1. Processing the County’s solid waste into fuel which would be burnt in PEPCO’s generating plant at Dickerson [RDF]; 2. Burning the County’s solid waste in a resource recovery facility [near Shady Grove] and selling the resulting energy to PEPCO [RRF]; and 3.

Landfilling baled refuse at Travillah Quarry, or expanding the existing landfill. Because two of these options involved PEPCO, and because Gudis owned PEPCO stock, he had twice (prior to April 1985) asked the ethics commission to waive the conflict-of-interest provisions of the County Code. See n. 3, supra. The commission denied both requests.

Similar action had been taken with respect to other county officials including Lewis Roberts, the Chief Administrative Officer. In August 1985 Roberts submitted another waiver request to the commission. This one was accompanied by a memorandum from the director of the County’s Department of Environmental Protection. The memorandum purported to demonstrate that no conceivable [solid waste disposal] decision could significantly affect PEPCO finances.

In fact, law and policy will compel an exactly zero effect, not merely a small effect. Memorandum from John L. Menke to Lewis T. Roberts (31 July 1985). On the strength of this, the commission reconsidered its prior denials. Eventually, by vote taken on 2 December 1985 and announced on 10 December (by way of a press release), it granted waivers to Gudis and Roberts, as well as to another PEPCO stockholder.

The waiver stated that the council was considering the following solid waste disposal alternatives: 1. expansion of the existing landfill; 2. siting a new landfill at the Travillah Quarry; 3. construction of a resource recovery facility with sale of electricity to PEPCO [RRF]; and ⁵⁶⁵ 4. installation of a refuse derived fuel (RDF) system at the existing PEPCO plant in Dickerson. The commission observed that selection of either option 3 or 4 would result in “some form of contractual relationship with PEPCO.” It explained that [t]o provide the greatest opportunity to public officials owning PEPCO stock to participate in future decisions regarding these proposals, the Montgomery County Ethics Commission has determined that those officials who wish to exercise their authority to participate in policy decisions regarding such matters may do so if they publicly disclose their ownership of this stock and the number of shares they own... . [4] Some three months later, at PEPGO’s request, the council began to explore a new and different concept — constructing a RRF at Dickerson instead of at Shady Grove. On 7 October 1986 the county executive recommended the Dickerson RRF as the best alternative. This raised the possibility of sale or lease of PEPCO property, a possibility that the County apparently had not considered previously, and that had not been presented to the ethics commission when the waivers were granted.

So matters stood on 7 July 1987 when, as we have recounted, Gudis cast the deciding vote in favor of the Dickerson site and also voted to adopt Resolution No. 11-382 — the councilmanic action that authorized use of the Dickerson site for the RRF. It is that action, of course, that Sugarloaf seeks to nullify.

II

The foundation of Sugarloaf s attack on the siting vote and its implementing resolution is § 19A-7(a) of the Montgomery County Code. As we have seen, this subsection disqualifies a councilmember from voting in a matter in ⁵⁶⁶ which the member has a “financial interest.” Sugarloaf contends that because Gudis had such an interest by virtue of his stockholdings in PEPCO, and because the waiver of disqualification granted him by the ethics commission was not valid, Gudis was precluded from voting. Sugarloaf asserts, therefore, that the actions resulting from that vote cannot stand. In its complaint, Sugarloaf relied substantially on § 19A-22 of the County Code.

In pertinent part that section reads: (a) Upon direction by the [ethics] commission or at the initiative of the county attorney, the county attorney may file a petition for injunction or any other appropriate relief in the circuit court for Montgomery County, or in any other court having proper venue, for the purpose of requiring compliance with the provisions of this [ethics law] chapter. (b) In addition, the court may issue an order to cease and desist from the violation, and can void an official action taken by an official or employee with a conflict of interest prohibited by this chapter when the action arose from or concerned the subject matter of the conflict and the legal action was brought within ninety (90) days of the occurrence of the official action, if the court deems voiding the action to be in the best ... interest of the public [emphasis supplied]. Because of this reliance, the Court of Special Appeals thought that “the genesis for [Sugarloafs] cause of action [was] the Montgomery County Ethics Law.” Sugarloaf, 78 Md.App. at 555, 554 A.2d at 436 [footnote omitted]. The intermediate court held that “no private right of action, implied or otherwise, exists under section 19A-22(b) of the Montgomery County Code.” Id. at 560 , 554 A.2d at 439 [footnote omitted].

Whether § 19A-22(b) creates an implied or express private cause of action is not critical to our decision ⁵⁶⁷ and is a question we do not address. 5 A taxpayer or other person specially damaged has standing: to seek to enjoin the implementation of an unconstitutional statute, Painter v. Mattfeldt, 119 Md. 466 , 87 A. 413 (1913); “to restrain the action of a public official, which is illegal or ultra vires, and may injuriously affect the taxpayer’s rights and property,” Inlet Associates v. Assateaque House, 313 Md. 413, 441 , 545 A.2d 1296, 1310 (1988); Citizens P & H Ass’n v. County Exec., 273 Md. 333, 339 , 329 A.2d 681, 684 (1974); or to redress a public wrong, Becker v. Litty, 318 Md. 76, 91 , 566 A.2d 1101, 1108 (1989). The complaint filed by Sugarloaf in essence seeks that sort of relief, via the invalidation of Resolution No. 11-382. The complaint alleged citizen and taxpayer status. It did not allege, in terms, special damages, although an affidavit filed by petitioner Thoms (in connection with Gudis’s motion to dismiss) did.

At argument in the trial court on the motion to dismiss, moreover, Sugarloaf said that it was asserting, among other things, a common law right to seek enforcement of the county ethics law. That is the same sort of standing we upheld in Becker, supra. 6 ⁵⁶⁸ In any event, we shall assume, arguendo, that Sugarloaf has common law standing to bring this action, that the county ethics law does not preempt a common law action of the kind asserted here, 7 and that the action is barred neither by the doctrine of primary jurisdiction nor by the doctrine of exhaustion of administrative remedies. 8 Nevertheless, Sugarloaf cannot prevail. The unconstitutionality of § 19A-22(b) compels us to reach that result. 9 III. A. Section 19A-22(b), as we have seen, purports to authorize a court to void an official action taken by an official or employee with a conflict of interest prohibited by [the Montgomery County ethics law] when the action arose from or concerned the subject matter of the conflict ... if the court deems voiding the action to be in the best ... interest of the public [emphasis supplied].

That provision impermissibly attempts to vest in the court a nonjudicial power. Courts can invalidate legislation on grounds of unconstitutionality. City of Baltimore v. State, 281 Md. 217, 230 , 378 A.2d 1326, 1333 (1977) (“Absent some constitutional infirmity, a court has no power to declare void an act of the ⁵⁶⁹ General Assembly.”). Certain local action may be invalidated if the enacting body failed to comply with enabling legislation requirements or otherwise acted ultra vires.

See, e.g., Walker v. Talbot County, 208 Md. 72, 86 , 116 A.2d 393, 401 , cert. denied, 350 U.S. 902 , 76 S.Ct. 180 , 100 L.Ed. 792 (1955) (“The cases spell out the necessity of substantially complying with legislative procedural and substantive prerequisites as to notice and hearings if the action of zoning authorities is to be valid.”). But courts cannot so act because a judge thinks that to void the legislation is in some fashion “in the best ... interest of the public.” To permit a court to act on that basis is to permit it to perform a nonjudicial function. Article 8 of the Maryland Declaration of Rights is explicit: [T]he 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. Long ago we explained that [t]he evident purpose of the declaration is to parcel out and separate the powers of government, and to confide particular classes of them to particular branches of the supreme authority.

That is to say, such of them as are judicial in their character to the judiciary; such as are legislative to the legislature, and such as are executive in their nature to the executive. Wright v. Wright’s Lessee, 2 Md. 429, 452-453 (1852). We have repeatedly held that “Article 8 prohibits the courts from performing nonjudicial functions.” Reyes v. Prince George’s County, 281 Md. 279, 295 , 380 A.2d 12, 21 (1977); see, e.g., Duffy v. Conaway, 295 Md. 242, 254 , 455 A.2d 955, 961 (1983) (“[A] court has no jurisdiction to perform a nonjudicial function, and any enactment which attempts to confer such a function on a court is unconstitutional.”). ⁵⁷⁰ We have never formulated a precise definition of “judicial function,” but a number of our precedents give guidance that helps us apply the phrase in this case. In Beasly v. Ridout, 94 Md. 641 , 52 A. 61 (1902), for example, a statute directed the judges of the Fifth Judicial Circuit to appoint three members of the Board of Visitors for the Anne Arundel County jail.

Obviously, that act required the judges to exercise a sort of political discretion, not limited by standards or rules normally applied by courts in the exercise of their usual judicial functions. The Court held the statute to be unconstitutional because it converted the judges into an “appointing agency” and thus imposed upon them nonjudicial functions. 94 Md. at 658-659 , 52 A. at 66 . The statute in Close v. Southern Md. Agr. Assoc., 134 Md. 629 , 108 A. 209 (1919), allowed a person to apply to a circuit court for a pari-mutual betting license.

The court was instructed to review the application and grant or deny the license. That, too, was held to violate the separation of powers doctrine. The court noted that unlike the issuance of injunctions or the protection of rights of children, both accomplished under settled principles of law “peculiarly within the province of courts of equity,” license-issuing was not within the “ordinary or recognized powers” of circuit courts. 134 Md. at 642 , 108 A. at 214 . “Surely, the Court, if acting judicially, cannot be governed by the individual views of the judges as to betting, or pool-selling or bookmaking on horse races.” Id. Even more significantly, the Close Court expressed concern about the exercise of legislative powers by the judiciary.

Section 217 of the Maryland Code (1914), Article 27, made it a misdemeanor for one to do what the pari-mutual betting license would have permitted. Thus, the issuance of a license by a court would amount to an exemption from the operation of § 217. Our predecessors thought that this would be legislation by the court. They explained that [i]t is for the Legislature, and not for the courts to pass statutes, and yet this statute undertakes to authorize the courts to exempt those who commit the acts on the ⁵⁷¹ grounds of agricultural associations, etc., by granting them licenses.

Such exemptions from the operation of statutes must be by legislative and not judicial action. 134 Md. at 644 , 108 A. at 215 . An even clearer condemnation of an attempt to delegate unfettered political discretion to the judiciary is seen in Cromwell v. Jackson, 188 Md. 8 , 52 A.2d 79 (1947). In that case, a statute authorized the Circuit Court for Allegany County to issue liquor licenses. In doing so, the court had to answer a number of questions, among which were: 7.

Whether the applicant is a fit person to have a license to sell alcoholic beverages? 8. Whether the place for which the license is applied is a proper one with reference to the public peace and general welfare of the neighborhood or to the character of the inhabitants? 9. Proper allocation of licenses so as not to exceed one to every fifteen hundred persons. 10. What is a bona-fide entertainment held by any club, society, or association, for a special license? 188 Md. at 25-26 , 52 A.2d at 87-88 .

The Court held that “question” 9 required, in effect, the making of the sort of appointments found unconstitutional in Beasly v. Ridout, supra. Cromwell, 188 Md. at 27-28 , 52 A.2d at 89 . It explained that even if the court were able to determine who was fit to serve alcoholic beverages, it then would have no guidance for selecting from among “people equally fit, which one is to have the privilege.” Id. at 27 , 52 A.2d at 89 . As to question 7, it rejected the notion that deciding who was fit to receive a liquor license was no different from deciding who was fit to have custody of an infant.

In the latter case, “the principle of law is firmly established and a definite guide given that in all cases involving the custody of infants, the welfare of the infant is the primary consideration____” Id. at 26 , 52 A.2d at 88 . But ⁵⁷² “[w]hether a person is a fit person to have a license to sell alcoholic beverages is a question of public policy or expediency depending upon many matters____ It is not a judicial question.” Id. [citation omitted]. The Court considered the difference between legislative and judicial discretion. It quoted Mitchell v. Wright, 154 F.2d 924, 928 (5th Cir.), cert. denied, 329 U.S. 733 , 67 S.Ct. 96 , 91 L.Ed. 633 -634 (1946), to this effect: We have several elements with which we may distinguish legislative and judicial functions, to wit: the element of futurity or retrospect, that of generality or particularity, that of discretion, and that of initiation.

A good example of the element of discretion is the determination of a legislative body on the basis of public interest____ One must be careful ... not to confuse this legislative discretion with judicial discretion. Cromwell, 188 Md. at 24 , 52 A.2d at 87 . Section 19A-22(b) of the Montgomery County Code purports to allow a court to void legislation (or other local governmental action) because the court concludes that to do so would be in the best interest of the public. As our cases demonstrate, that sort of unguided discretion, involving, as it does, questions of policy and expediency, is legislative, not judicial, discretion.

It is the sort of discretion that may not, consistent with Article 8 of the Declaration of Rights, be vested in a court. The Montgomery County Charter, however, lacks any separation of powers provision similar to Article 8. And we have said in the past that the constitutional concept of separation of powers does not apply to local government. Barranca v. Prince George’s Co., 264 Md. 562, 571 , 287 A.2d 286, 291 (1972) (power of removal of Prince George’s