Montgomery County v. Fraternal Order of Police
112 A.3d 1052
Md. Ct. Spec. App.2015Background
- FOP Lodge 35 challenged Montgomery County’s use of public funds to campaign for Question B (Bill 18-11) in the 2012 election.
- Leggett (County Executive) authorized up to $200,000 of OPI funds for the Question B campaign; Lacefield coordinated it as OPI director.
- OPI and County employees produced campaign materials, bus ads, mailers, and digital outreach advocating Yes on Question B.
- FOP alleged County actions were ultra vires, violated campaign-finance laws, and infringed union rights; sought declaratory and monetary relief.
- Circuit Court found County action within powers, held government-speech, and denied Counts 7–10 for monetary relief; declared certain violations but dismissed monetary claims.
- Election on Question B passed; the present appeal and cross-appeal followed the circuit court’s rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue on declaratory relief | FOP had fiduciary duty to members; suffered special harm from reduced bargaining | Kendall-type public-wrong harm insufficient for standing | FOP had standing due to special, fiduciary-related harm |
| Laches bar | Ross v. State Bd. of Elections applicable only to pre-election challenges | Delay prejudices defendants; action should be expeditious | No abuse of discretion; delay did not prejudice and post-election adjudication feasible |
| Ultra vires/government speech | County lacked power to campaign; violated home rule/Express Powers Act | County has inherent power; government speech allowed; not subject to Title 13 | County acts were within inherent government power; campaign was government speech and not ultra vires |
| Title 13 EL applicability to Leggett/Lacefield | Leggett/Lacefield were subject to Title 13 as ballot-issue promoters | Title 13 does not apply to local government campaign by County officials | Title 13 does not apply to County officials; not required to register or report as political committees |
| Work-hour political activity restrictions | State/Local laws prohibit political activity during work hours | Nonpartisan governance-related advocacy not prohibited; activities within job duties | Governance-related advocacy by County employees during work hours not prohibited by law |
Key Cases Cited
- Baltimore Teachers Union v. Bd. of Education, 379 Md. 192 (Md. 2004) (unions have standing when actions affect bargaining power)
- Patterson Park Public Charter School, Inc. v. Baltimore Teachers Union, 399 Md. 174 (Md. 2007) (unions may have standing to intervene when rights of members at stake)
- River Walk Apartments, LLC v. Twigg, 396 Md. 527 (Md. 2007) (local governments’ powers limited to legislated/power-based functions)
- Howard v. Montgomery Mut. Ins. Co., 145 Md. App. 549 (Md. 2002) (standing and special damages analysis for declaratory relief)
- Kendall v. Howard Cnty., 431 Md. 590 (Md. 2013) (public-wrong standing requirements; pre-election challenges need special damage)
- Fraternal Order of Police Lodge 35 v. Montgomery Cnty., 436 Md. 1 (Md. 2013) (precedent on referendum, effects bargaining, and government powers)
- Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (S. Ct. 2005) (government speech may be funded by taxes; compelled subsidies acceptable)
- First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (S. Ct. 1978) (referenda on public questions are not candidate elections; government speech context)
- Page v. Lexington County School Dist. One, 531 F.3d 275 (4th Cir. 2008) (government speech within governance powers; not constrained to neutral info)
- Kiddwell v. City of Union, 462 F.3d 620 (6th Cir. 2006) (government speech in election context; not barred when related to governance)