*1
OF ANNE ARUNDEL COUNTY et al.
Rayburn H. SMALLWOOD et al. BALTIMORE COUNTY CITIZENS FOR REPRESENTATIVE
GOVERNMENT, et al. v. COUNTY, Maryland,
BALTIMORE et al. 72, Sept. Term, Nos. 71 & Appeals Court of Maryland.
Sept. (Order).
July 17, (Opinion). *3 brief), Greiber, Greiber, on (Messinger both John R. Jr. & Richard W. petitioners Supervisors, for Bd. Annapolis, Bodie, Dolina, Mos- (Thomas Thomas Power & G. J. Drury Towson, brief), Baltimore ner, P.A., petitioners on for all County Citizens. Bernstein, Frank, Motz, Conaway & Gold-
Diana G. Baltimore, curiae, man, Taxpay- for Talbot amicus by Marylanders. Tax Initiative Ass’n and the Reform ers’ (Kurt Fischer, brief), on Balti- J. both Roger D. Redden R. more, Deputy County Atty. (Stephen A. Plymyer, David brief), respon- Beard, on County Atty., Annapolis, both (Kurt Fischer, Smallwood, D. Redden J. both Roger dents Jablon, J. brief), Baltimore, Atty. (Stanley Co. Arnold McMahon, Co. Michael J. Asst. Schapiro, Deputy Atty., Co. Towson, for brief), respondents all on Baltimore Atty., *4 County. C.J., ELDRIDGE, COLE,* MURPHY,
Argued before CHASANOW, JJ., RODOWSKY, and and McAULIFFE of ORTH, Jr., Judge Appeals E. of Court CHARLES (retired), Assigned. Specially
* Cole, J., retired, participated hearing, and conference now Court; being member of this after decision this case while an active of Constitution, IV, 3A, he also pursuant Article Section recalled to the adoption opinion. participated of this in the
ORDER The Circuit Court for Anne County, Arundel order of August declared that the two amend- ments the Charter of Anne Arundel County known Ballot Initiative amendment and the Property Tax Limita- tion amendment “public general violated law and are uncon- stitutional and void under Article XI-A of the Constitution of Maryland.” The circuit August court’s order enjoined also the Defendant Board of Supervisors of Elec- tions of Anne Arundel from placing pro- two posed amendments on the presented ballоt to be of voters Anne general Arundel at the election to be held on November
For to be stated in an opinion filed, later to be it reasons is 20th day September, this of
ORDERED, by the Court Appeals of of Maryland, that of part the judgment of the Circuit Court for Anne Arundel relating to the Ballot Initiative amendment affirmed; and it is further ORDERED, by the Court of Appeals of Maryland, a majority of the concurring, Court part that judgment of the Circuit Court for Anne Arundel County relating to the Property Tax Limitation amendment is re- versed; and it is further
ORDERED, by the of Court Appeals Maryland, of of majority concurring, the Court that the case remanded to the Circuit Court for Anne Arundel County with di- provisions rections declare that certain of the Property Tax amendment, Limitation namely the so-called “rollback” to the 1988-1989 tax year subparagraph [b], are invalid severable, and to declare that Property Tax Limita- tion otherwise, amendment is not in facially, conflict either with public general law with Article XI-A of the Consti- tution Maryland; and it is further
ORDERED, Court Appeals Maryland, a concurring, the Court majority the circuit court order that the Defendant Board of Supervisors of Elections *5 of Anne Anne to the voters
of Arundel submit No- at election to be held on general the Arundel 6, 1990, in of Article provisions accordance with vember Code Maryland of of and Maryland XI-A the Constitution Limita- (1957, Tax Repl.Vol.), Property Article form: following tion TO ANNE ARUNDEL “PROPOSED AMENDMENT PROPERTY TAX CHARTER COUNTY LIMITATION Fiscal Procedures Budgetary “Article VII. date; budget: tax Reproduction of effective “Sec. text, fol- add the levy; appropriations existing [after paragraph (d)] lowing numbered new Tax Property “[d]
(1) article, of any provisions other this Notwithstanding 1991-92), (tax on 1 the Coun- commencing July year tax which may property Council not establish rates ty tax were provide property would more revenues than provided as during except raised the 1990-91 tax year, subparagraph below: [a] Rate, speci- Yield currently The Constant Tax as
[a] by Tax-Property fied Article the Annotated Code continue as the method of assurance Maryland, shall from tax remains at a that revenue derived from one the next. The year provisions constant level Tax-Property Article of Annotated Code in- Maryland taxing which local authorities to permit crease rates Yield Tax property tax above Constant the Anne Arundel Council by Rate shall be used following Commencing July in the manner: set applicable subsequent years, may Council an annual tax rate which exceeds Constant Yield Tax by permit property Rate a value which will revenues (1) a percentage corresponding to increase Index, previous Consumer Price immediately January from Average, change preced- U.S. City percentage (or Department of Labor ing January, computed *6 other accepted widely index that measures from time to inflation), time the rate of (2) percent, 4.5 whichever is the lesser amount.” paid
Costs to be by Anne Arundel County. Appеllants’ request for attorneys’ fees denied. Mandate to issue forth- with.
ORDER The Circuit Court for Baltimore County, by order of 4, 1990, September determined that amend- ment to the Charter of Baltimore County establishing a limit on property taxes violated Article XI-A of the Consti- tution of Maryland and certain provisions of the Annotated Code of Maryland. The circuit court ruled that the pro- posed property tax limitation amendment “cannot remain on the ballot for referendum vote at the general election on November 1990.” The circuit court’s order also enjoined defendants, Board Supervisors of Elections of Balti- more and County State Board of Laws, Election from keeping, after October the proposed amendment on the ballot to presented to the voters of Baltimore County at general election to be held on November
For reasons to be stated in an opinion filed, later to be Court of Appeals, a of the majority Court concurring, has determined that provisions certain of the property tax limi- amendment, tation namely the so-called “rollback” and sub- (d)(2), paragraph are severable, invalid and and that property limitation otherwise, amendment is facially, public conflict either with general law or with Article XI-A of the Constitution of Maryland.
It is this day 20th of September, 1990, ORDERED, by the Court of Appeals of Maryland, . majority concurring, Court that the injunctive order of the Circuit Court for reversed; Baltimore it is further
ORDERED, Court of Appeals of Maryland, a majority of the concurring, Court that the case be remanded directions for Baltimore with the Circuit Court of Elec- defendants, Supervisors Board
order that of Election and State Board of Baltimore tions County at Laws, voters of Baltimore submit 6, 1990, in accord- on November election to be held general XI-A of Constitution provisions of Article ance with (1957, Repl.VoL), Maryland Code Maryland following form: 33, the Article PETITION “BALTIMORE COUNTY—PEOPLE’S TAXES TO LIMIT PROPERTY so limit the “Purpose Amendment To *7 not exceed those reve- tax revenues will property tax year, the 1990-1991 nues realized for by (1) of Amend- subparagraph provided as except ment. Article XI-A In accordance with
“Proposed Amendment VII, Constitution, Bud- Article entitled Maryland of Balti- and Fiscal Procedure the Charter getary as hereby more is amended follows: 710(c), following: “After add the Section “(d) Notwithstanding any provi- Tax. other Property Charter, for commencing July on sion this 1991-1992, not County property tax tax may year by tax realized for property exceed the in subparagraph except provided 1990-1991 year (1) herein: 1991-1992, succeeding and for
“(1) year the tax For increased, by may be but County property years percent per year. than 2 no more (d) “(2) subparagraph for in provided The limitation or assess- apply special taxes above shall charges any redemption the interest and pay ments to the time this prior voters approved indebtedness effective. section becomes
“(3) part, phrase clause or hereof any paragraph, If unconstitutional, held invalid any reason to be remaining portions of the law shall not be affected but will remain in full force and effect.” paid Costs to Baltimore County. Mandate to issue forthwith.
OPINION ELDRIDGE, Judge.
These cases involve the validity charter amendments proposed, pursuant to the Maryland Constitution, Art. XI A, 5,1 by petitions of the voters of Baltimore and Anne Arundel Counties respectively. This opinion sets forth the reasons underlying the Court’s order requiring each coun ty’s Board of Election Supervisors to place proposed “Prop erty Tax Limitation” charter amendments on the ballots for general election. Also addressed is this Court’s order prohibiting the Anne Arundel County Board of Super visors of Elections from placing a “Ballot Initiative Amend ment” on the ballot.
I. As opinion this encompasses two distinct appeals, facts and procedural history of each case will be addressed separately.
A. July On the Baltimore County Citizens for Repre- (BCCRG) sentative Government submitted a petition to place a Tax Property Limitation charter amendment on the provides 1. Section of part 5 Art. XI-A in relevant as follows: "Section 5. Amendments to charters. any adopted by Amendments to City charter the of Baltimore or by any County provisions of this State under the may of this Article proposed by be Mayor a resolution of the of City Baltimore and the Baltimore, City Council of the a City of County, or the Council by of the or petition signed by registered not less than 20% the voters of the however, provided, 10,000 County, or any signa- that in case * * complete petition. tures shall be sufficient to *.” Super Election The Board of general election ballot.2 the found that it contained the and petition visors reviewed The proposed requisite signatures.3 number of 710 of the Baltimore have altered amendment would provides the charter County charter. Section adopted, the finally county budget when the has been the of taxes and raise amount county levy council shall The amendment would required budget. proposed the by tax year revenues for the have the tax required property to amount of tax property to be limited the 1991-1992 1989-1990; it would not for the tax year revenues realized more than by the to be raised have allowed tax revenues 2% An “escape tax 1992-1993. per year, beginning year with county to increase have the council permitted clause” would at least more than the maximum when property by taxes 2% county voters in the registered of the qualified two-thirds The approved by the increase referendum. County the charter also Baltimore
2. The following language added petition that the be to § County Charter: Baltimore “(d) Charter, Notwithstanding any provision Property other of this Tax. July year commencing tax on and for the 1991— property County may tax property tax not exceed the 1989-1990,except year provid- by realized ed in for tax (2) (1) subparagraph herein: 1992-1993, (1) years succeeding year and for For the tax increased, property may by but no more than 2 percent year. per 1991-1992, (2) year subsequent year any In to tax percent provided may property by more taxes no than 2 increase put approved and is is to referendum the such increase qualified registered voters in the less than two thirds not County. (d) (3) subparagraph provided above shall The limitation for in special pay the apply taxes or assessments to interest approved by redemption charges any indebtedness prior to time this section becomes effective. voters (4) any any paragraph, part, phrase or hereof If clause unconstitutional, remaining por- held to be invalid reason tions of the in full force law shall not be affected but will remain and effect.” 3. signatures required registered requisite 20% of number of *9 10,000, County, supra. is less. See note voters of the whichever contained a severability provision in the event any portion amendment were found to be inval- id. 16,1990,
On August Baltimore and nine individual taxpayers filed a complaint in the Circuit Court for Balti- County. more The plaintiffs sought a declaration that the proposed amendment to the charter of Baltimore County void was because it violated Art. XI-A of the Maryland Constitution because it and/or conflicted Maryland with (1986), 6-302(a) Code 6-308 the Tax-Property plaintiffs Article. The requested also an injunction prohibit- ing placement of the amendment on the general election ballot. 31, 1990,
On August the circuit court declared that the proposed amendment violated the Maryland both Constitu tion and the Tax-Property Article of the Maryland Code and therefore could not be on the Nevertheless, ballot. court directed the Board of Supervisors of Elections of Baltimore to remove the proposed tax limitation amendment from the ballot until the earlier of October 1990,4or a decision as to validity of the amendment by this Court. On the same day, the appeal BCCRG noted an to the Court of Special Appeals. Prior any proceedings in the Court of Special Appeals, Baltimore County filed in this petition Court a writ certiorari which granted we on September 1990.
B. procedural facts and history surrounding Anne Arundel case are 20, 1990, similar. On July Anne Taxpayers Arundel for Responsive Government (AATRG) petitions submitted to place a Tax Limi- Property 5, 1990, October was the latest Supervi- date which the Board of sors of Elections must have been informed of all items which would placed on the November election ballot. *10 tation charter amendment5 a and Ballot Initiative charter general amendment on the 1990 election ballot.
Section Anne Arundel County requires charter the County budget. Council to maintain a balanced The section exempts also from any executive veto ordinance that required levies taxes to the budget. balance The amendment to 710 of the Anne County Arundel charter § would have limited property tax revenues for the tax year to 1991-1992 the amount of property revenues raised dur- ing the 1988-1989 tax year. proposal The would have the tax placed cap provision of the amendment context the constant yield provided tax rate for in the Tax-Property Article of the Annotated Code of Maryland. Specifically, 1992-1993, beginning year with tax the Anne petition proposed following language 5. The that the be added to 710 County of the Anne Arundel Charter: Property Tax "[d] "(1) article, Notwithstanding any provision other of this com- (tax mencing July year 1991-1992), County on 1 Council may property provide not establish tax rates which would more property year, except during tax revenues than were raised the 1988-1989 tax provided subparagraphs as below: [a] [b] Rate, currently specified by The Constant Yield Tax as “[a] Tax-Property Maryland, Article of the Annotated Code of shall as continue the method of assurance that revenue derived from the property year tax remains at a constant level from one to the next. provisions Tax-Property The Maryland Article of the Annotated Code of permit taxing which property local authorities to increase tax rates above by the Constant Yield Tax Rate shall be used County following Anne Arundel Council in the manner: Commenc- July ing applicable subsequent years, the Council may set an annual tax rate which exceeds the Constant Yield Tax by permit property Rate a value which will tax revenues to increase (1) by percentage corresponding immediately previous Index, January change City Average, percentage Consumer Price U.S. preceding January, from computed by Depart- (or widely accepted ment of Labor other index that measures from inflation), (2) by percent, time to time the rate of the lesser amount. or 4.5 whichever is any year subsequent may In Council “[b] property year by increase greater tax revenues for that an amount (d) paragraph by referring specific than that stated in herein qualified revenue increase to a referendum of the voters of the County.” not have allowed Council could Arundel by constant rate a value yield to exceed the tax revenues Price Index from increase in the Consumer than the greater 4.5%, less. whichever would be preceding January, also con- Anne amendment Arundel clause” that would have allowed “escape tained an cap upon to exceed the approval council county in a referendum. county voters of the qualified County proposed Anne Arundel The second 308 of the char would have amended *11 of Anne Arundel 308 reserves to the voters ter. Section legislation regarding the of referendum County right proposed council. The amendment passed by county the the County of Anne Arundel given have the voters would to subject would legislation to initiate which power Executive, could and which County the veto of of all by an affirmative vote repealed be amended or only county of the council.6 seven members 6, 1990, and Anne taxpayers four individual August On Arundel in for Anne filed the Circuit Court County Arundel summary for judgment. and motion County complaint relief, alleg- sought injunctive declaratory plaintiffs The amendments were invalid proposed of the ing that both The Maryland Constitution. they violated because Tax Limita- Property contended that further plaintiffs 6-302(a) and 6-308 conflict with tion amendment was §§ of the Code. Maryland Article Tax-Property of the 1990, for Anne Arundel 30, the Circuit Court August On amendments un- proposed were declared that both County petitions process by the electorate for which 6. Initiative refers process by which proposed Referendum is the on a law. and votes body governing is submitted to the electorate legislation passed Jr., Reynolds, Local approval disapproval. O.M. Handbook of Law, 203, (1982). See also Cheeks v. Cedlair 204 §§ Government 255, 595, 9, (1980) (defining 264 n. 9 Corp., n. 415 A.2d 287 Md. 613 Board, initiative); Partnership A.2d 283 Md. 388 Ritchmount referendum). (1978) generally (defining See Bd. Election of 332, 347-351, A.2d 731-733 County, Md. v. Talbot Laws (1989). prohibiting injunction an The court entered constitutional. Elections of Anne Arundel of of Supervisors the Board on the placing from either County filed a day, The same AATRG general election ballot. Before Special Appeals. of appeal notice of the Court Anne Special Appeals, any proceedings the Court petition filed a taxpayers Arundel and the individual County this granted by was Court for a writ certiorari which September
C. for the Baltimore arguments oral September advanced to County appeals Anne Arundel were standing parties 1990. On addressed appeal, of the charter amend plaintiffs, constitutionality ments, amendments potential conflict of law, severing general possibility any and the public with found to be invalid.7 portions standing contested the of Baltimore
7. The defendants
both cases
challenge
validity
and Anne Arundel
stated, however,
previously
As
indi
charter amendments.
taxpayers
proposed amend
vidual
in each
also contested the
*12
validity.
taxpayers
standing
have
to sue for an
ments’
Individual
electorate; otherwise,
injunction against submitting
proposal
wrongful expense
publication
they
“put
of the
would be
to
for
printing
general
referendum and the
of it on the ballots of the next
Cloud,
419, 422,
922,
Company
162 Md.
A.
election.” Sun Cab
v.
159
(1932).
County, supra,
See also Bd. Election Laws v. Talbot
316
923
of
341-342,
728-729;
Inc.,
Club,
Burning
Md. at
558 A.2d at
State v.
Tree
254, 292,
366, 385,
denied,
816,
A.2d
U.S.
110
315 Md.
554
cert.
493
House,
66,
(1989);
Assateague
v.
S.Ct.
II. The Anne Arundel Ballot Initiative to to reserve the voters attempted charter amendment in the local laws propose public “the for the Council ... and to provided same manner as same, county-wide or at elec adopt reject [next The of the amendment would have effect tion].” legislation Anne Arundel been allow voter-initiated plaintiffs the individual Anne Arundel and County. XI-A, Art. of the that the amendment violated argued Constitution, and thus was invalid.9 Maryland proposed Property Tax charter of the Limitation We note that both rejected by the voters of Anne Arundel Balti- were amendments more general the November 1990 election. Counties at XI-A, Maryland provides in relevant Constitution 9. Art. part as follows: officers; bodies; Legislativе executive enact- chief “Section 3. ment, interpretation publication and of local laws. legislative provide an “Every shall elective charter so formed law-making power City of said body in shall be vested the which legislative body City shall be County. Baltimore Such Baltimore, any City City as the Council known county County. County Council of the be known as the shall officer, any provide such shall for the if chief executive *13 officer, presiding of or the officer said of such executive election legislative provide body, shall for the election of if such charter officer, City of Baltimore as be known in the a chief executive shall Baltimore, any County or Mayor as the President Chair- of and in
235 332, Talbot Md. County, Election Laws v. Bd. of In 724, (1989), held 348-350, flatly 732-733 this Court 558 A.2d charter, authorizing the Talbot voter- County 216 of § Art. repugnant” to legislation, “manifestly initiated was Quoting from the XI-A, Maryland of the Constitution. Corp., v. Cedlair Cheeks Md. opinion (1980), (316 A.2d at we stated Md. at A.2d 732):
“ initiative, though each powers ‘The referendum and government, affect the form or structure of local are may referendum distinctly otherwise different. Under the consistent with power, legislative body, elective it legislative organ, for has primary continues enactment re- approved legislative formulated and legislative exercise of the people. ferred to however, leg- circumvents the power, completely initiative undermining its status as body, thereby totally islative Thus, primary legislative organ.’ we held thаt ‘the legislation, pow- to initiate unlike the referendum power ” er, 3.’ cannot be reconciled with § County, County all in the man of the Council of the references Mayor this of Baltimore and Constitution and laws of City State County City Council of the of Baltimore or to the Commission- Counties, Mayor of the shall be construed to refer to the ers Baltimore and President or Chairman and City City of Baltimore and to the Council County provided Council for herein From and after whenever such construction would be reasonable. the Baltimore, adoption by City any of a charter or State, provided, Mayor as hereinbefore of Baltimore and this City City County, subject or the Council of said Council of the of Baltimore Laws of this to the Constitution and Public General State, City power or shall have full to enact local laws of said County including repeal or amend local laws of said Assembly, upon City County by all matters or enacted the General express powers granted provided; provided covered as above nothing construed to authorize or herein contained shall be that empower any County Council of in this State to enact town, regulations any incorporated village, laws or or munici- powers granted pality County, any in said matter covered it, town, village, municipality by incorporating to said or the Act or ” * * * subsequent amendatory any thereto. Act Acts *14 236 on and is determinative of precisely point,
Talbot
Wakefield,
issue here.
v.
initiative
See also
the ballot
Griffith
381,
(1984);
We legislation to initiate be- to themselves the reserve XI-A, of Art. conflicts the terms cause such initiative with Therefore, the 3, proposed Maryland of the Constitution. unconstitutional, and Ballot Initiative amendment was Supervisors Board of Election prohibiting the injunction general from it on the elec- placing Anne Arundel proper. tion was ballot
III. Limitation charter amend Tax proposed Property The have Anne Arundel Counties would ments in Baltimore and local on the amount of percentage cap a placed in both plaintiffs each year. to be raised revenues Tax Limitation Property the proposed cases attacked First, asserted that grounds. they on two amendments councils is not county of the taxing power on the limitation to Art. XI-A material, repugnant and thus is charter proper v. Wake Relying Constitution. Maryland Griffith 348-349, 385, 388, 470 A.2d at Md. at 298 field, supra, 606-607, Md. at 415 287 Corp., supra, v. Cheeks Cedlair that charter is intended 261, argued plaintiffs A.2d at government” and structure of “the form to establish changed would have amendments proposed governments. of the counties’ form and structure” “the tax limita Second, that the claimed plaintiffs law, namely public general with amendments conflicted tion Article of the 6-302(a) Tax-Property of the and 6-308 §§ Maryland Code.
A. tax limitation cap portion The tax materiаl. We have proper amendments constituted
237
repeatedly explained that a
charter is
equivalent to a
constitution. Bd.
Elections Laws v. Talbot County,
341,
316
supra,
728;
Md. at
Exec.,
A.2d at
Doe,
676, 680,
Prince Geo’s Co. v.
Md.
436 A.2d
(1981);
Cheeks v.
Cedlair
Corp., supra,
Md. at
261;
415 A.2d at
Board,
Ritchmount
su-
Partnership
530;
283 Md. at
pra,
388 A.2d at
County v.
Harford
Schultz,
280 Md.
(1977);
371 A.2d
Anne
*15
Moushabek,
Arundel
v.
419, 422,
269 Md.
306 A.2d
517,
(1973).
519
The basic function of a constitution or a
charter is to
power
distribute
among the various agencies
government,
of
government
between the
and the people
delegated
who have
that power
government.
to their
As
Judge
Chief
Murphy stated for the Court in Cheeks v.
Corp.,
607,
Cedlair
supra,
Limitations imposed
people on their government
are fundamental elements of a
See,
constitution.
Mar
e.g.,
Madison,
v.
burg
137, 176-177,
1
60,
Cranch
2 L.Ed.
73
(1803);
Federalist,
(1788) (Alexander
Nos.
Hamilton).10 The Maryland Declaration
Rights
of
and the
Thus,
particularly
even
having
those who are
known for
favored
broad constructions
recognized
of the federal constitution have
essential—perhaps
an
the essential—function of a constitution is to
government power.
limit
Madison,
176,
Marbury
73,
In
supra,
v.
Neither Griffith Corp., supra, upon lair are to the plaintiffs rely, which Judge As noted in his dissent in contrary. Rodowsky Federalist, argued extensively of Alexander Hamilton In Nо. 84 The constitution, only delegating powers that the federal certain government, represented essentially upon govern- federal a limitation itself, every powers. mental He stated "that constitution sense, rights." every purpose, (Empha- rational and to useful a bill of original). sis in McMahon, Maryland, 11. J. View the Historical Government of of (1831). 8, I, 9, 1, 4, 5, I, 7, 1; I, 1; 6; 12. Article cl. Article cl. Article els. § § § I, 10, 2, els. § Article 3. 14, 15; II, Rights: 13. Declaration of Articles Constitution: Article 17; III, 32, 34, 51, 52, 54; VIII, 3; XI, Article Article Article § §§ § 7; XI-E, 5; XI-F, 8, Article Article §§ Charter, 710, 709, 719; County 14. Anne Arundel 718 and §§ Charter, 704, 709, 710, County Baltimore 716 and 717. §§ 390-391, A.2d 298 Md. at v. Wakefield, supra, Griffith 350-351, does not conflict” with majority opinion “the at power away fiscal from the taking conclusion that charter material” that “alters form council is “bedrock ... a most fundamental government and structure Instead and Cheeks v. both way.” Griffith Wakefield attempts by were concerned with the voters Corp. Cedlair legislation through guise initiate detailed amendments. this Corp.,
In Cheeks v. Cedlair
Court invalidated
City
amendment to the Baltimore
charter which
proposed
commission and would
would have created a tenant-landlord
imposed comprehensive system
of rent control. We
have
attempt
an
to “di-
proposed
held that
amendment was
acknowledged
of its
...
[City]
vest the
Council
609,
on the
of rent control.” 287 Md. at
legislate
subject
Thus,
field
fighters’
propos-
Baltimore
and the fire
union. The
al set forth in detail
and left
system
the entire
arbitration
“nothing for the determination of the
Executive or
Council.”
“It is common for constitutions or charters to preclude, specified types legislative of enactments by *17 This is different from quite bodies. a charter itself all of the containing provisions concerning detailed subject.” Board, 33, 39, also 272 Md.
See Harford (1974) (“It people A.2d is not uncommon for to into write their basic charter a restriction upon the powers legislative their body”); Arel, Bell v. 123 N.H. (1983) (citizens A.2d 110-111 may require limits on taxation long impairment as no of the city’s to ability carry out its mandatory obligations occur); will McQuil- E. lin, The Law Municipal Corporations, (3rd 44.26 ed. § 1984) (“A express common restriction upon the municipal power to tax is limiting one the amount or the rate that may be in one imposed any year. The validity of such provi- sustained”). sion generally
The proposed Tax Property Limitation amendments at issue here did not suffer from the same weakness as was presented in amendments Cheeks and Grif- These proposed tax limitation amendments were not fith. back-door attempts by the voters of Baltimore and Anne Arundel Counties to enact legislation. detailed Nor did they divest thе county councils of the ability set the Rather, tax rates. each would have merely pre- cluded particular type of enactment by legislative body, namely the power collect property taxes above specified cap.
There practical are also difficulties with the plaintiffs’ position that the proposed Property Tax Limitation amend- ments would have impermissibly infringed on the legislative power conferred on the county councils Art. XI-A and thus were not proper material. Acceptance of the plaintiffs’ arguments that limits cannot placed on budgetary and fiscal authority of councils county would in result the invalidation of many existing provisions in which, noted, charters as previously limit power of the county councils these areas. For example, the budget executive system, counties, effect several places a greater restriction on the fiscal county councils than these proposed Property Tax Limita- tion amendments would have. Under the budget executive system, the county prepares executive and submits a bud- get for each fiscal year. Charter, See Baltimore County 706; Charter, Anne Arundel 706. The county *18 change budget council has “no form of the executive, county submitted to alter revenue errors, estimates or to in- except to correct mathematical crease recommended execu- any expenditure county purрoses.” or Baltimore capital tive current Charter, 709; Charter, Anne Arundel 709. Var- § the fiscal powers county ious other limitations on of the two 14, councils are in their charters. contained See note su- pra. hold that a
Consequently, provision county we a placing upon charter restrictions the county council’s reve raising nue is a authority aspect fundamental of the form of government and structure and thus is proper material.
B. The proposed Property Tax Limitation amendments also were on challenged ground conflicted they law, Code, public general 6-302(a) with and 6-308 of the §§ Tax-Property Article.15 6-302(a) provides:
15. Section "(a) general—Except provided In as otherwise in this section and subtitle, complying year after with of this § 6-305 in each after the finality following July Mayor City date of and before the City governing body county Council of annually or the Baltimore of each year shall set the tax rate for the next taxable on all property subject county’s property assessments of to that tax." provides part Section 6-308 in relevant as follows: yield "§ 6-308. Constant tax rate. "(b) general—(1) requirements In Unless the of this section are met, taxing authority may county municipal corpora- a not set a or yield tion any tax rate that exceeds the constant rate year excluding property appearing taxable revenue from for the roll____ first time on the assessment "(c) change.—If taxing authority Notice rate a intends set a county municipal corporation property tax rate that exceeds the rate, yield public____ constant it shall advertise to the
“(e) Contents
notice.—The notice shall state:
[******]
We
have
numerous
pointed
occasions
out that “[w]hen
provision charter conflicts
a public
with
law,
general
the public general
prevails
law
under Art. XI-
A,
1.”
&
Trotting
Pacing
County,
P.G.
Rosecroft
Md.
(1984).
471 A.2d
See also Montgom-
*19
ery
v.
Elections,
512, 514,
Board
311 Md.
536
of
641,
(1988);
A.2d
642
Gilchrist,
374,
East
368,
v.
296 Md.
285,
(1983);
463 A.2d
288
Bd.
Sup.
Wilson v.
Elec-
of
of
tions,
Md.
305,
(1974);
273
328 A.2d
308
Schneid-
Lansdale,
317,
er v.
191
61
(1948).
Md.
A.2d 671
Neverthe-
less, “[wjherever
possible,
reasonably
courts will construe
so
enactments
that
there
no
is
conflict. This principle
the need to
avoids
invalidate one
or
law the other.” Town
Frank,
331,
Forest
Heights
v.
Md.
435 A.2d
of
(1981);
v.
Wilson Bd.
Sup.
Elections,
supra,
of
of
atMd.
may county adopt municipal corpora- law an increase in rate____’’ property yield tion tax rate that exceeds the constant in the statute language There is no property. tax rate on on the placed that reasonable limits cannot be indicating to set the tax rate. legislative power agree plaintiffs’ argument do with the Nor we Tax Limitation amendments conflict Property the proposed Balti 6-308 of the Article. Both Tax-Property ed with § 6-308(g) Anne Arundel Counties contended that more and authorizing the grant an affirmative constitutes tax rate adopt property councils to an increase previously rate. We have yield which exceeds constant held, however, a limitation 6-308(g) represents that § Bolden, of a taxing power county. Garrett (1980). 440, 446-447, We stated 287 Md. 413 A.2d public “is to focus attention purpose that the 6-308 interrelationship to the on the year from one next between period the assessable basis in a the rate of plain rising property Contrary values.” Ibid. *20 detailed interpretation, specifies procedural tiffs’ 6-308 § must requirements county governing body with which a the tax rate permitted before it will be to increase comply the constant rate. The tax limitation yield above power would have also limited the of the amendments councils to raise the tax rate above the constant county procedural provision limiting rate. Since 6-308 is a yield § authority, grant rather than an affirmative county’s Tax power, proposed Property it does conflict with Limitation amendments.
C. the tax of the cap portions We hold that Tax Limitation amendments were valid Property facially charter material and did they proper because constituted Nevertheless, law. public general not conflict with we of the tax opinion validity caps they render no as to the governments might applied practice. County have been to services required by provide many public are state law services, education, and fire public police protection such as services, sewage water and etc. If it is subsequently in a case particular demonstrated that a local limitation on tax so hampers revenues property county government perform that it cannot duties required law, under state provision a tax limitation charter may well be found applied. E. McQuillin, invalid as See The Law Municipal Corporations, supra, at 44.26.
IY. While the tax cap portion the proposed Property Tax valid, Limitation amendments were aspects there were two of the amendments were public gen- that inconsistent with eral portions law thus were invalid. Those of the amendments, however, were severable.
A. The “roll provisions back” of the proposed amend ments would have limited amount of tax property revenues for the tax 1991-1992 to no year more than the year amount collected the tax 1989-1990 for Baltimore no County, and more than that collected in year the tax County. 1988-1989 Anne Arundel provisions These 6-302(a) Tax-Property violated Article man which dates the governing body of each set the county rate next year. for the Unlike the tax cap provisions that have simply placed would a limit on the taxing council, county provi each the roll back sions would have transferred the councils’ 6- § 302(a) powers setting voters. Instead of councils rates, the tax the roll provisions back would allowed have *21 the voters and Anne Arundel Baltimore Counties to set the property tax rates for the tax year 1991-1992. addition,
In county’s each in proposed escape cluded an clause that would have county allowed the councils increase the tax rates in any given year the rate in the specified cap by referring above the proposed increase to the voters for approval. escape
245 reason that the for the same were invalid provisions clause 6-302(a) Section were invalid. provisions roll back tax rate be county’s that a requires Article Tax-Property The effect of county. of the body governing set that, if a even have been provisions clause would escape that it is given year in any determine council would county specified by limit to raise the tax rate above necessary have decided wheth- would the voters cap, levels above particular raised to er the rate would be essence, Thus, in levels. cap remain at or would caps that year. tax rate for setting the would be voters provi- clause escape conclusion that In of our light not deal with law, need general we public sions violated validity of the concerning the raised issues that were other clauses. escape
B. escape the invalid roll the invalid back Both portions from the valid severable were provisions clause There Limitation amendments. Tax proposed Property if of an enactment portion strong presumption is a such invalid, portion intent is that found to be 558, Gudis, 319 Md. Assoc. v. Citizens Sugarloaf severed. v. 1325, (1990); Corp. Porten Sullivan 574, A.2d 1333 573 1111, 1122(1990); v. 410, State 387, 568 A.2d State, 318 Md. 366, 254, 297, 554 A.2d Club, Inc., 315 Md. Tree Burning 585, Md. 280 (1989); City, v. Ocean Taxpayers O.C. has never (1977). presumption This A.2d Assem the General to bills enacted solely limited been ordinances, Anne Arundel to local applied has been bly, but 430, 306 A.2d at Moushabek, 269 Md. at supra, amendments, City, v. Ocean Taxpayers O.C. 550-551, 601-603, provi A.2d at 280 Md. at supra, federal under the state constitution invalidated sions of the 54, 83, 344 A.2d constitution, Miller, 276 Md. Davidson v. even (1975). applies This presumption intent declaring the drafters’ clause express of an absence if is found to be portion severed enactment be that the *22 246 Governor,
invalid.
553,
Cities Service Co. v.
290 Md.
575,
663,
(1981);
431 A.2d
O.C.
Taxpayers
Ocean City,
600,
supra,
In addition
general
to this
it is a
presumption,
settled
principle that
the
purpose
dominant
of an enact-
“[w]hen
ment
carried out
may largely
notwithstanding
be
the [enact-
partial
invalidity, courts will
hold
generally
ment’s]
portions
valid
severable
enforce them.” O.C. Taxpay-
ers v.
City, supra,
Ocean
Md. at
The dominant purpose proposed Property Tax Limitation place cap amendments was to on property upheld revenues. have validity We facial of these cap The provisions. purpose of the tax cap could have been carried out without invalid roll back or escape provisions. Thus, clause under set principles forth in cases, the above-cited we had a to sever the duty invalid provisions and the tax cap provisions allow be submitted general electorate at November 1990 еlection.16
Despite
principles
these well established
of sever-
ability,
plaintiffs argued
that
provisions
invalid
any
portion
should not
and that if any
be severed
of the pro-
rewrite,
itself,
point
16. We wish to
out that the Court did not
to suit
September
in our
amendments
Order of
1990. In-
stead,
cases,
applying
principles
set forth in
above-cited
we
simply
portions
deleted the
which
amendments
we found to be
changing
specified
invalid. This necessitated
some of the dates
in the
in order
amendments
to eliminate the invalid roll back
Sun,
9, 1990, editorial,
provisions.
(“The
p.
But
October
6A
cf.
Appeals
unprecedented step
rewriting
Court of
referendum
took the
...
questions
fancy.”)
to suit the court’s
should
invalid, the
entire
was
posed amendment
argu
In essence their
to the electorate.
submitted
to a
apply
did not
principles
severability
ment was
*23
severability principles
The
amendment.
charter
proposed
of the determina
part
a fundamental
above are
discussed
taken the
“consistently
has
This court
validity.
tion of
proposed
of a
to the voters
that
the submission
position
law,
amendment,
public general
in
with
conflict
charter
County v. Board
enjoined.” Montgomery
should be
of
Wilson
518,
644;
at
Elections,
A.2d
supra,
311
at
536
Md.
300,
Elections,
Md. at
328 A.2d
Sup.
supra,
273
v. Bd.
of
of
23-24,
Randall,
18,
v.
209 Md.
Planning Commission
308;
at
Lansdale, supra,
v.
Schneider
195, 198 (1956);
A.2d
120
if
of a
Similarly,
portion
a
322,
We have determined in this case that
severance
invalid portions does not destroy the
purpose
dominant
the amendments and that
were
“so
they
inseparable
*24
from the remainder that
invalidity makes the whole
[their]
Schneider,
invalid.”
191 Md. at
Thus,
MURPHY, Judge, dissenting: Chief IWhile am in full accord with Part II of the Court’s I opinion, disagree holding with the in Part III that proposed “property tax limitations” charter amendments constitute a aspect fundamental of the “form and structure government” are, therefore, of proper charter material. I share the view the two below, circuit courts each of which held that the amendments violated Art. XI- A I, therefore, of the Maryland Constitution. respectfully from dissent the Court’s determination that the proposed charter amendments were valid and were properly sub- general mitted to the at voters the 1990 election. XI-A, of Maryland Art. Constitution requires the § by public general law, General Assembly, provide grant to a of еxpress powers to counties adopt which a charter form of provision, Pursuant to this constitutional
government. (1990 Art. Act, RepLVol.), Maryland Code Express Powers powers express and enumerated 25A, was enacted § XI-A, 3 of Art. charter counties. Under to the granted legislative body, provide for an elective must county charter in it this council; by vested county as the be known to county for the laws” is “full to enact local power section granted by express powers covered matters upon all 5(0) of Art. 25A authorizes 25A. Section under Art. through assess, and collect taxes levy, council to county for the necessary may local laws “as enactment county government.” and maintenance support permits petitions XI-A voter-initiated 5 of Art. Section part of which, if become county adopted, charter amend a charter It cases that is clear from our the charter. necessarily limit- this section “is by amendment authorized or structure amending the form ed in substance the char- initially by adoption established government 595, 607, 415 A.2d 287 Md. Corp., ter.” Cheeks Cedlair amendment, therefore, in its A “differs (1980). legislative enact- simple from a fundamental character content, said, its ment”; “cannot transcend its we have a vehicle serve or function as office and be made to limited Thus, under legislation.” Id. adopt which to local through council, XI-A, and not county the elected of Art. upon “all electorate, to enact loсal laws given granted” express powers matters covered cannot the voters Consequently, in Art. 25A. *25 granted of its the council county amendment divest charter of taxes imposition the governing to make laws As in charter. county tax limitation the a placing property 255, “to 415 A.2d allow Cheeks, 287 Md. at said in we initiative, charter rather than voters, through the range of the to exercise full legislative process, [coun- excessive involve an powers plainly would ty’s] express granted to precisely powers of those limited exercise its repre- in [county specifically and [county], council] charter initiative The exercise of the capacity.” sentative power to limit the amount of taxes that may be collected to support the county government preempts the coun- cil’s law-making power in its determination of the impo- sition to maintain necessary operate and the county govern- ment.
A charter form of government
agencies
establishes the
government
local
and
provides
the allocation of powers
them.
among
Cheeks,
As I see amendments are not addressed to form or structure of government the county in any not, therefore, fundamental sense and are charter material within the contemplation 5 of Art. XI-A the Mary- land Constitution. The us, substance of is now what before guise amendments, under the of charter constitutes nothing laws, more than local properly which the charter entrusts to. the law-making body county, and not the voters initiative; through words, in other isit to the law- making body, and only body, which the charter the power, commits in that body’s representative capacity, to determine amounts support essential to and maintain the county government. See also v. Wakefield, Griffith (1984). 298 Md. If A.2d the electorate is dissatisfied the performance with legisla- members of the body, tive remedy through at ballot box the next ensuing popular election.
CHASANOW, Judge, concurring part dissenting part.
The issue decided trial courts the instant case whether was cap amendments violate Article *26 The courts below Constitution. Maryland of the XI-A affirmative, this Court in the and question that answered through I in Parts determination. I concur that reverses opinion. III of Court’s phrases— IV, pejorative coins the majority
In Part roll decides that “escape and clauses”—and “roll backs” the Tax- a clauses violate section escape as well backs majority goes The Article and are therefore void. Property 20,000 over the amendments petitioned оn to rewrite cap voters, with the Court’s replaces them registered councils’ amendments, incidentally county performs and the amendments will the form in which drafting function of from this I dissent respectfully the ballot. placed on opinion. part the Court’s
ROLL BACK Mary- with “roll conflict holds that backs” majority Article, (1986, Tax-Property Cum.Supp.), land Code 6-302(a) pro- Section 6-302(a) and are therefore invalid. § vides: in this In general.—Except
“(a) provided as otherwise subtitle, 6-305 of this complying after with section and before the finality after the date year each of Baltimore City Council following July Mayor annually shall governing body of each City or the all year taxable assess- tax rate for next set the tax.” property that subject county’s ments of 6-302(a) Tax-Proper- of the states: “Section The majority set tax rate be requires county’s Article that ty county.” Op. at Obvi- body Majority governing 6-302(a) grants a that does mean ously, majority rate—if so to set the tax unlimited discretion county council with this would be conflict cap the entire and, therefore, The majority invalid. general law public body recognize right governing must then through charter amend- be limited set the tax rate can ment.
None of cap provisions, the roll including back, pur- the to port deprive the governing body of set authority to rates; property however, tax do a they ceiling establish governing the to body’s authority set the tax property If right rates. the of taxpayers to establish a does ceiling 6-302(a), not violate isit unclear why ceilings {e.g., some § rate based on revenues over 2% the 1990-91 fiscal are year) permissible 6-302(a) held under and ceilings some {e.g., § rate based on revenues the 1989-90 reve- year fiscal or nues of the year) 1988-89 fiscal are held impermissible under that section. I sure am the had the majority laudable purpose of if assuring effect, the it cap, went into revenues, would not too an impact have drastic initial on tax but that purpose benevolent does not seem be in to codified 6-302(a). §
By implication, failure, one of the “roll is vice back” the year cap go (tax the first that the would into effect year 1991-92), to allow the county councils the discretion to increase tax to property up revenues 2% Baltimore Coun and to in Anne ty up Arundel the County. Although 4.5% petitioned amendments provide this discretion commencing tax year the 1992-93 subsequent years, all the majority’s order the changes petitioned amendments and inserts this discretion in the year first the cap amendments go would into effect.1
The second “roll is vice the back” the apparently choice tax year. base The tax Baltimore base County year the charter amendment was 1989-90. The County petitioned 1. The provided Baltimore amendment had that "for 1992-1993, year succeeding years tax County the tax and for property increased, may by percent per year." no but more than 2 The majority changed begin date Council could its 2 рercent 1991-92, year year increase from tax to tax 1992-93 date gone the act would have petitioned into effect. The Anne Arundel that, provided "commencing July applica- amendment had subsequent years," may ble to tax the Council increase the tax rate up price to percent the consumer index 4.5 is whichever the lesser. majority changed begin may The from the date the Council the increase July July 1992to 1 date amendment would have gone into effect. chose Anne Arundel strikes both majority of 1988-89. The base year the tax Anne Arundel in both and substitutes years, these chosen year 1990-91. County base and Baltimore freezing property why majority explain does 6-302(a), violates prior year at those of the tax revenues is each body governing mandates that “which Majority tax year,” tax rate for the next property to set the authority giving council Op. simply but at up to 2% property increase those fixed tax revenues of its explanation any valid.2 Without provision makes under improper that it reasoning, the also holds majority revenues, and 6-302(a) freeze the 1991-92 *28 above per year at no more than all future tax revenues 2% County), in but (1988-89 Anne Arundel the 1989-90 tax year for 1990-91 right simply it is all substitute perfectly the 1991-92 tax revenues property 1989-90 and freeze per tax at no more than 2% property all future revenues This, tells 1990-91 tax year. majority above the year us, enacted 6- legislature they the intent of the when was § 302(a). complex I am to reаd these respectfully unable very simple into that statute. distinctions not, briefing majority any opportunity for hope I without that cap point, inadvertently voiding existing provi- argument on the VI, Charter, See 614 of the Talbot as amended § sions. Article provides part: in which in may property tax rates which would Council not establish “[T]he during provide property raised more tax revenues than were year, additional revenues are the result of 1978-79 tax unless such newly property property or not assessments on constructed other previously assessed.” Charter, VIII, George’s County as § See Article 817B of the Prince also provides part: amended in which in 817B, “(a)(1) Except provided this Section the Council shall in levy property tax which would result in a total collection a real property greater of real taxes than the amount collected fiscal 1979; year (2) may levy property a which would result in The Council real greater a of real taxes than the amount total collection year property tax rate does not in fiscal 1979 if the real collected ($2.40) Forty for Cents each One Hundred exceed Two Dollars ($100.00) of assessed value.” Dollars ESCAPE CLAUSE The majority “escape holds that the clause” which allows the county council to increase the property tax revenues cap above the in any given year by referring increase to the voters for approval is invalid. The reason why invalid, “escape clause” is we are told by the majority, is again 6-302(a) because of the Tax-Property Article re- “§ a quires county’s rate be set by the governing body .that of the county.” at Majority Op. 245. The Court reasons that, if we allow voters the authority to ratify a council’s action in setting tax rate above in any the cap given year, essence, then “in the voters be setting would the tax rate year.” Op. Thus, at 245. Majority the majority holds the voters can vote to establish a cap by charter and, so, in doing are not they setting the tax rate, but the voters cannot vote to cap remove the in any given because, so, year doing are they setting the tax rate. That could not be the General Assembly’s intent. that,
I if 6-302(a) believe allows the voters to establish cap, 6-302(a) then allows the voters to remove the cap permanently either or for any given year by ratifying the council’s setting action in a rate the cap. above Interesting- ly enough, the majority recognizes that there are times when the cap might hamper the basic functioning govern- ment, but instead of allowing the voters grant relief *29 courts, situation, such a the majority the we says, not the voters, can abrogate the cap. The majority states:
“If subsequently it is demonstrated in a particular case that a local limitation on property tax revenues so ham- a pers county government it that perform cannot the required law, duties under state a tax limitation charter provision may well be found to applied.” be invalid as Majority Op. at 244. If the courts have the power to abrogate tax cap the it “hampers when so a govern- ment that it cannot perform the required duties under state law,” the surely voters should have the same In power. 6-302(a), enacting legislature the could not have intended § that although the voters have the power to cap, establish a abrogate voters, the have courts, not the only given year. in any is cap necessary if it 6-302(a) language simple interprets The § Court set shall county annually of each governing body that “the 2) cap; a 1) to establish allowing the voters the tax rate” as from the most on revenues cap based requiring that the least authorize at 3) cap that the requiring year; recent tax from the voters increase; 4) prohibiting per year a 2% escape an through from the cap relief temporary granting without the into the statute The Court reads all this clause. history and without legislative single a word benefit of In reasoning. interpret- interpretive of its any explanation a glass, not statute, magnifying a courts should use ing not reading is I am afraid that Court shoehorn. from by the General created 6-302(a) cap requirements 6-302(a) cap reading into it instead Assembly; is Court. by created requirements CHARTER THE PROPOSED REWRITING AMENDMENTS states, point out that Court “We wish to majority itself, ... rewrite, amendments to suit did amendments which we portions deleted simply we changing necessitated some ... found to be invalid [which] amendments____” in the proposed specified of the dates acknowl- n. apparently 16. The Court Op. at Majority amendments, doing but denies edges rewriting so made the Court were changes “to itself.” The so suit to order that the Court’s compelled it felt substantial on the ballot substitu- placed amendments be rewritten 20,000 over endorsed petitioned for the amendments tion County. Baltimore County and voters in Anne Arundel over they is that know saying effect majority What the cap amend- 20,000 some two counties wanted voters had invalid provi- for petitioned The amendments ment. failed to sions, year, provide wrong base used operation. The year first discretion the county council *30 invalid; it the were say petitions simply did not majority statutorily drafted new permissible cap amendments ac- knowledging they substantially were different from the petitioned amendments, and ordered the amend- Court’s placed ments be on ballot. paternalistic the This benevolent assumption is, of judicial say least, the authority unprece- dented.
The fiscal the changes effect of Court’s is substantial. The Baltimore County Charter Amendment petition signed 10,000 by over voters used the known deter- previously property mined tax for the revenues realized tax 1989- year 90 as property the tax base. The Court’s amendment used the unascertained 1990-91 property tax revenues aas base. 1991-92, For tax year instead tax property being revenues, revenues no than more the 1989-90 tаx revenues can as as property high be the 1990- 2% above 91 revenues. The estimated difference is million over 53 per year dollars in increased property taxes.
In Anne Arundel County, peti- Charter Amendment signed by 10,000 tion over voters used previously known determined 1988-89 tax property revenues as the property tax base. Court’s amendment used unascertained 1990-91 property tax revenues as a For the year base. 1991- instead property being of the tax revenues no revenues, more than the 1988-89 property revenues high can be as above the 1990-91 revenues. The 4.5% estimated difference over year 30 million dollars per increased taxes. property Consequently, some “changing substantially alters dates” amendments in that each county could collect more significantly taxes. if the had majority only
Even
ordered deletions from the
petitioned form of
amendments
had
ordered its other
changes,
Court would still
totally
disregarding
carefully
its
analysis
reasoned
Schneider v.
Lansdale,
(1948),
191 Md.
“The emasculated, is not the charter submitted voters, is referred to no case We have been by the Charter Board. out, to before submis- courts strike which authorizes the are people which the sion, a enactment part invalid upon. proposal partly such they to vote If find invalid cannot delete the may they so hold but they charter only The which the remainder. part and submit submitted, by if is the one drafted any, can be added). (Emphasis deletions.” Charter Board without it also made clear A.2d at 673. Court Id. at or charter amend- that, petitioned of a parts where invalid, a task is to determine whether ment are court’s that from the remainder parts inseparable are “so invalid If whole Id. the invalid invalidity makes the invalid.” its invalid, nothing is sub- makes the whole part If invalid does not invalidate part to the voters. mitted amendment, amendment as drafted the entire judiciary, as drafted to petitioners, submitted to the voters. Corp. Cty.,
In Metro Dade Rivergate Restaurant had deleted (Fla.App.1979), a Florida circuit court So.2d holding In ordinance. provision petitioned an invalid that the lower court had no to delete even invalid provisions, the District of Appeals Court stated:
“An piecemeal individual upon attack portion proposal, opposed toto, an attack proposal was not sufficient circuit enjoin enable court to election or to language delete the of the proposed ordi- nance court found to be unconstitutionally vague____ short,
In the circuit authority court’s was restricted to *32 an overall examination of the constitutionality of the proposed ordinance on its face. It fell into error when it went that beyond and determined that a portion thereof was unconstitutionally vague should prior be deleted to by (Footnote consideration the omitted). electorate.” Id. at 683.
Our function in the instant case should limited to be determining whether the proposed be, amendments could if adopted voters, by operative. the legally not, We should at this stage, attempt to determine whether the may amendments have but aspects severable invalid or applications. We into, should not certainly insert delete from, or the rewrite amendments and place the Court’s rather petitioners’ than the amendments on the ballot. By analogy, the Court may invalidate provisions severable an statute, enacted but the provi- Court cannot substitute sions in a stаtute and cannot order that the statute be republished in provisions Annotated Code omitting the invalidated Court or order republishing of the statute as by the modified Court.
In on passing validity amendments, we should consider them their Whether entirety. specific segments of the are proposal void should not be long considered as as any potentially invalid provisions are severable do not McQuillin invalidate the whole. 5See Corp. Mun. 16.69 (3rd 1989). ed. If the Court does examine seg- individual ments, it improper is Court to delete even invalid provisions or insert provisions new and different in their petitioned submit should either The Court place. their submission. petitioned enjoin as amendments voters, interpreted as petitioned by amendments on the courts, placed what is ballot. should be 626, 606 326 Md. A.2d v. Denny, It ironic Ficker drafted, who (1992), people this Court would not let 10,000 on a charter circulated, signatures and collected over their amend petitioned to elect to substitute for they which claimed ment a council amendment signers. This goals met the Court equally or better quoting approval with refused to allow that substitution 804, 805, Katz, v. 273 N.Y.S.2d from A.D.2d Monplaisir New City sub nom. Cassese Clerk of aff'd 523, 222 York, 813, 275 N.E.2d 389 18 N.Y.2d N.Y.S.2d validly (1966) right that: “Electors have the vote may even if confusion conse propositions submitted at 1062 n. 2. 326 Md. at n. A.2d quence.” Id. case, instant does not allow the voters Yet Court instead, it “validly propositions;” to vote on the submitted appar its own formulation of the amendments substitutes voter confusion. ently avoid *33 Board directing Supervisors
In thаt each county’s amendments the voters “in the cap Elections submit form,” usurped legislative func- following this Court also It is clear that statutory quite tion and violated mandate. councils, courts, prepare county certify Md. appear form charter amendments the ballot. that 33, 16-6(a) (1957, Repl.Vol.), 1990 Art. clear and Code provides: direct. It commissioners, councils,
“The county treasurer be, prepare City, may of Baltimore case shall in certify questions to the boards the form which local shall on the ballots.” appear (1957, 1990 Article 23- Repl.Vol.), also Md.Code
See 1(a) 277 and Anne Co. Md. McDonough, Arundel (1976). 354 A.2d
AMENDMENT PETITIONS given reason for the Court’s deleting from and re- writing the cap amendments in the instant cases is
“submission of an amendment with invalid and severable portions intact would mislead public during the elec- tion by asking them to vote on an which, amendment present form, its incapable was of becoming part of their charter. We do not believe that it is appropriate to deceive the voters this fashion.” Majority Op. at 248. The Court implies that its interpretive changes do not substantially change petitioned amend- ments, yet acknowledges that the petitioned amendments as would mislead and deceive the voters. If the cap amend- ments in the exact form petitioned would mislead and voters, deceive the 20,000 then the plus voters signed who those petitions were also misled and deceived and the Court should have found the petitions See, invalid. e.g., Takoma Pk. v. Citizens Gov’t, Decent 449-50, Md. (1984) A.2d (holding the referendum petition at issue did not describe the statute under consideration in sufficient detail to petition advise signers, therefore the referendum should placed not be ballot). on the If the petitions amendment in the form in which they were signed are not being substantially modified by Court, then all of the voters should be able to vote on them the form 20,000 voters signed them. If original petitions signed 20,000 by over voters are in fact misleading and deceptive, then they are obviously invalid. The Court cannot make misleading and deceptive petitions, which were 20,000 endorsed by voters, over valid rewriting the signed petitions. The cap amendments as modified by the Court clearly were not petitioned for by the voters—they signed amendment petitions which, according Court, *34 misleading were and deceptive. This Court has no authori- ty, no matter good intentions, how its to draft and place its own charter amendments on the ballot. The cap amendments the majority has placed ordered on the ballot voters; construct- they were petitioned not were ed this Court. holding decisions had before it two
This Court of the Maryland Article XI-A cap amendments violated reversed those properly quite This Court Constitution. to determine attempt made no The judges decisions. below Article voided the 6-302(a) Tax-Property whether This Court should clauses.” “escape “roll backs” I the amendments. or rewritten have those issues decided opinion. Court’s from Part IV of this dissent A.2d SYKES, F. Jr. Ruthard COMPANY. NATIONWIDE INSURANCE Term, 129, Sept. No. 1990. Maryland. Appeals
Court July