Citizens Against Slots at the Mall v. PPE Casino Resorts Maryland, LLCCitizens Against Slots at the Mall v. PPE Casino Resorts Maryland, LLC
This is the latest in a series of opinions and orders by this Court involving the constitutional provision and the implementing legislation authorizing a limited number of “video lottery terminals,” commonly known as “slot machines,” at specified Maryland facilities, including a facility in the area of northern Anne Arundel County.
The principal issues in these appeals are whether the Circuit Court’s judgment was appealable and whether an Anne Arundel County zoning ordinance, authorizing video lottery facilities in certain areas of Anne Arundel County, was subject to referendum under § 308(a) of the Anne Arundel County Charter.
The Circuit Court for Anne Arundel County in this case filed a judgment declaring “that Bill No. 82-09 is an interdependent and legally inseparable piece of an appropriation package for maintaining State and local government and, therefore, is not subject to referendum.... ” The Circuit Court, however, rejected all other challenges to a referendum on Bill No. 82-09. Both sides took appeals from the Circuit Court’s judgment, and both filed in this Court petitions for writs of certiorari which we granted. Citizens Against Slots v. PPE Casino,
On July 20, 2010, after the filing of briefs and oral argument, this Court issued an order which (1) denied a motion to dismiss the appeals, thereby holding that the Circuit Court’s judgment was appealable, and (2) reversed the Circuit Court’s judgment and remanded the case to that court with instructions to order that Bill No. 82-09 “be placed on the ballot at the November 2010 general election,” in accordance with the referendum provisions of the Anne Arundel County Charter. See Citizens Against Slots v. PPE Casino,
I.
The constitutional amendment and implementing legislation authorizing video lottery facilities in various Maryland locations has been described in several recent opinions of this Court, and we shall not here repeat in detail what was set forth in those opinions. See Stop Slots v. State Board of Elections,
Prior to the enactment of Bill No. 82-09, video lottery facilities were not permitted uses under Anne Arundel County zoning law. On December 7, 2009, the Video Lottery Facility Location Commission “award[ed] a Video Lottery Operation License for 4,750 video lottery terminals to [appellee] PPE Casino Resorts Maryland, LLC, contingent on zoning approval.” The license was for a video lottery facility “to be located at the intersection of Route 100 and Arundel Mills Boulevard, located within two miles of Route 295, at Arundel Mills Mall in Hanover, Maryland.” Anne Arundel County Bill No. 82-09, permitting video lottery facilities in certain areas, including the above-described location at Arundel Mills Mall, was passed by the Anne Arundel County Council on December 21, 2009, and signed by the County Executive on December 22, 2009.
Upon the enactment of Bill No. 82-09, the appellant Citizens Against Slots at the
While the petition drive was taking place, the appellee PPE Casino Resorts, which opposed the referendum, along with other appellees opposed to the referendum, commenced the present action by filing in the Circuit Court for Anne Arundel County a complaint for a declaratory judgment against the Anne Arundel County Board of Elections, challenging the Board’s review of the petitions and the signatures. Citizens Against Slots filed a motion to intervene, and the motion was granted. On April 7, 2010, after the Board of Elections’ certification, PPE Casino Resorts filed a second amended complaint, and later a third amended complaint, seeking both judicial review of the certification by the Anne Arundel County Board of Elections and a declaratory judgment. Also, the State Board of Elections was added as a defendant.
Hearings before the Circuit Court took place at various times during the latter part of May 2010 and early June 2010. PPE Casino Resorts argued that Bill No. 82-09 was not subject to a referendum under § 308(a) of the Anne Arundel County Charter because it was a component of an appropriation package, and § 308(a) stated: “No ordinance making any appropriation for current expense for maintaining the County government ... shall be subject to rejection or repeal under this section.”
The Circuit Court on June 25, 2010, filed an extensive opinion and declaratory judgment dealing with the various issues raised by the parties. As previously mentioned, the Circuit Court held that Bill No. 82-09 was not subject to referendum because the Bill was “interdependent and legally inseparable from a larger appropriation package.” The court explained:
“The Maryland Education Trust Fund Act generates revenue for a constitutionally mandated purpose and will maintain State and local government. To further its purpose, it establishes the process for collecting and depositing revenue into a trust fund account. VLT [Video Lottery Terminals] facilities are a necessary element to this revenue raising measure. The State Gaming Commission awarded a VLT license to PPE, conditioned on the location receiving the proper zoning. Subsequent to the preliminary award, the County Council passed Bill 82-09, specifically conditioning the VLT use on a property being in compliance with the location requirements specified under Article XIX. If Bill 82-09 was subject to referendum, the constitutional and legislative purposes set forth under Article XIX and the Maryland Education Trust Fund Act would be delayed and thwarted, if not fatally undermined. Therefore, given Bill 82-09’s interdependent and legally inseparable nature from a constitutionally mandated appropriation law to maintain public education, Bill 82-09 is not subject to referendum.”
The principal authority relied upon by the Circuit Court was Kelly v. Marylanders For Sports Sanity,
Citizens Against Slots filed a notice of appeal to the Court of Special Appeals on June 28, 2010, and filed a “precautionary” notice of “direct appeal” to the Court of Appeals on June 30, 2010.
II.
PPE Casino Resorts’ motion to dismiss is based on Maryland Code (1974, 2006 Repl.Vol., 2012 Supp.), § 12-302(a) of the Courts and Judicial Proceedings Article, which provides that the general appeals statute (§ 12-301of the Courts and Judicial Proceedings Article) does not apply to certain types of cases and that the right to appeal in such cases must be granted by some other law. Section 12-302(a) states:
“(a) District Court, administrative agency, or local legislative body. — (Unlessa right to appeal is expressly granted by law, § 12-301 of this subtitle does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of the District Court, an administrative agency, or a local legislative body.”
The phrase in § 12-302(a), referring to “the exercise of appellate jurisdiction in reviewing the decision of ... an administrative agency, or a local legislative body,” has been construed to mean “ordinary statutory judicial review of adjudicatory decisions by administrative agencies and local legislative bodies,” Gisriel v. Ocean City Elections Board,
PPE Casino Resorts argued that the present case, involving judicial review of a decision by an administrative agency, namely the Anne Arundel County Board of Elections, fell within § 12-302(a). Consequently, the argument continued, § 12-301 of the Courts and Judicial Proceedings Article did not authorize an appeal. PPE Casino Resorts further argued that no other statute authorized an appeal in the case and that, therefore, there was no appellate jurisdiction. More specifically, PPE Casino Resorts pointed to Title 6 of the Election Article, relating to “Petitions,” and § 6-209 of Title 6 which provides for judicial review in a circuit court. Title 6, however, contains no express provision for an appeal from a circuit court’s judgment to either the Court of Special Appeals or the Court of Appeals.
The principle reflected in § 12-S02(a) of the Courts and Judicial Proceedings Article, that the general appeals statute does not authorize an appeal from a trial court judgment reviewing, inter alia, the decision of an administrative agency, originated as part of a judicially created doctrine in 1837. See Wil. & Susq. R.R. Co. v. Condon, 8 G. & J. 443, 448-449 (1837). The principle, as applied to administrative agencies and local legislative bodies, was embodied in a statute with the enactment of the Courts and Judicial Proceedings Article in 1973.
During the period from 1837 until the present, there have been literally hundreds of cases decided by this Court involving appeals from trial court judgments in actions for judicial review of decisions by state and county election officials or agencies. None of these cases, as far as we are aware, has applied the jurisdictional principle embodied in § 12-302(a) to appeals from judgments reviewing the decisions of state or county election officials or agencies.
Where, over a long period of time, there have been many opinions of this Court concerning a particular subject matter, and a legal principle or statute may arguably appear to be applicable to that subject matter, but none of our opinions have applied the principle or statute to the subject matter, it is reasonable to infer that the principle or statute was not intended to apply. See Schochet v. State,
Title 12, subtitle 2, of the Election Article of the Code furnishes additional confirmation that the non-appealability principle of § 12-302(a) was not intended to apply to decisions of county election boards. Sections 12-201 and 12-202(a) of the Election Article provide as follows:
“Subtitle 2. Judicial Review of Elections.
Ҥ 12-201. Scope of subtitle.
This subtitle applies to an issue arising in an election conducted under this article.
Ҥ 12-202. Judicial challenges.
(a) In general. — If no other timely and adequate remedy is provided by this article, a registered voter may seek judicial relief from any act or omission relating to an election, whether or not the election has been held, on the grounds that the act or omission:
(1) is inconsistent with this article or other law applicable to the elections process; and
(2) may change or has changed the outcome of the election.”
Ҥ 12-203. Procedure.
“(a) In general. — A proceeding under this subtitle shall be conducted in accordance with the Maryland Rules, except that:
(1) the proceeding shall be heard and decided without a jury and as expeditiously as the circumstances require;
(2) on the request of a party or sua sponte, the chief administrative judge of the circuit court may assign the case to a three-judge panel of circuit court judges; and
(3) an appeal shall be taken directly to the Court of Appeals within 5 days of the date of the decision of the circuit court.
(b) Expedited appeal. — The Court of Appeals shall give priority to hear and decide an appeal brought under subsection (a)(3) of this section as expeditiously as the circumstances require.”
Consequently, to the extent that the other provisions in the Election Article fail to provide for judicial review of a county election board’s decision on “an issue arising in an election conducted under” the Election Article, § 12-202 of that Article authorizes judicial review. Where a provision in the Election Article authorizes judicial review but fails to authorize an appeal, such as in Title 6, and if it were assumed, arguendo, that the general appeals statute would not authorize an appeal, the “remedy” would not be “adequate” in the words of § 12-202(a). In that hypothetical situation, § 12-203(a)(3) would authorize an appeal.
Sections 12-202(a) and 12 — 203(a)(3) of the Election Article, by broadly authorizing judicial review and an appeal under the Election Article in any case where no other adequate remedy was provided by the Article, show that the Legislature had no intention of applying the non-appealability principle of § 12-302(a) to cases under the Election Article.
Moreover, county election boards are significantly different from the local government administrative agencies involved in the cases applying the non-appealability principle embodied in § 12-302(a). One difference between a county election board and most other local administrative agencies is that a county election board is a state agency and not an agency of the county. State Ethics Commission v. Antonetti,
We hold, therefore, that § 12-302(a) of the Courts and Judicial Proceedings Article has no application to cases arising under the Election Article. Where the Election Article authorizes judicial review but is silent regarding an appeal, such as in Title 6, the general appeals statute, § 12-301 of the Courts and Judicial Proceedings Article, authorizes an appeal. Where the Election Article does not provide for judicial review, §§ 12-201 through 12-203 of the Election Article authorize judicial review and an appeal.
III.
The Anne Arundel County zoning ordinance known as Bill No. 82-09, which permitted video lottery facilities in certain areas, was clearly not an “ordinance making any appropriation for current expense for maintaining the County government” within the meaning of § 308(a) of the Anne Arundel County Charter, authorizing a referendum on ordinances except those
Just recently, in Doe v. Maryland State Board of Elections,
Neither the Circuit Court nor PPE Casino Resorts disputed the conclusion that Bill No. 82-09 itself was not an appropriation act. The Circuit Court stated that “it agrees with all parties that Bill 82-09 is not an appropriation bill....” Nevertheless, as earlier pointed out, the Circuit Court viewed the zoning ordinance as “interdependent and legally inseparable from a larger appropriations package.” The “larger appropriations package,” according to the Circuit Court, consisted of Article XIX of the Maryland Constitution, which was proposed by the General Assembly in 2007 and ratified by the voters in 2008, and statutes enacted by the General Assembly in 2007 to implement Article XIX. Article XIX provided for licenses to operate video lottery terminals at five locations within the State “for the primary purpose of raising revenue for (i) Education for the children of the State in public schools ..., (ii) Public school construction and public school capital improvements ...,” as well as other programs. The implementing legislation, inter alia, established the Education Trust Fund consisting of certain revenues anticipated from the video lottery terminals. In addition, as the Circuit Court pointed out, the awarding of licenses for video lottery terminals was “conditioned on the location receiving the proper zoning.” See Article XIX, §§ 1(c)(1) and 1(c)(5). The Circuit Court reasoned that, if “Bill 82-09 was subject to referendum, the constitutional and legislative purposes set forth under Article XIX and the Maryland Education Trust Fund Act would be delayed and thwarted, if not fatally undermined.”
Accordingly, the Circuit Court concluded that Bill No. 82-09 was “legally inseparable ... from a constitutionally mandated appropriation law to maintain public education....” As mentioned earlier in this opinion, the Circuit Court chiefly relied on
The Circuit Court’s and PPE Casino Resorts’ reliance upon the Kelly case, and the reasoning of Kelly, is misplaced. The circumstances of the present case are quite different from those in Kelly. Bill No. 82-09 did not have a similar relationship to Article XIX of the Constitution and its implementing legislation that the interrelated bills in Kelly had to each other.
The Kelly case involved three bills recommended by the Maryland Stadium Authority. The Maryland Stadium Authority was created by Ch. 283 of the Acts of 1986 as an instrumentality of the State and was “empowered to determine the location of, and construct and maintain” sports facilities which included, “in addition to the site, ‘stadiums for the primary purpose of holding professional football games, major league professional baseball games, or both, in the Baltimore metropolitan area.’ ” Kelly,
Upon the Authority’s recommendation, three bills were introduced in the 1987 session of the General Assembly on behalf of Governor Schaefer’s administration. The three bills were passed by the General Assembly and, upon the Governor’s signing all three bills on April 29, 1987, they became Chs. 122, 123, and 124 of the Acts of 1987. Ch. 122 authorized the Authority to acquire the 85-acre site known as “Camden Yards” and to “construct or enter into a contract to construct the [sports] facility on that site.” Ch. 123 authorized the Authority to acquire the Camden yards site by ordinary condemnation or by quick-take condemnation. Ch. 123 provided that any receipts of the Authority be deposited in its “Financing Fund,” and required the Authority to submit annually a budget to the Department of Budget and Fiscal Planning. Ch. 124 related to the financing of the Authority’s site acquisition and construction of stadiums. It provided that the Authority should solicit funds from private investors in order to minimize its use of state lottery funds. Ch. 124 contained provisions relating to the sale of the Authority’s bonds, and required that Baltimore City pay one million dollars annually into the Authority’s Financing Fund. Ch. 124 contained other provisions relating to the Authority’s financing.
Opponents of the above-described enactments undertook to petition Chs. 122 and 124 to referendum under Article XVI of the Maryland Constitution. When referendum petitions were submitted, the state officials refused to accept them on the advice of the Attorney General that neither statute was referable. The opponents brought a mandamus action which culminated in this Court’s Kelly decision. The trial court in Kelly had held that the Acts were referable on the ground,
With regard to Ch. 124, Chief Judge Murphy, quoting Dorsey v. Petrott,
“Chapter 124 is, therefore, a finely tuned law containing an intricate financing mechanism to permit the State to receive and expend public monies required to obtain a site and to construct the contemplated sports facilities in the public interest. Specifically, it authorizes the borrowing of funds through the issuance of bonds, the disbursement of those funds through the Authority’s Financing Fund, and the payment of the Authority’s bonded indebtedness through monies directed to be paid by the State to the Authority through annual appropriations in the Budget Bill, by the City of Baltimore, and through the Authority’s own revenues included in its Financing Fund.... [C]h. 124 is a type of revenue raising and spending measure intended to be embraced within the exclusionary provisions contained in the Referendum Amendment.”
Turning to Ch. 122, which designated Camden Yards as the stadium site, Chief Judge Murphy for the Court recognized that, by itself, Ch. 122 was not an appropriation act. Nevertheless, the Court in Kelly,
“dominant purpose — to finance the acquisition of a site upon which to construct sports stadiums. As this legislative purpose constitutes, in effect, a single, inseparable ‘law1 making an appropriation for maintaining the State government, none of the individual parts of the package is referable under Art. XVI to a vote of the people.”
The Kelly opinion relied on various circumstances regarding the three acts, pointing out that “the three stadium bills were introduced and considered by the Legislature as a single ‘package’ of bills” (
“We have held time and again that statutes dealing with the same subject matter, particularly when enacted at the same session, being in pari materia, must be read together in order to determine their proper construction. * * In interpreting Art. XVI, § 2 of the Constitution, the same principles govern what comprises an appropriation ‘law.’ The provision in Art. XVI under which ‘[n]o law making any appropriation for maintaining the State Government ...shall be subject to’ referendum has as its constitutional purpose protecting from referendum the purpose or object of the legislative appropriation.”
Finally, the Court in Kelly held that “[t]o sever Ch. 122 ... would not just thwart the legislative design but ... would scuttle the entire project by fatally undermining its dominant purpose — to finance the acquisition of a site upon which to construct sports stadiums.” (
The types of circumstances relied on in Kelly to treat the three stadium acts together as a single package, and deem the package to constitute an appropriation, were absent in the case at bar. The three bills in Kelly were introduced in the same legislative body (the General Assembly) at the same time and considered by that legislative body as a single package. In the present case, however, the pertinent acts relied on by the Circuit Court and PPE Casino Resorts involved different “legislative” bodies, were not “enacted” at the same time, and were never treated as a single package. Article XIX of the Maryland Constitution, although proposed by the General Assembly, was enacted by the voters of Maryland at the general election in November 2008. The statutory provisions creating the Education Trust Fund were considered by and enacted by the General Assembly in 2007. Bill No. 82-09, rezoning one area of Anne Arundel County, was considered by and enacted by the Anne Arundel County Council in December 2009.
The three statutes in Kelly all affected the same area of the State, i.e., an 85-acre parcel in Baltimore City. In the present case, however, Bill No. 82-09 affected a particular area of Anne Arundel County, whereas Article XIX and the implementing legislation affected, in addition to the area in Anne Arundel County, areas in Baltimore City, Worcester County, Cecil County, and Allegany County.
Moreover, in contrast to the situation in Kelly,
The status of Bill No. 82-09, in relation to Article XIX of the Constitution and the Education Trust Fund law, is no different than it would have been if the local zoning law had been enacted many years before the enactment of Article XIX and the Education Trust Fund law. Thus from 1943 until 1968, slot machines, as well as any other “amusement devices,” were lawful in Anne Arundel County and were present in commercial establishments throughout the County. Presumably, slot machines were not prohibited under any local zoning ordinances. The pertinent history was set forth by this Court in State v. 158 Gaming Devices,
While the motivation underlying Bill No. 82-09 may have had a connection with Article XIX of the Constitution, the motivation underlying many local zoning ordinances may have had a connection with a program under State law involving appropriations. This is insufficient to render a local zoning ordinance and the State law a single “package” for purposes of the referendum exception for appropriation acts. Bill No. 82-09, regardless of the motivation for its passage by the County Council, was simply a local ordinance re-zoning an area. As such, it was not exempt from a referendum.
Notes
. Prior opinions and orders involving the Anne Arundel County facility include Stop Slots v. State Board of Elections,
. Section 308(a) of the Anne Arundel County Charter states (emphasis added):
"Sec. 308. The Referendum.
(a) Scope of the Referendum. The people of Anne Arundel County reserve to themselves the power known as “The Referendum," by petition to have submitted to the registered voters of the County, to approve or reject at the polls, any ordinance or part of any ordinance of the County Council. The referendum petition against any such ordinance shall be sufficient if signed by ten per centum of the qualified voters of the County calculated upon the whole number of votes cast in the County for Governor at the last preceding gubernatorial election. Such petition shall be filed with the Board of Supervisors of Elections of Anne Arundel County within forty-five days after the ordinance becomes law. If such a petition is filed as aforesaid, the ordinance or part thereof to be referred shall not take effect until thirty days after its approval by a majority of the qualified voters of the County voting thereon at the next ensuing election held for members of the House of Representatives of the United States; provided, however, that if more than one-half but less than the full number of signatures required to complete any referendum petition against such ordinance be filed within forty-five days from the date it becomes law, the time for the ordinance to take effect and the time for filing the remainder of signatures to complete the petition shall be extended for an additional thirty days with like effect. Any emergency ordinance shall remain in force from the date it becomes law notwithstanding the filing of such petition, but shall stand repealed thirty days after having been rejected by a majority of the qualified voters voting thereon. No ordinance making any appropriation for current expense for maintaining the County government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this section. The increase in any such appropriation for maintaining the County government or for maintaining or aiding any public institution shall only take effect as in the case of other ordinances, and such increase, or any part thereof, specified in the petition may be referred to a vote of the people of the County upon petition as above provided.”
. It should be noted that the majority of the Anne Arundel County voters approved Bill No. 82-09 at the November 2010 election. Accordingly, the Bill is now part of the Anne Arundel County Code.
. Hereafter in this opinion, the appellant and cross-appellee Citizens Against Slots at the Mall, and the other appellants and cross-appellees opposed to a video lottery facility at Arundel Mills Mall, will collectively be referred to as "Citizens Against Slots." The appellees and cross-appellants will collectively be referred to as "PPE Casino Resorts.”
. See n. 2, supra. The Maryland Constitution, in Article XVI, Section 2, contains a somewhat similar provision with regard to a “law enacted by the General Assembly,’’ although the wording of the provision is not the same.
. Maryland Rule 8-202(a) provides in relevant part as follows: "Generally. Except as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.”
Title 6 of the Election Law Article of the Code, concerning "Petitions,” in § 6-209 relating to judicial review, does not refer to "appeals.” See Maryland Code (2002, 2010 RepLVoL), § 6-209 of the Election Law Article. Title 12 of the Election Law Article in §§ 12-202 and 12-203, authorizing judicial review of decisions relating to an election where no other adequate remedy is available, provides for direct appeals to the Court of Appeals within five days of a circuit court's decision.
. In Gisriel v. Ocean City Elections Board,
. There are additional reasons which may support the conclusion that the General Assembly had no intention of applying the non-appealability principle of § 12-302(a) of the Courts and Judicial Proceedings Article to Title 6 cases like the present one.
Section 6-209(a) of the Election Article provides for a "judicial review” action by a "person aggrieved by a determination made under” Title 6, to be filed in a circuit court. Section 6-209(a)(3) states: "Judicial review shall be expedited by each court that hears the cause....” (Emphasis added). The reference to "each court” obviously refers to one or more courts other than the circuit court, and the only such courts are the two appellate courts. If the non-appealabili1y principle were intended to apply, the statute would not have used the phrase "each court.”
While § 6-209(a) of the Election Article authorizes a judicial review action by an aggrieved person, § 6-209(b) provides that "any registered voter” may bring an action "[pjursuant to the Maryland Uniform Declaratory Judgments Act” for "declaratory relief as to any petition with respect to the provisions of this title or other provisions of law.” For a discussion of § 6-209 of the Election Article, see Doe v. Board of Elections,
In Bowen v. Annapolis,
. See n. 2, supra.
. For a recent review of the Kelly case, see Judge Greene’s opinion for the Court in Doe v. Maryland State Board of Elections,
. In addition to the two principal issues raised on this appeal, concerning the appealability of the Circuit Court's judgment and whether Bill No. 82-09 could be petitioned to referendum, PPE Casino Resorts has also raised an issue concerning the sufficiency of the circulators’ affidavits and an issue regarding the trial judge’s refusal to permit, based on PPE Casino Resorts’ proffer, an expert's testimony about possible “fraud, misrepresentations, and forgery in the petition process,” (PPE Casino Resorts’ brief at 52). With regard to the circulators’ affidavits, it is undisputed that they complied with § 6-204 of the Election Article and the State Board’s regulations thereunder. PPE Casino Resorts argues, however, that the affidavits failed to comply with an additional requirement contained in Anne Arundel County law. The trial judge correctly rejected this argument, pointing out that, to the extent of any conflict, the State Election Article controlled. See §§ l-101(v), 2-202(a) and (b), and 6-102 of the Election Article, indicating that the state law applies to state and county elections but not municipal elections. See also County Council v. Montgomery Ass’n,
. Under § 308(a) of the Anne Arundel County Charter, a referendum petition must be filed within 45 days after the ordinance becomes law.