In this case, a group of Howard County residents have challenged the validity of more than 100 land use actions taken by the County over the last two decades. Having been rebuffed by the federal courts, see infra at 3, in the Fall of 2009, appellant Paul F. Kendall and three other residents (“Kendall” or “Kendall appellants”) filed a complaint against the County in the Circuit Court for Howard County seeking a declaratory judgment that vаrious County resolutions, ordinances, zoning decisions and administrative actions violated provisions of the County Charter. The County filed a motion to dismiss, raising procedural and jurisdictional objections to the lawsuit. After a hearing in February 2010, the circuit court granted the County’s motion and dismissed the complaint. This appeal followed.
QUESTIONS PRESENTED
Kendall has raised the following issues for our review:
1. Whether the trial court erred in holding that Appellants/Plaintiffs below had no standing to bring suit.
2. Whether the trial court erred in dismissing the case because Appellants/Plaintiffs had failed to join necessary parties.
3. Whether the trial court erred in dismissing the case because Appellants/Plaintiffs below had failed to exhaust their administrative remedies.
FACTS AND PROCEEDINGS
In 1994, by charter initiative, citizens of Howard County placed on the ballot and won voter approval of a charter amendment, which in its present form provides:
Any аmendment, restatement or revision to the Howard County General Plan, the Howard County Zoning Regulations or Howard County Zoning Maps, other than a reclassification map amendment established under the “change and mistake” principle set out by the Maryland Court of Appeals, is declared to be a legislative act and may be passed only by the Howard County Council by original bill in accordance with the legislative procedure set forth in Section 209 of the Howard County Charter. Such an act shall be subject to executive veto and may be petitioned to referendum by thepeople of the county pursuant to Section 211 of the Charter.
Howard County Charter, § 202(g)l.
The Kendall appellants became dissatisfied with the County’s compliance with the 1994 Charter Amendment. As noted in their 2009 complaint in the circuit court:
[F]or years it has been the plan, policy and practice of Howard County and its legislative and executive agencies, acting under color of state law, but in violation of the County Charter, to make legislative determinations or facilitate the making of such determinations, particularly on matters related to land use, through means other than the appropriate and required legislative process and passage of an original bill, in order to circumvent the people’s right of referendum and their ability to veto or approve these decisions at the polls. In the past three years alone there have been hundreds of decisions of such nature____Circumvent-
ing the peoples’ right of referendum typically is done in one of three ways: (1) the County Council passes laws and accomplishes “legislative acts” by resolutiоn instead of by bill; (2) the County Council, by bill, illegally delegates “legislative” decision-making to administrative entities; and (3) administrative entities, without any purported delegation, make “legislative” determinations which are required under the Charter to be accomplished by the County Council by bill.
In 2009, Kendall and other County residents, filed suit in U.S. District Court for the District of Maryland to challenge these alleged violations on federal constitutional grounds. The County defendants moved to dismiss, arguing that the plaintiffs lacked standing to pursue their action and that the court should abstain from deciding the state law issues inherent in their claims. The District Court granted the motion in part, ordering abstention so that the plaintiffs could bring their claims in State court.
Kendall v. Howard County,
Taking action on two fronts, the plaintiffs in the federal suit noted an appeal and the Kendall appellants filed their declaratory judgment action in State court. Before their case was argued in this Court, the U.S. Court of Appeals for the Fourth Circuit rejected their appeal on a different basis than the district court—lack of standing.
Kendall v. Howard
County,
In their complaint in the circuit court, the Kendall appellants indicated that each has been “a taxpayer,
2
property owner, resident and registered voter in Howard County.” In Count I of the comрlaint, they challenged the Council’s passage between 2006 and 2008 of 54 land use resolutions which should have been passed “by original bill, subject to petitioning to referendum,” as well as 5 ordinances enacted
After the County moved to dismiss and the court heard argument, the circuit judge issued the following ruling from the bench:
I do find that there is [an] enormous standing problem in terms of the Plaintiffs’ ability to demonstrate a particularized harm and that there is, therefore, no justiciable controversy.
I also find that there are an enormous number of individuals who would be affected by any sort of declaratory relief in this case, whо have not been made parties to this case, and that is a fatal flaw in this request for declaratory relief. I do also find that there are existing statutory remedies for all of these decisions that have been included. The fifty-five [sic ] in count 1; the zoning decision in count 2; the public water and sewer issues in count 3; the highway interchanges in count 4, all of which have statutory remedies available to the Plaintiffs.
They either have not been pursued or have been pursued in a truncated way that has not allowed for the issues to gravitate to the appellate court of this state. But there are statutory remedies available that make declaratory relief unnecessary.
And I am going to grant the motion to dismiss with prejudice. This will give you another opportunity to appeal. Okay? And I encourage you to seize it. You cаn stop dancing, get some resolution.
DISCUSSION
I. Standard of Review
In review of a circuit court’s grant of a motion to dismiss, we must determine whether the court was “legally correct.”
Hrehorovich v. Harbor Hosp. Ctr., Inc.
II. Contentions of the Parties
The Kendall appellants ground their standing to sue in “the right to referendum and vote granted to the People of Howard
On the necessary parties issue, Kendall contends:
The notion that anyone who has or might have [an] adverse interеst in the challenged actions is specious. Even if every act challenged was [overturned] by this Court, the County Council could remedy this reversal by the simple passage of a bill approving the reversed actions.
Appellants also state that dismissal was not the appropriate remedy if necessary parties are found lacking. Rather, they assert the court should have ordered such persons to bе joined as parties. Kendall also argues that when “public rights” are at stake, there is no need to apply the traditional rules governing joinder. The County responds that the Kendall appellants ignore “the real-world consequences” of their requested relief, noting:
Appellants cannot ask the Court to dismantle the property interests held by the stakeholders and beneficiaries of specific lаnd-use decisions, only to assert that an independent legislative body may attempt to ‘remedy' or re-assemble these property rights later on. This notion flies in the face of equity, fairness, and due process.
Turning to the circuit court’s ruling on the exhaustion of administrative remedies, Kendall argues that there is no administrative mechanism to directly challenge the facial validity of the ordinances, resolutions and some of the land use actions at issue and that the appellants do not live in close enough proximity to the affected properties to have standing to invoke an administrative remedy.
See generally Ray v. Mayor & City Council,
III. Necessary Parties / Exhaustion
With respect to the alternative grounds for the dismissal of Kendall’s action, viz. necessary рarties and exhaustion of administrative remedies, both sides in this appeal make some valid points.
In light of the gargantuan nature of Kendall’s lawsuit, it is inconceivable that many property owners would not be adversely affected by judicial invalidation of land use decisions previously thought settled. It is no answer to suggest that such absent parties pick up the pieces after judicial invalidation has occurrеd. On the other hand, it is equally inconceivable that every single one of Kendall’s land use claims requires a necessary party determination. In addition, the Court of Appeals has said that when a necessary
party objection has been raised, “ordinarily dismissal
This is equally true with respect to the failure to exhaust. While many of the land use decisions challenged may have triggered exhaustion concerns, it seems unlikely that each and every one of them would. Moreovеr, in its brief, the County argues that land use actions challenged in Counts II and III of the complaint should have been dismissed on these grounds. However, it does not contend that dismissal with respect to allegations in Counts I and IV could be sustained solely for a failure to exhaust.
IV. Voter Standing
Although neither lack of necessary parties nor a failure to exhaust administrative remedies would support dismissal of Kendall’s complaint in its entirety, the appellants face a more formidable hurdle in the County’s objection to their standing to bring this declaratory judgment action. For standing purposes, the Kendall appellants have placed all their eggs in a single basket labeled referendum and voting. 5 The premises for their position are deceptively simple:
1. Governmental injury directly related to voting, “the most basic of political rights,” is a sufficient basis for standing to sue. Akins, 524 U.S. at 25 [118 S.Ct. 1777 ]. 6
2. The fact that such an injury is “widely shared” does not deprivе the courts of the ability to vindicate such rights. Id.
3. Signing a referendum petition expresses the political view that a question should be considered by the whole electorate and thus implicates a First Amendment right. Doe v. Reed [— U.S.-],130 S.Ct. 2811 , 2817 [177 L.Ed.2d 493 ] (2010). Cf. Green v. City of Tucson,340 F.3d , 897 (9th Cir.2003) (Signatures on a petition for incorporation of a municipality are the constitutional equivalent of votes.)891
Hence, the contention that the circuit court erred in rejecting their standing for failurе to demonstrate a particularized harm.
In our view, Kendall’s premises cannot be accepted uncritically. First,
Akins’
holding is not as unequivocal as appellants appear to suggest. In that case, the Supreme Court concluded that a group of voters had standing to challenge a Federal Election Commission decision dismissing their complaint that a particular organization was a political committee subject to
federal disclosure requirements. However,
Akins
distinguished the case where a voter’s alleged injury is not only “widely shared,” but also of “an abstract and indefinite nature,” such as a concern for “obedience to law.”
In our view, this is the essence of Kendall’s claim—the County’s alleged failure to comply with the 1994 Charter amendment by not enacting ordinances with respect to certain land use actions. Contrary to the authorities Kendall cites, where, generally, alleged failures in the petition process were at issue, or electoral issues were in the forefront, voting and referеndum is decidedly in the background of appellants’ action. In a proper case, their grievance could be litigated without any reliance on voting rights. See e.g., Inlet Associates v. Assateague House Condominium, Assoc., supra. (Taxpayers successfully challenged a municipality’s conveyance of a property interest by resolution rather than ordinance).
Kendall’s challenge is several stеps removed from an electoral / voting rights setting. This is apparent from the case upon which they place principal reliance,
Bishop v. Bartlett,
While there is some question regarding whether, at the time of filing, the Roanoke Rapids project had reached the critical point in which Moore’s right to vote was implicated, we will assume for purposes of this opinion that the project had reached a point in which the issuance of bonds was imminent.
Id.
(Emphasis added). In essence, the Fourth Circuit held that for standing purposеs, the right to vote was implicated when the referendum should have been held. In the case of a compulsory referendum, which was the type at issue in
Bishop,
the election is automatic and the right to vote is undeniably affected. However, in the case of referendum by petition, the
Like a vote on a ballot, a signature on a petition is an expression of a registered voter’s will. And like an election, the petition process requires a majority for success, albeit a two-thirds majority.
Id. at 897. Significantly in Green, the incorporation petition had been signed by mоre than two-thirds of qualified voters, id. at 894, so that the requirements for a referendum had been satisfied and a right to vote in the election arose. 8
In this case, the Kendall appellants have not initiated the referendum process for any of the challenged land use actions. Moreover, because 1500-5000 valid signatures would have been required under Section 211 of the County Charter, they could not have guarantеed that sufficient signatures would have been gathered and an election held on any of the land use actions. In the words of Bishop, the “critical point” implicating the right to vote has not yet been reached. In the words of Baker v. Carr, supra, a “concrete injury” to fundamental voting rights has not yet occurred. What we are left with is Kendall’s assertion of an abstract, generalized interest in the County’s compliance with § 202(g) of the Charter. This is insufficient as a matter of law to confer voter standing on the appellants. For these reasons, the circuit court did not err in dismissing the declaratory judgment action and its decision must be affirmed.
JUDGMENT OF THE CIRCUIT COURT AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
Notes
. Under Rule 32.1(a) of the Federal Rules of Appellate Procedure, after January 1, 2007, a United States Court of Appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or any other reason. Flowever, it is the policy of this Court in its opinions not to cite for persuasive value any unreported federal or state court opinion. In this case, our policy is not implicated because we have cited the two unreported federal case opinions only to impart the history of this case.
. The complaint contained no allegations commonly associated with taxpayer standing, viz. that Kendall’s taxes would increase or the County would incur substantial costs as a result of the alleged Charter violations. In fact, as discussed infra, the appellants have disavowed their taxpayer status as a basis for standing in this litigation.
. In its brief, the County asserts that Kendall’s complaint should be dismissed on the basis of laches and we should not reach the challenge to one specifiс land use decision because it is the subject of a separate appeal by Kendall. These issues were not decided in the circuit court. Thus, we do not address them here.
. We disagree with the contention of the Kendall appellants that they need not comply with necessary parties requirements because this litigation affects “public rights.” They rely on
National Licorice Co. v. NLRB,
. Although taxpayer standing has been successfully invoked to challenge a local legislative body’s decision to act by resolution rather than ordinance,
see Inlet Associates v. Assateague House Condominium Assoc.,
. For a discussion of voter standing in redistricting litigation in Maryland,
see DuBois v. City of College Park,
. Maryland law recognizes the distinction between compulsory referendum mandated by a legislative body and optional or “facultative” referendum initiated by citizen petition.
Ritchmount Partnership v. Board of Supervisors,
.
Green
emphasized the holding of the Supreme Court in
San Antonio Independent School District v. Rodriguez,