GISELL PAULA, ET AL. v. MAYOR AND CITY COUNCIL OF BALTIMORE, ET AL.
No. 1272
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
January 27, 2022
Opinion by Ripken, J.
REPORTED; Sеptember Term, 2020; Circuit Court for Baltimore City, Case No. 24C20002763
Paula, et al. v. Mayor and City Council of Baltimore, et al., No. 1272, September Term, 2020. Opinion by Ripken, J.
ACTIONS — GROUNDS AND CONDITIONS PRECEDENT — PERSONS ENTITLED TO SUE
In order to pursue a civil action, a plaintiff must demonstrate “standing” to bring the suit, meaning that the plaintiff must show that he or she is entitled to invoke the judicial process in a particular instance. When a plaintiff seeks to redress what is claimed to be a public wrong, the plaintiff must demonstrate that he or she has an interest such that he or she is personally and specifically affected in a way different from the public generally.
STANDING — GENERAL — SPECIAL INTEREST REQUIREMENT
Complainants were not injured or aggrieved by the actions of the Civilian Review Board (“CRB“) in a way that differed in kind and character from the general public, and thus lacked standing to bring an action challenging the CRB‘s procedures.
STANDING — TAXPAYER STANDING — IN GENERAL
To establish taxpayer standing, plaintiffs must demоnstrate status as taxpayers, and a special interest. To meet the special interest requirement, a plaintiff must allege (1) an action by a municipal corporation or public official that is illegal or ultra vires; and (2) that the action may injuriously affect the taxpayer‘s property, meaning that it reasonably may result in a pecuniary loss to the taxpayer or an increase in taxes.
STANDING — TAXPAYER STANDING — IN GENERAL
To meet the ultra vires requirement of taxpayer standing, plaintiffs must simply allege, in good faith, an ultra vires or illegal act by the State or one of its officers. As to the second element of the special interest requirement, the specific injury, plaintiffs must demonstrate the appropriate type of harm, a nexus between the illegal or ultra vires act and the alleged harm, and some modest showing regarding the degree of harm.
CONSTITUTIONAL LAW — DUE PROCESS — SUBJECTS OF RELIEF
A person who files a complaint against a police officer does not have a life, liberty, or property interest in the CRB‘s recommendation concerning that complaint, and thus lacks standing.
Pursuant to Maryland Uniform Electronic Legal Materials Act (
REPORTED
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 1272
September Term, 2020
GISELL PAULA, ET AL.
v.
MAYOR AND CITY COUNCIL OF BALTIMORE, ET AL.
Kehoe,
Berger,
Ripken,
JJ.
Opinion by Ripken, J.
Filed: January 27, 2022
FACTUAL AND PROCEDURAL BACKGROUND
Role and Procedure of the CRB
In 1999, The Maryland General Assembly passed legislation creating the CRB.
An individual who has been subjected to or a witness of police misconduct “may file a complaint at the Office of the Internal Investigative Division [within BPD], the Legal Aid Bureau, the Maryland Human Relations Commission, the Baltimore Community Relations Commission, or at any of the police district stations.”
The CRB “shall review all complaints alleging police misconduct” within its jurisdiction and “may investigate, simultaneously with the Internal Investigative Division, each complaint it deеms appropriate[.]”
Current Litigation
In June of 2020, Appellants filed a Complaint in the Circuit Court for Baltimore City against the Mayor and the City Council of Baltimore seeking to “exert their right to an independent civilian review board as the Public Local Laws guarantee.” The Complaint asserted Appellant Paula was a resident of Baltimore. It asserted that Appellant Kenny was a resident
The Complaint alleged that the City undermined the CRB‘s independence in two ways. First, Appellants asserted the City‘s decision to organize the CRB within the OECR gave the City undue authority over the CRB as the OECR Director “is accountable to the Mayor.” Second, Appellants asserted the Baltimore City Law Department and City Solicitor exceeded their supporting role by taking “controlling actions” over the CRB.
According to Appellants, the City‘s control “throttled the CRB‘s ability” to investigate and review complaints. More specifically, Appellants alleged that, in actuality,
investigative reports are first passed from [BPD] to the [OECR]. The [OECR] have held thеse reports from the CRB members until approval to pass them along has been granted from the City Law Department. This assumed discretion and delay has led to reports being held for over twelve months, disqualifying them from procession to any disciplinary action and relevance for CRB review.
Appellants supported their claims with a November 2018 letter from the former City Solicitor to the City Council discussing the “strained relationship” between the Law Department and the CRB.2 Appellants sought declaratory and injunctive relief based on the Board‘s alleged violations of
The City filed a motion to dismiss. First, it claimed that the Complaint was devoid of facts to either state a claim or to establish standing to pursue the action. Next, it argued that complainants do not have a right to involvement in the CRB‘s operations. Finally, it contended the Maryland Declaration of Rights was inapplicable to the allegations in the Complaint.3 BPD and the Police Commissioner, represented by separate counsel below, also moved to dismiss
In response, Appellants filed an Opposition to the Motion to Dismiss and a Motion for Summary Judgment. Appellants argued that they had taxpayer standing, general standing, and standing under the Maryland Declaration of Rights. Appellants included new factual allegations in their opposition and attached numerous exhibits.
Three of these new exhibits included affidavits. The first affidavit was from Paula stating she is a Black woman, a Baltimore City resident, owns property in the City, and pays taxes. She further stated that she has witnessed police harassment and racialized targeting by the BPD, and that she desires an independent CRB. The second affidavit from Kenny stated that she is a Baltimore City resident who frequently attends protests to exercise her First Amendment rights, and she has been subjected to police misconduct. On one occasion,
Another exhibit included a budget report detailing the expenses incurred by the CRB. Other exhibits included a Department of Justice Report describing the presence of racial disparities, use of excessive force, and discrimination prevalent among the BPD; a letter to the Director of the OECR requesting the CRB take certain actions to maintain independence; and additional documents describing the relationship between the CRB and the Office of Professional Responsibility of the BPD.4
The circuit court held a hearing on the City‘s Motion to Dismiss and the Appellants’ Motion for Summary Judgment. After each side reiterated the arguments consistent with those made in their respective written motions, the court issued its oral ruling.
The court articulated the relevant standards for both motions to dismiss and motions for summary judgment. It found that standing was a threshold issue that needed to be addressed, and a recent opinion from this Court, Green v. Comm‘n on Jud. Disabilities, 247 Md. App. 591 (2020), was on point. The court found that, applying the reasoning of Green, there was no general standing because the filing of a complaint to a disciplinary board tasked with making recommendations “is not [a] sufficient ground to find that [Appellants] were aggrieved or suffered an injury for standing purposes.” Any injury alleged, the court found, was based on “[a]n abstract generalized interest” as opposed to a specific and personal injury.
The court similarly noted that Green disposed of any due process claims because complainants “do not have a life, liberty, or property interest at stake[.]” Finally, the court found that the requirements for taxpayer standing were not met because “[t]here‘s nothing to suggest how [Appellants‘] property has been affected or how the operation of thе Civilian Review Board or its inoperation will result in pecuniary loss for the increased taxes.” Because
Appellants filed a motion to amend or alter the judgment arguing that Green was inapposite as it posed a different question than that which they presented to the court. The court denied that motion, and this timely appeal followed.
ISSUES PRESENTED
Appellants present three issues5 for our review, which we have reorganized and rephrased as the following:
- Did the circuit court err in dismissing the complaint for lack of general standing?
- Did the circuit court err in dismissing the complaint for lack of taxpayer standing?
- Does the Maryland Declaration of Rights give Appellants standing?
For the reasons to follow, we answer all three questions in the negative.
DISCUSSION
I. WE REVIEW THE CIRCUIT COURT‘S RULING AS A MOTION TO DISMISS.
At the outset, we must determine the procedural posture, and thus the appropriate standard of review on appeal. Initially, the parties seemed to agree that this Court‘s appellate review is for a ruling on a motion to dismiss. However, in their reply brief, Appellants newly asserted that the Motion to Dismiss had been converted to a motion for summary judgment, and it should be reviewed accordingly. They claim this is so because the trial court considered evidence external to that which was included in the Complaint. In contrast, the City maintains that the trial court based its dismissal of the Complaint only on the facts alleged in the Complaint. Despite Appellants failure to raise this argument in their initial brief, we must first consider the appropriate standard.6
This Court characterized the difference between a motion to dismiss and a motion for summary judgment in Hrehorovich v. Harbor Hospital Center, Inc.:
When reviewing the grant of either a motion to dismiss or a motion for summary judgment, an appellate court must determine whether the trial court was legally correct. But this determination depends on the nature of the relief given. The grant of a motion to dismiss is proper if the complaint does not disclose, on its face, a legally sufficient
cause of action. On the other hand, the grant of a motion for summary judgment is proper only if there is no genuine dispute of any material fact and the movant is entitled to judgment as a matter of law.
93 Md. App. 772, 785 (1992) (citations omitted).
The City‘s motion before the circuit court was a motion to dismiss for failure to state a claim and for lack of standing. At the hearing on the various motions, the court first heard argument from the City on its motion to dismiss. The Appellants responded, reiterating their arguments in favor of standing, and reasserting the factual allegations that the City had interfered with the CRB‘s investigation and review of BPD complaints. The court then heard argument from BPD on its motion to dismiss, which referred to the City‘s earlier standing arguments. The City responded that even if the court were to reach the facts in the Complaint, it should rulе in the City‘s favor because none of City‘s specific actions described in Appellant‘s complaint violated the Public Local Laws.
The court stated that it considered “all of [the] written submissions” as well as “the arguments that [had] been made.” It stated that “[w]hether [Appellants] have standing to bring the claims asserted in their complaint is the threshold issue that the Court must first address.” The court noted it was granting the motion to dismiss, and based on that, it “need not reach the summary judgment filed by the [Appellants].”
After reviewing the record, we are satisfied that the court decided the matter on the threshold issue of standing. Because standing is a question of law that is collateral to the merits, the court was entitled to consider the uncontested contents of the Appellants’ affidavits and opposition without converting the City‘s motion to one for summary judgment. See Beyond Systems, 388 Md. at 12 (reviеwing the trial court‘s holding as a grant of a motion to dismiss because the defense raised questions of law in which the court was permitted to consider additional evidence to decide the motion). But see Anne Arundel Cnty. v. Bell, 442 Md. 539, 552 (2015) (reviewing the court‘s granting of a motion to dismiss based on standing and other grounds as a motion for summary judgment as a result of the trial court considering materials outside the complaint).
Accordingly, the relevant standard of review on appeal is de novo. Green, 247 Md. App. at 601. “In reviewing the grant of a motion to dismiss, we must determine whether the complaint, on its face, discloses a legally sufficient cause of action.” Schisler v. State, 177 Md. App. 731, 742–43 (2007) (internal quotations omitted). “Although it is ‘rarely appropriate’ to dismiss a declaratory judgment action, dismissal is proper ‘when the party seeking such judgment has no standing
II. APPELLANTS LACK STANDING TO PURSUE A CLAIM.
The existence of a justiciable controversy is “an absolute prerequisite to the maintenance of a declaratory judgment action.” Kendall, 431 Md. at 603 (quoting Md. State Admin. Bd. of Election Laws v. Talbot Cnty., 316 Md. 332, 339 (1988)). Within the larger question of justiciability is the doctrine of standing, which is “designed to ensure that a party seeking relief has a sufficiently cognizable stake in the outcome so as to present a court with a dispute that is capable of judicial resolution.” Id. (quoting Hand v. Mfrs. Traders Trust Co., 405 Md. 375, 399 (2008)). To maintain standing, a plaintiff must demonstrate both that (1) he or she “has an interest such that he [or she] is personally and specifically affected in a way different from ... the public generally,” and that (2) “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Id. at 603-04 (alteration in original) (internal quotations omitted).
With respect to the first prong, a plaintiff must allege “special damage,” or that the injury they suffered was “concrete and particularized,” as opposed to an injury based on an “abstract, generalized interest” shared by all members of the general public. Kendall, 431 Md. at 609, 614–15. Such “special damage” must be “differing in character and kind from that suffered by the general public.” Id. at 603–04 (quoting Evans v. State, 396 Md. 256, 328 (2006)).
Appellants claim that a special interest exists because Kenny, who was subject to police misconduct at a May 2020 protest, “maintains a complaint to file to the [CRB],” and is currently denied the ability to do so. Appellants also argue that the repeated discrimination by the BPD towards African American citizens furthers their specific interest in an independent rеview board to conduct unbiased investigations of officer misconduct. According to Appellants, Paula‘s status as an African American citizen and Kenny‘s status as a frequent activist provides a personal and specific interest distinct from the public.
This Court in Green focused on the specific injury element in addressing a complainant‘s standing to contest a disciplinary commission‘s actions. 247 Md. App. at 603-04. There, an attorney filed a complaint with the Commission on Judicial Disabilities against a judge, and following an investigation, the Commission dismissed the complaint. Id. at 597–98. The complainant sought a declaratory judgment that the Commission‘s procedures violated his due process rights. Id. at 598. The circuit court dismissed his complaint based on lack of standing, and he appealed. Id. at 601.
On appeal, this Court began its discussion of standing by looking to the personal and special interest requirement. Id. at 602. To determine whether a complainant was aggrieved based on the
We also noted that the complainant did not participate in the proceedings, had no control over the Commission‘s decision of how or whether to pursue a grievance filed, and was not affected by the outcome of the proceedings. Id. at 605. We reasoned that any benefit conveyed from the Commission‘s disciplinary actions is bestowed on the public, rather than a private individual. Id. at 604–05. Furthermore, the only person subject to due process deprivations from the Commission‘s actions is a judge, “who is potentially subject to discipline or the loss of a job.” Id. at 605–06. We thus held the complainant lacked standing to challenge “the Commission‘s resolution of the complaint.” Id. at 606.
So too here, to determine whether Appellants had an interest “personally and specifically” distinct from the public, we look to the purpose behind the creation of the CRB.
Additionally, like Green, a complainant‘s role in the CRB‘s investigatory process is limited.
Finally, much like Green, any benefit conferred by the disciplinary proceeding is bestowed on the public, in the form of a disciplinary action taken against the officer, as opposed to on a private individual, such as through monetary compensation. Similarly, any risk of injury is suffered either by the public, in the event of an officer not receiving discipline, or by the officer, in the event he is disciplined.
Appellants contend that Green is distinguishable because it “posed a different question” than that which they posed to the circuit court. Accоrding to Appellants, the court should not have relied on Green because, while factually similar, the complainant there had the right to bring a grievance claim to a disciplinary commission and in fact did so, and he was challenging the Commission‘s decision to dismiss the complaint. Here, Appellants maintain that because they were deprived of the right to file a complaint with the CRB,7 and because the complainant in Green “was not denied his right to file an initial
complaint,” the cases are distinguishable. Appellants posit that Green would be analogous to this case if the Commission refused to accept Green‘s complaint.
We disagree. Green dealt with whether a complainant had standing to challenge the procedure of a disciplinary commission. 247 Md. App. at 597. Here, the question before the circuit court was whether Appellants had standing to challenge the current procedure and practices of the CRB. Although the pоrtion of the procedure at issue in Green was the Commission‘s dismissal of a complaint and here Appellants take issue with the staffing and records keeping procedures, the core of each case is a complainant challenging a disciplinary agency‘s internal workings. And, though Appellants claim they are denied their right to file a complaint, nowhere does the record reveal that they in fact filed a complaint, were discouraged from filing a complaint, or were otherwise hindered. Rather, they chose not to file a grievance because they indicate they believe there are problems with the procedure and practices of the CRB. Their decision not to file a complaint does not equate to a denial of the right to do so, and thus does not provide a basis by which to distinguish Green.
We also note that the CRB‘s findings are recommendations. The Commissioner is required to consider those findings, but the Commissioner alone makes the final decision as to what disciplinary action, if any, to take. We fail to see how such recommendations can cause injury consistent with that which is required for standing. “[M]erely a claim of ‘the right, possessed by every citizen, to require that the Government be administered according to law,’ is not sufficient to confer standing.” Kendall, 431 Md. at 609 (quoting Bishop v. Bartlett, 575 F.3d 419, 424 (4th Cir. 2009)). We hold that the interests asserted do not amount to specific and personal injuries distinct from the general public.
III. THE CIRCUIT COURT DID NOT ERR IN FINDING THE REQUIREMENTS FOR TAXPAYER STANDING WERE NOT MET.
Appellants next contend that the taxpayer standing doctrine provides an alternate
In order to have taxpayer standing, the complainant must demonstrate two requirements. George, 463 Md. at 275. The first requirement is status, meaning the complainant must show he is a taxpayer and “the suit is brought, either expressly or implicitly, on behalf of all other taxpayers.” Id. The second, similar to that for general standing, requires that the complainant assert a “special interest” distinct from the general public. Id. However, for taxpayer standing, the special interest requirement is divided into two additionаl elements: the complainant must allege that an action by the government is illegal or ultra vires, and that such an action satisfies the “specific injury prong,” such that it may “injuriously affect the taxpayer‘s property, meaning that it reasonably may result in pecuniary loss to the taxpayer or an increase in taxes.” Id. at 275–76 (quoting Kendall, 431 Md. at 605).
The Court of Appeals recognized that the first element, action that is illegal or ultra vires, “has been applied leniently and seems rather easy to meet.” Id. at 276 (quoting State Center, 438 Md. at 556). As long as the claimant makes the allegations in good faith, the allegations will be sufficient to confer taxpayer standing. Id. On the other hand, the specific injury element is the foundation of the taxpayer standing doctrine and “often proves a stumbling block.” Id. (internal quotations omitted). Claimants can meet this element by demonstrating that they suffered the apрropriate type of harm, that there is a nexus between the illegal or ultra vires act and the alleged harm incurred, and that there is some measure of the degree of harm. Id.
With respect to the type of harm alleged, the claimant must show that the action challenged results in pecuniary loss or increase of taxes. Id. at 277. The test is whether a claimant “reasonably may sustain a pecuniary loss or a tax increase.” Id. at 277 (quoting Inlet Assocs. v. Assateague House Condo. Ass‘n, 313 Md. 413, 441 (1988)). Pecuniary loss may be shown through waste of taxpayer funds, but claimants must still establish a nexus between such wasted funds and the challenged act. Id. at 281–82. That nexus “must be alleged sufficiently.” State Center, 438 Md. at 572. This connection must be such that the remedy sought, if granted, would alleviate all similarly situated taxpayers’ burden. Bell, 442 Md. at 579 (quoting State Center, 438 Md. at 572–73). To determine if the type of harm alleged is one that may affect taxes, the proper focus is on the claims at issue. State Center, 438 Md. at 565.
Turning back to the instant case, we cоnclude, as the circuit court did, that Appellants fail to satisfy the requirements for taxpayer standing. We first apply the two requirements of the doctrine — taxpayer status and special interest. As to taxpayer
Appellants’ allegations fall short of demonstrating the second requirement for taxpayer standing, a special interest. First, Appellants describe the City‘s ultra vires actions as exertions of control over the CRB, which rеmoved the statutorily mandated independence from the agency. They allege that the CRB‘s organization within the OECR allows the OECR to act as a “gatekeeper” for complaint intake, investigations, and interface with other agencies and the public. Among other things, Appellants allege that the OECR failed to timely forward complaints to the CRB secretary; failed to timely present documents and information requested by the CRB; did not consult the CRB before preparing budget requests; and failed to comply with protocols established in the Consent Decree. They further allege that the Law Department also exerts pressure on the CRB and BPD which have resulted in delays in the transfer of complaints to the CRB — although the specific example they cite is resolved, they suggest that the improper “power dynamic” between the Law Department and CRB is ongoing. We assume that these allegations were made in good faith.
Second, though Appellants claim that they suffered pecuniary harm, their complaint and opposition to the motion to dismiss did not adequately allege waste of public funds and failed to demonstrate a nexus between alleged ultra vires acts and pecuniary harm. Appellants allege a general harm in that the City‘s actions “violated [Appellants‘] right to the protection of a civilian review board as defined and established in the Public Local Laws” and
These vaguely described pecuniary harms do not suffice for taxpayer standing. The City plainly is authorized to expend funds on the CRB and its staff.8 Complainants asserting taxpayer standing must identify specific actions of the municipal government resulting in pecuniary harms that would be remedied by their suit. See George, 463 Md. at 280 (“Taxpayers have successfully alleged that, because [Baltimore County Animal Shelter‘s] ineffectual management resulted in the provision of more expensive shelter services and decreased revenue, its use of taxpayer funds was wasteful.“). Appellants fail to connect to
the CRB‘s alleged lack of independence to expenditure or inefficiencies that would cease if its relief were granted. The portion of the CRB budget Appellants identify purportedly relates to
IV. THE MARYLAND DECLARATION OF RIGHTS DOES NOT CONFER STANDING.
Last, Appellants ground a claim for standing in the Maryland Declaration of Rights, arguing that they have standing to assert constitutional violations. A party “has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights.” Brown v. State, 171 Md. App. 489, 518 (2006) (quoting County Court of Ulster Cnty. v. Allen, 442 U.S. 140, 154–55 (1979)). Appellants specifically cite
A. Article 9 Does Not Provide Standing.
Appellants first cite
argue that the operation of the CRB is not independent and thus in violation of
We disagree. To the extent that
B. Article 19 Does Not Provide Standing.
Appellants next argue that
That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.
This provision is inapplicable for two reasоns. First, as we have explained, we see no injury capable of redressability by a court. Appellants have not been denied the right to file a complaint with the CRB as they have not alleged that they ever attempted to file a complaint, nor are their rights affected by the procedure in which the CRB operates. Second, Appellants are not seeking “money or property,” but are pursuing declaratory and injunctive relief. Such relief is not a remedy within the purview of
To the extent that Appellants have been subjected to police misconduct or have otherwise suffered an injury in their persons or property,
C. Article 24 Does Not Provide Standing.
Finally,
of the
This Court rejected an identical constitutional standing argument in Green. 247 Md. App. at 605-06. There, the complainant asserted that he had constitutional standing under the
We perceive no basis for which Green can be distinguished on this issue. Appellants are not subject to any deprivation of rights based on the CRB‘s investigation and recommendation. Any recommendation of discipline, which may or may not be accepted by the Commissioner, affects only the accused officer. The accused officer then is the person entitled to procedural due process. Appellants, as in Green, do not have a life, liberty, or property interest at stake when the CRB processes a complaint, and thus do not have procedural due process rights or standing under
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
Notes
- Declare that the Defendants have violated the Maryland Declaration of Rights.
- Enter an injunction directing that the Office of Equity and Civil Rights and its Director relinquish all authority over the Civilian Review Board, and in moving forward only provide administrative staff.
- Enter an injunction directing that the Baltimore City Law Department relinquish all authority over the Civilian Review Board, providing only staff that can act as legal counsel where assistance is requestеd by the members of the Civilian Review Board.
- Enter an injunction directing that the Office of Equity and Civil Rights and its Director provide access and control of all Civilian Review Board records over to the Civilian review Board, in accordance with
PLL § 16-52 . - Enter an injunction directing that Defendants facilitate the separation, independence, and functioning of the Civilian Review Board, as directed in the Public Local Laws.
- Order the Defendants pay the fees and cost of Plaintiffs’ counsel in this matter, valued at $250 an hour.
- Order the Defendants to pay court costs
- Order any additional relief the court deems equitable and proper.
- Do Appellees’ ultra vires acts in controlling the Baltimore Civilian Review Board provide sufficient harm to Appellants to establish taxpayer standing?
- Do Appellants have general standing where Appellees have disallowed the operation of an independent Civilian Review Board, and thereby denied Appellants’ ability to file a complaint with a Civilian Review Board as is provided by statute?
- Does the Maryland Constitution provide Appellants the right to court action where Appellees have denied them a statutory right to an independent civilian review board?
(alterations in original) (footnote and citations omitted).[A]lthough no Maryland court has ruled on this matter, several federal courts have stated that a party cannot “waive” the proper standard of review by failing to argue it. This is because it is the court, not the parties, [who] must determine the standard of review[.] Therefore, [s]uch a determination remains for this court to make for itself.