State v. FalconState v. Falcon
This case involves an alleged violation of the separation of powers doctrine. Specifically, the case concerns the allegation that the General Assembly usurped the power of the Governor of Maryland by amending
Before 2016,
Four of the five gubernatorial appointees filed suit in the Circuit Court for Anne Arundel County (“the circuit court“), contending that the General Assembly removed them from their positions as members of the Nominating Commission in violation of
This Court granted the petition. The petition raises the issues of whether the circuit court erred in enjoining the implementation of portions of Chapter 35 by concluding that Chapter 35 violated
BACKGROUND
Statutory Background
The Governor appoints members of the School Board. See
From 2007 until 2016,
(i) The Commission consists of 11 members who shall be appointed in accordance with this paragraph.
(ii) The Governor shall appoint five members, one from each legislative district that lies in whole or in part in Anne Arundel County.
(iii) The County Executive of Anne Arundel County shall appoint one member from the county at large.
(iv) The following organizations shall each appoint one member:
1. The Teachers Association of Anne Arundel County;
2. The Annapolis and Anne Arundel County Chamber of Commerce;
3. The Anne Arundel County Council of Parent Teacher Associations; 4. The Anne Arundel County Community College Board of Trustees; and
5. The Association of Educational Leaders (AEL).
(i) The Governor shall designate as chair of the Commission one of the five members appointed by the Governor under paragraph (2)(ii) of this subsection.
(ii) The term of the chair of the Commission is 4 years.
(iii) The Governor may reappoint the chair of the Commission for a second term.
(iv) The term of a member of the Commission is 4 years.
Beginning January 1, 2008, for each nomination to the [School B]oard, the Commission shall submit to the Governor a list of nominees that contains:
(i) At least two names for each vacancy; or
(ii) If there are fewer than two applicants for a vacancy, the number of names that is equal to the number of applicants for the vacancy.
In 2016, at the request of the Anne Arundel County Administration, House Bill 172 was introduced, proposing amendments to
alter[ ] the membership of the [ ] Nominating Commission [ ] to provide that, beginning on a certain date and every certain number of years thereafter, one member shall be appointed by certain chambers of commerce on a rotating basis in a specified order; alter[ ] the term of the member appointed by a chamber of commerce; provid[e] for the termination of the term of a certain member of the Commission; and generally relat[e] to the membership of the ... Nominating Commission[.]
Id. At that time, House Bill 172 proposed eliminating
Beginning July 1, 2016, and every 2 years thereafter, one member shall be appointed by a chamber of commerce based in Anne Arundel County on a rotating basis in the following order:
1. The West Anne Arundel County Chamber of Commerce; 2. The Northern Anne Arundel County Chamber of Commerce;
3. The Southern Anne Arundel Chamber of Commerce;
4. The Greater Crofton Chamber of Commerce;
5. The Greater Severna Park and Arnold Chamber of Commerce; and
6. The Annapolis and Anne Arundel County Chamber of Commerce.
2016 Md. Leg. Sess. H.B. 172 at 2-3 (First Reader). The only other proposed amendment to
Later, House Bill 172 underwent substantial amendment. See 2016 Md. Leg. Sess. H.B. 172 at 2-6 (Third Reader), available at http://mgaleg.maryland.gov/2016RS/bills/hb/hb0172t.pdf [https://perma.cc/H7YZ-SMS9]. As amended, among other things, House Bill 172 eliminated the process by which the Governor appointed members to the Nominating Commission, established a process by which members of the Nominating Commission were to be appointed by various groups, and was to take effect on June 1, 2016. See id. at 2-4, 6. Significant to this case, Section 2 of House Bill 172 provided as follows: “That the terms of the members of the ... Nominating Commission ... who were appointed by the Governor and are in office on the effective date of this Act shall terminate on June 1, 2016.” Id. at 6.
The General Assembly passed the amended version of House Bill 172 and presented it to Governor Hogan for signature. Governor Hogan vetoed House Bill 172. In a letter to the Speaker of the House dated April 5, 2016, Governor Hogan explained the reasons for his veto, in pertinent part, as follows:
On its face, House Bill 172 is unconstitutional because it only terminates the terms of the Governor‘s members of the ... Nominating Commission. This action by the [General Assembly] violates the separation of powers doctrine as outlined by the Court of Appeals in Schisler v. State, 394 Md. 519[, 907 A.2d 175] (2006). While the General Assembly may change the appointment method of prospective members of a governmental body, it cannot abrogate the Governor‘s authority under
Article II, Section 15 of the Maryland Constitution by terminating his current appоintees prior to the expiration of their terms.... Section 2 of House Bill 172 ... provides for premature termination, i.e., removal, of the Governor‘s incumbent members, an improper reconstitution of the [Nominating] Commission that the Court of Appeals has found to be an unconstitutional “usurpation of executive power in violation of
Article II, [Sections] 1 ,9 and15 of the Maryland Constitution ” and a “violation ofArticle 8 of the Declaration of Rights of Maryland .” Schisler, 394 Md. at 596[, 907 A.2d at 220]. Ultimately, the Governor‘s appointees must remain in office until the end of their terms, unless terminated earlier by the Governor pursuant toArticle II, Section 15 of the Maryland Constitution .
2016 Md. Leg. Sess. H.B. 172, Veto Letter (Apr. 5, 2016), available at http://mgaleg.maryland.gov/2016RS/veto_letters/HB0172.pdf [https://perma.cc/F76M-8PC8] (fourth alteration in original).
On April 7 and 8, 2016, the Maryland House and Senate, respectively, voted to override Governor Hogan‘s veto. As a result, House Bill 172 became Chapter 35. See 2016 Md. Laws 599 (Vol. I, Ch. 35, H.B. 172). Chapter 35‘s stated purpose was as follows:
FOR the purpose of altering the membership of the ... Nominating Commission ... ; requiring each member of the Commission to be a resident of Anne Arundel County; prohibiting, with a certain exception, a member of the Commission from being an employee of a county school board; altering the method of selecting and the term of the
chair of the Commission; authorizing the reappointment of a member of the Commission; specifying the terms of certain members of the Commission; prohibiting a member of the Commission from serving more than a certain number of years; altering the entity required to provide staff for the Commission; requiring the affirmative vote of a certain number of members of the Commission for the approval of any action; prohibiting a member of the Commission from voting by proxy; requiring the Commission to require each applicant for a certain nomination to complete an application that includes certain information and a certain declaration; requiring the Commission to consult the Maryland Judiciary Case Search to verify certain statements; requiring a certain member of the [School] Board [ ] to resign effective a certain number of days after certification of certain election results; prohibiting a certain member of the [School] Board from continuing to serve under certain circumstances; providing for the termination of the terms of certain members of the Commission; and generally relating to the [School] Board [ ] and the ... Nominating Commission[.]
Id. at 599-600. Section 2 of Chapter 35 provided that the terms of the Nominating Commission members whom the Governor had appointed would terminate on June 1, 2016. See id. at 605.
On June 1, 2016, Chapter 35 became effective, amending
(2) The Commission consists of the following 13 members:
(i) Three members appointed by the County Executive of Anne Arundel County from the county at large:
1. One of whom shall be a parent of a child enrolled in the Anne Arundel County public school system; and
2. No more than one of whom may be a current employee of Anne Arundel County;
(ii) One mеmber appointed by the Teachers Association of Anne Arundel County;
(iii) One member appointed by the Annapolis and Anne Arundel County Chamber of Commerce; (iv) One member appointed by the Anne Arundel County Community College Board of Trustees;
(v) One member appointed by the Association of Educational Leaders (AEL);
(vi) Two members appointed by the Anne Arundel County Council of Parent Teacher Associations who may not:
1. Be affiliated with a teachers’ union or association; or
2. Be a current employee of Anne Arundel County;
(vii) One member appointed by the Anne Arundel County Branch of the National Association for the Advancement of Colored People (NAACP);
(viii) One member appointed by CASA de Maryland;
(ix) One member appointed by the Anne Arundel Special Education Citizens’ Advisory Committee who is a parent of a child with special needs in the Anne Arundel County public school system; and
(x) Beginning June 1, 2016, and every 2 years thereafter, one member appointed by a chamber of commerce based in Anne Arundel County on a rotating basis in the following order:
1. The West Anne Arundel County Chamber of Commerce;
2. The Northern Anne Arundel County Chamber of Commerce;
3. The Southern Anne Arundel Chamber of Commerce;
4. The Greater Crofton Chamber of Commerce; and
5. The Greater Severna Park and Arnold Chamber of Commerce.
(3) (i) Each member of the Commission must be a resident of Anne Arundel County.
(ii) Except for the members appointed under paragraph (2)(ii) and (v) of this subsection, a member of the Commission may not be a current employee of a county school board.
(i) Except as provided in subparagraph (ii) of this paragraph, the term of a member of the Commission is 4 years.
(ii) The term of a member appointed by a chamber of commerce under paragraph (2)(x) of this subsection is 2 years.
(iii) A member may be reappointed but may not serve more than 8 years.
And,
(7) (i) The affirmative vote of at least eight members of the Commission is required for the approval of any action.
(ii) A member of the Commission may not vote by proxy.
(8) (i) The Commission shall require each applicant for nomination to complete an application that includes:
1. The full name and address of the individual;
2. Any former name used by the individual;
3. A statement as to whether the individual has any conviction for a crime that:
A. Relates to the responsibilities of a member of the [School B]oard; and
B. Has not been expunged or otherwise shielded;
4. A statement as to whether the individual has been adjudged bankrupt or insolvent; and
5. A declaration that the statements made in the application are true, correct, and complete to the best of the individual‘s knowledge and belief.
(ii) The Commission shall consult the Maryland Judiciary Case Search to verify the statements made by the applicant under subparagraph (i) of this paragraph.
These provisions are new—i.e., they have no counterpart in
Like
Beginning January 1, 2008, for each nomination to the [School B]oard, the Commission shall submit to the Governor a list of nominees that contains:
(i) At least two names for each vacancy; or
(ii) If there are fewer than two applicants for a vacancy, the number of names that is equal to the number of applicants for the vacancy.
And, like
As to the terms of service of School Board members, like
If the voters reject the retention of the member, or the vote is tied:
(i) The position shall become vacant 10 days after certification of the election returns;
(ii) The member shall resign from the [School B]oard effective 10 days after certification of the election returns; and
(iii) The member may not continue to serve on the [School B]oard.
As a result,
This Case
Governor Hogan appointed Jamie Falcon (“Falcon“), Appellee, to the Nominating Commission, effective July 1, 2015, for a term of four years, to serve until June 30, 2019. Governor Hogan also designated Falcon as the Chair of the Nominating Commission. Governor Hogan appointed Kam R. Gast (“Gast“), Susannah Warner Kipke (“Kipke“), and Joan Maynard (“Maynard“), Appellees, to the Nominating Commission, effective July 1, 2015, for terms of four years each, to serve until June 30, 2019.
On May 6, 2016—after the General Assembly voted to override Governor Hogan‘s veto of House Bill 172 on April 7 and 8, 2016, but before Chapter 35 become effective on June 1, 2016—Falcon, Gast, Kipke, and Maynard, four of the five gubernatorial appointees to the Nominating Commission (together, “the Appointees“), filed in the circuit court a “Verified Complaint for Declaratory Judgment and for a Temporary Restraining Order and Preliminary and Permanent Injunctive Relief” against the State. In the complaint, the Appointees contended that, through Chaptеr 35, the General Assembly removed them from their positions as members of the Nominating Commission in violation of
As such, in the complaint, the Appointees sought a declaratory judgment that Chapter 35 violated
On May 10, 2016, the circuit court conducted a hearing on the request for a temporary restraining оrder, and on May 11, 2016, the circuit court entered an order denying the request for a temporary restraining order. On May 17, 2016, the State filed an opposition to the request for a preliminary injunction, contending that the Appointees were not entitled to declaratory or injunctive relief because the State had sovereign immunity, which it had not waived. The State further asserted that a plaintiff could bring suit for declaratory and injunctive relief only against the “specific government official who is responsible for action under the statute, not against the State itself.” (Citations and internal quotation marks omitted). The following day, on May 18, 2016, the Appointees filed an amended complaint, naming Governor Hogan in his official capacity as an additional defendant, and alleging that Governor Hogan “is responsible for taking care that the Laws are faithfully executed.”1 (Citation, brackets, and internal quotation marks omitted).
On May 23, 2016, the circuit court conducted a hearing on the request for a preliminary injunction. After hearing argument from the parties, the circuit court granted the request
The Court just believes this is so similar to Schis[ ]ler, [394 Md. 519, 907 A.2d 175,] the timing, the other facts, it appears the [G]eneral [A]ssembly is merely crafting a way to oust current members appointed by the Governor.
Article 2 § 15, II , just it appears to the Court that it just completely violates the separation of powers. And though the [State] argue[s] that there were substantive changes to the regulation aimed at reconstitution, the Court is just not satisfied that this is really the end goal of the [G]eneral [A]ssembly.The new process ... it really appears to the Court that this is the [General Assembly] finding a way to basically nominate whoever they want to the positions by doing through these groups. ... I just can‘t get around the fact that [ ] it is only the five gubernatorial appointees.
So, the Court does believe that they are [civil] officers. ... So the role is not purely advisory, they play a key part in the appointment process.
...
The injunction is preliminary, I will grant it. I will order that the [Appointees] shall not be terminated from their position. I will order that the new board not take place without those five members of the Governor‘s—who has previously been appointed to their term. I will require [the Appointees’ counsel] to prepare an order and submit it to the Court within two days.
On May 25, 2016, the Appointees submitted to the circuit court a proposed order that enjoined Chapter 35 in its entirety. On the same day, the State objected to the Appointees’ proposed order and submitted an alternative proposed order. The State contended that, even under the circuit court‘s view of the law, many provisions of Chapter 35 did not raise separation of powers concerns, were severable, and should be permitted to go into effect. On May 27, 2016, the circuit court issued a brief memorandum, stating that it believed that the proposed order submitted by the State “most accurately re
The [Appointees] have established they meet the requirements for preliminary injunctive relief: (1) the [Appointees] have established a likelihood of success on the merits, (2) the balance of convenience weighs in favor of the [Appointees], (3) the [Appointees] will suffer irreparable harm in the absence of a preliminary injunction, and (4) a preliminary injunction is in the public interest.
It is likely that the [Appointees] will establish that the following provisions of 2016 Md. Laws ch. 35 (House Bill 172) violate
Article 8 of the Maryland Declaration of Rights andArticle II, § 15 of the Maryland Constitution : (1) 2016 Md. Laws ch. 35 (House Bill 172) § 2, providing that “the terms of the members of the ... Nominating Commission ... who were appointed by the Governor and are in office on the effective date of this Act shall terminate on June 1, 2016” and (2) those portions of 2016 Md. Laws ch. 35 (House Bill 172) § 1 that amend[ED (2015) ] § 3-110(b)(2) to alter the membership and appointment process for members of the ... Nominating Commission[.]Accordingly, it is the 27th day of May 2016, by the Circuit Court for Anne Arundel County, ORDERED that the Motion for Preliminary Injunction is GRANTED. It is further ORDERED that, during the pendency of this litigation, implementation and enforcement of the following provisions of 2016 Md. Laws ch. 35 (House Bill 172) are enjoined, subject to further order of the Court:
(1) 2016 Md. Laws ch. 35 (House Bill 172) § 2, providing that “the terms of the members of the ... Nominating Commission ... who were appointed by the Governor and are in office on the effective date of this Act shall terminate on June 1, 2016” and
(2) those portions of 2016 Md. Laws ch. 35 (House Bill 172) § 1 that amend
[ED (2015) ] § 3-110(b)(2) to alterthe membership and appointment process for members of the ... Nominating Commission[.]
On May 31, 2016, the State noted an appeal to the Court of Special Appeals. On June 3, 2016, while the case was pending in the Court of Special Appeals, the State filed in this Court a petition for a writ of certiorari. On July 11, 2016, this Court granted the petition. See State v. Falcon, 448 Md. 724, 141 A.3d 135 (2016).
STANDARD OF REVIEW
In reviewing a trial court‘s decision to issue a preliminary injunction, this Court considers the following factors:
(1) the likelihood that the plaintiff will succeed on the merits; (2) the balance of convenience determined by whether greater injury would be done to the defendant by granting the injunction than would result by its refusal; (3) whether the plaintiff will suffer irreparable injury unless the injunction is granted; and (4) the public interest.
Schade v. Md. State Bd. of Elections, 401 Md. 1, 36, 930 A.2d 304, 325 (2007) (citations and internal quotation marks omitted). This Court reviews “the exercise of the trial court‘s discretion to grant or deny a request for injunctive relief under an abuse of discretion standard; however, we give no such deference when we find an obvious error in the application of the principles of equity.” El Bey v. Moorish Sci. Temple of Am., Inc., 362 Md. 339, 354-55, 765 A.2d 132, 140 (2001) (citations and internal quotation marks omitted); see also City of Bowie v. MIE Props., Inc., 398 Md. 657, 677, 922 A.2d 509, 521 (2007) (“We generally review the issuance of an injunction by a trial court for an abuse of discretion.” (Citation omitted)).
“[E]ven with respect to a discretionary matter, [however,] a trial court must exercise its discretion in accordance with correct legal standards.” Ehrlich v. Perez, 394 Md. 691, 708, 908 A.2d 1220, 1230 (2006) (citation and internal quotation marks omitted). Where a trial court‘s determination as to one of the factors for issuing a preliminary injunction involves a purely legal question, i.e., a question of law, we review the
DISCUSSION
The Parties’ Contentions
The State contends that, under Schisler, 394 Md. 519, 907 A.2d 175, the removal of gubernatorial appointees, by itself, does not violate
The State contends that Chapter 35 changes the number and composition of the Nominating Commission, and creates a new appointment process that applies prospectively to all future appointees. According to the State, through Chapter 35, the General Assembly did not give itself the power to choose replacements for the Appointees or prevent the Appointees from being reappointed, but rather reassigned the appointment power from the Governor to other entities. The State argues that the Appointees draw an “artificial distinction” by pointing out that the General Assembly terminated only the Appointees’ membership on the Nominating Commission, and left intact the other six existing appointments—i.e., the ap
The Appointees respond that Chapter 35 is unconstitutional and violates the separation of powers doctrine and
The School Board and the Nominating Commission
Like
The Separation of Powers Doctrine
The separation of powers doctrine is embodied in
Article II, § 15 and Schisler v. State
The Governor may suspend or arrest any military officer of the State for disobedience of orders, or other military offense; and may remove him in pursuance of the sentence of a Court-Martial; and may remove for incompetency, or misconduct, all civil officers who received appointment from the Executive for a term of years.
This Court most recently addressed
Having discussed how precedential value is determined with a plurality opinion, we turn to Schisler. In Schisler, 394 Md. at 523, 907 A.2d at 177, a plurality of this Court concluded that two sections of a Senate bill, as enacted by the General Assembly, which terminated the appointments of certain members of the Public Service Commission of Maryland, violated the Maryland Constitution. Specifically, the plurality determined that the two sections of the Senate bill violated the separation of powers doctrine because they usurped the Governor‘s power to supervise the Executive Branch under
The bill amended the relevant statute in the Public Utilities Article to provide that all existing members of the Public Service Commission would be terminated by a certain date, and that the President of the Senate and the Speaker of the House would submit lists of names, from which the Governor would choose five new members of the Public Service Commission. See id. at 525 n.9, 907 A.2d at 178 n.9. The bill also provided that, if the Governor failed to choose five new members of the Public Service Commission, then the President of the Senate and the Speaker of the House would appoint enough new members for a fully constituted Public Service Commission. See id. at 525 n.9, 907 A.2d at 178 n.9.3
This Court reversed the trial court‘s judgment. See id. at 603, 907 A.2d at 225. Writing for a three-judge plurality, Judge Dale R. Cathell concluded that the bill violated the separation of powers doctrine by, among other things, usurping the Governor‘s power to terminate officers of the Executive Branch under
The plurality concluded that the General Assembly‘s termination of the existing members of the Public Service Commission violated the separation of powers doctrine under three different separation of powers tests: (1) the Public Service Commission is an Executive agency, and the removal of the members of the Public Service Commission is a power that is reserved to the Executive; (2) the General Assembly improperly attempted to control the actions of an Executive agency; and (3) because
We hold that the power to remove officers appointed by a Governor, during the term of the officers’ appointment, for misconduct or incompetency, is solely the Governor‘s and the attempt by the [General Assembly] to terminate those officers, previously appointed by the Governor and approved by the Senate, prior to the expiration of their terms of office, was an usurpation of executive power in violation of
Article II, §§ 1 ,9 , and15 of the Maryland Constitution and in violation ofArticle 8 of the Declaration of Rights of Maryland .
The plurality explained that its conclusion was unchanged by
In the circumstances of Section 15—the creation of the power in the Governor with no mention of the Legisla
ture[—]acts under the maxim, ”expressio unius est exclusio alterius,” to exclude the Legislature from sharing the removal power of the Governor at least as to those officers appointed by the Governor for a term of years.
Id. at 595, 907 A.2d at 220 (italics in original) (footnote omitted). Thus, the plurality concluded that the power to remove civil officers was exclusive to the Governor. See id. at 595, 907 A.2d at 220.
The plurality explained, however, that the General Assembly is authorized, under proper circumstances, to “effectively terminate the tenure of civil officers not having a fixed Constitutionally-set term[,]” stating: “If the General Assembly chooses to abolish or reconstitute the Public Service Commission or any other statutory board or commission, it is competent to do so, even if the effect of that abolition or reconstitution would be the shortening or ending of existing terms of incumbent members.” Id. at 598, 907 A.2d at 222. The plurality determined that the General Assembly did not abolish or reconstitute the Public Service Commission because it “left the [Public Service] Commission essentially intact and [ ] instead ended the terms of the five incumbents and effectively precluded the incumbent Governor from reappointing them by requiring that his appointees be from a list submitted by the [General Assembly].” Id. at 598-99, 907 A.2d at 222. Ultimately, the plurality concluded that the sections of the bill that were unconstitutional were severable, and that the remainder of the bill that could “operate within the parameters of th[e] opinion remain[ed] in effect.” Id. at 603, 907 A.2d at 225.
In a concurring opinion, Judge Alan M. Wilner joined the judgment on the ground that sections of the bill violated the separation of powers. See id. at 606, 907 A.2d at 226 (Wilner, J., concurring). Judge Wilner explained that he differed from the plurality “only in that [he] would rest the decisiоn solely on the basis of
Judge Wilner also explained that he agreed with the plurality that the General Assembly, “if it chose, could abolish or reconstitute the Public Service Commission (or any other statutory board or commission), even if the effect of doing so would be the premature ending of existing terms of incumbent members, and, as part of any reconstitution of the [Public Service] Commission, it could alter the method of appointment.” Id. at 605, 907 A.2d at 226 (Wilner, J., concurring). According to Judge Wilner, the problem in Schisler however, was that the General Assembly not only ended the Public Service Commission members’ terms without abolishing or reconstituting the Public Service Commission, but also “left the [Public Service] Commission essentially intact [and] simply ended the terms of the incumbent Commissioners and sharply curtailed the power of the Governor to appoint their successors.” Id. at 605-06, 907 A.2d at 226 (Wilner, J., concurring). As to whether the Public Service Commission members arе civil officers, Judge Wilner commented that he thought that the dissent was “probably wrong ... in assuming or suggesting that members of the Public Service Commission are not civil officers, although, because [he did] not believe that
In a concurring and dissenting opinion that Judge Irma S. Raker joined, Judge Glenn T. Harrell, Jr. opined that the General Assembly violated the separation of powers doctrine by setting up an appointment process that applied only to the immediate successors of the terminated Public Service Commission members, and thus establishing “what essentially is a mock gubernatorial appointment process.” Id. at 606-07, 907
In a dissenting opinion, Judge Lynne A. Bаttaglia opined, in pertinent part, that the statute‘s amendment did not violate the separation of powers doctrine because the appointment and removal of statutory officers is not exclusive to the Governor and “is entirely subject to the authority of the General Assembly.” Id. at 615, 907 A.2d at 232 (Battaglia, J., dissenting). Judge Battaglia explained:
[T]he gubernatorial powers enumerated in Sections 1, 9, and 15, Article II do not divest the [General Assembly] of its power to create, control, modify, and abolish any office which it has created. To the contrary, this Court has consistently said that the power to appoint and remove civil officers is not inherently executive, not even with respect to the Governor‘s own appointees, but also may be exercised by the [General Assembly] if the office itself is a legislative
creation. The [Public Service Commission] is an example of such an office, and therefore, the [General Assembly] has the power to regulate fully [the Public Service] Commissioners, a power which includes the ability to fire them.
Id. at 631-32, 907 A.2d at 242 (Battaglia, J., dissenting). Judge Battaglia also disagreed that the Public Service Commission members were “civil officers” for purposes of Article II, § 15, stating that, under this Court‘s jurisprudence, “it is highly doubtful that the [Public Service Commission] Commissioners are civil officers for purposes of” Article II, § 15 where “they are not vested with a portion of the [S]tate‘s sovereignty to individually aсt for the public good[.]” Id. at 615, 631, 907 A.2d at 232, 242 (Battaglia, J., dissenting).
Mode of Appointment
[The Governor] shall nominate, and, by and with the advice and consent of the Senate, appoint all civil and military officers of the State, whose appointment, or election, is not otherwise herein provided for, unless a different mode of appointment be prescribed by the Law creating the office.
We have observed that, under
In Calvert Cnty. Comm‘rs v. Monnett, 164 Md. 101, 104-05, 164 A. 155, 156 (1933), we stated:
It is true that a distinction is drawn for some purposes between offices of legislative creation and offices specified in the Constitution and created by it, but it is drawn for some
purposes only, not for all. Generally, the distinction is one of the location of the power of creation; the power to create has been found to include the power to alter or abolish. Where the office is of legislative creation, the [General Assembly] can modify, control or abolish it, and within these powers is embraced the right to change the mode of appointment. But that rule cannot apply to an officе created by the Constitution, which directs how it shall be filled, fixes the term, and provides for the removal of the incumbent. And when offices of legislative creation are filled, the incumbents may come within comprehensive provisions of the Constitution.
(Citations and internal quotation marks omitted).
Analysis
Here, we hold that the circuit court erred in issuing the preliminary injunction because Chapter 35 does not violate
We begin our analysis by examining the components of Schisler—namely, the plurality‘s determination and the conclusions reached by other judges in the case. This analysis demonstrates that the Court was in accord that the General Assembly has the authority to end the terms of gubernatorial appointees to statutory boards or commissions. In Schisler, 394 Md. at 598, 907 A.2d at 222, the plurality stated that, under proper circumstances, the General Assembly is authorized to “effectively terminate the tenure of civil officers not having a fixed Constitutionally-set term[,]” explaining: “If the General Assembly chooses to abolish or reconstitute the Public Service Commission or any other statutory board or commission, it is competent to do so, even if the effect of that abolition or reconstitution would be the shortening or ending
In other words, careful examination of the opinion reveals that, in Schisler, all seven of the judges of this Court agreed that the General Assembly can end early the terms of incumbent members of a commission, regardless of who they are appointed by. Although the plurality concluded that the early ending of terms must be incidental to an abolishment or reconstituting of the commission, Judges Wilner, Harrell, Raker, and Battaglia, despite expressing differing views in their opinions on the issue, would have concluded that no constitutional violation occurs simply by virtue of the circumstance that the terms of the incumbent members of the Public Service Commission were ended early, i.e., that termination of the gubernatorial appointees’ terms alone does not violate
Applying the rationale of Schisler here, we conclude that termination of the Appointees’ terms was incidental to the General Assembly‘s restructuring and reconstituting of the Nominating Commission, and that, under Schisler, according
Notably, Chapter 35 also amended
Through Chapter 35, among other things, the General Assembly made numerous significant changes to the Nominating Commission, restructuring the Nominating Commission and altering the appointment process so that, in relevant part, the appointment of members to the Nominating Commission is wholly within the purview of specified entities, and not partly the responsibility of the Governor and partly the responsibility of specified entities, as it was prior to Chapter 35. Going forward, it is accurate that the Governor would have no ability to appoint members to the Nominating Commission, and that, in restructuring the Nominating Commission, the General Assembly terminated the terms of the Appointees early. Under Schisler, 394 Md. at 598, 907 A.2d at 222, however, that the terms of the Appointees were terminated early does not mean that Chapter 35 runs afoul of
Moreover, regardless of whether the members of the Nominating Commission are civil officers under
To be sure, in restructuring the Nominating Commission and prescribing a different mode of appointment, the General Assembly ended the terms of the Appointees early and did not alter or end the terms of the other members of the Nominating Commission who had been appointed by entities other than the Governor. This, however, is not a unique circumstance. On multiple occasions, the General Assembly has altered the membership of a statutory board or commission without removing all of the other incumbent members. For example, through Chapter 739 of the 2016 Laws of Maryland, the General Assembly renamed the State Board of Chiropractic and Massage Therapy Examiners as the State Board of
That, on October 1, 2016, the position on the State Board of Chiropractic and Massage Therapy Examiners held by the longest serving licensed chiropractor member of the Board and the three positions held by the licensed massage therapist members of the Board shall terminate so as to reduce the number of positions on the newly established State Board of Chiropractic Examiners in accordance with § 3-202 of the Health Occupations Article[.]
2016 Md. Laws 7540 (Vol. IX, Ch. 739, H.B. 1420). In other words, the General Assembly eliminated the positions of four incumbent members of the former State Board of Chiropractic and Massage Therapy Examiners while leaving the other seven incumbent members in place.7
As another example, through Chapter 265 of the 2014 Laws of Maryland, the General Assembly amended
Before moving on, we are compelled to explain that this case presents circumstances that are vastly different from those presented in Schisler and, thus, results in a different outcome. In Schisler, 394 Md. at 525 n.9, 907 A.2d at 178 n.9, the legislation at issue terminated the terms of all of the existing
By contrast, in this case, the General Assembly has instituted a variety of changes to the Nominating Commission, including to the composition and number of members; these changes apply prospectively to all future appointees, and restructure the Nominating Commission. Moreover, Chapter 35 does not involve the General Assembly giving itself the power to appoint members to the Nominating Commission or instituting an artificial gubernatorial appointment process before returning to a prior appointment process, as was the case in Schisler. Indeed, here, the General Assembly is not involved in the appointment of members to the Nominating Commission; and, the General Assembly has never had the authority to appoint members to the Nominating Commission, either before or after Chapter 35. Stated otherwise, through Chapter 35, the General Assembly did not give itself the power to
Because we hold that Chapter 35 does not violate
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. APPELLEES TO PAY COSTS.