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State v. Falcon

Court of Appeals of Maryland

January 20, 2017

STATE OF MARYLAND, ET AL.
v.
JAMIE FALCON, ET AL.

          Argued: November 7, 2016

         Circuit Court for Anne Arundel County Case No. C-02-CV-16-001548

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Watts, J.

          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 Md. Code Ann., Educ. (1978, 2014 Repl. Vol., 2015 Supp.) ("ED (2015)") § 3-110(b), which governs the School Board Nominating Commission of Anne Arundel County ("the Nominating Commission") to, among other things, eliminate the ability of the Governor to appoint members to the Nominating Commission. The Nominating Commission's purpose "is to select nominees to be recommended to the Governor as qualified candidates for appointment to the Anne Arundel County Board of Education [("the School Board")]." Md. Code Ann., Educ. (1978, 2014 Repl. Vol., 2016 Supp.) ("ED (2016)") § 3-110(b)(1)(ii).

         Before 2016, ED (2015) § 3-110(b)(2) provided that the Nominating Commission would consist of eleven members, five of whom were to be appointed by the Governor, and six of whom were to be appointed by various specified entities. In 2016, through Chapter 35 of the 2016 Laws of Maryland ("Chapter 35"), the General Assembly amended, among other statutory provisions, ED (2015) § 3-110(b)(2), to increase the number of members of the Nominating Commission from eleven to thirteen, to eliminate the Governor's ability to appoint five members, and to grant appointment authority to various specified entities for the resulting seven new appointments. See 2016 Md. Laws 600-02 (Vol. I, Ch. 35, H.B. 172). In other words, the amendment to ED (2015) § 3-110(b)(2) changed the Nominating Commission from a body, some of whose members were appointed by the Governor, and some of whose members were appointed by various specified entities, to a body that is completely comprised of members who are appointed by various specified entities other than the Governor. Through Chapter 35, the General Assembly also ended the terms of the Governor's five appointees to the Nominating Commission early, causing the appointments to terminate as of June 1, 2016. See id. at 605.

         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 Article II, § 15 of the Maryland Constitution (Suspension and Removal of Officers) and Article 8 of the Maryland Declaration of Rights (Separation of Powers). The circuit court agreed and issued a preliminary injunction against implementation and enforcement of certain portions of Chapter 35, including those portions amending ED (2015) § 3-110(b)(2) to alter the membership and appointment process for members of the Nominating Commission and ending the terms of the current gubernatorial appointees on June 1, 2016. The State of Maryland ("the State") and Governor Lawrence J. Hogan, Jr. ("Governor Hogan"), Appellants, noted an appeal to the Court of Special Appeals, and, while the case was pending in that Court, filed in this Court a petition for a writ of certiorari.

         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 Article II, § 15 of the Maryland Constitution and Article 8 of the Maryland Declaration of Rights, and by treating members of the Nominating Commission as "civil officers" within the meaning of Article II, § 15. We hold that the circuit court erred in issuing the preliminary injunction because Chapter 35 does not violate Article II, § 15 of the Maryland Constitution or Article 8 of the Declaration of Rights, but rather restructures or reconstitutes the Nominating Commission and prospectively changes the appointment process to grant appointment power to specified entities other than the Governor; and that terminating the terms of the gubernatorial appointees as part of the restructuring is permissible. Given that Chapter 35 does not constitute a violation of Article II, § 15 of the Maryland Constitution or Article 8 of the Declaration of Rights, but instead restructures or reconstitutes the Nominating Commission, we need not reach the issue of whether members of the Nominating Commission are civil officers under Article II, § 15.

         BACKGROUND

         Statutory Background

         The Governor appoints members of the School Board. See ED (2016) § 3-110(a)(2). Prior to 2007, when a vacancy on the School Board occurred, the Anne Arundel County School Board Nominating Convention, a private association, submitted a list of nominees; and, as a matter of custom, the Governor usually appointed a School Board member from the list of nominees. In 2007, however, that process changed with the establishment of the Nominating Commission, through an amendment to Md. Code Ann., Educ. (1978, 2006 Repl. Vol.) § 3-110. See 2007 Md. Laws 2700 (Vol. IV, Ch. 454, H.B. 1114).

         From 2007 until 2016, ED (2015) § 3-110(b)(2) provided for the membership of, and appointments to, the Nominating Commission as follows:

(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).

ED (2015) § 3-110(b)(3) provided for the designation of the chair of the Nominating Commission, as well as length of terms, as follows:

(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.

         ED (2015) § 3-110(b)(4) provided for staffing of the Nominating Commission as follows: "The Department of Legislative Services shall provide staff for the Commission."

         ED (2015) § 3-110(b)(5) set forth the nomination process for the School Board, providing:

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.

         ED (2015) § 3-110(a)(2) provided: "Except for the student member, the Governor shall appoint a member of the [School B]oard from a list of nominees submitted by the . . . Nominating Commission . . . as provided in subsection (b) of this section." A School Board member would then "serve for the remainder of the member's term, . . . subject to the approval or rejection of the registered voters of the county at the next general election." ED (2015) § 3-110(c)(1). In the general election, voters "vote[d] for the [School Board] member's retention or removal." ED (2015) § 3-110(c)(3)(i). ED (2015) § 3-110(c)(4) stated: "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; and (ii) The member serves until a successor is appointed and qualifies." (Paragraph breaks omitted). In other words, in the event of a rejection of retention or a tied vote on the retention of a School Board member, the position automatically became vacant, and the nomination process would begin again.

         In 2016, at the request of the Anne Arundel County Administration, House Bill 172 was introduced, proposing amendments to ED (2015) § 3-110(b). See 2016 Md. Leg. Sess. H.B. 172 at 1 (First Reader), available at http://mgaleg.maryland.gov/2016RS/bills/ hb/hb0172f.pdf [https://perma.cc/N2M5-ZWC9]. As originally introduced on January 21, 2016, House Bill 172 sought to alter the membership of the Nominating Commission by allowing certain chambers of commerce to appoint a member of the Nominating Commission. Specifically, House Bill 172 sought 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 ED (2015) § 3-110(b)(2)(iv)(2), which provided that the Annapolis and Anne Arundel County Chamber of Commerce appointed one member to the Nominating Commission, in favor of a new subparagraph (b)(2)(v) that was to provide as follows:

         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 ED (2015) § 3-110(b) was to decrease the term of a Nominating Commission member appointed by a Chamber of Commerce to two years, instead of four years. See 2016 Md. Leg. Sess. H.B. 172 at 3 (First Reader).

         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');">394 Md. 519[, 907 A.2d 175');">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 appointees 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 and 15 of the Maryland Constitution" and a "violation of Article 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 to Article 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 ED (2015) § 3-110(b) and (c). ED (2016) § 3-110(b)(2) and (3) provide for the membership of, and appointments to, the Nominating Commission as follows:

(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 member 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 ...


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