ANNE GEORGE, et al.
BALTIMORE COUNTY, MARYLAND, et al.
January 3, 2019
Circuit Court for Baltimore County Case No. 03-C-14-014041
Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty,
Adkins, Sally D., (Senior Judge, Specially Assigned) JJ.
standing doctrine encourages the highest good governance
standards by empowering stakeholder oversight of local
governments. Yet, these suits have the potential to
substantially burden the time and treasure of local
governments, impeding their efforts to serve the citizenry.
Maintaining a balance between these competing forces has
sometimes resulted in varied, complicated, and seemingly
contradictory legal edicts. But our task, as we again address
this topic, is eased by the recent and important decision in
State Center, LLC v. Lexington Charles Ltd.
Partnership, 438 Md. 451 (2014), which did much to
untangle the web of taxpayer standing in
State Center as our beacon, we resolve this case in
favor of Petitioners, holding that they possess the requisite
taxpayer standing to pursue their claim against Baltimore
County. This is despite the County's assertion that the
"minor" harm alleged by the taxpayers will not
cause an increase in taxes, especially considering it has not
raised the property tax rate in 26 years or the income tax
rate in 22 years.
OVERVIEW AND PROCEDURAL POSTURE
present case involves three Baltimore County taxpayers, Anne
George, Jody Kesner, and Jody Rosoff (collectively,
"Petitioners" or "Taxpayers"), and their
lawsuit against Baltimore County ("County") and
various County administrators. Petitioners' suit revolves
around the County's operation of the Baltimore County
Animal Shelter ("BCAS") and alleged waste at the
December 2014, Taxpayers filed a complaint in the Circuit
Court for Baltimore County seeking preliminary and permanent
injunctions, a declaratory judgment, and a writ of mandamus.
Taxpayers alleged they were entitled to bring suit under the
taxpayer standing doctrine because they were "injured by
the increased tax burden caused by [the County's] illegal
acts, in addition to other pecuniary injuries from having to
care for animals that have been harmed by [the County's]
acts." They also claimed that various County actions
resulted in over-expenditure on medical care and staffing and
under-collection of fees.
their complaint, Taxpayers alleged that the County, in its
management of BCAS, violated numerous provisions of Baltimore
County Code, Article 12. Specifically, Taxpayers stated that
the County failed to "[a]ppoint, train, and
qualify" appropriate individuals to work in animal
control, Balt. Cty. Code § 12-1-103(2); maintain a
program to assist volunteers, id. §
12-1-103(3); provide appropriate facilities and care for
animals, id. § 12-1-103(4); attempt to locate
owners of stray animals, id. §§
12-1-202(a), 12-3-203(a); hold animals for four business days
in a "humane manner," id. §§
12-3-201(b), 12-3-202(b); put animals up for adoption only if
they meet certain standards, id. § 12-3-204(d);
and maintain holding facilities that meet the minimum
standards of Article 12, id. §
12-6-103. Taxpayers alleged that these regulations
are routinely violated.
County responded with a motion to dismiss or, in the
alternative, motion for summary judgment, claiming, among
other things, that Taxpayers lacked standing to bring their
claim. The County argued that Taxpayers "failed to
adequately allege any illegality or ultra vires act
that reasonably may result in a pecuniary loss or a tax
increase to survive [the] motion." The motion was
accompanied by an affidavit from the Director of Budget and
Finance for Baltimore County, Keith Dorsey ("Dorsey
Affidavit"). The Dorsey Affidavit asserted that
Baltimore County property taxes had not been increased in 26
years, the income tax had not been increased in 22 years, and
that BCAS constituted such a small fraction of the overall
budget "that no taxes would be increased as a result of
operation of the Animal Shelter."
response characterized the County's motions as merely
alleging a failure to show that taxes will increase, not
rebutting Taxpayers' charge of "other pecuniary
loss." Relying mainly on their complaint, the
County's motion to dismiss or for summary judgment, and
the Dorsey Affidavit, the response asserted that Taxpayers
suffered a pecuniary loss "from the illegal expenditure
of taxpayer funds," which included the waste of
tax-derived funds "on excess veterinary care and
medications, food and other necessities, euthanasia, and
employees." Moreover, with fewer animals suitable for
adoption, Taxpayers asserted a loss of revenue from adoption
and licensing fees. Taxpayers also alleged other pecuniary
losses, separate from those involving the waste of
tax-derived funds, caused by veterinary expenses they
incurred caring for three different animals adopted from BCAS
and allegedly mistreated while in the County's care.
on the same day that Taxpayers filed their response, they
also filed a separate motion for preliminary injunction and
request for hearing. Attached to the motion were 18 separate
affidavits. We summarize the motion and affidavits as
follows. After adopting animals from BCAS, numerous
individuals discovered that their pets were "severely
underfed." There were allegations that animals had been
left wet and sitting in pooled water, resulting in rashes,
irritation, and bleeding. Several affiants claimed that BCAS
routinely failed to provide veterinary care, "isolate
contagious animals from other animals," or scan for
identification microchips. These failures resulted in
deteriorating health conditions, unnecessary euthanasia, and
animals being held in the shelter without their owner's
knowledge. BCAS also failed to sterilize animals before they
were offered for adoption. Additionally, affiants claimed
that employees and volunteers were improperly trained and
hearing, the judge denied the motion to dismiss and focused
on summary judgment. On two occasions, the parties pointed
the judge to the complaint and the preliminary injunction
motion and attached affidavits for additional details
regarding Taxpayers' alleged injury. There was
significant debate, and some confusion, regarding the type of
harm required to grant taxpayer standing under State
Center, a leading taxpayer standing case authored by
Judge Glenn T. Harrell, Jr. for this Court.
debate was twofold. First, there was disagreement regarding
the requirement that "the taxpayer must
allege . . . a special interest distinct from the
general public," State Center,
438 Md. at 556 (emphasis added). The dispute centered around
the interpretation of the word "taxpayer" as a
subset of "general public"-i.e., whether such a
relationship compared specific taxpayers in a political
subdivision to taxpayers generally in the same subdivision,
or specific taxpayers in the political subdivision to
residents generally. Second, the parties disagreed about
whether the Dorsey Affidavit, stating that taxes had not and
would not be raised, foreclosed Taxpayers' argument that
illegal County actions could reasonably be expected to result
in "pecuniary loss or an increase in taxes,"
id. at 557 (emphasis removed).
written opinion, the hearing judge concluded that, while
Taxpayers pled sufficient facts to withstand the motion to
dismiss, the alleged pecuniary injury must be more developed
to survive summary judgment. The judge ruled that Taxpayers
did not "specifically allege 'waste of tax
dollars' in their Complaint." In the court's
view, Taxpayers' argument centered entirely around the
question of a potential tax increase or decrease.
Significantly, the court determined that Taxpayers never
rebutted the Dorsey Affidavit, which "established that
any alleged illegal acts have not and will not result in
increased taxes or pecuniary loss to [Taxpayers]." For
these reasons, summary judgment was granted.
unreported decision, the Court of Special Appeals affirmed
the Circuit Court. See George v. Balt. Cty., No. 47,
Sept. Term 2016, 2018 WL 2948204 (Md. Ct. Spec. App. June 12,
2018). The intermediate appellate court held that "the
County's actions were not reasonably likely to result in
a pecuniary loss to [Taxpayers] because the County's
actions were not likely to affect [their] taxes."
Id. at *5. In dissent, Senior Judge Harrell, sitting
by designation, stated that the majority erred when it
"reduce[d] the disjunctive standard of potential
pecuniary loss or tax increase into a single category,"
one entirely about taxation. Id. at *6.
Maryland, a court shall grant summary judgment only if
"there is no genuine dispute as to any material fact and
. . . the party in whose favor judgment is entered is
entitled to judgment as a matter of law." Maryland Rule
2-501(f). "Whether summary judgment was granted properly
is a question of law." Lightolier, a Division of
Genlyte Thomas Grp. LLC v. Hoon, 387 Md. 539, 551
(2005). Consequently, these determinations are made without
deference to the deciding and reviewing courts. See
id. "We review the record in the light most
favorable to the non-moving party and construe any reasonable
inferences that may be drawn from the well-pled facts against
the moving party." Barclay v. Briscoe, 427 Md.
270, 282 (2012).
Judgment and Pleadings
determine whether a genuine dispute of material fact exists,
we must first decide which evidence in the record can be
reviewed to make such a determination. Taxpayers maintain
that a material dispute exists as to whether Baltimore County
wasted government funds through the various actions described
above. The County, on the other hand, asserts that
Taxpayers' response to the motion for summary judgment
was insufficient, as their arguments are unsupported and
"speculative at best." Taxpayers' response,
according to the County, did not contain the admissible
evidence required under Md. Rule 2-501 and, therefore, failed
to sufficiently rebut the Dorsey Affidavit.
Maryland Rules, "[a]ny party may file a written motion
for summary judgment of all or part of an action on the
ground that there is no genuine dispute as to any material
fact and that the party is entitled to judgment as a matter
of law." Md. Rule 2-501(a). This motion must be
supported by affidavit if it is: "(1) filed before the
day on which the adverse party's initial pleading or
motion is filed or (2) based on facts not contained in the
record." Id. The County filed such an
affidavit-the Dorsey Affidavit- purporting to establish that
taxes had not and would not be raised, even if the alleged
violations were occurring.
opposing party chooses to reply, it must answer, in writing,
"identify[ing] with particularity each material fact as
to which it is contended that there is a genuine dispute . .
. ." Md. Rule 2-501(b). Additionally, as to these
alleged material facts, the opposing party must
"identify and attach the relevant portion of the
specific document, discovery response, transcript of
testimony (by page and line), or other statement under oath
that demonstrates the dispute." Id. "A
response asserting the existence of a material fact or
controverting any fact contained in the record shall be
supported by an affidavit or other written statement under
oath." Id. We have yet to interpret the word
"supported," above, as meaning "attached to
the responsive filing, only."
alleged in pleadings are not, by that means alone, before the
court as facts for summary judgment purposes. Ordinarily,
mere allegations neither establish facts, nor show a genuine
dispute of fact." Vanhook v. Merchants Mut. Ins.
Co., 22 Md.App. 22, 27 (1974) (citation omitted). Still,
courts should look to the "pleadings, depositions, and
admissions on file, together with the
affidavits, if any" to determine whether a dispute
exists. Cox v. Sandler's, Inc., 209 Md. 193, 197
(1956) (emphasis added). This means that courts should review
any filing that shows, "in detail and with precision, by
facts admissible in evidence," Mullan Contracting
Co. v. IBM Corp., 220 Md. 248, 257 (1959) (citations
omitted), that there is a genuine dispute. We have before
deemed it appropriate to consider supplemental affidavits
filed separately from the plaintiff's response and prior
to a hearing on a motion for summary judgment. See Lynx,
Inc. v. Ordnance Prods., Inc., 273 Md. 1, 20 (1974).
Circuit Court opinion granting summary judgment states that
Taxpayers "did not provide a counter-affidavit or an
affidavit pursuant to Md. Rule 2-501(d)," allowing for
"affidavits of defense not available." Whether or
not this is strictly true, Taxpayers submitted 18 affidavits
with their motion for preliminary injunction, which was filed
on the same day as the response to the motion to dismiss or
for summary judgment. These affidavits were referenced in the
motions hearing, but never mentioned in the judge's final
opinion. So long as these affidavits meet the standard set
forth in the Maryland Rules, they should be factored into the
overall summary judgment determination.
in mind the filings that the Circuit Court had at its
disposal at the point of the hearing, we must determine
whether they create a genuine dispute of material fact.
Specifically, we must decide whether Taxpayers'
allegations satisfy the specific injury requirement,
discussed in detail below. We turn to that question now.
standing doctrine permits a taxpayer to "invoke the aid
of a court of equity to restrain the action of a public
official, which is illegal or ultra vires and may
injuriously affect the taxpayer's rights and
property." Inlet Assocs. v. Assateague House
Condominium Assn., 313 Md. 413, 440-41 (1988) (citation
omitted). Such a distillation has come to seem
oversimplified, as the doctrine has grown and become
"disorganized" and, "at times, seemingly
contradictory . . . ." State Center, 438 Md. at
540-41. In State Center, Judge Harrell, writing for
this Court, clarified some aspects of taxpayer standing that
we discuss further below. In his words, "[T]he
conceptual basis of the ...