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George v. Baltimore County

Court of Appeals of Maryland

April 1, 2019


         Argued: 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.


          Adkins, J.

         Taxpayer 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 Maryland.[1]

         With 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.


         The 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 facility.

         In 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.

         In 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.[2] Taxpayers alleged that these regulations are routinely violated.

         The 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."

         Taxpayers' 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.

         Significantly, 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 inadequately supervised.

         At the 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.

         The 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).

         In a 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.

         In an 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.


         Standard of Review

         In 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).

         Summary Judgment and Pleadings

         To 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.

         Under 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.

         If the 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."

         "[F]acts 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).

         The 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, [3]they should be factored into the overall summary judgment determination.

         Keeping 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.

         Taxpayer Standing Doctrine

         Taxpayer 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 ...

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