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Floyd v. Baltimore City Council

Court of Special Appeals of Maryland

June 4, 2019


          Circuit Court for Baltimore City Case No. 24-C-16-006515

          Fader, C.J., Friedman, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.


          Kenney, J.

         In December 2016, Baltimore City enacted legislation known as "Transform Baltimore," which was its first comprehensive rezoning plan since 1971. Appellant, Joan Floyd, has challenged the legislation under the Open Meetings Act, Md. Code Ann. (2014, 2018 Supp.), General Provisions ("GP") §§ 3-301 et seq. (the "Act"), alleging that the Baltimore City Council (the "Council") and the Land Use and Transportation Committee (the "Committee")[1], had violated the Act with respect to several meetings conducted near the time of the bill's passage. The Circuit Court for Baltimore City, finding no actionable violations of the Act, entered judgment in favor of the appellees.

         In her timely appeal, appellant presents five questions[2], which we have consolidated and reordered as:

1. Did the trial court err in granting the City's Motion to Quash Subpoenas based on legislative privilege?
2. Did the trial court err in not considering online audio-visual recordings of certain Committee and Council meetings?
3. Did the trial court err in determining that there was no violation of the minutes requirement of the Act in the Committee's October 20, 2016 meeting?
4. Did the trial court err in determining that there was no violation of the notice or minutes requirements of the Act in the Council luncheon meeting on October 24, 2016?

         For reasons that follow, we answer the first three questions in the negative and the fourth in the affirmative.


         Bill 12-0152, the legislation known as "Transform Baltimore," was introduced in the Baltimore City Council on October 22, 2012, and assigned to the Land Use and Transportation Committee. Over the next four years, the Committee conducted over 80 public hearings and considered hundreds of amendments to its text and zoning map in open session. On October 19 and 20, 2016, the Committee met in open session, and, on October 20, voted to recommend Bill 12-0152 "favorable with amendments." The online-posted minutes of that meeting reflected the following:

A motion was made by Councilmember Kraft, seconded by Councilmember Middleton, that Bill 12-0152 be recommended Favorable with Amendments. The motion for carried by the following vote:
Yes: 6 - Reisinger, Kraft, Branch, Clarke, Henry, and Middleton Absent: 1 - Mosby

         On the evening of October 24, 2016, the full Council convened in open session to consider Bill 12-0152.[3] Some proposed amendments were adopted by the Council; some were not. Ultimately, the Council voted favorably on Bill 12-0152 with amendments. The official minutes reflecting the Council's votes on amendments and the final vote were recorded in the Council's Journal and posted online on the Council's Legistar website.

         Earlier on October 24, there was a "luncheon meeting" of the Council hosted by Mayor Stephanie Rawlings-Blake in the Mayor's executive conference room. No minutes of that "luncheon meeting" were recorded.

         On December 2, 2016, appellant, along with others, filed a "Petition for Enforcement of the Open Meetings Act" against the Council and Committee. The petition alleged that the Council and Committee violated the Act's provisions with respect to the Committee meetings of October 19 and 20, 2016 and the Council's luncheon meeting of October 24, 2016.

         The Council passed Bill 12-0152 on December 5, 2016, and the Mayor signed it into law that same night.[4] The new zoning code and accompanying zoning map took effect on June 5, 2017.

         The circuit court denied the City's motion to dismiss on February 22, 2017, and trial was set for June 9, 2017. On June 2, 2017, appellant served the City with subpoenas to compel testimony of Council President Bernard C. "Jack" Young, Council member and Committee Chairman Edward Reisinger, and the Director of Legislative Affairs for the Council President, Kara Kunst. The City moved to quash the subpoenas for the Council members on the grounds of legislative privilege, and it moved in limine to limit the testimony of Ms. Kunst to only those matters related to the Council's compliance with the requirements of the Act. The circuit court, finding that "legislative privilege applies," granted both motions.

         At trial, appellant and Ms. Kunst both testified. When the proceedings closed, the court stated that it had "some reviewing to do" and would issue a written ruling. On June 30, 2017, the court entered summary judgment in favor of the City. It found that appellant had "failed to produce any evidence to support the[] claim that [the City] committed any actionable violation of the Open Meetings Act," and that "[w]hile the process was not perfect . . . there is no indication that the errors were the result of anything more than human error . . . [that] does not give rise to a cause of action."


         When a cause of action is based on a violation of the Open Meetings Act, there is a statutory presumption that the public body did not violate the Act, and the complainant has the burden of proving the violation. See GP § 3-401(c).[5]

         In our review of an action tried without a jury, we:

must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court's determination, it is not clearly erroneous and cannot be disturbed. Questions of law, however, require our non-deferential review. When the trial court's decision involves an interpretation and application of Maryland statutory and case law, [we] must determine whether the lower court's conclusions are legally correct. Where a case involves both issues of fact and questions of law, [we] will apply the appropriate standard to each issue.

Clickner v. Magothy River Ass'n Inc., 424 Md. 253, 266-67 (2012) (cleaned up); Md. Rule 8-131(c).

         We review the trial court's ruling on a motion to quash subpoenas under an abuse of discretion standard. See Doe v. Maryland Bd. of Social Workers, 154 Md.App. 520, 527-28 (2004); WBAL-TV Div., Hearst Corp. v. State, 300 Md. 233, 247 (1984) (holding no abuse of discretion in denial of TV station's motion, based on a qualified First Amendment privilege, to quash summons by the State to produce the unbroadcast portions of a videotaped interview with criminal defendant for possible use at trial). Generally, an abuse of discretion occurs "where no reasonable person would take the view adopted by the [trial] court." Metheny v. State, 359 Md. 576, 604 (2000) (internal quotations omitted). When, however, the ruling "involves an interpretation and application of Maryland statutory and case law, we must determine whether the trial court's conclusions are legally correct under a de novo standard of review." Johnson v. Francis, 239 Md.App. 530, 542 (2018) (internal quotations omitted).



         Legislative Privilege

         As indicated, the City moved to quash the subpoenas for the two Council members based on legislative privilege and moved in limine to limit the testimony of Ms. Kunst to administrative details. The trial court, finding that "legislative privilege applies," granted the motions.


         Because the Act expressly authorizes a court to determine whether a public body's violation of the Act was willful, appellant contends that direct examination of the members of a public body is required. And, for that reason, "legislative privilege" has no place in an Open Meetings case, because it would allow "[a]ny public body composed of legislators . . . [to] effectively violate the Act with impunity." It is her position that legislative privilege is "anathema to enforcement of the Act."

         More specifically, she argues that Council President Young and Committee Chairman Reisinger were "uniquely positioned and qualified to elucidate the proceedings of these two public bodies" over which they presided. By restricting her ability to elicit testimony from the Council members, the trial court prevented her from obtaining information from competent witnesses, which severely prejudiced her efforts to succeed on her claim.

         Citing Community and Labor United For Baltimore Charter Committee v. Baltimore City Bd. of Elections, 377 Md. 183 (2003) (which we will refer to as "CLUB" in this opinion), she contends that both Mr. Young and Mr. Reisinger had been Council members during the period of 2002-03 when the facts underlying that case occurred and would have particular insight into how, or if, the Council had taken any post-CLUB steps to reform their procedures and to comply with the Act. In addition, their involvement, in what she characterizes as a prior willful violation of the Act in CLUB, would be circumstantial evidence of a willful violation in this case.

         She further argues that she needed the testimony of Mr. Young and Mr. Reisinger because Ms. Kunst, a staff member, was not competent to testify on matters relating to the Act. Even if she was qualified to "support and possibly to implement the policy of the [Council] and [Committee] regarding the [Act]," she was not qualified "to make or explain that policy." Nor was she competent to testify "as to what [Council] and Committee members themselves discussed, and with whom, during the 'recess' between the evening meetings of October 20 and 24, 2016."

         The City responds that the court correctly quashed the subpoenas based on the well-developed doctrine of legislative privilege, which protected Mr. Young and Mr. Reisinger from having to testify about actions taken within the sphere of legitimate legislative activity. It asserts that Maryland law does not recognize an Open Meetings Act exception to legislative privilege, and that the CLUB Court did not discuss legislative privilege at all.


         Judge Wilner, writing as the Chief Judge of this Court, has expounded on the doctrine of legislative privilege:

Members of Congress and members of the Maryland General Assembly have a separate Constitutional immunity from being called upon, in any official non-legislative forum, to defend their conduct in legislative proceedings. Article I, § 6 of the U.S. Constitution provides that "for any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place." A similar provision, applicable to members of the General Assembly, has appeared in the Maryland Constitution since 1776. Article 10 of the current Maryland Declaration of Rights states that "freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature." Article III, § 18 of the State Constitution adds that "[n]o Senator or Delegate shall be liable in any civil action, or criminal prosecution, whatever, for words spoken in debate."
These Constitutional clauses trace their immediate history to the English Bill of Rights of 1689, although there is evidence of a much earlier origin. See discussion in Holmes v. Farmer, 475 A.2d 976, 981 (R.I. 1984). They have long been regarded as "an important protection of the independence and integrity of the legislature" and, in this country, as also reinforcing the core doctrine of separation of powers. United States v. Johnson, 383 U.S. 169, 178, 86 S.Ct. 749, 754 (1966); also Blondes v. State, 16 Md.App. 165 (1972). The State privilege [arises from the same sources as] the Federal (Blondes, 16 Md.App. at 175), and thus both are to be "read broadly to effectuate [their] purposes" (Johnson, 383 U.S. at 180) and to protect not only words spoken in debate "but anything 'generally done in a session of the House by one of its members in relation to the business before it.'" Johnson at 179, quoting from Kilbourn v. Thompson, 103 U.S. 168, 204 (1881).

Montgomery County v. Schooley, 97 Md.App. 107, 113-14 (1993) (cleaned up).

         While federal and state constitutional immunity provisions expressly refer to the Congress and the General Assembly, respectively, the doctrine of legislative privilege extends to local and municipal legislators as a matter of common law. See Manders v. Brown, 101 Md.App. 191, 205 (1994) ("federal and local privileges are essentially coextensive"); Schooley, 97 Md.App. at 114-15 (explaining the common law doctrine of official immunity and that it is applicable to "members of local and regional legislative bodies as well as to State legislatures"); see also State v. Holton, 193 Md.App. 322, 362-64 (2010) (recognizing a statutory source for legislative immunity for local legislators under § 5-501 of the Courts and Judicial Proceedings Article), aff'd, 420 Md. 530 (2011).

         Federal courts have interpreted the privilege to cover not just "speech or debate," but also "matters . . . integral [to] the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation," which includes a legislator's "conduct at legislative committee hearings." Gravel v. United States, 408 U.S. 606, 624-25 (1972). But, the privilege does not extend beyond "the sphere of legitimate legislative activity," see Schooley, 97 Md.App. at 115, and "only when necessary to prevent indirect impairment of such deliberations, has it been extended beyond pure speech and debate in the legislative body." Gravel, 408 U.S. at 625.[6]

         The purpose of legislative privilege is to protect the "legislative function" and to permit it to "be performed independently without fear of outside interference." Schooley, 97 Md.App. at 116 (quoting Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731-32 (1980) ("To preserve legislative independence, we have concluded that legislators engaged in the sphere of legitimate legislative activity . . . should be protected not only from the consequences of litigation's results but also from the burden of defending themselves."); see also United States v. Mandel, 415 F.Supp. 1025, 1030-31 (D. Md. 1976) (holding that legislative privilege could not be invoked to stop inquiry into a governor's approving or vetoing bills and recommending legislative matters to the General Assembly because that "does not interfere with the due functioning of the legislative process" or "threaten the independence of the legislature.").

         Legislative privilege may be invoked to protect a legislator from being "required to testify regarding . . . actions" taken within the sphere of legitimate legislative activity. Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292, 298 (D. Md. 1992). It extends as well to legislative staff members, officers, or other employees of the legislative body, but, as to them, it is "less absolute" than to the "legislators themselves." See Dombrowski v. Eastland, 387 U.S. 82, 85 (1967).

         In regard to the subpoenas in this case, the circuit court allowed appellant's counsel to proffer questions and the specific areas of inquiry that he intended to pursue with the two Council members. A summary of that proffer is provided in an appendix to this opinion. Many of the questions were directed to certain amendments to the legislation, and why certain actions were taken in regard to its passage. Such questions involve "the deliberative and communicative processes . . . with respect to the consideration and passage or rejection" of the legislation at issue. Gravel, 408 U.S. at 625. As to the questions about the luncheon, appellant was able to pursue some of them with Ms. Kunst, whom the court found competent to answer as the Director of Legislative Affairs. In short, we perceive neither error nor abuse of discretion by the court in quashing the subpoenas for the two Council members and limiting Ms. Kunst's testimony to administrative details and matters related to the Council's and Committee's compliance with the Act and its requirements.

         As noted, appellant contends that the application of legislative privilege to her subpoena requests strips the Act of all force and purpose, and therefore it should not be applied in cases based on a violation of the Act.[7] We are not persuaded because questions specifically related to compliance with the Act would not be protected by legislative privilege and appellant was able to pursue these questions with Ms. Kunst. But, even if we perceived a tension between the doctrine of legislative privilege and the requirements of the Act, a judicial carve-out of an exception to the application of that doctrine in such cases would be inappropriate. That, in our view, would be a policy issue to be addressed by the General Assembly and not by the courts. See Kleitman v. Superior Court, 87 Cal.Rptr.2d 813, 821-22 (Cal.Ct.App. 1999).[8]


         Online Audio-Visual Recordings


         Appellant asserts that her petition for enforcement of the Act provided the trial court with "the location on the City's own Charm TV website-including time stamps- of relevant portions of the official audio-visual recordings of the Committee meeting of October 19, 2016 and the Council's 5:00 p.m. meetings of October 26, 2016 and October 24, 2016." She provided the time stamped segments to show that what was discussed at the meetings did not match the meeting agendas, that portions of the recordings were inaudible, and that during those meetings members "spoke among themselves and consulted with staff away from the microphones." She contends that the recordings were a "unique form of the evidence-official, archived audio-visual recordings on the City's own website, which the Act expressly recognizes as constituting official minutes," and therefore should have been viewed by the court before making its decision.[9]

         The City responds that appellant never produced or introduced the recordings as evidence at trial, and therefore, it would have been inappropriate for the trier of fact to consider evidence that was not part of the record.


         When appellant brought up the online recordings at trial, appellant's counsel asked her what "specific footage" she was asking the trial court to see. When appellant responded that she could show the footage on her iPhone or tell the court the time stamps that she "liked for the court to see," the following exchange took place:

[Appellant's counsel:] Your Honor, at the present time, I'm not sure how you would wish us to proceed.
[The Court:] I'm not trying this case.
[Appellant's counsel:] Okay. All right.
[The Court:] I don't know what you're asking me.
[Appellant's counsel:] Well, the question is, is it possible that we could bring this up? I'd asked the Clerk before the hearing started whether it could be brought up in the courtroom because it's online from the City. And I don't . . . have an answer. . . .
[The Court:] Did you contact the administrative office and figure out what the procedure is to make that happen?
[Appellant's counsel:] No, I did not, Your Honor.
[Appellant:] I have an iPhone.
[Appellant's counsel:] I'm not sure that iPhone's doing -
[The Court:] Problem is preservation of evidence.

         At that point, appellant's counsel stated to appellant, "I know you would prefer to show it, but at this point, we may or may not be able to show it." Counsel then proceeded to ask appellant to explain what she had observed in her viewing of the recordings, which she did.

         In its June 30, 2017 opinion, the trial court explained:

This court did not go into any external website as suggested by [appellant] to view the meetings that were available on Charm TV as . . . [appellant] had an obligation to produce, in court, any evidence [appellant] wished for the court to review and consider.

         "In a bench trial, the court may not rely on facts that are not in the record." Massey v. State, 173 Md.App. 94, 125 (2007). Simply put, appellant had the burden to introduce evidence into the record for the court's consideration in a manner that it could be preserved for the ...

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