Circuit Court for Baltimore City Case No. 24-C-16-006515
C.J., Friedman, Kenney, James A., III (Senior Judge,
Specially Assigned), JJ.
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"), 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.
timely appeal, appellant presents five
questions, which we have consolidated and reordered
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
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?
reasons that follow, we answer the first three questions in
the negative and the fourth in the affirmative.
AND PROCEDURAL BACKGROUND
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
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
Yes: 6 - Reisinger, Kraft, Branch, Clarke, Henry, and
Middleton Absent: 1 - Mosby
evening of October 24, 2016, the full Council convened in
open session to consider Bill 12-0152. 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
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.
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,
Council passed Bill 12-0152 on December 5, 2016, and the
Mayor signed it into law that same night. The new zoning
code and accompanying zoning map took effect on June 5, 2017.
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.
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."
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 §
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).
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).
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.
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."
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.
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.
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."
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.
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).
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).
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.
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.").
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).
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.
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. 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).
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
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.
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
[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
[The Court:] Problem is preservation of evidence.
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.
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.
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