Maryland Cases April 12, 2023: Bartlett v. Talbot Cnty.

Case Description

1

Circuit Court for Talbot County Case No. C-20-CV-22-000139

Berger, Beachley, Ripken, JJ.

OPINION

Ripken, J.

2

This expedited appeal, filed pursuant to Maryland Rule 8-207(b), arises out of a dispute between Appellants Dirck K. Bartlett, John C. North II, William Kennedy, John DeQ. Briggs, III, W. Bruce McConnel, Margaret S. McConnel, and Steven Harris (the "Taxpayer Appellants") and Lisa M. Ghezzi ("Appellant Ghezzi") (collectively, the "Appellants"), and Appellees Talbot County, Maryland (the "County") and James Corson ("Appellee Corson") (collectively, the "Appellees") regarding the applicability of section 706(12) of the Charter of Talbot County (the "Charter") to the terms of office for members of the Talbot County Planning Commission (the "Planning Commission") set forth in section 404(a) of the Charter. The Circuit Court for Talbot County held that section 706(12) does not apply to the terms of office of Planning Commission members, declared that Appellee Corson was lawfully appointed to the Planning Commission to replace Appellant Ghezzi, and entered a declaratory judgment consistent with its order. Bartlett v. Talbot Cnty. , No. C-20-CV-22-000139 (Md. Cir. Ct. Talbot Cnty. Dec. 22, 2022). For the reasons that follow, we shall affirm.

ISSUE PRESENTED FOR REVIEW

The Appellants present a single issue for our review: Whether section 706(12) of the Charter applies to the fixed terms of office for Planning Commission members.

3

FACTUAL AND PROCEDURAL BACKGROUND

Because this is an expedited appeal, pursuant to Maryland Rule 8-207(b)(2), the parties have jointly filed an agreed statement of the case, including the essential facts. Thus, the below recitation of facts is quoted directly therefrom for factual and procedural background.

OVERVIEW AND FACTUAL SUMMARY

***

Section 404(a) of the Charter states as follows:

"Members of the [Planning Commission] shall be appointed by the County Council of Talbot County for terms of five years, except that the respective terms of the five members first appointed shall be on a staggered basis (of the five initial appointments, one member shall serve for one year, one for two years, one for three years, one for four years, and one for five years[)]."

Section 706(12) of the Charter states as follows:

"Reference to a span of time is not intended to include the day the event occurs, but includes the last day of a period computed, unless that day is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the day

4

thereafter which is neither a Saturday, Sunday, or legal holiday."

On November 8, 2022, the voters of Talbot County elected five members to the County Council of Talbot County (the "County Council") for a four-year term of office, consisting of two incumbents and three new members. Section 205 of the Charter provides as follows:

"A Councilman shall serve for a term beginning at noon on the first Monday in December next following his election, and ending at noon on the first Monday in December in the fourth year thereafter."

Accordingly, at noon on Monday, December 5, 2022, the term of the outgoing County Council ended and the term of the incoming County Council began.

On November 16, 2022, counsel for the Taxpayer Appellants sent an email to the County Council with a letter of the same date attached. The letter stated, in part:

"The Talbot County Charter creates 5-year terms for Commission members. Section 706 (12) spells out when those terms begin and end. The initial appointments to the Planning Commission were made on December 3, 1974, by the first elected County Council. The date of the original appointments, Dec. 3, carries through to determine the beginning of the terms for all subsequent appointments. Bryan v. Makosky , 380 Md. 603, 846 A.2d 392 (2004). Regarding the beginning date of the 5-year terms, Section 706 (12) of the Charter states:

'Reference to a span of time is not intended to include the day the event occurs, but includes the last day of a period computed, unless that day is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the day thereafter which is neither a Saturday, Sunday, or legal holiday.'

Under § 706 (12), the date the event occurs, Dec. 3, is not included in the 5-year term, which means the term begins at 12:01 A.M. on Dec. 4 and ends 5 years later at midnight on

5

December 3. So, Dec. 3 (through midnight) is included as the last day of the term-unless that day falls on a Saturday, Sunday, or legal holiday.

It so happens that Dec. 3, 2022, falls on a Saturday, and under Charter § 706 (12) the term does not end on that Saturday but 'runs until the end of the day thereafter which is neither a Saturday, Sunday, or legal holiday.' That extends the sitting member's term until midnight Monday, Dec. 5, 2022.

The outgoing Council's term expires Dec. 5, 2022, at noon. As the current term of the sitting Planning Commissioner continues till midnight Dec. 5, there is no vacancy on the Planning Commission for this Council to fill during its term. If the sitting Council tried to make an appointment to the Planning Commission on November 22, that action would be an attempt to usurp the authority and prerogative of the incoming Council whose power it is to make the appointment, as the seat becomes vacant during its term of office."

During their November 22, 2022, meeting, the County Council appointed Appellee Corson to the Planning Commission for a term beginning December 3, 2022 and ending December 2, 2027. The County Council appointed Appellee Corson to succeed Appellant Ghezzi.

PROCEDURAL SUMMARY

On November 29, 2022, Taxpayer Appellants filed a Complaint for Declaratory and Related Relief (the "Complaint") and a Motion for Summary Judgment in the Circuit Court naming Appellee Talbot County, Maryland (the "County"), Appellant Ghezzi, and Appellee Corson as Defendants. The Complaint alleged, inter alia :

"22. On November 22, 2022, the outgoing Council, acting without authority and ultra vires , purported to appoint James C. Corson as a new member to the Planning Commission.

23. This purported appointment is null and void. There was no vacancy on the Planning Commission for the outgoing Council to fill.

6

24. A majority of the outgoing Council, three of five, did not run for re-election and are not members of the new Council. The new Council has a new majority entitled to make the Planning Commission appointment."

The Complaint included Proposed Findings of Fact and Conclusions of Law as follows:

"Proposed Findings of Fact and Conclusions of Law

(a) The initial appointments of the members of the Talbot County Planning Commission occurred on December 3, 1974, and that date of December 3 is forever established as the date that event occurred.

(b) Talbot County Charter § 706 (12) states: "Reference to a span of time is not intended to include the day the event occurs, but includes the last day of a period computed, unless that day is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the day thereafter which is neither a Saturday, Sunday, or legal holiday."

(c) Under Charter § 706 (12) reference to a span of time does not include the day the event occurs. Planning Commissioners terms begin immediately at midnight December 3-4 (Dec. 4, at 12:01 am).

(d) Under Charter § 706 (12) reference to a span of time does include the last day of the period. The Planning Commissioners 5-year terms end at midnight December 3-4 (Dec. 3, 11:59 pm). A term ending at midnight December 2-3 (Dec 2 at 11:59 pm) would end 24 hours before a full 5-year term. That ending would violate both Charter § 404 (a), (creating 5-year terms) and § 706 (12) (defining the start and end dates).

(e) December 3, 2022, at 11:59 pm is a Saturday. Under Charter § 706 (12), the Planning Commissioner's term "runs until the end of the day thereafter which is neither a Saturday, Sunday, or legal holiday." That is Monday, December 5, 2022, at 11:59 pm, midnight.

7

(f) The outgoing Council's term ends on Monday, December 5, 2022, at noon, Charter § 205. Because the Council's term expires before the vacancy on the Planning Commission occurs, the outgoing Council had no authority to make the Planning Commission appointment.

(g) The outgoing Council's purported appointment to the Planning Commission on November 22, 2022, is ultra vires, and null and void."

The first meeting of the Planning Commission following the County Council's appointment of Appellee Corson was scheduled for December 7, 2022.

On December 4, 2022, the Taxpayer Appellants filed a Request for a Temporary Restraining Order ("TRO") wherein they requested the following relief:

"WHEREFORE, Plaintiffs request the Court to issue a Temporary Restraining Order necessary to permit the Planning Commission to properly constitute itself for its scheduled public meeting on Wednesday, December 7, 2022, and to permit it to lawfully conduct its important public business on that date, restraining the County from seating the lame-duck Council's ultra vires appointee, and ordering the County to seat the incumbent Planning Commissioner to maintain the status quo until a full adversary hearing can be held on the propriety of a preliminary or final injunction, and for such other and further relief as the nature of this case may require."

The Circuit Court held a hearing on the TRO on December 6, 2022, the day before the Planning Commission was scheduled to meet. The Circuit Court denied the TRO and ruled from the bench that, by denying the TRO, Appellee Corson was to sit on the Planning Commission at its meeting the following day.

On December 12, 2022, the County filed a Cross-Motion for Summary Judgment or, in the Alternative, to Dismiss the Complaint wherein the County requested that the Circuit Court enter summary judgment in its favor or, in the alternative, dismiss the Complaint for lack of common law and taxpayer standing. The County's Cross-Motion was supported by an Affidavit of Susan W. Moran, the Council Secretary, attesting to the following:

8

"4. As part of my official duties, I am responsible for drafting written notices to individuals of their appointment to the County Planning Commission . . . once appointed by the County Council . . . and sending the same upon signature by the Council President.

5. On October 24, 2007, I drafted a letter to Michael Sullivan for the Council President's signature notifying him that the County Council had appointed him to a five-year term on the Planning Commission. A true and correct copy of the foregoing letter as sent to Mr. Sullivan with the Council President's signature is attached hereto as Exhibit 1.

6. On November 26, 2012, I drafted a letter to Mr. Sullivan for the Council President's signature notifying him that the County Council had reappointed him to another five-year term on the Planning Commission. A true and correct copy of the foregoing letter as sent to Mr. Sullivan with the Council President's signature is attached hereto as Exhibit 2.

7. On November 30, 2017, I drafted a letter to Mr. Sullivan for the Council President's signature notifying him that the County Council had reappointed him to another five-year term on the Planning Commission. A true and correct copy of the foregoing letter as sent to Mr. Sullivan with the Council President's signature is attached hereto as Exhibit 3.

8. Mr. Sullivan passed away in 2019.

9. On June 12, 2019, I drafted a letter to Defendant Lisa M. Ghezzi for the Council President's signature notifying her that the County Council had appointed her to complete the unexpired portion of Mr. Sullivan's term on the Planning Commission. A true and correct copy of the foregoing letter as sent to Defendant Ghezzi with the Council President's signature is attached hereto as Exhibit 4.

10. On November 28, 2022, I drafted a letter to Defendant James Corson for the Council President's signature notifying him that the County Council had appointed him to a five-year term on the Planning Commission. A true and correct

9

copy of the foregoing letter as sent to Defendant Corson with the Council President's signature is attached hereto as Exhibit 5.

11. On October 18, 2006, I drafted a letter to Richard Hutchinson for the Council President's signature notifying him that the County Council had reappointed him to a five-year term on the Planning Commission. A true and correct copy of the foregoing letter as sent to Mr. Hutchinson with the Council President's signature is attached hereto as Exhibit 6.

12. In 2006, the outgoing County Council's term expired at noon on Monday, December 4, 2006."

On December 12, 2022, Appellant Ghezzi filed a Cross-Claim for Declaratory and Related Relief and a Motion for Summary Judgment incorporating the Taxpayer Appellants' allegations as set forth in their Complaint and requesting the Court to enter judgment in her favor.

On December 12, 2022, the Taxpayer Appellants filed an Amended Complaint in which they added a single new paragraph 17 setting forth additional allegations regarding taxpayer standing.

On December 13, 2022, the Taxpayer Appellants filed an Affidavit of Dirck K. Bartlett in Reply to the Affidavit of Susan W. Moran, which stated as follows:

"1. I was elected to the Talbot County Council in 2006. The 2006 County Council elections returned three incumbents to office, Thomas G. Duncan, Peter A. Carroll, and Philip C. Foster, all of whom served on the Council when Richard Hutchison, the then sitting incumbent Chairman of the Planning Commission, was reappointed to the Planning Commission on October 18, 2006.

2. Mr. Hutchison's reappointment to the Planning Commission was never called into question by anyone either before or after his appointment.

3. I have no immediate access to the County Council minutes from 2006, and have no recollection whether the incoming Council ever voted to reappoint Mr. Hutchison.

10

4. Regardless of whether the incoming Council did or did not formally vote to reappoint him, as an incumbent member of the Planning Commission, Mr. Hutchison's original appointment remained in effect until his successor was appointed and qualified. Charter § 404 (a)[.]

5. Inaction by the 2006 incoming Council to either appoint or remove Mr. Hutchison as a sitting member of the Planning Commission was in effect acquiescence to his continued service on the Planning Commission.

6. Mr. Hutchison's authority to act as a member of the Planning Commission has never been challenged by anyone. The 2006 incoming Council was content to allow the incumbent Chairman of the Planning Commission to remain in office regardless of whether the outgoing Council appointed him or not, and regardless of whether the incoming Council formally appointed him or not.

7. Mr. Hutchison continued to sit on the Planning Commission as an incumbent and his original appointment continued in effect regardless of the premature October 17, 2006, reappointment of Mr. Hutchison to the Planning Commission."

On December 13, 2022, the County filed an Answer to Appellant Ghezzi's Cross-Claim and a Cross-Motion for Summary Judgment regarding the same and a Motion for Summary Judgment or, in the Alternative, Motion to Dismiss the Taxpayer Appellants' Amended Complaint upon the same grounds set forth in the County's earlier pleadings filed with the Circuit Court.

On December 14, 2022, the Circuit Court heard argument on the parties' respective Motions.

On December 22, 2022, the Circuit Court issued a Memorandum Opinion and Order and a Final Declaratory Judgment. The Circuit Court denied the County's Motion to Dismiss the Amended Complaint, finding there was a justiciable issue between Appellant Ghezzi and Appellee Corson as to who was entitled to sit on the Planning Commission. The Circuit Court then granted the County's Motion for Summary Judgment, holding that the

11

outgoing County Council's November 22, 2022, appointment of Appellee Corson to the Planning Commission for a term of five years beginning December 3, 2022 and ending December 2, 2027 was valid, and denied the other parties' pending Motions for Summary Judgment. The Circuit Court subsequently entered a Final Declaratory Judgment consistent with the Memorandum Opinion and Order, which disposed of all pending matters and constituted a final judgment.

On January 2, 2023, the Taxpayer Appellants filed a Notice of Appeal to the Appellate Court of Maryland.

On January 13, 2023, Appellant Ghezzi filed a Notice of Appeal to the Appellate Court of Maryland.

All parties have consented to expedite this appeal pursuant to Maryland Rule 8-207 (b). The Taxpayer Appellants filed the parties' Joint Election for Expedited Appeal on January 13, 2023. The parties hereby adopt this Statement of the Case and Essential Facts.

Additional facts will be included as they become relevant to the issues.

DISCUSSION

A. Standard of Review

"We review a declaratory judgment that was entered as the result of the grant of a motion for summary judgment to determine whether that declaration was correct as a matter of law." Covered Bridge Farms II, LLC v. State , 210 Md.App. 535, 539 (2013) (citing Md. Agric. Land Pres. Found. v. Claggett , 412 Md. 45, 61 (2009)). Summary judgment is appropriate when the material facts in a case are not subject to genuine dispute and the moving party is entitled to judgment as a matter of law. Md. Rule 2-501(f). An appellate court reviews the grant of a motion for summary judgment without deference, "examining the record independently to determine whether any factual disputes exist when viewed in the light most favorable to the non-moving party and in deciding whether the

12

moving party is entitled to judgment as a matter of law." Steamfitters Local Union No. 602 v. Erie Ins. Exch. , 469 Md. 704, 706 (2020) (citing Rowhouses, Inc. v. Smith , 446 Md. 611, 630 (2016)).

As the Supreme Court of Maryland (at the time named the Court of Appeals of Maryland) has explained, "where an order involves an interpretation and application of Maryland constitutional, statutory or case law, our Court must determine whether the trial court's conclusions are 'legally correct' under a de novo standard of review." Schisler v. State , 394 Md. 519, 535 (2006) (citing Garfink v. Cloisters at Charles, Inc. , 392 Md. 374, 383 (2006)). As indicated supra , the parties jointly filed an agreed statement of the case; therefore, the facts are not in dispute. Accordingly, because the question before this Court involves the interpretation and application of Maryland constitutional, statutory, and case law, we shall review the case under a de novo standard of review.

B. Parties' Contentions

The Appellants contend that Charter section 706(12) determines the first and last days of the five-year Planning Commission terms in Charter section 404(a). According to the Appellants, the express purpose of section 706(12) is to determine the first and last days in a span of time referenced in the Charter. In their view, Planning Commission members

13

have five-year terms under section 404(a), and the plain meaning of section 706(12) applies to determine the first and last days of those terms. While the Appellants concede that section 706(12) also applies to "other spans of time" referenced in the Charter, they argue that fact does not mean that section 706(12) is inapplicable to Planning Commission terms under section 404(a).

Conversely, the Appellees contend that section 706(12) does not apply to fixed terms of office as set forth in the Charter. The Appellees emphasize that section 706(12) aids the County government in determining time constraints with respect to actions it may take, while advising the public of its rights and responsibilities. Simply put, the Appellees assert the Appellants are attempting to "foist" section 706(12) onto section 404(a), which "offends the well-established principles of statutory construction."

Finally, the parties agree that Bryan was correctly decided in that the Charter controls the terms of the Planning Commission. However, they disagree as to whether the Supreme Court of Maryland considered section 706(12) of the Charter when it rendered its decision in Bryan . According to the Appellants, Bryan contains an incomplete analysis of when the terms of the Planning Commission members begin because the Supreme Court of Maryland did not consider section 706(12) of the Charter. The Appellees disagree with the Appellants' contention that the Supreme Court "simply overlooked" section 706(12). Instead, the Appellees suggest the Bryan Court clearly established that the Planning Commission terms were fixed by the first appointments, therefore rendering flexible calculation of time provisions, such as section 706(12), inapplicable in this context. As we

14

shall explain, the circuit court correctly concluded that section 706(12) does not apply to section 404(a) and correctly determined Appellee Corson was lawfully appointed to the Planning Commission.

C. Analysis

The Constitution of Maryland enables counties to adopt charters to establish local governments. See Md. Const. Art. IX-A § 1. County charters are, in effect, a local constitution that fixes the framework of the county government, establishes the agencies of local government, and provides for the allocation of power among them. Ritchmount P'ship v. Bd. of Supervisors of Elections for Anne Arundel Cnty. , 283 Md. 48, 58 (1978). The Charter of Talbot County was adopted by voters in November of 1974 and provides for a five-member County Council, to be elected by the qualified voters of the County at the same time as State officers. See Charter §§ 201, 204. The terms of office for council members begin at noon on the first Monday in December next following the election and end at noon on the first Monday in December in the fourth year thereafter. See id. § 205.

Before we turn to the parties' conflicting interpretations of Bryan 's applicability to this case, it is helpful to restate the relevant Charter provisions that guide our analysis:

Section 404(a) of the Charter provides:

Members of the [Planning Commission] shall be appointed by the County Council of Talbot County for terms of five years, except that the respective terms of the five members first appointed shall be on a staggered basis (of the five initial appointments, one member shall serve for one year, one for two years, one for three years, one for four years, and one for five years).

15

Section 706(12) of the Charter provides:

Reference to a span of time is not intended to include the day the event occurs, but includes the last day of a period computed, unless that day is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the day thereafter which is neither a Saturday, Sunday, or legal holiday.

While section 404(a) of the Charter does not specify when the Planning Commission terms commence, in Bryan , the Supreme Court of Maryland held that the County Council made all of their initial appointments to the Planning Commission on December 3, 1974, "effective immediately," with the terms "commencing on December 3, and as extending until midnight at the end of December 2 of the respective years following, as dictated by the initial staggered terms." 380 Md. at 615.

The facts underlying the Supreme Court's decision in Bryan are analogous to the case before us. On December 16, 1997, the County Council appointed Linda Makosky to the Planning Commission, and her letter of appointment stated that her term would expire on December 1, 2002. Id. at 608. On November 26, 2002, the "lame duck" County Council appointed William Bryan to Makosky's seat, in the belief that her term ended on December 1, one day prior to when the terms of the County Council members expired on Monday, December 2, 2002. Id. at 608-09, 615-16. This belief stemmed from "confusion and controversy" due to decades of Planning Commission documents that contained conflicting

16

initial appointment and term expiration dates. Id. at 607. Thus, there was uncertainty as to whether Makosky's term expired before or after the expiration of the outgoing County Council members' terms. Id . at 613.

After noting the Charter did not establish specific commencement or ending dates for the Planning Commission members' terms, the Supreme Court of Maryland looked to the intent of the County Council. Id. at 614-15. The Court determined the County Council's intent was discernible:

The County Council made all of the initial appointments under the Charter on the same day-December 3, 1974-and declared that those appointments were effective immediately. There is no indication of an intent to delay the commencement of the term to any future date, either fixed or based on when the appointees formally qualified. Accordingly, those initial appointments necessarily established the actual terms as commencing on December 3, and as extending until midnight at the end of December 2 of the respective years following, as dictated by the initial staggered terms.

Id. at 615. The Court then went on to explain all subsequent terms are to conform to the beginning of the term of the first appointee:

No subsequent pronouncements by Council members, Commission members, or administrative personnel regarding when terms began or ended can affect the termination dates unalterably set by application of the Charter to the terms initially fixed by the first appointments. Nor can the fact that

17

[Makosky's immediate predecessor] held over until December 16 change the beginning or ending date of the term. [The predecessor's] term expired at midnight on December 2-3, 2002. As the terms of the 1998-2002 County Council expired at noon on December 2, 2022, and as Ms. Makosky's term extended until midnight, there was no vacancy for that Council to fill prior to the expiration of their respective terms. It is for that reason that the purported appointment of Mr. Bryan was a nullity.

Id. at 615-16.

Returning to the present case, we are unpersuaded by the Appellants' position that section 706(12) of the Charter was necessary to calculate when Planning Commission members' terms commence and expire. We agree with the circuit court's conclusion that, as Bryan makes clear, the five-year Planning Commission terms begin on December 3 and end on December 2. Accordingly, as the circuit court noted, "[t]here is no need for an aid in construction" to explain when these terms begin and end. Bartlett , No. C-20-CV-22-000139 (Md. Cir. Ct. Talbot Cnty. Dec. 22, 2022). We note that the circuit court conducted an in-depth analysis to each reference to time in the Charter and correctly determined that section 706(12) does not apply to section 404(a). Id. Therefore, we agree with the circuit

18

court's conclusion that:

The Talbot County Council that was sitting on November 22, 2022 served until noon on December 5, [2022]. The County Council sitting on November 22, 2022 was within its rights to appoint a member of the Planning Commission for the term that expired on December 2, 2022. The date of the five-year terms was set by the original appointment of the members of the Planning Commission on December 3, 1974.

Id.

Accordingly, section 706(12) is not applicable to the fixed terms of office for Planning Commission members, and the County Council validly appointed Appellee Corson to replace Appellant Ghezzi.

JUDGMENT OF THE CIRCUIT COURT FOR TALBOT COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.