Baltimore County Coalition Against Unfair Taxes v. Baltimore County

582 A.2d 510, 321 Md. 184, 1990 Md. LEXIS 178
CourtCourt of Appeals of Maryland
DecidedDecember 4, 1990
Docket124, September Term, 1989
StatusPublished
Cited by25 cases

This text of 582 A.2d 510 (Baltimore County Coalition Against Unfair Taxes v. Baltimore County) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baltimore County Coalition Against Unfair Taxes v. Baltimore County, 582 A.2d 510, 321 Md. 184, 1990 Md. LEXIS 178 (Md. 1990).

Opinion

MURPHY, Chief Judge.

This case involves the referendum provisions of § 309(a) of the Baltimore County Charter and whether a county ordinance, imposing a tax on non-reusable sealed beverage containers, was referable to county voters at the November 1990 General Election.

I.

Section 309(a) of the Charter reserves to the people of Baltimore County “the power known as ‘The Referendum,’ by petition to have submitted to the registered voters of the county, to approve or reject at the polls, any enacted law or ordinance or part of any such law or ordinance of the county council.” Under this provision of the Charter, if a referendum petition is properly executed and filed, the referred law will not take effect until thirty days after its approval by the voters at the next ensuing General Election.

*188 These further provisions, which limit the scope of the referendum right, next appear in § 309(a):

“No law making any appropriation for maintaining the county government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this section. The increase in any such appropriation for maintaining the county government or for maintaining or aiding any public institution shall take effect only as in the case of other laws, and such increase, or any part thereof, specified in the petition may be referred to a vote of the people of the county upon petition as above provided.”

The Baltimore County beverage container tax ordinance (Bill No. 47-89) was enacted on June 9, 1989 and codified as Baltimore County Code (1978, 1988-89 Cum.Supp.), Article VIII, §§ 11-68 through 11-72. According to its title, the ordinance was “[f]or the purpose of levying and imposing a two-tier tax on non-reusable sealed beverage containers.” Section 11-68 of the ordinance provided that the tax was imposed “upon every distributor who supplies to a dealer in the County nonreusable beverage containers containing beverages as defined [in § 11-69].” The tax imposed was two cents on containers of not more than sixteen fluid ounces and four cents upon containers having a greater capacity. The ordinance required distributors to collect the tax beginning December 1, 1989.

Following passage of the tax ordinance, a petition to refer the law to the county voters under § 309 of the Charter was initiated by a number of entities and individuals (the petitioners). By opinion dated June 9, 1989, the County Solicitor advised the County that the tax ordinance was excluded from referendum under § 309 of the Charter because it was a law making an appropriation for maintaining the county government. Notwithstanding the County Solicitor’s opinion, the petitioners circulated a referendum petition entitled “Petition Regarding a New Beverage Container Tax.” The petition recited that the tax ordinance provided

*189 “additional tax revenues as part of increased General Fund appropriations included in the 1990 Annual Budget and Appropriation Ordinance of Baltimore County for, among other things, solid waste disposal and the implementation of the tax, such Act levying and imposing a two-tier tax on non-reusable sealed beverage containers as a part of the General Fund.”

The referendum petition thereafter set forth the entire text of the ordinance. The petition was executed and filed within the time prescribed by § 309(a) of the Charter and contained the requisite number of signatures to refer the law to the county voters at the November, 1990 General Election.

Based on the County Solicitor’s opinion that the ordinance was nonreferable, and thus was not suspended by the filing of the referendum petitions, the County announced its intention to enforce the provisions of the law and to collect the tax. Thereafter, on October 3, 1989, the petitioners sued for declaratory and injunctive relief in the Circuit Court for Baltimore County. They sought a declaration that the tax ordinance, being the subject of a valid referendum petition filed in full compliance with § 309 of the Charter, was without effect, inoperative, and unenforceable unless and until approved by the voters. The petitioners also sought an injunction against enforcement of the ordinance and the collection of the tax pending the result of the vote on the referred law.

Upon the County’s motion to dismiss the petitioners’ complaint, Judge John F. Fader, II, after an extensive hearing, issued a declaratory judgment on November 11, 1989. He declared that § 309(a) of the Charter “provides that increases in appropriations for maintaining county government are subject to the referendum process”; that § 309 “exempts from the referendum process new or initial appropriations for maintaining county government”; that the ordinance was “a new or initial appropriation bill for maintaining Baltimore County Government,” rather than an “increase” in an appropriation; and that consequently the *190 ordinance was not subject to referendum under § 309 of the Charter. Underlying Judge Fader’s declaratory judgment was his expressed belief that

“§ 309 has used the word ‘increase’ in its sense that it means something in addition to something that has occurred before, and that the initiative, at least initially, belongs to the government to determine how the people’s wherewithal shall be taxed. After that initial decision by government as to what should be taxed and how it should be taxed, the people have reserved for themselves in § 309 the power to set to referendum any increase in that initial determination.”

Upon petitioners’ appeal to the Court of Special Appeals, we granted certiorari prior to argument in that court and advanced the case on the docket to promptly resolve the important issue raised in the case. By per curiam order dated December 1,1989, a majority of the Court concurring, we affirmed only that part of the circuit court’s judgment which declared “[t]hat Bill 47-89 is ... not subject to referendum under the provisions of Charter Sec. 309.” We now give our reasons for that determination.

II.

As authorized by Article XI-A of the Constitution of Maryland (the Home Rule Amendment), the Charter Board of Baltimore County was established in 1954 to prepare a Charter for the county. The voters of the county adopted the Charter in 1956. Included within it were the referendum provisions of § 309(a), as to which the Reporter to the Charter Board stated that it “reproduces almost verbatim various provisions of Article XVI of the State Constitution entitled ‘The Referendum,’ provisions which apply to laws enacted by the General Assembly.” The Reporter further stated that “[t]he only minor departure from the constitutional pattern is the provisions relating to the form of affidavit of the person securing the signatures.” See Proposed Home Rule Charter For Baltimore County, Maryland with Reporter’s Notes and Index, April 9, 1955, p. 100.

*191

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Bluebook (online)
582 A.2d 510, 321 Md. 184, 1990 Md. LEXIS 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baltimore-county-coalition-against-unfair-taxes-v-baltimore-county-md-1990.