Rowe v. Chesapeake & Potomac Telephone Co.

501 A.2d 464, 65 Md. App. 527, 1985 Md. App. LEXIS 509
CourtCourt of Special Appeals of Maryland
DecidedDecember 11, 1985
DocketNo. 386
StatusPublished
Cited by1 cases

This text of 501 A.2d 464 (Rowe v. Chesapeake & Potomac Telephone Co.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rowe v. Chesapeake & Potomac Telephone Co., 501 A.2d 464, 65 Md. App. 527, 1985 Md. App. LEXIS 509 (Md. Ct. App. 1985).

Opinion

ADKINS, Judge.

Before us is the validity of § 313A of the Montgomery County Charter. That section provides:

The county government may not purchase and contract for goods and services with the C & P Telephone Company (C & P) unless C & P includes telephone subscribers in [529]*529Gaithersburg, Maryland, and Montgomery Village in the Washington Metropolitan Telephone Exchange (MET) at local rates no higher than local rates charged MET subscribers in Bethesda, Silver Spring, Kensington and Rock-ville telephone exchange areas.

The Circuit Court for Montgomery County (Cave, J.), relying on Cheeks v. Cedlair Corp., 287 Md. 595, 415 A.2d 255 (1980), reasoned that the amendment did not “affect the formal structure of the Montgomery County Government” and that it was “an effort to intrude into the administration of the affairs of Montgomery County Government specifically delegated to the County Council or the County Executive.” Judge Cave declared the section to be unconstitutional and enjoined the County from implementing it. Appellants Richard Rowe and Chester Julian take strenuous issue with that judgment. Appellee The Chesapeake and Potomac Telephone Company of Maryland (C & P) urges us to affirm the judgment on the basis stated by Judge Cave as well as for numerous other reasons.

The seed from which this controversy grew seems to have been the desire of certain residents in the GaithersburgMontgomery Village sections of Montgomery County to be able to call toll-free all areas in the Washington Metropolitan Exchange area (MET). In 1981 they initiated a petition drive to place on the ballot the charter amendment now before us. Their efforts were, no doubt, renewed when, in March 1982, the Public Service Commission of Maryland rejected a request that a portion of the Gaithersburg telephone exchange be transferred to the Rockville zone of MET — an action that would have accomplished the desired result. The petition drive was successful; Section 313A was placed on the ballot and adopted by the voters at the 1982 general election.

C & P promptly sued Montgomery County and several of its officials, seeking a declaration that § 313A was unconstitutional and preliminary and permanent injunctions against its implementation. Although the County consented to the issuance of a preliminary injunction, appellants Rowe and [530]*530Julian were permitted to intervene in the action and ardently opposed C & P’s request. Nevertheless, a preliminary injunction issued and we affirmed that order. Rowe v. Chesapeake and Potomac Telephone Co., 56 Md.App. 23, 466 A.2d 538 (1983). Our basic holding in that case was “that the trial court’s decision to grant the preliminary injunction ... was not clearly erroneous nor was its action arbitrary or capricious.” 56 Md.App. at 38, 466 A.2d 538. We expressed no opinion “whether Section 313A is or is not unconstitutional.” Id. at 37, 466 A.2d 538. When the case returned to the circuit court Judge Cave, despite the continuing opposition of appellants, reached the decision we have recounted. Appellants persist in their efforts to resuscitate the provision and now argue that:

1. The circuit court erred in deciding that there was a controversy between Montgomery County and C & P; and
2. The circuit court erroneously concluded that § 313A is not “charter material.”

Actual Controversy

The action filed by C & P sought, among other things, a declaratory judgment. Declaratory relief may be granted if the “judgment ... will serve to terminate the ... controversy giving rise to the proceeding, and if ... [a]n actual controversy exists between contending parties____” Courts and Judicial Proceedings, Art. § 3-409(a)(1). If, on the other hand, there is no actual dispute between the parties, declaratory judgment is not an appropriate remedy. Hatt v. Anderson, 297 Md. 42, 464 A.2d 1076 (1983).

Appellants assert that because Montgomery County did not contest the action, there was no controversy — no justiciable issue. Had the County and its officials been the only defendants, there might be some force to this argument, but see note 1, infra. See Harford County v. Schultz, 280 Md. 77, 371 A.2d 428 (1977) (when county attacks validity of provision, of its own charter and nominal [531]*531defendant takes no position on the issue, no justiciable controversy). But they were not. Appellants were in the case as defendants as well, and they forcefully supported constitutionality of the charter amendment against C & P’s opposing claims. All that the Declaratory Judgment Act requires is that there be a genuine controversy between some opposing parties, and that certainly existed — and still exists — here.

State v. Burning Tree Club, Inc., 301 Md. 9, 481 A.2d 785 (1984), heavily relied on by appellants, does not demand or even suggest a contrary result. That case held that the Attorney General ordinarily does not have standing to attack the constitutionality of a State statute. It dealt with standing, not with the existence of a justiciable controversy. Moreover, it dealt with the limited authority of the Attorney General under Maryland’s Constitution. Whether a county executive and a county attorney are subject to similar limitations with respect to a county charter may be debated, but we need not decide that question, nor the question of whether it makes a difference that the County was a defendant, not a plaintiff here. See East v. Gilchrist, 296 Md. 368, 463 A.2d 285 (1983), in which Montgomery County, as a defendant in a declaratory judgment action, questioned the validity of another charter amendment.

The issue before us is not the propriety of the County’s failure to defend the charter amendment but whether there was and is an actual controversy between adverse parties.1 In our first Rowe we said:

In any case any complaint which might have been made concerning the lack of a justiciable issue has been cured by the permission granted to appellants to intervene in this case. It is obvious that there are now before the [532]*532court parties who sharply disagree on the constitutionality and effect of Section 313 A and who desire a declaratory judgment as to its validity. 56 Md.App. at 37, 466 A.2d 538.

We are still of the same view. The trial court did not err when it held “the existence of the intervenors [appellants] clearly establishes the existence of a justiciable controversy....” .

The Charter Amendment

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hale v. Hale
503 A.2d 271 (Court of Special Appeals of Maryland, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
501 A.2d 464, 65 Md. App. 527, 1985 Md. App. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowe-v-chesapeake-potomac-telephone-co-mdctspecapp-1985.