Kendall v. Howard County, Maryland , 424 F. App'x 232 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2117
PAUL F. KENDALL; FRANK MARTIN; PHILLIP ROUSSEAU,
Plaintiffs - Appellants,
and
BOBBIE ATHEY; LARRY ATHEY; JOHN MEY; JANET MEY; DENISE EDEN;
PAUL EDEN; KNUT ELLENES; ELEANORE ELLENES; ORAL FOLKS; SUE
FOLKS,
Plaintiffs,
v.
HOWARD COUNTY, MARYLAND; BARBARA MCFAUL COOK, Individually;
PAUL JOHNSON, Individually; LYNN ROBESON, Individually;
MARSHA S. MCLAUGHLIN, Individually; JAMES IRVIN,
Individually; CINDY HAMILTON, Individually; CHARLES F.
DAMMERS, Individually,
Defendants - Appellees.
No. 09-2210
PAUL F. KENDALL; FRANK MARTIN; PHILLIP ROUSSEAU,
Plaintiffs - Appellees,
and
BOBBIE ATHEY; LARRY ATHEY; JOHN MEY; JANET MEY; DENISE EDEN;
PAUL EDEN; KNUT ELLENES; ELEANORE ELLENES; ORAL FOLKS; SUE
FOLKS,
Plaintiffs,
v.
HOWARD COUNTY, MARYLAND; BARBARA MCFAUL COOK, Individually;
PAUL JOHNSON, Individually; LYNN ROBESON, Individually;
MARSHA S. MCLAUGHLIN, Individually; JAMES IRVIN,
Individually; CINDY HAMILTON, Individually; CHARLES F.
DAMMERS, Individually,
Defendants - Appellants.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:09-cv-00369-JFM)
Argued: January 25, 2011 Decided: April 21, 2011
Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.
Vacated and remanded with instructions by unpublished per curiam
opinion.
ARGUED: Susan Baker Gray, Highland, Maryland, for
Appellants/Cross-Appellees. Melissa Shane Whipkey, HOWARD
COUNTY OFFICE OF LAW, Ellicott City, Maryland, for
Appellees/Cross-Appellants. ON BRIEF: Margaret Ann Nolan,
County Solicitor, Louis P. Ruzzi, Senior Assistant County
Solicitor, HOWARD COUNTY OFFICE OF LAW, Ellicott City, Maryland,
for Appellees/Cross-Appellants.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Thirteen residents and registered voters (“Residents”) of
Howard County, Maryland, commenced this action under 42 U.S.C.
§ 1983 against Howard County and seven of its officers in their
individual capacities, alleging violations of the Howard County
Charter and the First and Fourteenth Amendments to the U.S.
Constitution. The Residents allege that the Howard County
Council (“County Council”) improperly enacted legislation by
resolution rather than by “original bill” ∗ and that these
improper procedures violated their rights under the Howard
County Charter and the First and Fourteenth Amendments. On the
defendants’ motion to dismiss, the district court elected to
abstain under Burford v. Sun Oil Co., 319 U.S. 315 (1943),
citing the presence of complex questions of state law. On
appeal from the district court’s order, we conclude that the
Residents lacked standing to bring this action and therefore the
district court lacked subject matter jurisdiction. Accordingly,
we vacate the court’s order and remand with instructions to
dismiss the action.
∗
According to the Residents, a resolution is “a measure
adopted by the Council having the force and effect of law but of
a temporary or administrative character,” whereas an original
bill is used for “legislative acts,” which are “subject to
petitioning to referendum.”
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In their complaint, the Residents alleged that, on multiple
occasions, the County Council used an improper procedure for
taking legislative action, contending that the County Council
“used the mechanism of ‘resolution’ and other means to insulate
certain actions undertaken, usually on behalf of favored
constituents, from challenge by referendum,” in violation of the
Howard County Charter. Section 202(g) of the Charter provides:
Any amendment, restatement or revision to the Howard
County General Plan, the Howard County Zoning
Regulations or Howard County Zoning Maps, other than a
reclassification map amendment established under the
“change and mistake” principle set out by the Maryland
Court of Appeals, is declared to be a legislative act
and may be passed only by the Howard County Council by
original bill in accordance with the legislative
procedure set forth in Section 209 of the Howard
County Charter. Such an act shall be subject to
executive veto and may be petitioned to referendum by
the people of the county pursuant to Section 211 of
the Charter.
They also assert that six sections of the Howard County Code are
facially unconstitutional because “they purport to authorize
governmental approval of actions within the terms of this
charter provision by other than original bill, thus making the
approval not subject to petitioning to referendum,” thus denying
them their First and Fourteenth Amendment rights. In addition,
the Residents “contest a variety of individual decisions . . .
made by other than original bill thus circumventing [the
Residents’] right of referendum.” Finally, the Residents
“challenge a number of discrete actions undertaken primarily by
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executive branch [officials] without any purported authority
which they allege fall within the actions/activities covered by
one or both o[f] these charter provisions.”
Determining that abstention was appropriate under Burford
v. Sun Oil Co., 319 U.S. 315 (1943), the district court
dismissed without prejudice the claims of the complaint for
equitable or discretionary relief, stayed the claims for
damages, and invited the parties to pursue their case in state
court. Following the district court’s invitation, the Residents
filed suit in the Circuit Court for Howard County, raising their
state law claims and stating their desire to reserve their
federal claims for federal court. They also filed this appeal.
On appeal, the Residents assert that their complaint seeks
to vindicate important free speech rights under the First and
Fourteenth Amendments insofar as the
supplanting of original bills . . . with resolutions
and administrative acts[] represented in each case a
direct affront to and usurpation of the political
power and governing authority of the People of Howard
County. A decision made to utilize a resolution
instead of an original bill directly diminishes the
quantum of free speech by preventing the people from
associating to oppose a legislative action approved by
the Howard County Council.
Elaborating, they explain:
The actions of drafting a petition, submitting it for
approval to the Board of Elections, organizing for
circulating the petition, building coalitions of
support, and finally the circulation of the petition
for referendum involve the full range and scope of
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First Amendment rights, petitioning the government for
redress of grievances, freedom of association, freedom
of speech, and culminating in the right to vote. The
deliberate refusal of the County to utilize the
mechanism of the original bill completely eradicates
this process, thus totally and completely depriving
Appellants[] of their First Amendment rights and their
right to vote.
They argue that the district court’s decision to abstain under
Burford was inappropriate because this case was not about county
land use law or zoning, for which Burford abstention might be
appropriate, but rather was about the County’s legislative
procedure, which applies not only in the land use context, but
in the context of any Howard County legislative action. They
argue that the federal interests in this case outweigh the state
interests and that a federal court would not “intrude upon
‘complex state administrative processes.’”
The defendants, too, contend that Burford abstention was
inappropriate, but they do so because, as they contend, the
district court should have dismissed the case for lack of
subject matter jurisdiction. They argue that the Residents did
not have standing in that they failed to assert a particularized
harm. In the alternative, the defendants claim that the
individual defendants were protected by qualified immunity.
Finally, they argue that the Residents did not state a
cognizable federal claim.
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We agree with the defendants that the Residents lack
standing to bring this action and therefore that the action must
be dismissed for lack of subject matter jurisdiction. Under
federal standing jurisprudence, “when the asserted harm is a
generalized grievance shared in substantially equal measure by
all or a large class of citizens, that harm alone normally does
not warrant exercise of jurisdiction.” Bishop v. Bartlett, 575
F.3d 419, 423 (4th Cir. 2009) (internal quotation marks
omitted); see also id. at 424 (a party lacks standing when its
interest is “merely a claim of the right, possessed by every
citizen, to require that the government be administered
according to law”) (internal quotation marks omitted).
In this case, the Residents purport to state claims, which
are possessed by every citizen of Howard County, to require that
the County government “be administered according to law.” Their
grievances are accordingly simply too generalized to provide
them with standing to support federal jurisdiction. We
therefore vacate the district court’s Burford order and remand
with instructions to dismiss this action for lack of subject
matter jurisdiction.
VACATED AND REMANDED WITH INSTRUCTIONS
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