Fuller v. Republican Central Comm. , 444 Md. 613 ( 2015 )

Kathy Fuller, et al. v. Republican Central Committee of Carroll County, Maryland, No. 92,
September Term, 2014
CONSTITUTIONAL INTERPRETATION — MARYLAND CONSTITUTION —
ARTICLE III, SECTION 13(a)(1) — APPOINTMENT TO FILL A VACANCY IN
AN ELECTED OFFICE — Article III, § 13 of the Maryland Constitution provides that,
if there is a vacancy in the General Assembly, “the Governor shall appoint a person to fill
such vacancy from a person whose name shall be submitted to him in writing” by the party
central committee. This constitutional provision imposes a duty on the Governor only, not
on a party central committee. Therefore, the provision’s use of the phrase “from a person
whose name shall be submitted” does not require a party central committee to submit only
one name to the Governor to fill a vacancy in the General Assembly. Instead, a party
central committee may submit to the Governor multiple names to fill a vacancy, and the
Governor must appoint a person from among those whose names were submitted.
Circuit Court for Carroll County
Case No. 06-C-15-068169
Argued: March 2, 2015
IN THE COURT OF APPEALS
OF MARYLAND
No. 92
September Term, 2014
KATHY FULLER, ET AL.
v.
REPUBLICAN CENTRAL COMMITTEE OF
CARROLL COUNTY, MARYLAND
Barbera, C.J.,
*Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Opinion by Barbera, C.J.
Filed: August 21, 2015
*Harrell, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the Constitution, Article IV, Section
3A, he also participated in the decision and
adoption of this opinion.
We granted certiorari in this case to consider the respective roles of the Governor
and a party central committee in filling a vacancy created by the departure of a sitting
member of the General Assembly. Those roles are spelled out in Section 13(a)(1) of Article
III of the Maryland Constitution (“Section 13”). This subsection provides in pertinent part
that, in the case of a vacancy,
the Governor shall appoint a person to fill such vacancy from a person whose
name shall be submitted to him in writing, within thirty days after the
occurrence of the vacancy, by the Central Committee of the political party,
if any, with which the Delegate or Senator, so vacating, had been affiliated,
. . . and it shall be the duty of the Governor to make said appointment within
fifteen days after the submission thereof to him.
Md. Const. art. III, § 13(a)(1). The dispute in the present case centers on the proper
construction of the text of this subsection.
Petitioners Kathy Fuller (“Fuller”), Melissa Caudell (“Caudell”), and Amy Gilford
(“Gilford”) are registered Republican voters and duly elected members of the Respondent,
Republican Central Committee of Carroll County, Maryland (“Central Committee” or
“Committee”). Petitioners filed in the Circuit Court for Carroll County a complaint for
mandamus, declaratory judgment, and injunctive relief against the Central Committee,
seeking to enjoin the Committee from submitting more than one name to Governor
Lawrence J. Hogan, Jr. to fill a vacancy in the House of Delegates. Petitioners later filed
an amended complaint along with a motion for a temporary restraining order, which the
court denied after a hearing. From that order and the order denying them injunctive relief,
Petitioners noted an appeal, then sought certiorari.
We granted the writ and, upon motion of Petitioners, we issued a temporary
restraining order pending final disposition of the appeal. On March 2, 2015, we heard
arguments in the case. That same day, we entered a per curiam order affirming the
judgment of the circuit court and lifting the temporary restraining order. We here explain
the reasons for that order.
I.
Maryland law provides that “[e]ach political party shall have a State central
committee that: (1) is the governing body of the political party; and (2) may be composed
of the members of the central committees of the counties during their terms in office.” Md.
Code Ann., Elec. Law § 4-201 (2002, 2010 Repl. Vol.); see also Suessmann v. Lamone,
383 Md. 697, 725 n.14 (2004). Members of the county central committees are elected by
the party at a primary election. Elec. Law § 4-202(a).
Central committees are not public bodies, and the members of those committees are
not public officers, but rather, party officers. Capron v. Mandel, 250 Md. 255, 260 (1968);
Dorf v. Skolnik, 280 Md. 101, 113 (1977) (stating that, “although membership on a political
committee is governed by statute, it is not a public office”). Under the First and Fourteenth
Amendments, political parties have the right of free association, giving them the right to
determine their own rules and internal operating procedures. Eu v. San Francisco Cnty.
Democratic Cent. Comm., 489 U.S. 214, 229 (1989) (“Freedom of association also
encompasses a political party’s decisions about the identity of, and the process for electing,
its leaders.”); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 121
(1981) (holding that the state cannot dictate the process of selecting delegates to the
2
Democratic National Convention). In Maryland, a political party’s State central committee
“shall determine its own rules of procedure,” so long as those rules do not conflict with the
Election Law Article of the Code. Elec. Law § 4-201(c). The Election Law Article further
provides that “each political party shall adopt and be governed by a constitution and all
bylaws and rules adopted in accordance with the constitution,” id. § 4-204(a), and a county
central committee, “[i]n accordance with the constitution and bylaws of a principal political
party . . . shall adopt a constitution, bylaws, and rules,” id. § 4-204(c).
The origin of the present legal dispute can be traced back to December 10, 2014,
when the Chairman of the Central Committee received notification that Joseph M. Getty,
the incumbent Senator for District 5,1 would be resigning from the Senate in order to accept
a position in the administration of Governor-Elect Hogan. Pursuant to Section 13, the
Governor has the duty to appoint a successor “from a person whose name shall be
submitted to him in writing . . . by the Central Committee of the political party” of the
vacating legislator. In anticipation of Senator Getty’s upcoming resignation, the Central
Committee undertook to perform its role in the selection process.
In December 2014, the Central Committee published a document entitled “Carroll
County Republican Central Committee Process for Vacancy.” The document provided that
“[o]nly one candidate will be selected, upon receiving votes of the [Committee] and
forwarded to the Governor for appointment.” The Committee published instructions for
applicants for the Senate vacancy, which likewise provided that only one candidate would
1
District 5 is located entirely within Carroll County.
3
be selected. The Committee received applications from 14 interested persons and
interviewed five of those applicants. On January 9, 2015, the Central Committee, by
majority vote, selected Robin Bartlett Frazier (“Frazier”) to submit to the Governor to fill
the anticipated Senate vacancy. Soon thereafter, David Jones, Chairman of the Central
Committee, signed a letter addressed to Governor Hogan post-dated January 22, 2015,
evidently intending to submit Frazier’s name to fill the anticipated vacancy.
On January 22, 2015, the Central Committee met in a public meeting. As of that
date, Chairman Jones had not mailed the letter or otherwise formally submitted Frazier’s
name to the Governor. Following the public meeting, five members of the Committee (not
including any of the three Petitioners or Central Committee member James Reter (“Reter”))
met privately with members of Governor Hogan’s staff. Petitioners allege, based upon
their belief, that the Governor’s staff asked the Central Committee members attending the
private meeting to submit three names for potential appointment to the District 5 Senate
vacancy. Petitioners further allege that the Committee members present during that
meeting with the Governor’s staff submitted to the Governor a list of three names for
potential appointment to fill the vacancy: Frazier; Delegate Justin Ready, who represented
District 5 in the House of Delegates; and Dave Wallace. The next day, Petitioner Fuller
delivered to the Governor’s appointments office the letter previously signed by Chairman
Jones submitting only Frazier’s name to Governor Hogan.
On February 2, 2015, Petitioners filed in the Circuit Court for Carroll County a
complaint for declaratory judgment as well as injunctive and mandamus relief, naming as
defendants the Central Committee, Delegate Ready, and Dave Wallace. Specifically,
4
Petitioners sought a declaration that Section 13 prohibited the Central Committee from
submitting to the Governor more than one name for appointment to fill the vacancy; an
injunction to preclude all defendants from pursuing the Committee’s recommendation of
three names; and issuance of a writ of mandamus compelling the Committee to comply
with Section 13, as Petitioners alleged that constitutional provision must be construed.
Petitioners accompanied their complaint with a motion for a temporary restraining
order and preliminary injunction. Later that day, the circuit court held a hearing on the
motion for a temporary restraining order, at which counsel for Delegate Ready advised the
court that Governor Hogan had issued a commission appointing Delegate Ready to the
vacant Senate seat. The court denied the motion. That same evening, Delegate Ready
resigned his seat as a delegate and immediately thereafter took the oath of office as Senator
for District 5.
Senator Ready’s resignation from the House of Delegates created a new vacancy to
be filled. Pursuant to Section 13, the Central Committee had 30 days from February 2,
2015, to make a recommendation to the Governor. On February 4, 2015, the Governor’s
Secretary of Appointments, James Fielder, sent a letter to Chairman Jones asking him to
“submit your recommended multiple candidates” for appointment. On February 9, 2015,
the Central Committee announced that it was accepting applications to fill the vacancy.
The next day, Petitioners voluntarily dismissed Dave Wallace as a defendant.
Petitioners also filed an amended complaint for mandamus, declaratory judgment, and
injunctive relief, together with a second motion for a temporary restraining order and
preliminary injunction, seeking to enjoin the Committee “from sending to the Governor of
5
Maryland the name of more than one person for appointment to the single vacancy” created
by Senator Ready’s resignation.
The circuit court held a hearing on the motion for a temporary restraining order, and
denied the motion in a memorandum opinion and order. The court rejected Petitioners’
argument that, under Maryland Rule 15-504(a),2 they were not required to establish a
likelihood of success on the merits in order to prevail on the motion. The circuit court,
citing Schisler v. State, 394 Md. 519, 534 (2006), reasoned that a plaintiff seeking a
temporary restraining order must satisfy the four-factor standard applicable whenever a
plaintiff seeks interlocutory injunctive relief:
(1) the likelihood that the plaintiff will succeed on the merits; (2) the “balance
of convenience” determined by whether greater injury would be done to the
defendant by granting the injunction than would result from its refusal; (3)
whether the plaintiff will suffer irreparable injury unless the injunction is
granted; and (4) the public interest.
Applying that standard, the court did not find “that immediate, substantial, and irreparable
harm will result if the temporary restraining order is not granted,” nor did it find “that there
is a likelihood that [Petitioners] will succeed on the merits.” As to the latter, the court
rejected Petitioners’ contention that Section 13 has a “clear and unambiguous” meaning
entitling them to relief. The court reasoned that Section 13
2
Maryland Rule 15-504(a) provides:
A temporary restraining order may be granted only if it clearly appears from
specific facts shown by affidavit or other statement under oath that
immediate, substantial, and irreparable harm will result to the person seeking
the order before a full adversary hearing can be held on the propriety of a
preliminary or final injunction.
6
is susceptible of more than one interpretation, at least one of which is that a
local central committee is not constrained to submit the name of only one
person to the Governor to fill a vacancy in the legislature, and another of
which is that the Governor has discretion to appoint a person from among
multiple names submitted by the local central committee.
Petitioners voluntarily dismissed Senator Ready as a defendant in the action, noted
an appeal to the Court of Special Appeals, and filed a motion in the circuit court for an
injunction pending appeal. The circuit court denied the motion for an injunction pending
appeal the following day.
Shortly thereafter, Petitioners sought, and on February 20, 2015, we issued, a writ
of certiorari prior to proceedings in the Court of Special Appeals. Two questions are
presented:
Does Article 3, Section 13 of the Constitution of Maryland prohibit a
party central committee from submitting more than one name to the
Governor to fill a single vacancy in the General Assembly?
Is a temporary restraining order followed by a writ of mandamus
appropriate relief to prevent a party central committee from violating
Article 3, Section 13 of the Constitution of Maryland, and were
Petitioners entitled to a temporary restraining order?
Accompanying the petition was Petitioners’ Motion for Injunction Pending Appeal,
seeking to enjoin the Central Committee from submitting multiple names to the Governor
to fill the existing vacancy pending this Court’s resolution of the matter. We issued a
temporary restraining order pending final disposition of the appeal.
II.
The Central Committee argues that Petitioners “present[] a non-justiciable political
question that is incapable of resolution through judicially-created or enforced standards.”
7
According to the Committee, because it has a role in the process of filling a legislative
vacancy, but no duty to submit a nominee to the Governor, this Court cannot fashion the
requested relief of a writ of mandamus requiring the Committee to submit only one name
to the Governor.
This Court has said that,
[i]n deciding whether a claim is justiciable, the court must determine, first,
“whether the claim presented and the relief sought are of the type which
admit of judicial resolution,” and, second, whether the structure of
government “renders the issue presented a ‘political question’—that is, a
question which is not justiciable in federal [or State] court because of the
separation of powers provided by the Constitution.”
Estate of Burris v. State, 360 Md. 721, 744-45 (2000) (second alteration in original)
(quoting Powell v. McCormack, 395 U.S. 486, 516-17 (1969)); see also Smigiel v.
Franchot, 410 Md. 302, 324-25 (2009); Lamb v. Hammond, 308 Md. 286, 293 (1987).
The first element of the justiciability doctrine requires the court to decide “whether
the duty asserted can be judicially identified and its breach judicially determined, and
whether protection for the right asserted can be judicially molded.” Burris, 360 Md. at 745(internal quotation marks and citations omitted). The second element involves whether
there is
a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.
8
Baker v. Carr, 369 U.S. 186, 217 (1962); see also Powell, 395 U.S. at 518-19; Smigiel, 410
Md. at 325; Burris, 360 Md. at 745 (quoting Lamb, 308 Md. at 293-94).
The Central Committee argues that Petitioners’ complaint fails both elements of the
justiciability doctrine. In connection with the first element, the Committee, relying upon
what it argues is the proper interpretation of Section 13, characterizes as “identifiable but
erroneous” Petitioners’ claim that Section 13 prohibits the Central Committee from
submitting more than one name to the Governor. The Central Committee adds that, even
if Petitioners were correct in that interpretation of Section 13, this Court is unable, through
a writ of mandamus, to “mold enforceable judicial relief that requires the Central
Committee to submit one name to the Governor.” In connection with the second element,
the Central Committee, again resorting to the merits of its argument that its function in the
Section 13 appointment process is discretionary, argues that Petitioners’ question is a
“political question,” because the Committee, “[i]n performing that [discretionary] function
. . . operates pursuant to its own internal procedures and processes for considering and
selecting suitable candidates to fill vacancies.”
We noted at the outset of this opinion that members of a party central committee are
not public officers, but rather, party officers who can determine their committee’s
constitution, bylaws, and rules of procedure consistent with the party’s State central
committee. The question before us does not implicate any of those privileges and
procedures. Moreover, although this Court generally does “not decide election contests or
interfere in political controversies,” the general rule of judicial non-interference in election-
9
related controversies is “not inflexible and lately has been considerably relaxed.” Valle v.
Pressman, 229 Md. 591, 594 (1962).
Valle, not unlike the present case, involved the question whether a central committee
exceeded its authority under this State’s statutory or constitutional requirements. See id. at
592. In Valle, we upheld the lower court’s ruling that the complainants were entitled to
litigate whether a local central committee, rather than a State central committee, was
authorized to nominate an officer to a state-wide office. Id. at 594. We noted a distinction
between “interferences by the courts with the political conduct of elections, and taking
jurisdiction of a question whether persons assuming to avail themselves of the election
machinery set up for private initiative are persons entitled under the law to do so.” Id. at
595 (internal quotation marks omitted).
Similarly, in Hammond v. Love, 187 Md. 138, 144 (1946), a mandamus action, we
decided that administrative or official decisions and actions concerning the elective
process, if arbitrary or capricious, are subject to judicial review. And, in Dorf, 280 Md. at
110-11, we held that the courts have jurisdiction to resolve a challenge to the validity of
the selection of a central committee on the ground that one of the committee’s members
was not a resident. More recently, in Hall v. Prince George’s County Democratic Central
Committee, 431 Md. 108, 130-31 (2013), although we had before us a challenge to the
justiciability of the legal issues presented to us in that case, we did not hesitate to review
the question whether a central committee had the legal authority to rescind its nomination
to the Governor prior to the expiration of the 15-day constitutional requirement for the
Governor to act on the nomination.
10
In the present case, the Central Committee concedes that this Court has jurisdiction
to review situations “where affirmative acts by a party exceed the limits of its power.” This
is exactly what Petitioners allege here: that the Central Committee exceeded its authority
under Section 13 by submitting three names to the Governor to fill a single vacancy. The
Central Committee further argues that this Court does not possess the authority to issue a
writ of mandamus in this case because the Central Committee “exercises discretion in
performance of its function.” For that proposition, the Central Committee relies upon the
settled principle that “a writ of mandamus will not lie if the petitioner’s right is unclear or
issues only at the discretion of a decision maker[,] . . . ‘or if there be any ordinary adequate
legal remedy to which the party applying could have recourse, [the] writ will not be
granted.’” Wilson v. Simms, 380 Md. 206, 223 (2004) (quoting City of Seat Pleasant v.
Jones, 364 Md. 663, 673 (2001)). This argument likewise assumes the Committee’s
proposed answer to the question before us.
Each of the Central Committee’s arguments for why the question is non-justiciable
is grounded in the Committee’s interpretation of the text and underlying purpose of Section
13, which, as noted, is precisely the question presented to us for decision: Whether that
constitutional provision requires the Central Committee to submit only one name to the
Governor or, instead, the Committee has the discretion to submit multiple names to fill a
vacancy. Resolution of that question requires that we do no more than interpret Section 13
in order to identify the respective roles and obligations of the Governor and Central
Committee.
11
In short, the question before us is one that self-evidently “admits of judicial
resolution.” See, e.g., State Bd. of Elections v. Snyder, 435 Md. 30, 62 (2013) (construing
Article I, § 1 of the Maryland Constitution to hold that voters turning 18 on the date of the
general election could vote in the preceding non-partisan primary elections); Nader for
President v. Md. State Bd. of Elections, 399 Md. 681, 708 (2007) (holding unconstitutional,
pursuant to the Court’s interpretation of Article I of the Maryland Constitution, a statutory
provision requiring that each signature on a party’s petition include a statement that the
signer is a registered voter in a specific county). Moreover, we can answer the question
without intrusion upon the authority and discretion of either the Central Committee or the
Governor. Therefore, the question is justiciable.
III.
At one time, Section 13 provided for a special election to fill a legislative vacancy
created by “death, disqualification, resignation, refusal to act, expulsion, or removal.” See
Md. Const. art. III, § 13 (1924). In an effort to eliminate the costs of special elections, the
Legislature amended Section 13 by enacting Chapter 584 of the 1935 Session of the
General Assembly. That legislation, later ratified by the people of Maryland in the General
Election of November 3, 1936, gave to the Governor the duty of appointing a person to fill
a vacancy in the General Assembly, whether the vacancy occurs in the Senate or the House
of Delegates.
Section 13(a)(1) provides, in pertinent part, that, in the case of a legislative vacancy,
the Governor shall appoint a person to fill such vacancy from a person whose
name shall be submitted to him in writing, within thirty days after the
occurrence of the vacancy, by the Central Committee of the political party,
12
if any, with which the Delegate or Senator, so vacating, had been affiliated .
. . and it shall be the duty of the Governor to make said appointment within
fifteen days after the submission thereof to him.
(emphasis added). Section 13(a)(2) provides:
If a name is not submitted by the Central Committee within thirty days after
the occurrence of the vacancy, the Governor within another period of fifteen
days shall appoint a person, who shall be affiliated with the same political
party, if any as was that of the Delegate or Senator, whose office is to be
filled, at the time of the last election or appointment of the vacating Delegate
or Senator, and who is otherwise properly qualified to hold the office of
Delegate or Senator in the District or County.
Md. Const. art. III, § 13(a)(2). Given the language of Section 13(a)(2), neither Petitioners
nor the Central Committee dispute that, even if a party central committee does not make a
recommendation to the Governor within the allotted time, the Governor retains the duty to
carry out the obligation to fill the vacancy.
The question before us—whether Section 13 prohibits a party central committee
from submitting more than one name to the Governor to fill a single vacancy in the General
Assembly—turns on the meaning of subpart (a)(1) and specifically, the meaning of the
phrase “the Governor shall appoint a person to fill such vacancy from a person whose name
shall be submitted to him in writing.” Petitioners assert that the use of the singular in the
phrase “a person whose name shall be submitted to him in writing” denotes a requirement
that no more than one name can be submitted to the Governor. They also argue that their
interpretation is consistent with the legislative history of the 1936 amendment of Section
13 and this State’s broader constitutional framework. Petitioners do not quarrel with the
fact that it is the Governor, not the Central Committee, who has the constitutional duty of
appointment.
13
The Central Committee counters that Section 13 imposes a duty only on the
Governor and none on the Committee. Instead, the Central Committee possesses the
discretion to submit more than one name to the Governor because it is authorized to create
its own selection process pursuant to Elec. Law §§ 4-201(c) and 4-204(c).
“When interpreting constitutional provisions, we generally employ the same rules
of construction that are applicable to the construction of statutory language.” Davis v.
Slater, 383 Md. 599, 604 (2004). We begin by looking to the plain language of the
provision with a goal of “discern[ing] the legislative purpose, the ends to be accomplished,
or the evils to be remedied by a particular provision, be it statutory, constitutional or part
of the Rules.” Id. at 605.
We agree with the Central Committee that, read together, subsections (a)(1) and (2)
of Section 13 expressly state only that the Governor has a constitutional duty in the
appointment process and expressly acknowledge that a central committee is not required
to submit the name of any person to the Governor for appointment. Common sense would
seem to dictate, then, that the Central Committee has no duty to refrain from submitting
more than one name.
We nonetheless grant to Petitioners their assertion that, read in isolation, the oddly-
framed phrase “the Governor shall appoint a person to fill such vacancy from a person
whose name shall be submitted to him in writing” is arguably “subject to ‘two or more
reasonable alternative interpretations.’” Haile v. State, 431 Md. 448, 467 (2013) (quoting
Price v. State, 378 Md. 378, 387 (2003)). Without more than a “literal meaning” of the
language within the provision, W.R. Grace & Co. v. Swedo, 439 Md. 441, 454 (2014), it is
14
unclear whether the second iteration of “a person” means “one person” or “any person.”
In fact, the closest dictionary definition to the time of the amendment3 notes that “a” is “not
necessarily a singular term, it is often used in the sense of ‘any.’” See BLACK’S LAW
DICTIONARY (3d ed. 1933). Regardless of whether Section 13 is plain on its face or
ambiguous, we are permitted to look to other sources to confirm what is plain or to resolve
an ambiguity. See Gomez v. Jackson Hewitt, Inc., 427 Md. 128, 160 (2012) (“[E]ven when
we believe that the language of the statute renders legislative intent clear, it is appropriate
to examine the legislative history as a confirmatory process.”); Mayor & City Council of
Balt. v. Chase, 360 Md. 121, 131 (2000) (“[E]ven when the language of a statute is free
from ambiguity, in the interest of completeness we may, and sometimes do, explore the
legislative history of the statute under review.”) (internal quotation marks omitted).
When the language of a statute or, as here, a constitutional provision, is unclear, we
may refer to “external evidence . . . for discerning the purpose of the legislature, including
the bill’s title or function paragraphs, relevant case law, and secondary sources.” Davis,
383 Md. at 605; see also W.R. Grace, 439 Md. at 453 (“If our review of the statute does
3
This Court has frequently relied upon dictionary definitions prevalent at the time the
relevant statutory language was adopted to discern its meaning. See Harrison-Solomon v.
State, 442 Md. 254, 268 n.10 (2015) (quoting Harvey v. Marshall, 389 Md. 243, 260-61
n.11 (2005)) (“It is the sounder practice, when looking to the meaning of words used in a
statute, for a court to ‘resort to a dictionary, legal or otherwise, [which] should logically
include consultation of those editions (in addition to current editions) of dictionaries that
were extant at the time of the pertinent legislative enactments.’”); Md. Overpak Corp. v.
Mayor & City Council of Balt., 395 Md. 16, 49 n.20 (2006) (“We have pointed out that
when courts find it prudent, in defining terms in the quest for understanding of statutory
intent, to resort to dictionaries, it is advisable to make reference first to those dictionaries
that were contemporaneous at the time the statutory language at issue was created.”).
15
turn up ambiguous language, the job of this Court is to resolve that ambiguity in light of
the legislative intent, using all the resources and tools of statutory construction at our
disposal.”) (internal quotation marks omitted).
This Court has not interpreted previously the constitutional language at issue. Both
parties, though, refer us to two Opinions of the Attorney General, 24 Md. Op. Att’y Gen.
367 (1939) and 62 Md. Op. Att’y Gen. 241 (1977). We are not bound by those opinions,
but they can help elucidate the intention of the Legislature. See Gomez, 427 Md. at 170
n.36 (explaining that a court is not bound by an Attorney General’s opinion but, “when the
meaning of legislative language is not entirely clear, such legal interpretation should be
given great consideration in determining the legislative intention[]”) (quoting State v.
Crescent Cities Jaycees Found., Inc., 330 Md. 460, 470 (1993)). This is particularly so
given that the General Assembly has not amended the pertinent language of Section 13
since issuance of either opinion of the Attorney General. Gomez, 427 Md. at 170 n.36
(“The Legislature is presumed to be aware of the Attorney General’s statutory
interpretation and, in the absence of enacting any change to the statutory language, to
acquiesce in the Attorney General’s construction.”).
In 1939, the Chairman of the Democratic State Central Committee for Frederick
County asked Attorney General William C. Walsh, in part: “Is it necessary for the State
Central Committee to recommend more than one person for the vacancy [in the House of
Delegates]?” The Attorney General opined:
[W]e find in the Senate Journal for 1935, that when this amendment was
introduced it provided, “The Governor shall appoint a person to fill such
vacancy from two persons whose name shall be submitted . . .,” and that it
16
was amended in the House by striking out, “two persons whose name,” and
inserting in lieu thereof “a person whose name.” It, therefore, appears that
the submission of only one name by the Committee was contemplated, and
you are so advised.
24 Md. Op. Att’y Gen. at 367-68.
Petitioners argue that this legislative history of Section 13 supports their view that
the Central Committee is required to submit no more than one name to the Governor to fill
a vacancy. According to Petitioners, “[t]he provision for two names to be submitted to the
Governor was stricken purposefully to limit the job-filling powers of the Governor[.]”
In 1977, Attorney General Francis B. Burch addressed a different question
concerning the extent of a central committee’s obligation(s) under Section 13. The
Honorable Tyras Athey of the Maryland House of Delegates asked “whether it is
permissible” for a State Central Committee “to submit more than one name for the
Governor’s consideration for the appointment.” That question is close but not identical to
the question before us.
Attorney General Burch began his response by reaffirming the above-quoted view
of Attorney General Walsh in his 1939 opinion. 62 Md. Op. Att’y Gen. at 242. Attorney
General Burch then opined:
[I]t is our opinion that both the legislative history and the language of
the provision itself indicate that the intent of Section 13 was that in the case
of a vacancy in the General Assembly the appropriate State Central
Committee submit the name of only one person to the Governor and that the
Governor appoint that person to fill the vacancy.
However, if a State Central Committee should ignore the clear intent
of the Constitution and submit the names of two or more qualified persons to
the Governor, the Governor cannot ignore the names submitted by the
17
Committee. Rather, the Governor must appoint one of these persons to the
vacancy.
Id. at 243-44 (footnote omitted).
Neither of these opinions supports Petitioners’ view that Section 13 is to be read to
mandate that the Central Committee submit no more than one name to the Governor. The
1939 opinion addresses the question whether a State Central Committee is required to
recommend more than one name to the Governor, not whether the State Central Committee
is permitted to do so. See 62 Md. Op. Att’y Gen. at 242 (“While it is possible to read our
1939 opinion as concluding that submission of more than one name is not permitted, we
do not believe it should be so read since Attorney General Walsh [in the 1939 Opinion]
was only responding to the question of whether submission of more than a single name
was required (rather than permitted).”). At our invitation, Attorney General Frosh filed a
Brief of Amicus Curiae in this matter, and joins in the views expressed by his predecessors.
We are persuaded by the formal opinions of Attorneys General Walsh and Burch,
reaffirmed in the present case by Amicus Attorney General Frosh. Regardless of whether
the Legislature intended for a State central committee to submit only one name should the
committee elect to make a recommendation to the Governor, nothing in the text of that
section or its legislative history imposes upon the central committee a duty to participate
in the process, much less that its participation be limited to the submission of only one
name. The sole duty set forth in Section 13 is upon the Governor to appoint a person from
any name or names submitted in writing by the central committee.
18
This construction of Section 13 does not thwart its purpose. Attorney General
Walsh noted in his 1939 Opinion that the two purposes of Section 13 were “to avoid the
necessity of special elections to fill such vacancies and yet to provide that the appointee
should be of the same political affiliation as the person whose office has become vacant.”
24 Md. Op. Att’y Gen. at 368. Submission by the Central Committee of multiple names
to the Governor does not undermine either of those dual purposes. We agree with Attorney
General Frosh, as explained in his Brief of Amicus Curiae, that allowing the Central
Committee to control the nominating process—whether it submits one name, multiple
names, or no names—“addressed the legislature’s ‘same party affiliation’ concern [and]
served to advance the greater convenience, expedition and cost-saving implicit in the
purpose of ‘avoid[ing] the necessity of special elections.’” (quoting 24 Md. Op. Att’y Gen.
at 368).
We are not persuaded, moreover, by Petitioners’ additional argument that this
interpretation would violate Maryland’s constitutional structure—specifically that our
holding runs afoul of Articles 7 and 8 of the Declaration of Rights.4 Petitioners assert that,
4
Article 7 of the Maryland Declaration of Rights provides:
That the right of the People to participate in the Legislature is the best
security of liberty and the foundation of all free Government; for this
purpose, elections ought to be free and frequent; and every citizen having the
qualifications prescribed by the Constitution, ought to have the right of
suffrage.
Article 8 provides:
That the Legislative, Executive and Judicial powers of Government ought to
be forever separate and distinct from each other; and no person exercising
the functions of one of said Departments shall assume or discharge the duties
of any other.
19
“[w]hen a central committee submits more than one name to the Governor, it dilutes the
right of the people who elected the committee’s members to serve as their proxy to select
their representative in the General Assembly in violation of Article 7.” Petitioners further
assert that, properly construed, Section 13 imposes upon the Governor a “ministerial” duty
of appointment, and to construe Section 13 as the Central Committee argues would violate
Article 8. Petitioners maintain that “[i]t would [be] an exercise by the Governor of a
legislative function to have any role in making the choice of a state legislator[.]”
We disagree with both assertions. We have concluded that Section 13 grants to the
Governor the constitutional duty of selecting a name to fill a vacancy from the name or
names put forward by the party central committee, whether it be from one name or multiple
names, or, if no name is put forward by the central committee, then to appoint a person of
the Governor’s choosing. Should this constitutional duty be at odds with the Declaration
of Rights, the constitutional provision prevails. See Broadwater v. State, 306 Md. 597, 602
n.2 (1986) (“The constitutional section in question could not be invalid under the
Declaration of Rights because if there were a conflict the specific provision in [the
Constitution] would prevail.”).
We hold that, insofar as Section 13 imposes a duty solely on the Governor, the
constitutional provision does not require the Central Committee to submit only one name
for nomination to the Governor. Instead, the Central Committee has the authority to
determine its own procedures, which may include the submission of more than one name
for consideration.
IV.
20
Petitioners have presented a second question that asks both whether the circuit court
wrongly denied them a temporary restraining order and whether, ultimately, they would
have been entitled to mandamus relief. Part of Petitioners’ second question necessarily
involves determining whether the court applied the correct standard in evaluating
temporary restraining orders. Petitioners argue that the court did not apply the proper
standard. They are of the view that courts should look only to Maryland Rule 15-504(a)
for the correct standard; that is, Petitioners argue that they need only show the existence of
“immediate, substantial, and irreparable harm” to receive a temporary restraining order.
The Central Committee disagrees.
Our answer to Petitioners’ first question, that Section 13 does not require the Central
Committee to submit only one name for nomination to the Governor, renders Petitioners’
second question moot. This Court rarely exercises its authority to resolve issues that have
become moot. See Alston v. State, 433 Md. 275, 285 (2013). In this case, however, for
purposes of clarity we address briefly the appropriate standard in evaluating a temporary
restraining order.
In Dep’t of Transp. v. Armacost, 299 Md. 392 (1984), this Court created a four-
factor test for interlocutory injunctions. Armacost requires that courts consider the
plaintiff’s likelihood of success on the merits, the balance of harm to each party if relief is
or is not granted, the potential for irreparable injury to the plaintiff, and the public interest.
Id. at 404-05. Although Armacost did not involve a temporary restraining order, this Court
has since applied the four-part test to decisions involving temporary restraining orders. See
Fritszche v. Md. State Bd. of Elections, 397 Md. 331, 340 (2007) (“[T]his Court has
21
enumerated four factors which must be considered by trial courts in deciding whether a
[temporary restraining order] should issue[.]”); Schisler, 394 Md. at 534 (applying the four
factors when evaluating a temporary restraining order); In re Kimmer, 392 Md. 251, 260
n.13 (2006) (“In determining whether to issue a temporary restraining order, the trial court
must examine and find four factors[.]”).
Petitioners correctly note that Maryland Rule 15-504(a) requires that a court find
“immediate, substantial, and irreparable harm,” before granting a temporary restraining
order. Contrary to Petitioners’ belief, this standard supplements the four-factor test for
interlocutory injunctions established in Armacost rather than replaces it. Accordingly, a
plaintiff requesting a temporary restraining order must show the existence of both
“immediate, substantial, and irreparable harm” and the four factors required for the
granting of interlocutory injunctions.
V.
In sum, the circuit court correctly determined that Petitioners were unlikely to
succeed on the merits because the correct interpretation of Section 13 does not impose a
duty on a party central committee to submit any fixed number of names to the Governor to
fill a vacancy. Instead, a party central committee can submit no names, one name, or
multiple names to the Governor, and Section 13 requires that, if the central committee
makes a submission, then the Governor must appoint a person from the name or names that
the party central committee provides. Based on this reasoning, we entered a per curiam
order on March 2, 2015, affirming the circuit court’s February 12, 2015 decision denying
Petitioners’ motion for a temporary restraining order.
22