Part 15 of this series ended with the trial about to begin that would decide whether the Howard County Council had acted illegally in passing the Democratic-sponsored redistricting plan as a resolution rather than a bill. Now it’s off to court we go:
August 1992. The last day of the month is the first day of the trial in the Circuit Court of Howard County, as counsel put forth their arguments in front of Judge Cornelius Sybert, Jr. Representing the plaintiffs, Howard County Republicans David Maier and Louis Pope, are former county solicitor Thomas Lloyd and fellow former solicitor Richard J. Wilkinson, both Democrats. As for the co-defendants, representing the Board of Elections is Charles Reese, and representing the County Council are former U.S. Attorney General Benjamin Civiletti, former Georgetown Law professor Roger Titus, and their associate Sondra Block.
Thomas Lloyd contends that those who wrote the relevant county charter language intended that there be wide public input to redistricting and a deliberative process to specify the final district lines. He contrasts the lengthy process (including public hearings) needed to enact council bills with the ability of the council to adopt resolutions on short notice with minimal public notice or input. He further points out that, unlike bills, resolutions leave the public no avenues of recourse once adopted, since resolutions cannot be vetoed, challenged before put in effect, or made subject to a referendum. The end result, Lloyd claims, is that citizens are being denied due process when it comes to a fundamental county government decision (i.e., council redistricting) that affects them.
Benjamin Civiletti responds in essence that redistricting is too important to be subjected to excessive challenges and delays:
Maryland does not want an impasse, and Howard County people don’t want an impasse. Roger Titus points out that the county charter doesn’t explicitly state that redistricting plans are subject to executive veto or to referendum, and notes the distinction between
enact, and between
enacted: the charter uses the former words in association with redistricting, consistent with their being
adopted via a resolution rather than
enacted as a bill. He also argues that the
temporary administrative nature of resolutions is consistent with the fact that redistricting is not a permanent action but must be repeated at least every ten years.1
(James M. Coram, September 2, 1992, 2H)
November 1992. Judge Cornelius Sybert, Jr., renders his verdict: The council resolution establishing the new council district lines is
constitutionally defective and invalid and the Board of Elections is enjoined from putting it into effect. Judge Sybert bases his ruling on two key points: that a 10-year redistricting plan is not
temporary and that it is not
administrative in nature, and thus it is outside the scope of those actions that the council can take via a resolution. C. Vernon Gray responds,
I respectfully disagree, and points to the use of council resolutions for road closings and other matters not necessarily temporary in practice. He also promises he’ll be back to court:
We just have to appeal it, I think. … We have to uphold the prerogative and the right of council. The county executive has no role in a legislative function. Charles Ecker pushes back:
As I interpret the charter, the county executive does have a role. That’s the only reason I was glad to see it go to court. It’s a good government issue—there have to be checks and balances.
December 1992. Council Democrats discuss what to do next, as a Baltimore Sun editorial points out the downside for Democrats in appealing the ruling:
An appeals court ruling supporting the Sybert verdict … could weaken Democrats by forcing many decisions to be made by bills, which would then be subject to veto by the county executive. Democratic members Paul Farragut and Shane Pendergrass suggest buying some time by filing a Notice of Appeal, and then have the council decide whether to proceed or not, while fellow Democrat C. Vernon Gray seems intent on following the appeals process through to the bitter end:
This is clearly an issue that can only be resolved by the judiciary. Covering all the bases, Roger Titus sends the council a set of price quotes ($23,000 to $34,000 for a two-step appeals process and $13,000 to $19,000 for skipping a step and going straight to the top, with filing a one-sentence Notice of Appeal a relative bargain), while Republican council members Charles Feaga and Darrel Drown suggest dropping the whole appeal idea and instead appointing a bipartisan committee (equally divided between Republicans and Democrats) to draw up a compromise redistricting plan.
Shane Pendergrass and Paul Farragut send a memorandum to invite their Republican colleagues to sit down in a council work session to start to resolve the impasse, but Charles Feaga and Darrel Drown continue to promote the idea of an outside committee. Feaga notes,
When management and unions don’t get along, they sometimes bring in someone else. … It’s the only reasonable thing to do at this point. The legal maneuvering continues: Although county solicitor Barbara Cook previously agreed with Charles Ecker that redistricting required a bill (not a resolution), Democrats now want her to take over the appeal in order to save the county the expense of paying outside counsel in the form of Benjamin Civiletti and his colleagues Roger Titus and Sondra Block. Meanwhile Republicans are filing their own appeal of Judge Sybert’s ruling allowing the council to be a party to the suit in the first place.
As the year ends, the two sides remain at loggerheads, and Shane Pendergrass observes,
I don’t know what we’re going to do. I know we have to stop writing memos and start talking.
(December 1, 1992, 12A; James M. Coram, December 2, 1992, 5B; James M. Coram, December 10, 1992, 7C; James M. Coram, December 16, 1992, 6B.)
Winston Churchill is reported to have once said,
To jaw-jaw is always better than to war-war. Will the county council agree, as the redistricting effort stretches into a third calendar year? Stayed tuned for the answer in part 17 in this series.
1. The lay reader may find it strange to describe something lasting for ten years as
temporary. However such generous interpretations are not unknown in legal circles; for example, the U.S. Constitution’s description of copyrights and patents as being granted for
limited times has been held to be consistent with copyright terms that last for well over a century (see, e.g., Eldred v. Ashcroft).↩