Md. High Court: Local Governments Limited to Authority Granted By State

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The Maryland Constitution specifies that all local governments – including municipalities, charter counties, code counties, and commissioner counties – are subject to any limitations imposed by the State. Article 11-A, Section 3, specifies that state law prevails in any conflict with local law, and Section 6 further clarifies that counties and municipalities have no “powers in excess of those conferred” by the General Assembly.  Similarly, Article 11-E, Section 6, specifies that municipal charters, and local laws enacted under the charters are subject to any limitations imposed by the General Assembly. 

In a recent presentation to a meeting of municipal and county attorneys, Maryland Court of Appeals Judge Brynja Booth emphasized that, even when analyzing what may seem to be distinct local ordinances with no state impact, it is important to review limits and requirements imposed by Maryland law. She highlighted two recent rulings in which State limitations were the critical element in overturning local decisions. In both cases, she said, the limits of State authority had been largely overlooked in the initial briefing, and the Court of Appeals had specifically requested additional briefing on those issues.

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Religious Exemptions from Vaccine Mandates Topic of “Lunch and Learn”

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

Put a hold on your calendar: The Section will sponsor a program on February 25 at 12 p.m. concerning religious exemptions from mandatory vaccine requirements. This is a topic that, with the pandemic, many of us are now having to address, so we are pleased to present Michael Foreman, the director of the Civil Rights Appellate Clinic and a professor at Pennsylvania State University of Law, to outline these exemptions, how to apply them, and the key standards to use in doing so. Stay tuned and watch your emails to register for this virtual “lunch and learn.”

State and Local Government Law Institute planned for May 2022

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The annual Law Institute will be this spring, in late May.  Whether it is in-person or, as last year, virtual, the State and Local Government Section is planning to focus on the major recent changes to police regulation, training, use-of-force, and investigations. There will also be a review of recent state and federal court decisions. Check back with this Blog for announcements and updates!

Message from the Chair

By Amanda Conn
General counsel, Washington Suburban Sanitary Commission

Happy new year to all of the members of the State and Local Government Law Section. I hope each of you had a safe and relaxing holiday season. The Section Council hopes to continue to provide you with useful and timely programs that will help you in your practice and the clients you represent. 

The Section Council’s Program Committee put together our first fall program, concerning the Maryland Public Information Act (or “PIA”).  The Program Committee chose the PIA because most government attorneys have responded to a PIA request at some point in time and had to weave their way through the myriad of mandatory and discretionary denials in the law, 10-day letters, deadlines, denial and redaction letters, etc. 

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State and Local Government Section Council Members Set for 2021 – 2022

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

Council members serve the Section primarily through their work on committees, including the Programs, Communications, Legislative, and Membership/Nominations Committees. Their work includes creating the annual State and Local Government Law Institute and other networking programs during the year, helping to establish this blog, and continuing to provide newsletters and other information. Section Council members for this year include:

  • Amanda Stakem Conn, Section Chair, General Counsel, WSSC;
  • Kimberly Hale Carney, Section Vice-Chair, Assistant Attorney General (Dept. of Labor);
  • Patrick B. Hughes, Section Secretary, Office of the Attorney General;
  • Robert A. McFarland, Section Treasurer, Assistant Attorney General (Dept. of Natural
    Resources);
  • Frank Johnson, Immediate Past Chair and Newsletter Editor, Dep. City Attorney, Gaithersburg;
  • Patrick W. Thomas, MacLeod Law Group;
  • Charles W. Thompson, Executive Director, International Municipal Lawyers Association;
  • John Mattingly, Assistant County Attorney, Calvert County;
  • Christopher J. Mincher, Senior Deputy Legal Counsel, Office of the Governor;
  • Jerome Spencer, General Counsel, Charles County Sheriff’s Office;
  • Talley H-S. Kovacs, Assistant Attorney General (Dept. of Natural Resources);
  • Elissa Levan, partner, Funk and Bolton P.A.;
  • Paul Cucuzzella, Assistant Attorney General (Dept. of Planning);
  • Kathleen Chapman, Administrative Law Judge, Office of Administrative Hearings;
  • Anand Parish, Assistant Attorney General (Dept. of the Environment);
  • Roscoe Leslie, County Attorney, Worcester County;
  • Tom Mitchell, Assistant County Attorney, Anne Arundel County.

Enforcement powers change for the Public Information Act Compliance Board

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The General Assembly made some significant changes to the Public Information Act (Md. Code Ann., General Provisions, Sec. 4-101 et seq.) this year. First, as part of the changes related to police reform, Senate Bill 178 removed the confidentiality of certain police personnel records, now allowing disclosure of police misconduct files unless there is a finding that the public interest requires withholding those files.

As to the Public Information Act Compliance Board, House Bill 183 made significant enforcement changes for both the Ombudsman and the Board itself. The Board’s jurisdiction is now limited to fees, but will expand, such that the Board will now hear disputes on fees, denials, redaction, or a failure to respond, and custodian requests to find PIA requests as frivolous.

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Law Institute moves to May 2022

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The State and Local Government Section Council, in its first remote meeting in July, decided to move the annual Law Institute from fall (usually late October) to the spring. While the Institute had originally been moved to the fall to allow better budget planning for the months thereafter, holding it in the spring should have no budget impact, at least for this year, as there have been limited costs to the Section during the pandemic. That’s because there have been no in-person events, and thus no catering or location-related costs.

Additionally, all MSBA events until the end of the year will need to be virtual. By scheduling in the spring, there is some hope that the event can be in-person, likely at the Washington Suburban Sanitary Commission headquarters in Laurel, as in past years.

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Welcome from the new Section Chair

By Amanda Conn
General counsel, Washington Suburban Sanitary Commission

Happy end of summer to all of the members of the State and Local Government Law Section. As the new chair of the Section, I know we will have a productive year despite all of the challenges we might face.

I have been thinking about how excited we all were at the beginning of the summer when we thought the COVID pandemic was finally coming to an end with normalcy right around the corner, and where we are now at the end of summer. One of the important lessons from these long and trying 18 months is that circumstances can change very quickly so don’t get too comfortable. 

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Takings Clause reach expands to limit land use and zoning regulation

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The ability to control land use and zoning is a critical authority of state and local government, in Maryland and otherwise. The MSBA State and Local Government Law section, prior to its May 26 annual business meeting, hosted a presentation about the impact of the Fifth Amendment’s Takings Clause on land use regulation, and
in partnership with the Administrative Law Section hosted a panel discussion at the MSBA Summit on June 10 on the impact of the Religious Land Use and Institutionalized Persons Act.

The May 26 presentation was by Matt Littleton, a partner with Donahue, Goldberg, Weaver & Littleton in the District of Columbia, who has represented numerous state and local governments confronted with Fifth Amendment Takings claims, including before the U.S. Supreme Court. (Before that, he worked on similar cases for the U.S. Department of Justice.) He spoke on the historical background of the Takings Clause as well as current trends in takings litigation, and how the Supreme Court’s added emphasis to the reach of the clause could have a significant impact, limiting regulatory authority overall, and certainly restricting the reach of county and municipal land use regulations.

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New law protects retired K-9s

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The General Assembly this year focused on many bills addressing all elements of police reform. But SB 156 involves veterinary care costs for retired K9s.

The bill, which the Governor signed, mandates that, as of July 1, 2021, state and local police forces cover the “reasonable and necessary” vet costs proven by a receipt, up to $2,500 a year and $10,000 “over the life of the dog.” The bill also creates a state K-9 Compassionate Care Fund, which can include donations to cover such expenses, and allows local governments to create their own funds.