Paul Kendall v. Howard County, Maryland

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cv-00369-JFM Copies to all parties and the district court/agency. [998573056].. [09-2117, 09-2210]

Case: 09-2117

Document: 82

Date Filed: 04/21/2011

Page: 1

UNPUBLISHED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,

Case: 09-2117

Document: 82

Date Filed: 04/21/2011

Page: 2

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Vacated and remanded with instructions by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 04/21/2011

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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

Constitution.
Council

First
The

(“County

resolution
improper

and

Fourteenth

Residents

Council”)

rather

than

procedures

allege

Amendments
that

improperly

by

“original

violated

their

the

enacted
bill” ∗

rights

to

the

Howard

U.S.

County

legislation
and

by

that
the

under

these
Howard

County Charter and the First and Fourteenth Amendments.

On the

defendants’ motion to dismiss, the district court elected to
abstain
citing

under
the

Burford

presence

of

v.

Sun

Oil

complex

Co.,

319

questions

U.S.

of

315

state

(1943),

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.
we

vacate

the

court’s

order

and

remand

with

Accordingly,

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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Date Filed: 04/21/2011

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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

governmental

approval

of

because

“they

actions

purport

within

the

to

terms

authorize
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

Residents’]

than

right

of

original

bill

referendum.”

thus

circumventing

Finally,

the

[the

Residents

“challenge a number of discrete actions undertaken primarily by
4

Case: 09-2117

executive

branch

Document: 82

Date Filed: 04/21/2011

[officials]

without

any

Page: 5

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.,

dismissed

without

equitable

or

319

U.S.

prejudice

discretionary

315
the

(1943),
claims

relief,

the

of

stayed

district

the

court

complaint

the

claims

for
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

federal claims for federal court.

desire

to

reserve

their

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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Date Filed: 04/21/2011

Page: 6

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,
district

but

court

they

should

do

so

have

because,

dismissed

subject matter jurisdiction.

as

they

contend,

the

case

for

lack

the
of

They argue that the Residents did

not have standing in that they failed to assert a particularized
harm.

In

individual
Finally,

the

alternative,

defendants
they

argue

the

defendants

were

protected

that

the

cognizable federal claim.

6

by

Residents

claim

qualified
did

not

that

the

immunity.
state

a

Case: 09-2117

We

agree

Document: 82

with

the

Date Filed: 04/21/2011

defendants

that

the

Page: 7

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.”
F.3d

419,

423

(4th

Cir.

2009)

Bishop v. Bartlett, 575

(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.”
grievances
them

with

are

accordingly

standing

to

simply

support

too

generalized

federal

to

Their
provide

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

7