Can Maryland limit a charter county's ordinances from overriding a town's own home rule laws without amending the state constitution?

Plain-English summary

Delegate Robert S. Redding asked the Attorney General whether Maryland would need a constitutional amendment to limit how charter county ordinances apply to municipal corporations within that county. The opinion concluded no amendment was needed. Relying on the Court of Appeals' recent decision in Town of Forest Heights v. Frank, which held that a countywide fortunetelling licensing ordinance could apply even in municipalities that had used their own home rule powers to ban fortunetelling outright, the opinion explained that the Maryland Constitution already gives the General Assembly broad authority to resolve conflicts between charter county and municipal home rule powers through an ordinary public general law. Because the legislature had already used that authority to make county ordinances generally prevail over conflicting municipal ones, it could just as easily revise that statutory rule to reach a different result, without touching the Constitution.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Article XI-A and Article XI-E of the Maryland Constitution and Article 23A, section 2 of the Maryland Code as they stood in 1982, shortly after the Court of Appeals decided Town of Forest Heights v. Frank. The opinion's own Editor's Note records that the General Assembly did in fact revise the statute the following year, enacting Chapter 398, Laws of Maryland 1983, effective January 1, 1984, to set new conditions for when county legislation does not apply within municipalities. Maryland's home rule statutes have likely been further amended since then. Anyone researching the current rules governing conflicts between charter county and municipal ordinances should consult the current Article 23A and any more recent case law rather than relying on this opinion's 1982 analysis.

Common questions

Can a charter county's ordinance ever apply inside a town that has its own home rule government?
According to this opinion's reading of Town of Forest Heights v. Frank, yes, generally. The Maryland Constitution's Article XI-A, section 3 only forbids a charter county from enacting a law aimed at a "particular municipality or municipalities." It does not stop a charter county from enacting an ordinance that applies uniformly to all municipalities within the county, even if that ordinance conflicts with a specific town's own home rule ordinance on the same subject.

Who wins when a county ordinance and a municipal ordinance genuinely conflict?
The opinion explained that the Constitution itself does not resolve that conflict; it just permits it to exist. Instead, the General Assembly has broad constitutional authority to referee these conflicts by ordinary statute, and at the time of this opinion it had done so through Article 23A, section 2, which the Court in Frank read as generally making county ordinances prevail over conflicting municipal ones.

Could the legislature change that rule to favor municipalities instead?
The opinion said yes, without needing to amend the Constitution. Because the existing rule favoring county ordinances was itself just an ordinary statute, the General Assembly had the same authority to revise it by a new public general law, an option it exercised the following year according to the opinion's Editor's Note.

Background and statutory framework

The inquiry arose against the backdrop of the Court of Appeals' decision in Town of Forest Heights v. Frank, 291 Md. 331 (1981), which addressed whether a charter county's ordinances (a charter county being one that has adopted home rule under Article XI-A of the Maryland Constitution) could apply to municipal corporations within that county, given that municipalities also enjoy their own home rule powers under Article XI-E. In Frank, the Court held that Article XI-A, section 3, which bars a charter county from enacting "laws or regulations for any . . . municipality" on matters within a municipality's own delegated powers, only forbids ordinances aimed at a particular municipality or municipalities; it does not forbid a countywide ordinance that applies uniformly to all municipalities in the county. On that basis, the Court upheld a countywide fortunetelling licensing ordinance even as applied within two municipalities that had exercised their own home rule powers to ban fortunetelling outright.

The opinion explained that Frank left open the possibility of genuine conflicts between charter county and municipal home rule powers exercised on the same subject, but that the Court itself pointed to the General Assembly's constitutional authority to referee those conflicts by statute. Quoting the Court's own language, the opinion noted that Article XI-A, section 2 and Article XI-E, sections 1 and 6 give the General Assembly broad authority to determine the powers of charter counties and municipalities, so long as legislation affecting charter counties takes the form of a public general law and legislation affecting municipalities specifically applies uniformly to all municipalities of the same class. In Frank itself, the Court found that the General Assembly had already resolved the fortunetelling conflict through Article 23A, section 2 of the Maryland Code, which effectively provided that the county ordinance would prevail.

Because the General Assembly's authority to enact that specific statutory resolution came from the Constitution's own broad grant of power over charter county and municipal legislative relationships, the opinion reasoned the legislature had equal authority to revise that same statute to produce a different outcome, favoring municipalities instead of counties, without any need for a constitutional amendment. The opinion declined to evaluate any specific legislative proposals then pending before the General Assembly, offering instead to discuss the scope and effect of particular options directly with the requester. An Editor's Note attached to the opinion confirms that the General Assembly did act the following year, enacting Chapter 398, Laws of Maryland 1983, effective January 1, 1984, setting new conditions for when county legislation does not apply within municipalities, codified at Article 23A, sections 2(a), 2B, and 2C.

Citations

Statutes:

• Md. Const. art. XI-A, §3
• Md. Const. art. XI-A, §2
• Md. Const. art. XI-E, §1
• Md. Const. art. XI-E, §6
• Article 23A, §2
• Chapter 398, Laws of Maryland 1983
• Article 23A, §2(a)
• Article 23A, §2B
• Article 23A, §2C

Cases:

• Town of Forest Heights v. Frank, 291 Md. 331 (1981)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

LOCAL GOVERNMENT

Counties—Municipalities—Constitutional Law—Home Rule Powers—Conflicts Between Jurisdictions—Public General Law may be Adopted to Regulate Conflicts

March 4, 1982

The Honorable Robert S. Redding
Maryland House of Delegates

You have requested our opinion on whether a constitutional amendment would be needed to limit the application of charter county ordinances to municipal corporations in those counties.

For the reasons given below, it is our opinion that such a limitation may be imposed by a public general law enacted by the General Assembly; hence, it would not be necessary to adopt a constitutional amendment to accomplish this purpose.

I
The Frank Case

In the recent case of Town of Forest Heights v. Frank, 291 Md. 331 (1981), the Court of Appeals held that the Constitution does not bar the general application of the ordinances of a charter county, i.e., a county that has adopted home rule under Article XI-A of the Constitution, to the municipal corporations in that county, even though municipal corporations also enjoy home rule under Article XI-E of the Constitution.

Article XI-A, §3 provides that a charter county cannot enact "laws or regulations for any . . . municipality" on any matter within the municipality's own delegated powers. The Court concluded, however, that this provision does not forbid a charter county from enacting ordinances that affect all municipalities in that county. It only forbids the enactment of those ordinances that affect a "particular municipality or municipalities".

Thus, in Frank, the Court ruled that the Constitution did not prevent a countywide ordinance requiring the licensing of fortunetellers from applying in the municipalities within that county, including two municipalities that had exercised their own home rule powers to forbid the practice of fortunetelling. 291 Md. at 339-46.

II
Analysis

As seen from Frank, the Constitution does not bar the general application of a charter county's ordinances to all municipalities within the county. The Constitution thus permits potential conflicts in the exercise of the home rule powers of charter counties and the home rule powers of municipal corporations.

Nevertheless, as the Court in Frank indicated, the General Assembly may deal with such conflicts by statutorily regulating the respective legislative powers of these political subdivisions. Specifically, the Court said:

"Art. XI-A, §2, and Art. XI-E, §§1 and 6, give the General Assembly broad authority to determine the powers of chartered counties and municipalities, as long as enactments relating to chartered counties are public general laws and as long as enactments relating specifically to municipalities apply alike to all municipalities of the same class. Consequently, by delineating the powers of chartered counties and municipalities, the General Assembly has full authority by statute to resolve conflicts, either in specific areas or generally." 291 Md. at 346 (emphasis added) (footnote omitted).

In the Frank case, the Court found that there was a conflict between the county licensing law and the municipal prohibitions on fortunetelling. It further found that the General Assembly had enacted legislation, Article 23A, §2 of the Maryland Code, that effectively resolved the conflict by statutorily providing for the county ordinance to prevail. 291 Md. at 338-39 and 350.

Just as the General Assembly had the authority to enact the specific statute that was relied on by the Court to resolve the Frank controversy in favor of the county ordinance, the General Assembly has similar authority to revise that statute to bring about a different result. Hence, a constitutional amendment would not be necessary.

III
Conclusion

In summary, although the Constitution forbids a charter county to enact an ordinance for a particular municipality or municipalities, the Constitution does not bar the application of the general ordinances of a charter county to all of the municipalities in that county. Thus, when both a charter county and a municipality exercise their respective home rule powers on the same subject, there is a potential conflict.

Such conflicts may be dealt with by the General Assembly through legislation that regulates and defines the respective legislative powers of the charter counties and municipalities. At present, the General Assembly has effectively provided by statute that, as a general rule, a charter county ordinance prevails over a conflicting municipal ordinance. The General Assembly is free to amend that statutory rule by a public general law, and it would not be necessary to amend the Constitution for this purpose.

In reaching this conclusion, we have not attempted to review and comment on any of the specific legislative proposals now pending before the General Assembly. There are a variety of legislative options open to the General Assembly, and, if you like, we would be happy to discuss with you our assessment of the potential scope and effect of one or more of these options.

Stephen H. Sachs, Attorney General
Richard E. Israel, Assistant Attorney General
Avery Aisenstark
Principal Counsel,
Opinions and Advice

Editor's Note: Since the issuance of this Opinion, the General Assembly enacted Chapter 398, Laws of Maryland 1983, for the purpose of "providing the conditions under which legislation enacted by a county does not apply in municipalities located in the county". The new law, effective January 1, 1984, is now codified at Article 23A, §§2(a), 2B, and 2C.