Can a Maryland county charter let individual towns opt out of new county laws unless the town asks for them to apply?

Plain-English summary

Dorchester County was preparing to adopt charter home rule, and the proposed Charter contained an unusual provision, Section 221, that would flip the normal relationship between county law and municipal law: instead of a countywide ordinance automatically applying inside towns like Cambridge, a local law enacted by the new County Council would not apply within an incorporated municipality at all unless that municipality's own legislative body requested its application by ordinance. The Mayor of Cambridge and a Dorchester County Commissioner asked the Attorney General whether this consent requirement was constitutional.

The opinion concluded that it was. Existing Court of Appeals precedent already established that a charter county's ordinances generally prevail over conflicting municipal ordinances and apply throughout the county, including inside municipalities, unless the General Assembly says otherwise. But the opinion reasoned that Section 221 did not touch the County Council's core lawmaking authority at all. It did not stop the Council from formulating and approving any local law it wished, and it did not shift lawmaking power to some other body. It simply added a further condition, municipal consent, on when a validly enacted county law would take effect inside a given town's borders. Because the Maryland Constitution's home rule provisions had already been read to permit other kinds of conditions on a law's effectiveness, such as a public referendum, the opinion found no constitutional obstacle to a municipal-consent condition either.

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's own text notes that the General Assembly responded to this very question the following year, enacting Chapter 398, Laws of Maryland 1983, which established statutory conditions under which county legislation does not apply within municipalities, codified at the time at Article 23A, §§2(a), 2B, and 2C. Maryland's county code articles have been further recodified since 1983. Anyone researching a current county-municipal legislative conflict in Maryland should look to the current codification of that framework rather than relying on this 1982 opinion's constitutional analysis alone.

Common questions

Doesn't a charter county's law-making power belong exclusively to its County Council?
The opinion agreed that Article XI-A, §3 of the Maryland Constitution requires the County Council to be the "primary legislative organ" of a charter county. But it read Court of Appeals precedent, particularly a case upholding a citizen referendum-by-petition provision in the Anne Arundel County Charter, as establishing that the Constitution does not give the Council the exclusive power to affect whether and how a law takes effect. Other entities, including the voters or, here, a municipality's own legislative body, can play a role in that question without displacing the Council as the source of the law itself.

How is this different from a city trying to write its own countywide law?
The opinion distinguished Section 221 from a case striking down a proposed Baltimore City Charter amendment that tried to create a detailed rent-control scheme by charter amendment rather than ordinary ordinance. That amendment was invalid because it let the City exercise substantive police powers outside the normal legislative process. Section 221, by contrast, did not attempt to legislate on any substantive subject. It only specified a precondition, municipal consent, for when already-enacted county legislation would take hold inside a town's boundaries.

Did the county end up keeping this exact arrangement?
The opinion's text includes an editor's note stating that the General Assembly enacted Chapter 398, Laws of Maryland 1983, the year after this opinion, to establish by statute the conditions under which county legislation does not apply in municipalities within a county, later codified in the Maryland Code. That means the underlying question, which conditions apply and how, moved from an individual charter provision to a statewide statutory framework not long after this opinion issued.

Background and statutory framework

Dorchester County, historically a commissioner county without home rule, was in the process of adopting charter home rule under Article XI-A of the Maryland Constitution, with the proposed Charter set for a November 1982 ballot vote. Section 221 of the proposed Charter, titled "Municipalities," would provide that, apart from certain revenue measures and matters otherwise addressed by Public General Law, a local law enacted by Dorchester County would not apply in any incorporated municipality within the county unless that municipality requested its application by ordinance.

The opinion set this request against existing Court of Appeals precedent on the relationship between charter counties and the municipalities located within them. Under Article XI-A, §3, a county charter must vest "the law-making power" in an elective county council, subject to the Constitution and Public General Laws, with a proviso barring the council from enacting laws targeted solely at a particular municipality on a matter the municipality itself has power to legislate. The Express Powers Act, Article 25A, §5 of the Maryland Code, implements this by granting charter counties broad police powers and specified local-law authority, without addressing the role of municipalities in the county's legislative process. The Court of Appeals had already held, in a case construing this framework, that a charter county council may enact countywide legislation effective within municipalities, and that such county legislation prevails over conflicting municipal enactments unless the General Assembly provides otherwise by public general law, a default rule that, at the time, was set by statute in Article 23A, §2 of the Maryland Code (a rule the opinion had itself summarized in an earlier 1982 opinion on a related charter question).

The opinion's core analysis turned on whether Section 221 could validly displace that default rule for Dorchester County specifically. It found that Section 221 did not touch the County Council's underlying lawmaking authority: the Council would remain free to enact any local law within the bounds of the Express Powers Act, and Section 221 would only add a precondition to that law's applicability inside municipal boundaries. The opinion drew a direct analogy to a Court of Appeals decision upholding a citizen referendum-by-petition provision in the Anne Arundel County Charter, which had rejected the argument that Article XI-A, §3 gives the county council the sole and exclusive power to affect a law's fate, holding instead that the Constitution permits "other entities with coordinate legislative powers" so long as the council remains the primary legislative organ that formulates and approves the law in the first place. The opinion also distinguished Section 221 from a separate Court of Appeals decision invalidating a Baltimore City Charter amendment that would have created a detailed rent-control system by initiative, since that amendment attempted to exercise substantive police power outside the normal legislative process entirely, while Section 221 did not purport to legislate on any subject at all, only to condition the effectiveness of legislation the Council itself would enact. Because the Council would still originate and approve every local law, and Section 221 would merely determine when that law took hold within a given municipality's boundaries, the opinion concluded the provision fell within the range of legislative arrangements the Constitution's home rule provisions permit.

Citations

Statutes:

• Md. Const. art. XI-A, §3
• Md. Const. art. XI-A, §1A
• Article 25A, §5 of the Maryland Code
• Article 23A, §2 of the Maryland Code
• Chapter 398, Laws of Maryland 1983
• Article 23A, §§2(a), 2B, and 2C

Cases:

• Town of Forest Heights v. Frank, 291 Md. 331, 341-46 (1981)
• Hardy v. Housing Management Co., 293 Md. 394 (1982)
• Ritchmount Partnership v. Board of Supervisors of Elections, 283 Md. 48 (1978)
• Cheeks v. Cedlair Corp., 287 Md. 595 (1980)
• Telford v. City of Gainesville, 65 S.E.2d 246 (Ga. 1951)

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—Charter Counties—Municipalities—Constitutional Law—Home Rule Powers—Conflicts between Jurisdictions—County Charter May Condition Effect of County Law in Municipality on Consent of Municipality

October 26, 1982

Mr. C. Lloyd Robbins
Mayor of Cambridge
Mr. Calvin Travers
Dorchester County Commissioner

You have requested our opinion on the constitutionality of §221 of the proposed Charter for Dorchester County. We understand that the proposed Charter will be on the ballot in the November election. Section 221 ("Municipalities") would provide that, subject to certain exceptions:

"[A] local law enacted in Dorchester County does not apply in any incorporated municipality within the County, unless a particular municipality requests by ordinance the application of any particular local law therein."

The specific issue posed by §221 has not been previously addressed by this Office or the Court of Appeals.1 Nevertheless, for the reasons given below, it is our opinion that the provisions of §221 would not conflict with applicable constitutional or statutory requirements.

I
Background

Dorchester County, a commissioner county, has undertaken the process of adopting charter home rule under Article XI-A of the Maryland Constitution. A proposed charter, prepared by a charter board, will be submitted to the voters of the County at the November election. See Article XI-A, §1A of the Constitution.

Section 221 of the proposed Charter would provide as follows:

"MUNICIPALITIES. Except for revenue measures that the County is otherwise authorized by law to enact for applicability throughout the County and except [as] otherwise expressly provided by Public General Law, a local law enacted by Dorchester County does not apply in any incorporated municipality within the County, unless a particular municipality requests by ordinance the application of any particular local law therein." (Emphasis added.)

The issue is whether the emphasized language is consistent with the constitutional requirements governing the allocation of legislative authority between a charter county and municipal corporations located in that county.

Under Article XI-A, §3 of the Maryland Constitution:

"Every [county] charter . . . shall provide for an elective legislative body in which shall be vested the law-making power of said . . . County . . . . [S]ubject to the Constitution and Public General Laws of this State, [the County Council] shall have full power to enact local laws of said . . . County . . . upon all matters covered by the express powers granted [by the General Assembly]; provided that nothing herein contained shall be construed to authorize or empower the County Council of any County in this State to enact laws or regulations for any incorporated town, village, or municipality in said County, on any matter covered by the powers granted to said town, village, or municipality by the Act incorporating it . . . ."

The Express Powers Act, Article 25A, §5 of the Maryland Code, implements Article XI-A of the Constitution, by conferring on a charter county broad "police powers", as well as authority to enact local laws on a number of specified subjects. The Act contains no provision that expressly addresses the role of municipal corporations in a county's legislative process.

The Court of Appeals has held that, in implementing its express powers, the council of a charter home rule county is empowered to enact countywide legislation effective in all municipal corporations within the county. Town of Forest Heights v. Frank, 291 Md. 331, 341-46 (1981).2 When the county has so acted, its legislation prevails over conflicting municipal enactments, unless the General Assembly prescribes differently by public general law. 291 Md. at 350-51.3

The question here is whether a charter county may, as in §221 of the proposed Dorchester County Charter, adopt a different legislative relationship between the County and its municipalities than that described in Frank. We believe that it may: The essence of charter home rule, which vests "full power to enact local laws" in the County Council, is that a charter county's legislative authority be exercised by its county council; in our view, this requirement would not be violated by §221 of the proposed Charter for Dorchester County.4

II
Analysis

Under §221, the Dorchester County Council's authority to enact whatever legislation it deemed necessary, within the confines of the Express Powers Act, would not be diminished. Rather, §221 would simply add a precondition to the applicability of such legislation in the municipal corporations in the county: the local law would not take effect in a municipality unless that municipality so requested. Such a condition on the implementation of otherwise unfettered legislative authority is, we believe, constitutionally permissible.

Indeed charter provisions granting to others a role in determining the effectiveness of legislation already have been sustained by the Court of Appeals. In Ritchmount Partnership v. Board of Supervisors of Elections, 283 Md. 48 (1978), the Court considered the constitutionality of §308 of the Anne Arundel County Charter, which conferred on the citizens of that county the right to petition ordinances to referendum. The plaintiff, aggrieved by the rejection of a zoning ordinance at referendum, contended that the referendum provision of the charter unconstitutionally infringed upon the "plenary" power of the County Council. The plaintiff argued that the language of Article XI-A, §3, vesting "the law-making power" in the County Council, meant that no other entity could exercise any role in the legislative process.

The Court of Appeals rejected this argument in language that we find relevant to the question presented by §221:

"No attempt was made by the framers [of the Constitution] to confine the power to legislate exclusively to the council. There is nothing in this clause which would purport to prohibit the exercise of some portion of this power by the people. . . . Section 3 undoubtedly requires that the council be the primary legislative organ; it does not altogether preclude the existence of other entities with coordinate legislative powers.

Thus, while Article XI-A, §3 bestows upon the county council ample and complete power to legislate within the limits set forth in the Express Powers Act, it does not necessarily confer the exclusive power to do so." 283 Md. at 62-63.5

Just as §308 of the Anne Arundel County Charter permitted the electorate, by referendum, to prevent the implementation of a local law enacted by the council, so, too, §221 of the proposed Dorchester County Charter would permit each municipal corporation to prevent the implementation within its boundaries of a local law enacted by the council.

Referendum by petition, to be sure, is a negative device, that is, a law enacted by the county council becomes effective unless the voters act negatively, by rejecting it at referendum. The procedure in §221, on the other hand, gives the municipalities a more positive role, that is, a law enacted by the Dorchester County Council would not become effective within a municipality unless the municipality acts affirmatively, by requesting its application to the municipality. But the constitutional principle identified in Ritchmount, that Article XI-A, §3 allows for "other entities with coordinate legislative powers", applies as much to the latter as to the former. Thus, for example, this Office has held that a charter provision conditioning the effectiveness of a specific class of legislation on approval at referendum would be constitutional under the reasoning of Ritchmount, even though that case itself only involved referendum by petition, a more limited form of voter involvement in the legislative process. See 63 Opinions of the Attorney General 291 (1978).

Moreover, §221 of the proposed Dorchester County Charter would avoid the constitutional defects identified in Cheeks v. Cedlair Corp., 287 Md. 595 (1980). In Cheeks, the Court of Appeals invalidated a proposed Baltimore City Charter amendment that would have created a detailed system of rent control. The Court found the proposed amendment to be inconsistent with Article XI-A, §3 of the Maryland Constitution. The amendment, an attempt to exercise the City's police powers through charter amendment, "would constitute an unlawful extension or enlargement of the City's limited grant of express powers and would violate the constitutional requirement that those powers be exercised by ordinance enacted by the City Council." 287 Md. at 609. Furthermore, if the charter amendment process permitted legislation of this kind, "[such an] exercise of the legislative initiative power [would] completely circumven[t] the legislative body, thereby totally undermining its status as the primary legislative organ." 287 Md. at 613.

By contrast, §221 is not itself an attempt to legislate in any way. Instead, it merely specifies the conditions under which future legislation will become effective within the municipal corporations in Dorchester County. As such, it is an element of the "broad organizational framework establishing the form of and structure of government in pursuance of which the political subdivision is to be governed and local laws enacted", the proper content of a county charter, according to Cheeks. 287 Md. at 607.

Nor does §221 supplant the county council with another forum for lawmaking. In distinguishing the referendum provision held proper in Ritchmount from the initiative measure held invalid in Cheeks, the Court wrote of the former: "Under the referendum power, the elective legislative body, consistent with [Article XI-A,] §3 continues to be the primary legislative organ, for it has formulated and approved the legislative enactment referred to the people." 287 Md. at 613. Here, too, the Dorchester County Council would remain "the primary legislative organ", and, as such, would retain full authority under §221 to "formulate[] and approv[e]" its legislative enactments.6

III
Conclusion

In summary, it is our opinion that the provisions of §221 of the proposed Dorchester County Charter would not conflict with applicable constitutional or statutory requirements. Thus, except as otherwise specified in §221, local laws enacted by the new County Council would not apply in any incorporated municipality without the consent of that municipality's own legislative body.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel,
Opinions and Advice
Avery Aisenstark
Chief 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.

1 Indeed, we know of no charter in this State that contains a provision comparable to §221.

2 The Court held that the proviso in Article XI-A, §3 regarding municipalities merely means that a "home rule county may not enact a law solely for, and limited to, a particular municipality or particular municipalities if the municipality had power to legislate regarding the matter". 291 Md. at 346.

In this regard, §221 would impose a broader restriction than does the proviso in Article XI-A, §3. Although the proviso allows automatic applicability of a countywide ordinance to all local municipalities, §221 would preclude that result. Absent a municipality's individual consent, a countywide ordinance adopted under §221 would not apply in that municipality, even if the municipality did not itself have home rule power to legislate on the same matter.

3 We previously have summarized the present statutory scheme as follows:

"At present, the General Assembly has effectively provided by statute [Article 23A, §2 of the Maryland Code] 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." 67 Opinions of the Attorney General 254, 256 (1982).

4 A recent case, Hardy v. Housing Management Co., 293 Md. 394 (1982), illustrates a similar, albeit distinguishable, approach. Hardy involved a county ordinance that, by its own terms, did not apply "in any incorporated town, village or other municipality which by law has authority to enact a law on the same subjects . . . [unless such a municipality] shall adopt [the ordinance] and request the county to enforce the provisions thereof within its corporate limits". The ordinance had substantially the same effect, within its more limited scope, as §221 would have in general. However, the limitation contained in the ordinance was a result of the county council's own exercise of its discretion, and, presumably, the council would likewise have the same discretion to remove the limitation, at any time, by simply amending the ordinance. Section 221, in contrast, would effectively deprive the county council of all such discretion. Moreover, the Court of Appeals in Hardy was not asked to address the constitutionality of the ordinance. For these reasons, Hardy is not directly relevant to the question raised by §221. Nonetheless, the case does suggest the permissibility of legislative alternatives to the kind of county-municipal conflicts described in Frank.

5 The Court of Appeals also rejected the argument that a charter could not contain a referendum provision unless the Express Powers Act or other public general law so authorized. The Court held that the referendum provision concerns "the form or structure of local government" and, as such, is implicitly authorized by the Constitution itself. 283 Md. at 58-62. Section 221 similarly concerns "the form or structure of local government", as we discuss more fully below.

6 In essence, as previously noted, §221 merely conditions the degree of effectiveness of those legislative enactments on a certain contingency. In this regard, it is a well-established rule that "[a] statute may take effect upon the happening of a contingency, such as the passage of a law in another jurisdiction, or a vote of the people." 2 Sutherland, Statutory Construction §33.07 at 11 (C. Sands 4th ed. 1973). See generally 67 Opinions of the Attorney General 279, 290-93 (1982) (distinguishing permissible contingency from unconstitutional delegation). Cf. Telford v. City of Gainesville, 65 S.E.2d 246 (Ga. 1951) (no unconstitutional delegation in statute that created a housing authority in each locality but made the functioning of each such authority contingent upon each locality's determination of need).