Can a Maryland county require its circuit court to follow county purchasing rules, including a minority-business contracting program?

Plain-English summary

In 1988, the administrative judge of the Circuit Court for Prince George's County asked the Attorney General whether a state law making circuit courts subject to their county's budget, fiscal, and purchasing rules violated Maryland's constitutional separation of powers. The concern was practical: the county had just expanded its Minority Business Enterprise Program in a way that could raise the cost of goods and services the court needed to buy, since the new rules sometimes let a minority-owned bidder win a contract even without submitting the lowest price. The opinion concluded there was no separation of powers problem, because setting purchasing and budget policy for the courts is not one of the judiciary's core, exclusive functions, so the General Assembly could hand that policymaking role to county governments the same way it could establish a personnel system for the courts. At the same time, the opinion drew a line: the county could not apply its purchasing rules so as to deny the court the facilities, equipment, or personnel it actually needed to do its job, since no branch of government may use its own lawful powers to disable another branch from carrying out its constitutional responsibilities.

Currency note

This opinion was issued in 1988. 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.

Common questions

Did making a Maryland circuit court follow county purchasing rules violate separation of powers?
No, according to this 1988 opinion. It concluded that setting procurement and budget policy for the courts is not a core judicial function protected by Article 8 of the Maryland Declaration of Rights, so the General Assembly could subject circuit courts to county purchasing laws the same way it could establish a personnel system for court employees.

Could Prince George's County make its circuit court pay more for goods and services under its Minority Business Enterprise Program?
The opinion found the program itself could apply to the court, but with a limit: the county could not require the court to buy from a supplier who could not provide adequate and suitable goods or services, and could not otherwise apply its purchasing rules in a way that would deprive the court of what it reasonably needed to administer justice.

Is every act a judge or court performs automatically a "judicial" act protected from legislative control?
No. The opinion pointed out that courts also perform administrative and executive-type acts, like appointing support personnel, that the Court of Appeals has treated as executive rather than judicial in nature, so the General Assembly (and, by delegation, county governments) may regulate those areas without violating separation of powers, so long as the court can still effectively exercise its actual judicial power.

Background and statutory framework

Article 24, §8-101(5) of the Maryland Code made a circuit court "subject to the budget and fiscal policies and purchasing laws of the county in which it is located," a provision that also applied to county boards of elections, State's Attorneys' offices, sheriffs' offices, and liquor license boards, though not to circuit court clerks' offices, which instead follow state fiscal procedures under Article IV, §10 of the Maryland Constitution. Prince George's County had recently amended its own purchasing code, County Council Bill 112-1987, to expand its Minority Business Enterprise Program, including a "bonus factor" that could let a minority-owned bidder be treated as the lowest responsible bidder even when its actual bid price was higher, under Prince George's County Code §10-152(c), and a provision allowing some contracts to be restricted to certified minority firms within a defined price range under §10-152(g).

Applying Article 8 of the Maryland Declaration of Rights, the opinion reaffirmed the long-standing rule from Wright v. Wright that the three branches of government are supreme within their own core functions but do not require complete separation, citing Department of Natural Resources v. Linchester Sand & Gravel Corp.'s observation that separation of powers "may constitutionally encompass a sensible degree of elasticity." Drawing on Attorney General v. Johnson, In re Bruen (as adopted in Commission on Medical Discipline v. Stillman), and Attorney General v. Waldron, the opinion distinguished the judiciary's essential, exclusive powers (rendering and enforcing judgments, protecting itself, and adopting procedural rules) from administrative acts like appointing court personnel, which Boyer v. Thurston and Prince George's County v. Mitchell treated as executive in character even when performed by a court. Because a prior opinion at 65 Opinions of the Attorney General 309 had already found that the General Assembly could establish a personnel system for the courts without usurping judicial power, this opinion applied the same reasoning to conclude that procurement policy could likewise be assigned to the legislative branch, and in turn delegated to county governments under Cox v. Board of County Comm'rs of Anne Arundel County and City of Bowie v. County Comm'rs of Prince George's County.

The opinion set one firm limit, though: quoting the Massachusetts Supreme Judicial Court's warning in O'Coin's, Inc. v. Treasurer of the County of Worcester that no branch may use its own powers "to prevent another department from fulfilling its responsibilities," and citing State ex rel. Hottle v. Board of County Comm'rs of Highland County, the opinion concluded that Prince George's County could not force the court to buy from a supplier unable to meet its actual needs, since the constitutional guarantee of separation of powers requires that a court's facilities, equipment, and personnel remain adequate to carry out the administration of justice even while the county controls how those things are procured.

Citations and references

Statutes:

• Article 24, §8-101(5)
• Article 24, §8-101
• Article 8 of the Maryland Declaration of Rights
• Article IV, §10 of the Maryland Constitution
• County Council Bill 112-1987
• Prince George's County Code §10-152(c)
• Prince George's County Code §10-152(g)

Cases:

• Wygant v. Jackson Board of Educ., 476 U.S. 267 (1986)
• J.A. Croson Co. v. City of Richmond, 822 F.2d 1355 (4th Cir. 1987)
• Associated Gen'l Contractors of Calif. v. City & County of San Francisco, 813 F.2d 922 (9th Cir. 1987)
• J. Edinger & Son, Inc. v. City of Louisville, Ky., 802 F.2d 213 (6th Cir. 1986)
• Wright v. Wright, 2 Md. 429, 452 (1852)
• City of Baltimore v. State ex rel. Board of Police, 15 Md. 376, 457 (1860)
• Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 220, 334 A.2d 514 (1975)
• Attorney General v. Johnson, 282 Md. 274, 286, 385 A.2d 57 (1978)
• In re Bruen, 172 P. 1152 (Wash. 1918)
• Commission on Medical Discipline v. Stillman, 291 Md. 390, 400, 435 A.2d 747 (1981)
• Attorney General v. Waldron, 289 Md. 683, 690-91, 426 A.2d 929 (1981)
• Robey v. County Comm'rs of Prince George's County, 92 Md. 150, 162, 48 A. 48 (1900)
• Prince George's County v. Mitchell, 97 Md. 330, 338-39, 55 A. 673 (1903)
• Boyer v. Thurston, 247 Md. 279, 295, 231 A.2d 50 (1967)
• Cox v. Board of County Comm'rs of Anne Arundel County, 181 Md. 428, 434, 31 A.2d 179 (1943)
• City of Bowie v. County Comm'rs of Prince George's County, 258 Md. 454, 461, 267 A.2d 172 (1970)
• O'Coin's, Inc. v. Treasurer of the County of Worcester, 287 N.E.2d 608, 612 (Mass. 1972)
• State ex rel. Hottle v. Board of County Comm'rs of Highland County, 370 N.E.2d 462, 464 (Ohio 1977)
• Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 159-60, 252 A.2d 242 (1969)

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/1988/Volume73_1988.pdf

Original opinion text

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

CONSTITUTIONAL LAW

Separation of Powers—Judiciary—Circuit Court May Be Made Subject To County Purchasing Laws, So Long as Laws Are Not Applied in a Way To Deprive Court of Necessary Items.

July 14, 1988

The Honorable William H. McCullough
County Administrative Judge
Circuit Court for Prince George's County

You have requested our opinion on the validity of Article 24, §8-101(5) of the Maryland Code, under which a Circuit Court "is subject to the budget and fiscal policies and purchasing laws of the county in which it is located." Specifically, you ask whether this provision, as applied in Prince George's County, violates the separation of powers requirement embodied in Article 8 of the Maryland Declaration of Rights.

For the reasons given below, we conclude that Article 24, §8-101(5) of the Maryland Code does not violate the separation of powers requirement of Article 8 of the Maryland Declaration of Rights. Accordingly, the Circuit Court for Prince George's County is subject to "the budget and fiscal policies and purchasing laws of the county," including the county's Minority Business Enterprise Program. However, the county may not apply its purchasing regulations to the court in a way that would deprive the court of adequate and suitable facilities, equipment, or personnel reasonably necessary to carry out the court's judicial function.

I
Prince George's County Purchasing Laws

Prince George's County has recently amended its purchasing laws in a way that may have a significant effect on the budgets of entities subject to those laws. County Council Bill 112-1987, effective January 11, 1988, modifies the county's Minority Business Enterprise Program for the purpose of increasing the participation of minority business enterprises in county contracts.

In several instances, the new ordinance explicitly permits or requires governmental entities to forbear from seeking the lowest price for goods or services in order to increase the likelihood of awarding a procurement contract to a minority business enterprise. For example, for the purpose of determining the lowest responsible and responsive bidder on competitively bid contracts of not more than $500,000, any bid submitted by a minority business enterprise must be "reduced" by multiplying the bid amount by a "bonus factor."1 By this procedure, the bid of a minority business enterprise may be regarded as the lowest for purposes of awarding the contract, although the price that the county will actually pay on the resultant contract — the actual price bid — is not the lowest bid submitted. Prince George's County Code §10-152(c). Similarly, §10-152(g) of the County Code allows competitive bidding on contracts to be restricted to certified minority business enterprises under certain circumstances, so long as the resultant contract price is not as much as 15 percent above the most recent price or the market price for the goods or services being purchased.2

Thus, if the Circuit Court for Prince George's County must conform to the county's Minority Business Enterprise Program, it may experience an increase in the cost of goods and services that it purchases. This potential effect has prompted your inquiry as to the validity of Article 24, §8-101 as applied to the courts.3

II
Separation of Powers

Article 8 of the Maryland Declaration of Rights provides "[t]hat the Legislative, Executive, and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other." The Court of Appeals long ago pointed out that:

The evident purpose of [Article 8] is to parcel out and separate the powers of government, and to confide particular classes of them to particular branches of the supreme authority. That is to say, such of them as are judicial in their character to the judiciary; such as are legislative to the legislative, and such as are executive in their nature to the executive. Within the particular limits assigned to each, they are supreme and uncontrollable.

Wright v. Wright, 2 Md. 429, 452 (1852). Therefore, "one branch may not usurp the essential functions and powers of another branch ..., may not act to destroy the essential functions and powers of another branch ..., and may not delegate its essential functions and powers to another branch ...." 63 Opinions of the Attorney General 305, 310 (1978) (emphasis in original; citations omitted).

Nonetheless, the Court of Appeals has also long recognized that Article 8 does not require a complete separation between the departments of government. City of Baltimore v. State ex rel. Board of Police, 15 Md. 376, 457 (1860). "[T]he separation of powers concept may constitutionally encompass a sensible degree of elasticity and should not be applied with doctrinaire rigor." Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 220, 334 A.2d 514 (1975). The separation of powers requirement "is not intended to prevent one branch from exercising its own powers simply because they affect or even nullify the acts of another branch." 63 Opinions of the Attorney General at 310.4 It is only the essential functions of each branch of government that are exclusive to it; in other areas, the branches may have concurrent powers.

"[T]he essence of judicial power is the final authority to render and enforce a judgment ..." Attorney General v. Johnson, 282 Md. 274, 286, 385 A.2d 57, appeal dismissed, 439 U.S. 805 (1978). To carry out that function, the judiciary necessarily has certain implied or inherent powers: "the power to protect itself; the power to administer justice ...; the power to promulgate rules for its practice; and the power to provide process where none exists." In re Bruen, 172 P. 1152 (Wash. 1918) (quoted with approval in Commission on Medical Discipline v. Stillman, 291 Md. 390, 400, 435 A.2d 747 (1981)). Accord Attorney General v. Waldron, 289 Md. 683, 690-91, 426 A.2d 929 (1981).

But not every act that a court may perform is necessarily a judicial act. See Robey v. County Comm'rs of Prince George's County, 92 Md. 150, 162, 48 A. 48 (1900). For example, courts have inherent power to appoint persons needed to assist them in the conduct of judicial business. Prince George's County v. Mitchell, 97 Md. 330, 338-39, 55 A. 673 (1903). Yet the Court of Appeals has acknowledged that the appointment of personnel is in the nature of an executive, not a judicial, act. Boyer v. Thurston, 247 Md. 279, 295, 231 A.2d 50 (1967). In areas like this the General Assembly may act, notwithstanding that its actions affect the courts: "[S]o long as legislation does not usurp the judicial power and permits the courts to effectively exercise the judicial power, the General Assembly is not precluded from exercising its plenary power on matters affecting the judiciary, and the inherent powers of the courts are qualified by the exercise of this legislative power." 65 Opinions of the Attorney General 309, 312 (1980).

In that opinion, this office concluded that the General Assembly may establish a personnel system for the courts, because that is not an exclusive judicial function. We think that the same is true of the establishment of procedures and policies to be followed in the purchase of goods and services for the use of the courts. In our view, the setting of those policies is not a core judicial function, but is in the nature of a legislative act. Accordingly, it may be performed by the General Assembly in the exercise of its legislative authority. By the same token, the General Assembly may delegate that policy-making function to the legislative bodies of the counties. Cox v. Board of County Comm'rs of Anne Arundel County, 181 Md. 428, 434, 31 A.2d 179 (1943). See also City of Bowie v. County Comm'rs of Prince George's County, 258 Md. 454, 461, 267 A.2d 172 (1970).5

To be sure, budget and fiscal policies may not be applied to the courts in a way that prevents the courts from carrying out their judicial function. "It was certainly never intended that any one department, through the exercise of its acknowledged powers, should be able to prevent another department from fulfilling its responsibilities to the people under the Constitution." O'Coin's, Inc. v. Treasurer of the County of Worcester, 287 N.E.2d 608, 612 (Mass. 1972). A legislative body may not refuse to provide a court with adequate and suitable facilities, equipment, and personnel to carry out the administration of justice. See State ex rel. Hottle v. Board of County Comm'rs of Highland County, 370 N.E.2d 462, 464 (Ohio 1977). We think that this principle is equally applicable to the administration of Prince George's County's Minority Business Enterprise Program: the county may not require the court to purchase goods or services from a particular supplier if that supplier is unable to provide adequate and suitable goods or services to meet the court's needs. So long as the court's needs are met, however, the constitutional requirement of separation of powers is not violated by subjecting the court to budget and fiscal policies and purchasing laws formulated by the legislative branch.

III
Conclusion

In summary, it is our opinion that Article 24, §8-101(5) of the Maryland Code does not violate the separation of powers requirement of Article 8 of the Maryland Declaration of Rights. Accordingly, the Circuit Court for Prince George's County is subject to "the budget and fiscal policies and purchasing laws of the county," including the county's Minority Business Enterprise Program. However, the county may not apply its purchasing regulations to the court in a way that would deprive the court of adequate and suitable facilities, equipment, or personnel reasonably necessary to carry out the court's judicial function.

J. Joseph Curran, Jr., Attorney General
C.J. Messerschmidt, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

Editor's Note: The Croson case, discussed in note 2 of this opinion, was decided by the Supreme Court on January 23, 1989. 109 St. Ct. 706 (1989). We analyzed Croson and applied it to the State's Minority Business Enterprise program in 74 Opinions of the Attorney General — (1989) [Opinion No. 89-007 (February 22, 1989)].

1 The "bonus factor" is ordinarily .05, but is increased to .10 if the minority business enterprise is based in Prince George's County. Prince George's County Code §10-152(c).

2 We are not faced with, and do not address, any question of the constitutionality of the county's Minority Business Enterprise Program under the Equal Protection Clause of the Fourteenth Amendment. In Wygant v. Jackson Board of Educ., 476 U.S. 267 (1986), the Supreme Court invalidated a public employer's affirmative action program on Equal Protection grounds. Federal appellate courts have relied on Wygant to strike down minority preference laws for public contracts. E.g., J.A. Croson Co. v. City of Richmond, 822 F.2d 1355 (4th Cir. 1987), prob. juris, noted, 108 S.Ct. 1010 (1988); Associated Gen'l Contractors of Calif. v. City & County of San Francisco, 813 F.2d 922 (9th Cir. 1987); J. Edinger & Son, Inc. v. City of Louisville, Ky., 802 F.2d 213 (6th Cir. 1986). However, the various plurality opinions in Wygant leave unclear the standards by which the constitutionality of minority preference programs is to be judged. The City of Richmond's appeal from the invalidation of its minority preference program in the J. A. Croson case is now pending before the Supreme Court.

In an amicus brief in Croson, we have urged the Supreme Court to reject a "Draconian strict scrutiny standard that permit[s] no leeway for legitimate legislative judgment." Instead, "a less rigid, 'intermediate' standard of review should be applied to MBE legislation. A court should consider the totality of the circumstances justifying imposition of affirmative action legislation to determine whether the Equal Protection Clause is offended." Brief of the State of Maryland as Amicus Curiae in Support of Appellant at 2-3, City of Richmond v. J. A. Croson Co. (No. 87-998).

3 Article 24, §8-101 also applies to county boards of supervisors of elections, State's Attorneys' offices, Sheriffs' offices, and county boards of liquor license commissioners. However, it does not apply to the offices of the clerks of the circuit courts. Those offices are subject to State fiscal procedures. Article IV, §10 of the Maryland Constitution; 72 Opinions of the Attorney General 21, 24-26 (1987).

4 In that opinion, the Attorney General concluded that the separation of powers provision would not prevent the General Assembly from exercising its plenary legislative power to enact ethical standards for members of the judicial, as well as the legislative and executive, branches of government. 63 Opinions of the Attorney General at 311.

5 As a charter home-rule county, Prince George's County has been granted full legislative power to enact local laws for the maintenance of peace, good government, and the health and welfare of the county. Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 159-60, 252 A.2d 242 (1969).