Bryan v. Makosky
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In the Circu it Court for T albot Cou nty Case No. 20-C-02-004701 IN THE COURT OF APPEALS OF MARYLAND No. 76 September Term, 2003 ______________________________________ WILLIAM O. BRYAN v. LINDA J. MAKOSKY, ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: April 7, 2004 This action tests whether Lind a Makosk y or William Bryan is the duly appointed member of the Talbot County Planning and Zoning Commission. Acting on Ms. Mak osky s complaint and Mr. Bryan s co unterclaim for dec laratory and inju nctive relief, the Circuit Court for Talbot County entered a declaratory judgment that Mr. Bryan s appointment on November 26, 2002, was illegal, null, and void, and that Ms. Makosky, an incumbent Commissioner at that time, continued in office as a member of the Commission. Although we do not agree with some of the underlying conclusions of the court, we agree with that result. We sh all remand for the entry of a modifie d declarato ry judgment. BACKGROUND At a special election held in November, 1973, the citizens of Talbot County, pursuant to Art. XI-A of the M aryland Constitution, adopted a ch arter form of gove rnment. In conformance with § 1A of Art. XI-A, the Charter took effect December 14, 1973. See also Talbot County Charter, § 801. The Charter provides fo r a five-mem ber Cou nty Council, to be elected by the q ualified voters of the co unty at the sam e time as the e lection of S tate officers, and directs that the terms of the council members begin at noon on the first Monday in December next following the election and end at noon on the first Monday in December in the fo urth year th ereafte r. See Talbot County Charter, §§ 201, 204, and 205. Section 404 of the Charter creates a Planning and Zoning Commission, to consist of five mem bers appo inted by the C ounty Cou ncil. Section 404(a) specifies that the terms of the Comm ission members are to be five years, except that the respective terms of the five members first appointed shall be on a staggered basis (of the five initial appointments, one member shall serve for one year, one for two years, one for three years, one for four years, and one for five years). The section also provides that vacancies shall be filled for the unexpired term in the manner of original appointment and that [e]ach member shall serve until his s uccess or is app ointed a nd qua lified. Article IX of the Charter contained a number of transitional provisions. Sections 902 and 903 provided that the members of the Board of County Commissioners holding office on the effective date of the Charter would become the membe rs of the first C ounty Cou ncil, to serve for one year, until noon on the first Monday in December, 1974. That provision dovetailed with § 204, providing for the election of the first elected County Council at the general election for State offices in November, 1974. The first C ouncil, theref ore, was in the nature of a holdover Council. Section 906 required that first Council, within 60 calendar days after taking o ffice, to appoint a Planning and Zoning Commission as required by § 404. Section 909(3) provided that the members of the existing Planning and Zoning Commission shall continue u ntil the appointment of the new Planning and Zoning Commission provided for in S ection 9 06 of th is Char ter. The incumbent Co unty Commissioners w ere sworn in and held their first meeting as the new County Council on December 14, 1973. At that meeting, they adopted a motion for the interim to continue with the same members on the Planning and Zoning Commission and the Planning and Zon ing App eals Board that we presently have. No further appointm ents -2- were made to the Planning and Zoning Commission by the holdover Council, which therefore failed to comply with the Charter mandate of appointing a new Commission with staggered terms. In November, 1974, a new County Council was elected, and, at its first meeting on December 3, 1974, it ap pointed fiv e persons to the Planning and Zoning Commission, with staggered terms one for on e year, one for two years, one for three years, one for four years, and one for five years. The minutes for that meeting reflect that the appointments were made effective immediately, and to bring us in conformance with our Charter. The person appointed for a three year term was William Anderson. A large part of the confusion and controversy in this case lies in the fact that various minutes, letters, and other documents pertaining to Planning and Zoning Commission appointm ents in the succeeding years record a number of different dates for either the initial appointment or the expiration of the terms. Many appointments were shown as running from, or to, December 1, one was shown as effective January 1, one as expiring June 30. The Planning Comm ission minu te book sh ows the in itial staggered appointments as running from November 29. Some appointments were described as for a term to De cember of a given year, with out me ntion o f a spec ific date , while o thers ind icated n o expir ation da te at all. Mr. Anderson s initial term of three years expired in 1977. He continued to serve as a holdover until he was reappointed to the balance of a new five-year term on January 30, 1979. When that term exp ired in December, 1982, he again continued to serve as a holdover -3- until his success or, Allen B aynard, was appointed in April, 198 3. Mr. Ba ynard resigne d in October, 1984, whereupon the Council appointed Carol Kabler for the remainder of his term, i.e., until December, 1987. At that time, Ms. Kabler was reappointed to a new five-year term. Both her certificate of appointment an d a letter from the Preside nt of the C ounty Cou ncil stated that the new term would commence on December 1, 1987. Ms. Kabler held over after the expiration of her term in Dece mber, 1992, but w as reappointed in M ay, 1993. In Novemb er, 1997 just before the end of her then-cu rrent term Ms. Kabler informed the Counc il that she did not wish to be reapp ointed. On Decem ber 16, 199 7, the Cou ncil appointed Ms. Makosky in her place. The letter of appointm ent stated that h er term wo uld expire December 1, 2002. In conform ance with § 204 of the C harter, a new County Council was elected at the general election in Novem ber, 1998, and took office on the first Monday in December. That Counc il consisted of Ms. Spence and Messrs. Foster, Dyott, Harrison, and Higgins. For each of the years 1999, 2000, and 2001, the Council made one appointment to the Commission as a term expired. In September, 2002, the County Planning Officer informed the Council that Ms. Makosky s term would expire on December 20, 2002, and that she desired reappointm ent. Everyone seems to agree that the Planning Officer was mistaken in positing an expiration date of December 20. On Novemb er 5, 2002, a general election o ccurred in which thre e new mem bers Mr. Duncan, Mr. Carroll, and Ms. Harrington were elected in place of Messrs. Dyott, Harrison, -4- and Higgins. On November 26, 2002, the lame duc k Cou ncil, by a vote of 3 - 0, with M r. Foster and Ms. Spence abstaining, purported to appoint petitioner William Bryan to Ms. Makosky s seat on the Commission, in the belief that her term ended on December 1.1 The next day, Ms. Makosky filed a complaint for declaratory judgment and injunctive relief, alleging that her term did not expire u ntil after that of the incumben t Council, that there would therefore be no vacan cy on the Co mmission during the te rm of that C ouncil, and that, accord ingly, the a ppoint ment o f Mr. B ryan wa s void. On Dece mber 3 , 2002, the newly elec ted Coun cil had its first m eeting, at wh ich it adopted a motion declaring the purported appointment of Mr. Bryan void on the ground that the position was still then occupied by Ms. Makosk y. Recognizing that Ms. Makosky had filed suit, the Council authorized the county attorney to obtain a judicial determination of Mr. Bryan s status. The C ouncil did not purport to appo int Ms. Mako sky to a new term but was content to allow her to hold over until the matter was resolved in cou rt. Mr. Bryan then promptly filed a counterclaim against both Ms. Makosky and the County Council, asking the court, among other things, to declare that he was validly appointed to the Commission. Noting that the proper corporate defendant was the county, not the County Council, the county filed a motion to intervene, which, apparently without objection, was granted. The county and Mr. Bryan agreed that the case could be resolved on summary judgment, and they 1 Although Ms. Spence and Mr. Foster raised concerns about the process by which Mr. Bryan was selected, they abstained because they did not believe that the Council had the authority to m ake the ap pointmen t. -5- each filed a motion. As the parties agreed that the Charter provisions controlled and that the County Counc il is without authority to appoint a person to fill a vacancy on the Commission that occurs after the term of the Council has ended, the court recognized that the issue depended on when Ms. Makosky s term ended. In that regard, the court looked to Ms. Mak osky s immedia te predecessor, Ms. K abler, whose te rm, it held, was to end on December 1, 1997. The court did not explain how it reached that conclusion, but it presumably relied on some of the assorted documents that referred to a December 1 beginning or ending date. Nonetheless, the court no ted that, in fact, Ms. K abler rema ined in office as a holdover until Ms. Makosky was appointed on December 16, 1997, that there was some indication in the County Council s minutes that the appointment was to take effect January 1, 2003, and that, under the Charter, her term was to last for five years. From all of this, the court concluded: [Ms. Makosky s term] did not commence earlier than December 16, 1997, first, because the position was then occupied by Carol Kabler, and second, because it was to be effective January 1, 1998, a nd for a term o f five yea rs. Her term ended on January 1, 2003, notwithstanding the letter to her erroneou sly indicating an earlier termination. If it ended prior to December 16, 2002, it would not satisfy the requirement of a five-yea r term sp ecified in the C harter. Upon that analysis, the court determ ined that, as M s. Mako sky remained in office u ntil at least December 16, 2002, there was no vacancy to be filled prior to then and, accordingly, the County Council s action of November 26, 2002 w as a nullity. Somewhat in conformance with that determination, the court entered a declaratory judgment that Makosky continued -6- in office as a member of the Co mmission until January 1, 200 3" and that the Co uncil s appointment of Bryan as a member of the Comm ission was illegal, null and void. A fter Mr. Bryan dismiss ed anc illary claim s, the court entered a final order, and Mr. Bryan noted an appeal. We granted certiorari prior to proceedings in the Court of Special Appeals. DISCUSSION The resolution of this case is straightforw ard and flows f rom three self-evident and controlling principles: (1) an appointment cannot be made to a public office unless, at the time the appointment is to become effective, there is, or will be, a vacancy in that office; (2) absent some supervening Constitutional or statutory provision to the contrary, an appointing authority cannot validly make an appointment to a public office unless the vacancy to be filled by that appointmen t will, wit h cer taint y, occur at a tim e when the appoin ting authority retains power to make the appointment; and (3) the Coun ty Charter, and not any subo rdinate docum ents, co ntrols th e terms of the m embe rs of the Planni ng and Zonin g Com mission . The first of these prin ciples, in addition to being self-evident, has, in fact, been previously declared by this Court. In Goodman v. Clerk, Cir. Ct., Pr. Geo s Co., 291 Md. 325, 329, 435 A.2d 422, 424 (1981), we held: While, as a rule, an appointment will be presumed to have been validly made in a ccordanc e with the la w, once th e powe r to appoint has been validly exercised, any subsequent appointment to the same office will be void unless the incumbent has been removed or the office has otherwise become vacant. [Citation omitted]. It is axiomatic that two persons cannot occupy the -7- same o ffice a t the sam e time. See also Smoot v . Somerv ille, 59 Md . 84 (1882 ); State ex rel. Gahl v. L utz, 9 N.E.2d 288, 290 (Ohio 1937) ( Where power has been given to appoint to an office and the same has been exercised, any subsequent appointment to the same office will be void unless the prior incumbent has been removed or the office has otherwise become vacant. (quoting Mecham, Public Offices an d Officers, § 113 , p. 46)). We have not had occasion to opine on the second principle, w hich proce eds logically from the first, althoug h it has long been e stablished throughout the country. Courts have recognized, as a general rule, that it is permissible for an appointing authority to make appointm ents prospe ctively, i.e., to announce and put in motion the appointment of a person to fill a prospective vacancy before the vacancy actually occurs, so long as th e vacanc y will, in fact, exist when the new appointme nt becomes effective. The relevant caveat to that general rule which, with certain limited exceptions, is equally well-recognized, is that the vacancy to be filled by the prospective appointment must be certain to exist while the appointing author ity is still emp owere d to fill th e vaca ncy, i.e., a prospective appointment may not be made to fill a vacancy that is not certain to o ccur during the term of office of the appointing authority. The rationale most often expressed for that caveat is that an appointing authority may not usurp the prerogative of its successor by filling a vacancy that will not occur until the successor has taken office and, by virtue of that succession, has itself become vested with th e pow er to ma ke the a ppoint ment. -8- In Mullinax v. Garrison, 373 S.E.2d 471 (S.C. 1988), the members of an appointing body whose terms were set to expire on November 13, 1988, planned to meet prior to that date to make a n appointm ent to fill a vacancy that would not occur until January 1, 1989. The South Carolina S upreme C ourt reverse d an orde r denying a pe tition to enjoin the body from so proceeding, holding: As a general rule, appointments which fill a prospective vacancy in an office before the actual vacancy occurs are valid. [Citations omitted]. However, a legislative body may not usurp the rights of its successor by making a prospective appointment to fill an anticipated vacancy in an office where the a ppointee s term will not begin until after the legislative bod y s own term has exp ired. Id. at 472. Similar holdings, in a variety of diffe rent circumstances, hav e been m ade by courts throughout the cou ntry. See Peo ple v. Fitzger ald, 73 N.E. 55, 56 (N .Y. 1905) ( [A]n appointment to office in anticipation of a vacancy therein is good only in case the officer making the appointment is still in office when the vacancy occurs. ), confirmed in People v. Dethloff, 28 N.E.2 d 850, 85 2 (N.Y. 1 940); State ex rel. Norman v. Viebranz, 483 N.E.2d 1176, 1178 (Ohio 1985) ( Prospective appointments to office are generally deemed to be effective, with this exception: If the term of the app ointing bod y or officer w ill expire prior to or at the same time that the vacancy will occur, then no power of prospective appointment exists. ), citing State ex rel. Morris v. Sullivan, 90 N.E. 146 (Ohio 1909) (stating that [t]he well-settled rule of the common law forbids that an officer clothed with power of -9- appointment to a public o ffice shall fo restall the rights and prerogative of his successor by making a prospective appointment to fill an anticipated vacancy in an office the term of which cannot begin until after his own term and power to appoint have expired. ). 2 McQui llin states the p rinciple s ucci nctly: Ge nera lly, appointments that fill a prospective vacancy in an office before the actu al vaca ncy occu rs are va lid. How ever, a legislative body may not usurp the rights of its successor by making a prospec tive appoin tment to fill an anticipated vacancy in an office whe re the appointee s term will not begin until after the legis lative bo dy s ow n term h as expi red. 3 E UGENE M CQ UILLIN, T HE L AW OF M UNICIPAL C ORPORATIONS, §12.100 (3 rd ed., rev. vo l. 2001). We here confirm that principle. The question then, as noted, is w hether Ms. M akosky s term expired prior to noon on December 2, 2002, when the terms of the County Council m embers ex pired. The Circuit Court was ambiguous in its decision on this point. Relying on the fact that Ms. Mak osky s predecessor, Ms. Ka bler, held ov er in her pos ition until Decembe r 16, 1997, the court seemed 2 See also State ex rel. Eberle v. Clark, 89 A. 172 , 176 (Co nn. 1913 ); People v. Ward, 40 P. 538 (Cal. 1895), confirmed in Morrison v. Michael, 98 Cal. App. 3d 507, 513, 159 Cal. R ptr. 568, 571 (Cal. Ct. Ap p. 1979); Tapp y v. State, 82 So.2d 161, 166 (Fla. 1955); Hansen v. Town of Highland, 147 N.E .2d 221, 22 6 (Ind. 195 8); Dixon v. C audill, 136 S.W . 1043, 104 5 (Ky. 1911 ); Harrod v. Hoover, 272 S.W. 400, 40 1-02 (Ky. 1925); Ivy v. Lusk, 11 La. A nn. 486 (L a. 1856); Faciane v. Bosco, 236 So.2d 601, 606 (La. App. 1970); Pattangall, ex rel. Payson v. Gilman, 98 A. 936, 937 (M e. 1916); State ex rel. Farrer v. McIntosh, 122 N.W. 46 2, 464 (Minn. 19 09); Yerger v. Brown, 45 So. 849, 851 (Miss. 1908); Georgia v. Suruda, 381 A.2d 821, 826 (N.J. Super. Ct. Law Div. 1977) and cases cited th ere; Fowler v. Gillman, 290 P. 358, 363 (Utah 1930), all citing and confirming the rule, but some holding that, under the facts before them, it was not violated. -10- to conclude that Ms. Makosky s five-year term com menced at that point an d thus ran u ntil December 16, 2002. Altern ative ly, the court relied on the statemen t of the County Ma nager, recorded in the minutes of the December 16, 1997, County Council meeting, that Ms. Makosky s appointment w ould be effective Ja nuary 1, 1997, to conclude that her term might not have expired until January 1, 2003. Neither conclusion is valid. The County Ch arter is the con trolling docu ment. It created the Planning and Zoning Commission, required that its five members be appointed by the County Council for terms of five years, directed that the terms of the five members first appointed were to be staggered, but provided no specific commencemen t or ending date for those terms. The holdover Counc il that took office in Dec embe r, 1973, ignored the Charter mandate, for it made no appointm ents to the Commission, as required by §§ 404 and 906. The first effective appointm ents made pursuant to the Charter were those made on December 3, 1974 which, according to the minutes of that meeting, were effective immediately. The general rule, which we have followed, is that, if a law sets forth a date for the commencement of a term of office, the term commences on that date, regardless of when appointments are actually made or the app ointees forma lly qualify. See Dyer v. Bayne, 54 Md. 87 (1880). Where, as here, the controlling law does not e stablish or ev en imply such a date, courts have reached different conclusio ns as to the c ommen cement d ate, usually depending on the particular legal and factual setting. Some have looked to the date of appointm ent, others to the date the appoint ee form ally qualif ies. See generally 3 M CQ UILLIN, -11- supra, §12.99 . Compare People v. Hamrock, 222 P. 391 (Colo. 1 924) and Boyd v. Huntington, 11 P.2d 3 83 (Cal. 1932) (fix ing comm enceme nt date as the date when the law creating the office took ef fect). The problem w ith fixing one time or another, immutably and generically, is that situations may vary to the point of making the selected time inappropriate in the particular circumstance. Where th e enabling statute that created the office is silent as to the commencement of the term, gives no indication as to the intent of the legislative body in that regard, but, other than fixing the duration of the term, leaves it to an appointing authority to make the appointments, we think that the first and primary resort must be to the intent of the appointing authority, if one ca n be dis cerned . See Attorney-General, ex rel. Haight v. Love, 39 N.J.L. 476 (N.J. 1877 ) ( The be ginning o f a term of office ou ght not to be left to the w ill of the off icer himself . ); Talmad ge v. Cord ell, 146 S.E. 467, 471 (Ga. 1928) ( Even in the absence of legislation fixing the beginning of the term, the appointing power is clothed with the power to fix the beginning of the term of the first appointee; and thereafter all subsequent terms a re to con form to the beg inning of the te rm of th e first ap pointee . ). Here, such an intent is, indeed, discernible. The Co unty Coun cil made all of the initial appointm ents under the Charter on the same day December 3, 1974 and declared that those appointments were effective immediately. There is no indication of an intent to delay the commencement of the term to any future date, either fixed or based on when the appointees formally qualified. Acco rdingly, those initial a ppointme nts necessa rily -12- established the actual terms as commencing on December 3, and as extending until midnight at the end of December 2 of the respective years following, as dictated by the initial stagge red term s. No subsequent pronouncements by Council members, Commission members, or administrative personnel regarding when terms began or ended can affect the termination dates unalterably set b y application of the Charte r to the terms in itially fixed by the first appointments. Nor can the fact that Ms. Kabler held over until December 16 change the beginning or ending date of the term. Her term expired at midnight on December 2-3, and, at that poin t, there w as a lega l vacan cy. See State v. Amos, 133 So. 623, 625 (Fla . 1931). Ms. Mako sky s appointm ent to fill that vacancy was for the unexpired term of five years commencing December 3, 1997, and extending until midnight separating December 2-3, 2002. As the terms of the 1998-2002 County Council expired at noon on December 2, 2002, and as Ms. Makosky s term extended until midnight, th ere was n o vacanc y for that Cou ncil to fill prior to the expiration of their respective terms. It is for that reason that the purported appointmen t of M r. Bryan w as a n ullity. JUDGMENT OF CIRCUIT COURT FOR TALBOT COUNTY VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO ENTER NEW DECLARATORY JUDGMENT IN CONFORMANCE WITH THIS O PINION ; COSTS TO BE PAID BY APPELLANT. -13-
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