Duckworth v. Deane

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IN THE COURT OF APPEALS OF MARYLAND No. 101 September Term, 2004 _________________________________________ ROB ERT P . DUC KWO RTH , et al. v. GITA NJAL I DEA NE, et al. __________________________________________ Bell, C.J. Raker Cathell Harrell Battaglia Eldridge, Jo hn C. (Re tired, Specially Assigned) Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ. __________________________________________ Opinion by Eldridge, J. _________________________________________ Filed: July 28, 2006 These appeals are from a judgment of the Circuit Court for Baltimore City in which the Circuit Court denied three motions to intervene in an action challenging the constitutiona lity of a Maryland statute. The statute, Maryland Code (1984, 2004 Repl. V ol.), § 2-201 of the Family Law Article, states: Only a marriage between a man and a w oman is valid in this State. The case at bar presents no issue as to the constitutionality of § 2-201. Instead, the issues in these appeals con cern only the m atter of in terventi on. On March 11, 2005, we issued an order affirming the judgment of the Circuit Court denying intervention. This opinion sets forth the reasons for that affirmance. I. The case began on July 7, 2004, when nineteen plaintiffs filed a complaint in the Circuit Court for Baltimore City against the Clerks of the C ircuit Co urts f or Baltim ore C ity, Prince George s County, St. Mary s County, Washington County, an d Do rche ster C ounty. The complaint identified the plaintiffs as nine Maryland lesbian and gay couples and one Maryland gay man. Four of the couples res ided in Ba ltimore City; three of them re sided in Prince George s County; one couple resided in Dorchester County, and the gay man resided in Washington County. As to the ninth couple, the complaint stated that one resided in St. Mary s County and the other resided in Costa Rica. The complaint alleged that each of the nine couples applied to the defendant Clerks of Court in Baltimore C ity, Prince George s Coun ty, Dorchester County, or St. Mary s County for a marriage lice nse subm itting all of the paperw ork and f ees necess ary to obtain -2a marriage license, but that each of the Clerks of Court refused to issue a marriage license . . . for the sole reason that [the applicants] are a same-sex couple. The complaint also stated that the Washington County resident seeks the right to marry a person of the same sex, but that the office of the Washington County Circuit Court Clerk will not issue marriag e license s to sam e-sex c ouples . The complaint went on to allege numerous disadvantages which the plaintiffs purported ly suffered by not being able to marry. The plaintiffs asserted that § 2-201 of the Family Law Article violated Articles 46 and 24 of the Maryland Declaration of Rights.1 The plaintiffs sought a declaratory judgment that § 2-201 was in violation of Articles 46 and 24, and an injunction [e]njoining Defendants from refusing to issue marriage licenses to Plaintif f coup les or oth er same -sex co uples b ecause they are sa me-sex couple s. The defendants, represented by the Attorney General of Maryland, filed an answer which, inter alia, admitted that § 2-201 does not permit the issuance of a [marriage] license to same sex couples, admitted that the defendants will not issue marriage licenses to same 1 Article 46 of the Declaration of Rights provides as follows: Article 46. Equality of rights not abridged because of sex. Equality of rights under the law shall not be abridged or denied because of sex. Article 24 of the Declaration of Rights states: Article 24. Due process. That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. -3sex couples, a nd denied that § 2-20 1 violates the Maryland C onstitution. T he defen dants requested that the Circuit Court deny the injunc tive relief sought and enter a d eclaratory judgment that § 2-20 1 is constitution al under A rticles 46 and 24 of the Maryland Decla ration o f Righ ts. As mentioned earlier, three separate motions to intervene were filed in the case. The first was filed by the appellant Robert P. Duckworth, Clerk of the Circuit Court for Anne Arundel County, who sought intervention represented by his ow n privately retaine d counse l. Duckworth asserted that he had a right to intervene because he is charged with issuing marriage licenses an d, [i]f plaintif fs are succ essful, this Court w ill create unce rtainty with regard to Mr. Duckworth s conduct of his office and, whether or not he complies with this Court s order, he would be subject to poten tial civil and crim inal claims. D uckwo rth characterized this as a personal interest. Alternatively, Duckworth sought permissive intervention because (1) his defense to the relief sought by the Plaintiffs has a question of law in common with the instant action; (2) the statute subject to review in this action affects him personally; and (3) Plaintiffs action relies for ground of claim or defense on a constitu tional pr ovision affect ing M r. Duck worth . Duckw orth alleged that he believes each of the Cou rt Clerks sue d in this action is sympathetic to Plaintiffs cause, that the defendants are represented by the Attorney General s Office, and that Duckworth and his counsel . . . doubt that office s commitment to the defense of traditional marriage in Maryland. Duckworth raised one argument which had not been raised by the Attorney General representing the defendants, namely -4Duckwo rth s contention that the Circuit Court for Baltimore City lack[ed] subject matter jurisdiction to rule upon the constitutionality of § 2-201 of the Family Law Article. The second motion for intervention was filed by eight members of the General Assembly of Maryland. Five were mem bers of the Hou se of Delegates an d three were members of the Senate, and they sought intervention represented by their privately retained counsel. They also claimed that they had a right to in tervene, and, alternatively, they sought permissive intervention. The eight General Assembly members expressed doubt about the Attorney General s commitment to the defense of . . . § 2-201, and they indicated that their interest in their legislative authority wo uld not be adequately represented by the Attorney General. The eight members claimed an interest in the subject matter, stating: As legislativ e supp orters of . . . § 2-201 and the policy w hich it reflects, Intervenor s ability to regulate m arriage will be affected by this case. Intervenors have an official interest to intervene here where their legislative authority to regulate marriage is threatened by encroach ments proscribed by the separation of powers provision of the Maryland Cons titution . . . . If the Co urt find s . . . § 2-201 unconstitutio nal, Intervenors have an interest in appealing that decisio n. The legislators went on to suggest that a judicial decision invalidating § 2-201 of the Family Law Article would be a judicial en croachm ent upon the authority of the General Assemb ly and would violate the separation of powers principle contained in Article 8 of the Maryland Declaration of Rights.2 Like the argument in the Duckworth motion, the eight 2 Article 8 of the Declaration of Rights states as follows: (continued...) -5members of the General Assembly contended that the Circuit Court for Baltimore City lacks subject matter jurisdiction to decide the constitutionality of § 2-201 of the Family Law Article. The eight legislators also suggested that the Attorney General would not raise this jurisdictional issue. The third motion to intervene was filed pro se by Toni Marie Davis, a resident of Baltimore City, who also claimed a right to intervene and, alternatively, sought permissive intervention. Davis ass erted that the out come of this action will affect n ot only m y everyday life, but th e everyday lives o f every residen t in Maryland . Davis co ntinued: [T]he homosexual life style is against my religion, which is protected under the first Amendment of the U. S. Constitution. And the out come of this case w ill affect my ability to pr otect my religious beliefs and interest in not allowing a person or group o f people to force me to ackno wledg e [their] chosen way of li ving, [th eir] life style . The Circuit Court, by two orders filed on September 21, 2004, and one order filed on September 30, 2004, denied all three motions to intervene. Mr. Duckworth, the eight legislators, and Ms. Davis all filed timely notices of appeal to the Court of Special Appeals. Prior to argument in the Court of Special Appea ls, this Court issu ed a writ of certiorari. Duckworth v. Deane, 384 Md. 448 , 863 A.2d 997 (2004). 2 (...continued) Article 8. Separation of powers. That 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. -6II. Maryland Rule 2-214 provides in pertinent part as follows: Rule 2-214. Intervention. (a) Of right. Upon tim ely motion, a pe rson shall be permitted to intervene in an action: (1) when the person has an unconditional right to intervene as a matter of law; or (2) when the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical m atter impair or impede th e ability to protect that interest unless it is adequately represented by existing parties. (b) Permissive. (1) Generally. Upon timely motion a person may be permitted to intervene in an action when the person s claim or defen se has a questio n of law or fact in comm on with the actio n. *** Duckwo rth s argument in this Court, that his motion to intervene should have been granted, is based up on the interv ention-of-rig ht provision in Rule 2-214(a) and upon the Dec laratory Judgment Act, Maryland Code (1974, 2002 Repl. Vol.), § 3-405 of the Courts and Judicial Proceedings Article.3 On appeal, Duckworth does not rely on the permissive intervention 3 Section 3-405 of the Courts and Judicial Proceedings Article provides as follows: § 3-405. Parties; Attorney General (a) Person who has or claims interest as party. (1) If declaratory relief is sought, a person who has or claims any interest which would be affected by the declaration, shall be made a party. (2) Except in a class action, the declaration may not prejudice the rights of any person not a party to the proceeding. (b) Municipality or county as party. In any proceeding which involves the (continued...) -7provision of Rule 2-214 (b). Moreover, Duckworth makes it clear that he does not desire to intervene with representation by the Attorney G eneral. Instea d, he insists that he had a right to intervene with his own privately retained counsel. Duckworth argues that he has an interest in the matter, within the meaning of Rule 2-214(a), because, as a Clerk of a Circuit Court, he is involved in the issuance or refusal to issue marriage licenses, and because, according to his oath of office, he must do so in accordance with the Maryland Constitution. Duckw orth states that, if he declines to issue marriage licenses to same sex couples, he might be subject to criminal or civil actions wh ich might result in criminal or civil penalties or damages. He repeatedly labels this asserted interest as personal. Consequently, the issue in Duckworth s appeal is not the broad one of whether he had a right to interven e. Rather, as acknowledged by Duckworth s counsel at oral argument before us, the only issue is the narrower one of whe ther Duckw orth had a right to intervene represen ted by his ow n privately retained co unsel. The eight members of the General Assembly argue that they had a right to intervene pursuant to Rule 2-214(a)(1) and (2), that, alternatively, the trial court abused its discretion in denying permissive intervention, and that as a third alternative, the Declaratory Judgment 3 (...continued) validity of a municipal or county ordinance or franchise, the municipality or county shall be made a party and is entitled to be heard. (c) Role of Attorney General. If the statute, municipal or county ordinance, or franchise is alleged to be unconstitutional, the Attorney General need not be made a party but, immediately after suit has been filed, shall be served with a copy of the proceedings by certified mail. He is entitled to be heard, submit his views in writing within a time deemed reasonable by the court, or seek intervention pursuant to the Maryland Rules. -8Act, Code (1974, 2002 Repl. Vol.), § 3-405(a) of the Courts and Judicial Proceedings Article, mandates that intervention be granted. (Brief of the legislator ap pellants at 14). 4 The legislators argument based on the Declaratory Judgment Act was not made in the trial court, an d is adv anced for the f irst time o n appe al. The eight mem bers of the General A ssembly claim that they had a right to intervene because the Le gislature ha[s] p lenary po wer ov er the su bject m atter of m arriage contrac ts, and that individual legislators must have a right to intervene...to protect their legislative author ity. (Id. at 4). The leg islators state that th ey have an affected in terest in defending the policy an d the co nstitution ality of . . . § 2-201 as a valid exercise of legislativ e pow er. (Id. at 6). The eight General Assembly members contend that the existing parties and the Attorney General might not adequately represent the legislators interest because the Attorney General is not raising the questions o f subject m atter jurisdiction, ju sticiability and separation of pow ers. (Id. at 9). They also suggest that the existing parties, represented by the Attorney General, may not appeal from an adverse decision by the trial court. The legislators alternative argument, that the trial court abused its discretion in denying permissive intervention, is based on the same contentions underlying their argument concerning a right to intervene under Rule 2-214(a). It should be noted, as pointed out by the appellees, tha t none of th ese eight leg islators was a member of th e Genera l Assemb ly when § 2-201 of the Family Law Article was enacted by Ch. 213 of the Acts of 1973. Moreover, neither the General Assembly, nor either house of the General Assembly, nor the 4 See n.3, supra. -9presiding officers of the General Assembly have authorized the eight legislators to intervene in the litigation. On appeal, Toni Marie Davis s argument is essentially the same as the argument set forth in her motio n to intervene, namely that the outcome of the litigation will affect her and all other residents of Maryland, that the homosexual life style is against my religion, which is protected under the first Amendment of the United States Constitution, and that the outcome of the case will affect my ability to protect my . . . religious beliefs in not allowing a person or group of people to force me to acknowledge [their] . . . way of living. (Brief of Toni Marie D avis at 5). III. A. With regard to D uckwo rth s appea l, even if it could be assumed arguendo that he had a right to intervene, it is clear that he had no right to intervene by his privately retained counsel. In light of Duckworth s description of his interest and his allegations, any right of intervention, which he might have had, would have been intervention represented by the Attorney General of Maryland. Nonetheless, Duckworth has consistently disclaimed any desire for inte rvention w ith representa tion by the Atto rney Gener al. Maryland Code (1984, 2004 Repl. V ol.), § 6-106 (b) and (c) of the State Government Article, provides as follows: (b) Counsel for officers and units. Except as otherwise provided by law, the A ttorney Gene ral is the legal adviser of and shall represent and otherwise perform all of the lega l work fo r each off icer and un it of -10the State govern ment. (c) Other couns el gene rally pro hibited. Except a s provided in subsection (d) of this section or in any other law, an officer or unit of the State government may not employ or be represented by a legal adviser or counsel other than the Attorney General or a designee of the Attorn ey Gene ral. Judge Marvin Smith for this Court, in commenting upon the role of the Attorney General under the Cons titution and the above-quoted statutory provision, emphasized (State v. Burning Tree Club, 301 Md. 9, 34, 37 , 481 A.2d 785 , 794, 796 (1984)): It is clear from the c onst itutio nal a nd st atuto ry provisions which we have cited that the Attorney General is first and foremost the lawyer of the State. His duties include prosecuting and defending cases on behalf of the State in order to promote and protect the State's policies, determinations, and rights. H e is the legal advisor to all State departme nts and agencies other than those for which specific exception is made by statute. *** We hold that under the Constitution and statutes of Maryland the Attorney General ordinarily has the duty of appearing in the courts as the def ender o f the va lidity of en actmen ts of the Gene ral Ass embly. Although there are several exceptions to the statutory requirement that an officer . . . of the State government may not employ or be represented by a legal adviser or counsel other than the Attorney General (§ 6-106(c)), none of the exceptions is applicable under the circumstances of this case. Nevertheless, Duckworth attempts to circumvent the legal requirement of -11representation by the Attorney General by calling his asserted interest in the litigation perso nal. Duckworth s interest, however, as described in his motion to intervene and briefs, relates entirely to the performance of h is duties as a state official. Duckw orth s interest is wholly base d upon h is statutory responsibility, as Clerk of the Circuit Court for Anne Arundel County, over the issuance of marriage licenses. He is in the same position as the defendant Clerks of the Circuit C ourts for B altimore C ity, Prince Geo rge s Cou nty, St. Mary s Cou nty, and Dorchester County, except that there were no allegations that any of the plaintiffs, or any other same-sex couple, had applied to Duckworth for a marriage license and ha d been refuse d a ma rriage lic ense. Duckwo rth s attempt to evade § 6-106(b) and (c) of the State Government Article, by calling his interest pe rsonal, is disin genuou s. An indiv idual acting personally has no legal authority to issue a marriage license in Maryland. See §§ 2-401 and 2-402 of the Family Law Article. Section 6-106(b) and (c) of the State Government Article is dispositive of Duckworth s attempt to intervene with privately retained counsel. Duckworth s calling his interest personal does not render § 6-106(b) and (c) inapplicable.5 B. The arguments advanced by the eight legislators and Toni Marie Davis provide no 5 Duckworth s argument is similar to one, although in a different context, made to and rejected by our predecessors more than a century ago (Boyland v. State, 69 Md. 511, 512, 16 A. 132, 133 (1888)): The real and only question presented to us is whether the appellant can legalize an illegal act by calling it by another name, and that all the courts of justice in the land are bound to regard the act itself what he may choose to call it. -12basis for reversal of the Circuit Court s orders denying intervention.6 (1) The legislators reliance on Rule 2-214(a)(1), permitting intervention when the person has an unconditional right to intervene as a matter of law, is misplaced. We have pointed out on several occasions that Rule 2-214 was based on Rule 24 of the Federal Rules of Civil Procedure, and that intervention decision s under R ule 24 . . . serve a s a guide to interpreting the Maryland intervention rule. Coalition v. Annapolis Lodge, 333 Md. 359, 368 n.1 0, 635 A .2d 412 , 418 n. 1 0 (199 4), and c ases the re cited. The federal counterpart to Maryland Rule 2-214(a)(1) is Rule 24(a)(1) of the Federal Rules of C ivil P roce dure , which a pplies on ly when a s tatut e or o rdinance spec ifica lly confers an unrestri cted righ t to interv ene in a particul ar type of case. See, e.g., Allen Calculators, Inc. v. National Cash Register Co., 322 U.S. 137, 64 S .Ct. 1257, 88 L.Ed. 11 88 (1944); Equal Employment Opportunity Commission v. American Telephone Co., 506 F.2d 735 (3 rd Cir. 1974). This Court s opinion in Departm ent of State Planning v. Hagerstown, 288 Md. 9, 11, 415 A.2d 296, 298 (1980), concerning a statute providing that the Department of State Planning shall [h]ave the right and authority to intervene in and become a party to any administrative, judicial, or othe r proceedin g in the State concerning land use etc., illustrates the type o f situatio n conte mplate d by Rul e 2-214 (a)(1). No Maryland statute has been called to our attention which specifically confers upon 6 Some of these same arguments are also made by Duckworth, and our rejection of some of the arguments furnishes an alternative ground for affirming the denial of Duckworth s motion to intervene. -13any of the appellants an unrestricted right to intervene in a case such as the present one. Accordingly, Rule 2-214(a)(1) furnished no basis for intervention by the appellants. (2) Turning to intervention of right pursuan t to Rule 2-214(a)(2), an applicant for intervention must claim an interest in the subject of the action such that the disposition of the action may im pair or im pede the applican t s ab ility to protect that interest. In addition, intervention is permitted o nly if that interest m ight not be a dequately represented by existing parties. Both requirements must be met for inte rvention un der Rule 2-214 (a)(2). See e.g., Board of Trustees v. City of Baltimore, 317 Md. 72, 88-90, 562 A.2d 720, 727-72 9, cert. denied, 493 U.S . 1093, 110 S.Ct. 1167 , 107 L.Ed .2d 1069 (1989); Citizens Coordinating Comm. v. TKU, 276 M d. 705, 7 12-71 3, 351 A .2d 133 , 138 (1 976). The eight legislators and Toni M arie Davis f ailed to show that either requ irement w as met. Rule 2-214(a)(2) s requirement of an interest in the transaction that is the subject of the action, which may be affected by the disposition of the action, means something more than an applicant s generalized interest in participating in the formulation of a constitutional [or legal] standard, to which the [applicant for intervention] may be subjected, Montgomery County v. Bradford, 345 Md. 175, 199, 691 A.2d 1281, 1293 (1997). The disposition of the action must directly impact upon the applicant s interest; concerns [which] are indirect, rem ote, and spe culative are insufficien t. Ibid. See also Chapman v. Kamara, 356 Md. 42 6, 445, 739 A.2d 387, 397 (1999 ) (The applicant s interest in the [action] is neither speculative nor contingent on the happening of other events. The -14resolution of the [action] has a direct effect on [the applicant s] position in another pending lawsuit). Moreover, for intervention under Rule 2-214(a)(2), the applicant s interest must be such that the a pplican t has stan ding to be a pa rty. Coalition v. Annapolis Lodge, supra, 333 Md. at 368, 370 , 635 A.2d at 416-41 7. A perso n s standing to be a party in a la wsuit ordinarily requires that the outcome of the lawsuit might cause the person to suffer [ ] some kind of special damage . . . differing in character and kind from that suffered by the general public. Medica l Waste v. M aryland W aste, 327 Md. 596, 613, 612 A.2d 241, 249 (1992) (internal quotation marks omitted), and cases there cited. The interest of the eight legislato rs and Toni Marie Davis in the litigation is no different from the interest of the general public. They would be no more affected by an adverse decisio n than a ny residen t of M aryland. This wa s acknow ledged by M s. Davis who argued in the trial court and on appeal that the outcome of the action will affect not only my everyda y life, but th e everyday lives of every resi dent in M aryland. The eight legislators asserted interest is based on the General Assem bly s authority to enact statutes regulating marriage. It is true that the General Assembly as an institution may have an interest in a case like this which differs from the interest of the general public. Nevertheless, an individual member of the General Assembly, or eight out of a total of 188 members, 7 ordinarily have no greater legal interest in an action challenging the 7 Article III, § 2, of the Maryland Constitution provides: Section 2. Membership of Senate and House of Delegates. (continued...) -15constitu tionality of a statute than oth er Ma ryland res idents h ave. In Raines v. Byrd, 521 U.S. 811, 829-830, 117 S.Ct. 2312, 2322, 138 L.Ed.2d 849 (1997), holding that six members of Congress lacked standing to challenge the constitutiona lity of an A ct of Con gress, the U nited States Supreme Court explained (footnotes omitted): In sum, appellees have alleged no injury to themselves as individuals, the institutional injury they allege is wholly abstract and widely dispersed, and their attempt to litigate this dispute at this time and in this form is contrary to historical experience. We attach some importance to the fact that appellees have not been au thorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit. We also note that our conclusion neither deprives Members of Congress of an ad equate remedy (since they may repeal the Act or exempt a ppropriation s bills from its reach), nor f orecloses th e Act from constitutiona l challenge (by someone who suffers judicially cognizable injury as a result of the Act). Whether the case would be different if any of these circumstances w ere different we need not now decide. We therefore h old that these individual members of Congress do not have a sufficient personal stake in this dispute and have not alleged a sufficiently concrete injury to have established Article III standin g. Relying on Raines v. Byrd, supra, and the absen ce of any state s tatute expres sly granting state legislators a right of intervention to defend the cons titutionality of a state statute, the United States Court of Appea ls for the Eig hth Circuit in Planned Parenthood of 7 (...continued) The membership of the Senate shall consist of forty-seven (47) Senators. The membership of the House of Delegates shall consist of one hundred forty-one (141) Delegates. -16Mid-Missouri and Eastern Kansas v. Ehlmann, 137 F.3d 573 (8 th Cir. 1998), held that ten Missouri state legislators were not entitled to intervene in a suit challenging the constitutiona lity of a M issouri statute. See also Baird v. Norton, 266 F.3d 408 (6 th Cir. 2001); Hernandez v. Robles, 5 Misc.3d 1004, 798 N.Y.S.2d 710 (N.Y. 2004) (members of state legislature lack ed sufficie nt interest to intervene in an action challenging the constitutionality of a state statute denying marriage licenses to sam e-sex couples). In addition, the e ight legislators re liance upo n the Declaratory Judgment Act, § 3405(a) of the Courts and Judicial Proceedings Article,8 is misplaced for alternative reasons. First, the argument was not made by the legislators in the trial court, and th us is not prope rly before us. See Maryland Rule 8-131(a). Second, for the reasons set forth above, the legislators do not have an interest which would be affected by the declaration within the meaning of § 3-405(a)(1) of the Courts and Judicial Proceedings Article. Furthermore, even if the appellants had met the interest requirement of Rule 2214(a)(2), none of the appellants meet the additional requirement of the Rule that their interest may not be adequately represented by existing parties. While appellants assert that the Attorney General and the existing defendants are sympathetic to plaintiffs cause, the assertion amounts to pure speculation, is unsupported by the record, is denied by the Attorney General and the defendants, and furnishes no legal basis for holding that the representation by existing parties may be inadequate. The appellants assert that the Attorney General and the existing defendants might not 8 See n.3, supra. -17appeal from an adverse trial court decis ion. This ass ertion is not su pported b y anything in the record and is f latly denie d by the A ttorney G eneral a nd the e xisting d efend ants. In addition, if it had turned out that the existing defendants had decided not to appeal from an adverse trial court decision, a perso n with stan ding could have interv ened after the judgm ent, but before the time for appeal expired, for pu rposes of app ealing f rom the judgm ent. See Coalition v. Annapolis Lodge, supra, 333 Md. at 36 6-371, 635 A .2d at 415-418 ( [W ]here the losing party decides not to appeal, the cases have upheld post-judgment intervention for purposes of appea l when the applicant h as the requis ite standing a nd files the m otion to intervene promptly afte r the losing p arty decides ag ainst an app eal ); Board of Trustees v. City of Baltimore, supra, 317 Md. at 91-92, 562 A.2d at 729. It should be noted that, after our affirman ce of the trial c ourt s orders denying the m otions to intervene, a judgment on the merits adverse to th e defend ants was e ntered, and the defendants, represented by the Attorney General, have appealed. That appellate proceeding is now pending. Lastly, the appellan ts contend th at representa tion by the Atto rney Gener al and the existing defendants is inadequate because the Attorney General is not arguing that the trial court lacks subject matter jurisdiction. Appellants contend that, under the separation of powers principle embodied in Article 8 of the Maryland Declaration of Rights, the judiciary has no jurisdiction to rule upon the constitutionality of a General Assembly statute regulating marriage. The appellants state that, if allowed to intervene, they will raise this jurisdictional argumen t. The appellants jurisdictional ar gument, h oweve r, is frivolous. Thus, it provides no gro und fo r conclu ding th at repre sentatio n by existin g parties may be in adequ ate. -18A year before th e Suprem e Court s o pinion in Marbury v. Madison, 1 Cran ch 137 , 2 L.Ed. 60 (1803), the General Court of Maryland in Whittington v. Polk, 1 H. & J. 236 (18 02), held that the judiciary was authorized to rule upon the constitutionality of any enactment by the General Assembly. Chief Judge Jeremiah Townley Chase for the Court explained (1 H. & J. at 242-24 3): The Bill of Rights and form of government compose the Constitution of Maryland, and is a compact made by the people of Maryland among themselves, through the agency of a convention selected and appointed for that important purpose. This compact is founded on the principle that the people being the source of pow er, all government of right originates fro m them. In this compac t the people have distributed the powers of government in such manner as they thought would best conduce to the promotion of the general happiness; and for the attainment of that all-important object have, among other provisions, judiciously deposited the legislative, judicial and executive, in separate an d distinct hands, subjecting the functionaries of these powers to such limitations and re strictions as they tho ught fit to prescribe. The Legislature, being the creature of the Constitution, and acting within a circumscribed sphere, is not omnipotent, and cannot rightfully exercise any power, but that which is derived from that instrumen t. The Constitution having set certain limits or land-marks to the power of the Legislature, whenever they exceed them they act without auth ority, and such acts are mere nullities, not being done in pursuance of power delegated them: Hence the necessity of some power under the Constitution to restrict the A cts of the L egislature w ithin the limits defined by the Constitution. The power o f determin ing finally on the valid ity of the acts of the Legislature cannot reside with the Legislature, because such power would defeat and render nugatory, all the limitations and restrictions on the authority of the Legislature, contained in the B ill of Rights and form of gover nment, an d they wou ld become judges of the validity of their own acts, which would establish a despotism, and subvert that great principle of the Constitution, which declares that the powers of making, -19judging, and exec uting the law , shall be separate and distinct from each other. Chief Judge C hase continued (1 H & J at 244-245 ): It is the office and province of the Court to decide all questions of law which are judicially brought before them, according to the established mode of proceeding, and to determine whether an Act of the Legislature, which assum es the appearance of a law, and is clothed w ith the garb of authority, is made pursuant to the power vested by the Constitution in the Leg islature; for if it is not the result of emanation of authority derived fro m the Co nstitution, it is not la w, and cannot influence the judgment of the Court in the decision of the question before them. The oath of a Judge is that he will do equal right and justice according to the law o f this State, in every case in which he shall act as Judge . To do righ t and justice according to law, the Judge must determine what the law is, which necessarily involves in it the right of examining the Constitution, (which is the supreme or paramount law, and under which the Legislature derive the only authority they are invested with, of making laws,) and considering whether the Act passed is made pursuant to the Constitution, and that trust and authority which is delega ted th ereb y to the leg islati ve body. The three great powers or departments of governme nt are independent of each other, and the Legislature, as such, can claim no superiority or pre-eminence over the other two. The Legislature are the trustees of the people, and, as such, can only move within those lines which the Constitution has define d as the bo undaries o f their auth ority, and if they should incaut ious ly, or unadvisedly transcend those limits, the Constitution has placed the judiciary as the barrier or s afe-guard to resist the oppression, and redress the injuries which might accrue from such in adverte nt, or un intentio nal infr ingem ents of the Co nstitution . The principle of judicial review for constitutionality, set forth in Whittington v. Polk, supra, and Marbury v. Madison, supra, has been reaffirmed by this Court on countless -20occasions. See, e.g., Insuranc e Com missioner v. Equitab le, 339 Md. 596, 617, 664 A.2d 862, 873 (1995); Attorney General v. Waldron, 289 Md. 683, 690, 426 A.2d 929, 933-934 (1981); Perkins v. Eskridge, 278 Md. 61 9, 624-62 6, 366 A .2d 21, 24-2 6 (1976); University of Md. v. Williams, 9 G. & J. 365, 410-412 (1838). Since there is utterly no merit in the appellants jurisdictional argument, the Attorney General s refusal to make the argument furnishes no basis for intervention by the appellants. For all of the above-discussed reasons, this Court affirmed the C ircuit Court s judgment denying the appellants motions for intervention.

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