Per Curiam Order September 25, 1974.
PER CURIAM ORDER:
For reasons to be stated in an opinion to be filed later, it is this 25th day of September, 1974
ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the final decree and order of the Circuit Court for Montgomery County, filed August 29, 1974 be, and it is hereby, affirmed with costs; and it is further
ORDERED, that the mandate be issued forthwith.
The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.
Richard S. McKernon, County Attorney, with whom were Alfred H. Carter, Deputy County Attorney, John B. Walsh, Jr., and Suzanne Levin, Assistant County Attorneys, on the brief, for appellant.
Amicus Curiae brief filed by Prince George's County, Maryland, Joseph S. Casula, County Attorney, and Ellis J. Koch, Associate County Attorney, on the brief.
James C. Chapin for appellees.
In July 1974, Montgomery County enacted three ordinances designed to regulate the campaign finance practices of candidates for County Executive and the County Council in that county. The ordinances provided for the reporting of campaign contributions, a ban on corporate contributions, a limit on contributions from individuals and from candidates to their own campaigns, and a limit on campaign spending. The respondents, on August 15, 1974, filed a bill of complaint in the Circuit Court for Montgomery County requesting a declaratory judgment that the three ordinances were invalid and seeking an injunction prohibiting prosecutions under the ordinances. They alleged that the county had not been delegated authority by the General Assembly to enact the ordinances, that the field of regulation of election practices had been completely occupied by the General Assembly in enacting the State Election Code, that the ordinances conflicted with specific provisions of the State Election Code, and that enactment of the ordinances violated the Federal Constitution. On August 29, 1974, the circuit court (McAuliffe, J.) issued a decree declaring the challenged ordinances invalid. The petitioner then took an appeal to the Court of Special Appeals. Because of the importance of the issues involved in the case and the necessity of a decision before the general election in November 1974, we issued a writ of certiorari prior to a decision by the Court of Special Appeals. On September 25, 1974, by a per curiam order, we affirmed the order of the Circuit Court for Montgomery County. We now set forth the reasons for our affirmance.
County Council Bill No. 16-74 was enacted on July 16, 1974, and became effective when signed by the county executive on July 25, 1974. Section 2 of Bill 16-74 contained all of its substantive provisions. Specifically, § 2 limited campaign spending for county executive candidates to $.25 per registered county voter in the primary and to the same amount in the general election. Candidates for county council were limited to an expenditure of $.05 per voter in each election. Political committees not "in sole support" of a particular candidate for county executive or county council were limited to an expenditure of $.075 per voter in each election.
Bill 16-74 also limited personal contributions by a candidate to his or her own campaign to $5,000 for county executive and $2,500 for county council candidates. Finally, Bill 16-74 provided that violation of its provisions constituted a misdemeanor, punishable by a fine of $1,000 or 6 months in jail, by suspension or removal from office, or by any combination of these.
Bill No. 37-74 was enacted on July 16, 1974, and signed on July 30, 1974. It amended the part of the Montgomery County Code which had been enacted one week before as Bill 19-74. Bill 37-74 provided that during the final two weeks preceding an election, a report of any expenditures or obligation for an expenditure in excess of $1,000 by a candidate or political committee supporting his candidacy must be filed within 24 hours of its occurrence at the same place required by Art. 33, § 26-11, of the Maryland Code.
In an oral opinion, Judge McAuliffe held that the County Council had not been delegated the authority under the Express Powers Act to enact the election ordinances here involved.
We agree with the circuit court that the General Assembly, by enacting the comprehensive State Election Code, has completely occupied the field of regulation of campaign finances and thus made clear its intent to exclude local legislation on the subject.
Petitioner urges that the ordinances here involved are valid because a charter county, if authorized by Art. 25A, has concurrent power to enact local legislation dealing with matters covered by state legislation as long as there is no actual conflict with the state law and the General Assembly does not expressly state its intention to preempt the area. Since Art. 33 contains no provision which in express terms denies to local governments the power to enact ordinances dealing with election finances, petitioner argues that the Montgomery County Council had authority to enact the ordinances because there was no actual conflict with an act of the State Legislature.
The concurrent power theory allows local legislation in certain fields where the State Legislature has acted if the local governments otherwise have authority to enact legislation on the subject. The concurrent powers theory was first applied by this Court in Rossberg v. State, 111 Md. 394, 74 A. 581 (1909). The appellant in Rossberg challenged the
The extent of the application of the concurrent powers theory was thoroughly examined in City of Baltimore v. Sitnick & Firey, 254 Md. 303, 255 A.2d 376 (1969). Although the petitioner relies heavily on Sitnick, an examination of that case demonstrates that it does not support petitioner's contention with respect to the election ordinances here involved. In Sitnick, a tavern owner and a hotel owner sought a declaration that a Baltimore City minimum wage ordinance was invalid. They argued that the ordinance conflicted with the State Minimum Wage Act, Code (1964 Repl. Vol., 1968 Supp.), Art. 100, §§ 81-93, and that the State Legislature, by enacting the state statute, had occupied the field of minimum wage regulation and thereby preempted local legislation on the subject. The state law exempted taverns from coverage, while the city ordinance included them. The city law also set a higher minimum wage — $1.40 to the State's $1.30 — at the time of the argument in this Court.
The Court, in a comprehensive opinion by Judge Finan, set forth the limitations on the concurrent power of local governments to supplement state legislation. The Court recognized in Sitnick three grounds on which otherwise valid local legislation may be invalidated because of state
In Sitnick, the Court decided that the city minimum wage law was within the power delegated to the city and that the concurrent power theory was not made inapplicable by any of the three grounds listed above.
Our conclusion that the matter of election campaign financing was intended to be completely occupied by state law, to the exclusion of any local legislation on the subject, is based on an examination of the constitutional and legislative provisions regulating elections in this state.
The constitutional provisions setting forth the State Legislature's duty of protecting the electoral process in Maryland are Article III, §§ 42 and 49. Art. III, § 42, states:
Art. III, § 49, provides:
These provisions demonstrate that the framers of our Constitution contemplated that the regulation of elections would be the province of the State Legislature. The General Assembly has responded to these constitutional directives by enacting a comprehensive State Election Code which is contained in Article 33 of the Annotated Code of Maryland.
In Article 33, the Legislature has provided for the administrative supervision of elections on both a statewide and a local level. The State Administrative Board of Election Laws, whose members are appointed by the Governor with the advice and consent of the Senate, is the body which supervises election practices throughout the state. Among
For each county and Baltimore City, the State Legislature has created a local board of supervisors of elections to conduct elections. Members of these boards are appointed by the Governor, subject to confirmation by the Senate. Each board "shall have charge of and make provisions for all elections to be held in its county or city, or any part thereof at any time" and "shall have power to make all necessary rules and regulations, not inconsistent with this article, with reference to the registration of voters and the conduct of elections." Art. 33, § 2-9 (a), (b). This pervasive state administrative control of the election process, on both the statewide and local levels, is a compelling indication that the General Assembly did not intend that local governments should enact election laws, but rather intended that the conduct and regulation of elections be strictly a state function.
In the specific area of election practices dealt with by the county ordinances, namely the regulation of campaign finance and spending, the General Assembly has enacted extensive legislation. Foremost is subtitle 26 of Art. 33, entitled "Fair Election Practices." Subtitle 26 requires the appointment of treasurers by political candidates and committees, imposes record keeping and reporting duties on the treasurers, limits the amount which can be contributed by candidates and others, prohibits certain practices in the solicitation and use of campaign money, requires the identification of political advertising and the retention of samples of political material.
While we need not, and do not, decide the issue of conflict between the election ordinances here involved and the State Election Code, it is significant that each provision of the county ordinances has a counterpart in the State Election Code. Bill 19-74 prohibits corporate contributions to county executive and county council candidates while § 26-9 (b) of Art. 33 allows such contributions up to a limit of $1,000 per candidate and a total of $2,500 in any election. Bills 19-74 and 37-74 add further contribution and expenditure reporting requirements to those set forth in §§ 26-4, 26-11, 26-12 of Art. 33. Subsections (b) and (c) of Bill 16-74 limit the amount of contributions which a county executive or county council candidate can accept from any single person to a lesser amount than that allowed by Art. 33, § 26-9 (b). Subsection (d) of Bill 16-74 limits the contributions that county executive and county council candidates can
If the county election ordinances were upheld, a dual system of regulating election finances would exist in Montgomery County. It is not difficult to imagine the chaos that such dual regulation would cause. As a result of the definition of a "Political Committee" found in Bill 19-74,
The constitutional and statutory provisions cited above demonstrate that the General Assembly is obligated to enact and has enacted a comprehensive plan for the conduct of elections in Maryland. In particular, the Legislature has enacted detailed provisions governing the financing of election campaigns in this state. This legislation reveals the purpose of the General Assembly to occupy the field of election finances. It is difficult to imagine an area where the Legislature has more "forcibly express[ed] its intent to occupy a specific field of regulation" than in this area.
Our holding is in no way inconsistent with the concurrent powers theory set forth in the Rossberg and Sitnick cases. In Rossberg, additional criminal penalties were provided for a crime that was particularly troublesome in Baltimore City. In Sitnick, a stricter minimum wage law was passed to reflect the higher cost of living in Baltimore City. The control of certain types of criminal conduct and the regulation of working conditions are both areas in which some local control has traditionally been allowed. The regulation of campaign financing is not such an area of traditional concurrent local control. The interrelationship of state and local candidates, tickets, and parties would make such local control very difficult to achieve without interfering with the electoral process established under state law. This case falls within the principle set forth by the Court in Sitnick, that the Legislature may so forcibly express its intent to occupy a specific field of regulation that the acceptance of the doctrine of preemption by occupation is compelled.
Levine, J., dissenting:
I respectfully dissent. I disagree with the majority holding that the General Assembly has preempted the field of campaign finance regulation to the exclusion of otherwise-valid legislation by chartered counties.
The holding of the majority has the effect of overruling sub silentio a long line of cases decided by this Court, by virtually abrogating the doctrine of concurrent powers first enunciated in Rossberg v. State, 111 Md. 394, 74 A. 581 (1909), and consistently reaffirmed by its progeny. The General Assembly has occupied the field of election law legislation with no greater force than it did in the area of minimum wage legislation, which we dealt with in City of
Since I am also of the view that the ordinances were enacted upon properly delegated authority, and are neither in conflict with state law nor in violation of the Federal and State Constitutions, I would reverse the circuit court decree. Judge Singley authorizes me to state that he concurs in this opinion.
The issue of whether the County Council was the proper defendant in an action against Montgomery County was not raised in this action, and we did not consider it at the time we issued our order.