This appeal arises from an action filed by Carmel Realty Associates, respondent,
The following questions are presented for review:
We hold that the City of Baltimore Development Corporation is, in essence, a public body for the purposes of the Open Meetings Act and it is, in essence, an instrumentality of Baltimore City for the purposes of Maryland's Public Information Act. There has been no decision at the trial level regarding the issue of attorney's fees. Accordingly, we decline to address the issue. See generally Stromberg Metal Works, Inc. v. University of Maryland, 395 Md. 120, 909 A.2d 663 (2006).
A. City of Baltimore Development Corporation
The City of Baltimore Development Corporation (the "BDC") was formed in October of 1991 with three members: Claude E. Hitchcock, Lyn W. Townsend, and Arnold Williams. The initial Board of Directors was composed of four individuals: William R. Brown, Jr., Honora M. Freeman, Robert W. Hearn, and Lynette W. Young.
The BDC's stated purpose is:
Amended Articles of Incorporation of the City of Baltimore Development Corporation, ART. FOURTH, October 4, 1991.
B. "The Superblock."
In 1999, the Baltimore City Council enacted an amendment to the Urban Renewal Plan, City of Baltimore Ordinance 99-423, for the Westside section of Downtown Baltimore which was advertised as the largest Urban Renewal Plan since the Inner Harbor revitalization took place. Section 3 of that Ordinance states:
Section 4 of Ordinance 99-423 gives the BDC, "acting pursuant to its contract with the Mayor and City Council,"
On October 27, 2003, the BDC solicited requests for proposals ("RFP's") to develop the Superblock. All of the respondents submitted development proposals to the BDC for the buildings they owned or occupied by February 27, 2004. On October 23, 2004, respondents submitted a written request to the BDC seeking, under Maryland's Public Information Act, access to minutes of meetings of the BDC's Board of Directors, copies of the proposals submitted for the Superblock, and other information in the BDC's possession regarding the proposals. On November 9, 2004, the BDC's President denied the request, writing: "As a separate non-profit corporation, the City of Baltimore Development Corporation is not subject to the Maryland Public Information Act."
On November 16, 2004, all of the respondents, except Carmel Realty, received a letter from the BDC stating that it would contact each of them to arrange a meeting within two weeks of the date of the letter to discuss each respondent's proposal for
On November 18, 2004, respondents submitted a written request to the BDC for information regarding the BDC's Board of Directors' scheduled meetings so that respondents could attend. The record does not contain a response by the BDC to this request. On that same day, the BDC's Board of Directors met and voted unanimously to recommend to the Mayor one entity as the "key developer" for the Superblock. Two other developers were selected to revitalize areas within the Superblock, but Carmel Realty was the only respondent to be selected as a developer.
On November 29, 2004, respondents filed a two count Complaint alleging that the BDC, as the "economic development arm" of Baltimore City, is subject to the provisions of the Open Meetings Act and that, as the City's instrumentality, the BDC is subject to the provisions of Maryland's Public Information Act. On March 14, 2005, the Circuit Court heard arguments on the parties' cross-motions for summary judgment. On June 8, 2005, the Circuit Court issued an Order with a Memorandum Opinion granting petitioner's motion and denying respondent's motion. Respondents appealed to the Court of Special Appeals.
On January 24, 2006, in an unreported opinion, the Court of Special Appeals reversed the judgment of the trial court and found that Maryland's Open Meetings and Public Information Acts applied to the BDC. For the reasons stated below, we affirm the judgment of the Court of Special Appeals.
II. Standard of Review
An appellate court reviews a trial court's grant of summary judgment de novo. Mayor and City Council of Baltimore v. Whalen, 395 Md. 154, 909 A.2d 683 (2006); Rockwood Cas. Ins. Co. v. Uninsured Employers' Fund, 385 Md. 99, 106, 867 A.2d 1026, 1030 (2005). Prior to making a determination as to whether the trial court was correct as a matter of law, the appellate court must make an initial determination as to whether there is a genuine dispute of material fact. Whalen, 395 Md. at 161, 909 A.2d at 688; Jurgensen v. New Phoenix Atlantic Condominium Council of Unit Owners, 380 Md. 106, 114, 843 A.2d 865, 869 (2004). Factual disputes and reasonable inferences drawn from the facts of the case must be resolved in favor of the non-moving party. Whalen, 395 Md. at 161, 909 A.2d at 688; Jurgensen, 380 Md. at 114, 843 A.2d at 869. Only when there is an absence of a genuine dispute of material fact, will an appellate court make a determination as to whether the trial court was correct as a matter of law. Whalen, 395 Md. at 161-62, 909 A.2d at 688; Rockwood, 385 Md. at 106, 867 A.2d at 1030.
The parties do not dispute any material facts for the purposes of determining whether the BDC is a public body under the Open Meetings Act or whether it is an instrumentality of Baltimore City under Maryland's Public Information Act. Therefore, our sole task is to make a determination as to whether the Circuit Court for Baltimore City was correct as a matter of law when it held that the Open Meetings Act and Maryland's Public Information Act do not apply to the BDC.
Eminent domain is the "`inherent power of a governmental entity to take privately owned property . . . and convert
The recent Supreme Court decision Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), has sparked national, state, and local public debate over the eminent domain process. Writing for the dissent in Kelo, Justice O'Connor explained that Court's historical interpretation of the limitations the Fifth Amendment places on the exercise of eminent domain:
Kelo, 545 U.S. at ___-___, 125 S.Ct. at 2672-73 (O'Connor, J. dissenting) (citations omitted) (quotations omitted). It is clear in the present case that the BDC functions as part of the exercise of the City's powers of eminent domain.
We are mindful that the issues discussed by Justice O'Conner above appear to be at the very root of most urban renewal disputes, but they are not presently before us and we leave them for another day. We only note that when one is forced to convey his or her property to a public entity it is in contravention, albeit alleviated by compensation and thus permitted, of a constitutional right and, seemingly, such proceedings should be even more open to public scrutiny especially when the property might ultimately be conveyed to other private parties.
A. Statutory Interpretation.
In Chow v. State, the Court recited the principles of statutory interpretation which we have so often stated:
Chow, 393 Md. 431, 443-44, 903 A.2d 388, 395 (2006) (quoting Kushell v. Dept. of Natural Resources, 385 Md. 563, 576-77, 870 A.2d 186, 193-94 (2005)) (citations omitted) (quotations omitted). The Chow Court continued:
393 Md. at 444, 903 A.2d at 395 (quoting Price v. State, 378 Md. 378, 387-88, 835 A.2d 1221, 1226 (2003) (citations omitted)). We will apply these principles to the Open Meetings Act and to Maryland's Public Information Act in turn.
B. Open Meetings Act.
The openness of government was an issue of great import to at least one of this Country's founding fathers. John Adams, when distinguishing between the manner in which the public business of his ancestors was carried out and his hopes for the future of America, wrote that:
Maryland's first comprehensive legislation regarding open meetings came into being over 200 years later when, in 1977, the General Assembly enacted sections 7 through 15 of Article 76A of the Maryland Code. Community and Labor United For Baltimore Charter Committee (C.L.U.B.) v. Baltimore City Board of Elections, 377 Md. 183, 193, 832 A.2d 804, 809 (2003) (citing Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 137-138, 699 A.2d 434, 440 (1997)). "[T]he heart of the Act
New Carrollton, 287 Md. at 72-73, 410 A.2d at 1078-79 (citations omitted). Judge Eldridge, more recently for this Court, stated: "The clear policy of the Open Meetings Act is to allow the general public to view the entire deliberative process." C.L.U.B., 377 Md. at 194, 832 A.2d at 810 (emphasis added). Article 76A was recodified as §§ 10-501-10-512 of the Open Meetings Act by Chapter 284 of the Acts of 1984 without any substantial changes. Therefore, the fundamental policy of the Open Meetings Act is the same today as it was in 1977, that: "it is
We continue with the plain language of the relevant portions of the Open Meetings Act:
Petitioner argues that it is not a public body within the meaning of the Open Meetings Act because it is not an entity created by one of the provisions of § 10-502(h)(1). It urges us to read § 10-502(h)(2) as being merely illustrative of § 10-502(h)(1) because the word "means" is used in (h)(1) and the word "includes" is used in (h)(2). Petitioner argues that the Legislature uses "means" to define and "includes" to illustrate or give examples only of what it has already defined in § 10-502(h)(1). The BDC incongruously relies on Maryland Code (1957, 2005 Repl. Vol.), Article 1, § 30, for support: "The words `includes' or `including' mean, unless the context requires otherwise, includes or including by way of illustration and not by way of limitation." (Emphasis added). Petitioner also cites to Hackley v. State, in which we quoted from the Maryland Style Manual for Statutory Law, Department of Legislative Services (Jan.1998) at 27: "[L]egislative drafters [are] to `[u]se "means" if the definition is intended to be exhaustive' . . . and to `[u]se "includes" if the definition is intended to be partial or illustrative'. . . ." Hackley, 389 Md. 387, 393, 885 A.2d 816, 820 (2005). In short, petitioner argues that § 10-502(h)(1) lists exclusively the threshold indicia of a public body for the purposes of the Open Meetings Act and § 10-502(h)(2) only illustrates or gives examples of those types of public bodies specified in § 10-502(h)(1). We disagree; rather, the two sections address alternative approaches. Section 10-502(h)(2) introduces a new concept and is not a subsidiary section to § 10-502(h)(1) because it introduces a different set of public bodies other than those described in § 10-502(h)(1).
Respondent's position is consistent with our view. Initially, respondent asserts that the BDC is subject to § 10-502(h)(1) because it originally had three "high City officials" on its governing body and because the BDC's website stated it was "chartered" by the City. Respondent also argues, persuasively, that when § 10-502(h)(1) and (2) are read together in context, the word "includes" is not used to limit § 10-502(h)(1) because § 10-502(h)(2) introduces a different manner in which qualifying public bodies may be created that is separate and distinct from § 10-502(h)(1). Thus, respondent asserts, the context of the word "includes" prevents it from being read only as illustrative of and limited to the provisions of § 10-502(h)(1). We agree. Had it been a subsidiary clause of § 10-502(h)(1) it would have been made subject to the prior section and normally would have been designated "§ 10-502(h)(1) . . .
Section 10-502(h)(2)(i) additionally states, however, that a:
Section 10-502(h)(2)(i), as it pertains to the case at bar, makes multimember boards appointed by the chief executive authority of a political subdivision, which consist of at least two individuals not employed by the particular subdivision, subject to the Open Meetings Act. Thus, § 10-502(h)(2)(i) introduces a separate and distinct definition from the definition contained in § 10-502(h)(1) and the context requires that the word "includes" not be read as illustrative, by way of limitation, of the § 10-502(h)(1) methods by which a public body subject to the act is defined. Were we to find otherwise, we would be reading § 10-502(h)(2)(i) and the distinct meaning it introduces, as superfluous or nugatory and we would not be harmonizing provisions dealing with the same subject so that each may be given effect. Such a reading would be inconsistent with the principles of statutory interpretation. Moreover, the parties do not dispute that the BDC's bylaws require it to be a multimember board, that its Board of Directors currently consists of at least two individuals not employed by Baltimore City,
ART. SIXTH, October 4, 1991. Section (1) gives the Board of Directors power over the activities of the Corporation. Section (2) provides that, in accordance with the corporation's bylaws, the Board of Directors will consist of a certain number of people who have certain qualifications. The bylaws, as amended on November 4, 1997,
Although there is no ambiguity in the term "includes" as it is used in § 10-502(h)(2) and no interpretation is required, petitioner argues, in the alternative, that the legislative history of § 10-502(h)(2) demonstrates that the General Assembly never intended to apply the Open Meetings Act to entities like the BDC. Petitioner bases its argument on an Attorney General's letter discussing the interpretation of "includes" (in the context of a failed amendment to the Open Meetings Act), two failed bills which would have expanded the definition of public body to expressly
We note at the outset, that Attorney General opinions are entitled to consideration, but that they are not binding on this Court. Dodds v. Shamer, 339 Md. 540, 556, 663 A.2d 1318, 1326 (1995). The proposed language of the suggested amendment to § 10-502(h)(2) that the Attorney General was asked to interpret for the purposes of the advisory letter was: "`PUBLIC BODY' INCLUDES THE MULTIMEMBER GOVERNING BODY OF ANY CORPORATION DIRECTLY SUPPORTED ENTIRELY BY PUBLIC FUNDS."
Chapter 655 of the Acts of 1991. The letter from the Attorney General is not relevant to the case at bar because the version of the bill that the Attorney General was asked to interpret was apparently rejected by the General Assembly when it enacted an entirely different version of the bill that included the language we here interpret.
Petitioner then argues that three proposed amendments to the definition of "public body" that were rejected by the General Assembly are evidence that it never intended § 10-502(h)(2) to apply to the BDC. The first two proposed bills were essentially the same. In 1998, Senate Bill 340 proposed an amendment to § 10-502(h)(2) that would make corporations whose bylaws required at least half of the governing body to be composed of public officers or public employees or the appointees of public officers or public employees subject to the Open Meetings Act. Senate Bill 608, introduced in 2000, would have only made corporations whose bylaws required the Board of Directors to be composed of at least half public appointees subject to the Open Meetings Act. Also in 2000, Senate Bill 241 attempted to amend § 10-502(h)(2) to specifically include the BDC.
In summary, the Legislature, as a matter of public policy, has determined that it is essential to the maintenance of a democratic society that, subject to certain well defined exceptions, the deliberations of a public body be open to the public which it serves. An entity that possesses as many public traits as does the BDC is a public body for the purposes of the Open Meetings Act. The table below represents a survey of the provisions of the Corporate Charter, the BDC contracts with the City, and the governing ordinance and is a powerful visual aid demonstrating the extent to which the BDC has been able to cloak the business of the Citizens of the City of Baltimore behind the veil of a supposedly private corporation.
Purely Public Public and Private Purely Private Function Function FunctionDevelop and implement long-range Coordinate development efforts development strategies for between the public and private the City. sector and expedite the review of public approvals and other government services in the City. Undertake any appropriate activity Provide in the furtherance of to achieve the continued these declared purposes, financing, strong business climate, urban financial assistance, and financial renewal, and development advice, including but not throughout the City. limited to activities permitted under programs of the Small Business Administration and other economic development programs of the Federal, state, or local governments. Implement, oversee, and encourage Encourage cultural, entertainment, public and private development recreational, historic, and and rehabilitation projects educational facilities that will further that will increase the City's tax the promotion of the benefits base. of living or visiting the City; to bring new spending power to the City's economy. Enhance and improve the physical Enhance and improve the image and cultural environment of of the City as a place to live, the City through the creation of work, and visit; and to encourage public open space, and improved new residential initiatives in the transportation systems. City. Improve the economic health of Coordinate activities of local, the City through attraction of state, and Federal agencies as new businesses, retention of existing well as private for-profit and non-profit businesses, and the stimulation entities for the purpose of and encouragement of achieving the Corporation's objectives, growth and expansion of commercial and to receive an expend office uses, manufacturing, funds from any legal source or warehousing, distribution, legal purpose so long as consistent research, and development. with its declared purposes. In furtherance of these declared Undertake activities within the purposes, to carry out a contract City or outside the City when or contracts, between the Corporation such activities are reasonably and the City; such services anticipated to have an impact on as therein specified, to include, the City; which activities may include the coordination of public research, planning, and functions such as preparation, investigation. adoption, and execution of Urban Renewal Plans, Planned Unit Developments, Industrial Retention Zones, and Free Enterprise Zones. The Mayor of Baltimore has the Increase minority business enterprise power to appoint or nominate and women's business enterprise the BDC's Board of Directors, participation in business including the Chairman of the and development activity. Board. The Mayor of Baltimore has powers in respect to removing the BDC's Board of Directors, including the Chairman of the Board. If BDC ceases to exist, pursuant to contract with the City, tangible property purchased with funds attached to that contract revert to the City. Over 80% of the BDC's budget is The remaining percentage of the provided by the City of BDC's funding comes from public Baltimore. and private sources other than the City.
The left-hand column indicates the most direct qualities which make the BDC a public body under the Open Meetings Act. The middle column indicates activities with both a public and a private connotation. As far as we have discerned, from the record before us, there are no purely private functions of the BDC for the purposes of the Open Meetings Act. As such, it is consistent with the intent of the Open Meetings Act that the deliberative process of the BDC, to include all deliberations preceding the final decisions made by the Mayor or the City Council, must be open to the public to the same extent as would any proceeding of the Mayor or City Council of Baltimore City. This is because every step of the process comprises the consideration or transaction of public business. Thus, consistent with the precedent established by the Court in the opinion written by then-Chief Judge Murphy in New Carrollton, supra, we have construed the statute so as to frustrate all evasive devices relating to any public matter upon which foreseeable public action will be taken.
C. Maryland's Public Information Act.
Section 10-611(g)(1)(i) of Maryland's Public Information Act ("MPIA") states:
Maryland Code (1984, 2004 Repl.Vol.), § 10-611 of the State Government Article.
Petitioner argues that it is not a statutorily created entity and, therefore, the MPIA does not apply to it. Respondents argue that the law only requires that the BDC be an "instrumentality" of Baltimore City for the MPIA to apply. Thus, the dispositive issue is whether the BDC is an "instrumentality" of Baltimore City. We hold that the BDC is an instrumentality of the City.
Such a holding is consistent with the stated purpose of the Maryland Public Information Act:
§ 10-612. Moreover, holding that the BDC is an instrumentality of the City is consistent with our interpretation of the General Assembly's intent when it enacted the MPIA: "[I]t is well established that `"the provisions of the [MPIA] reflect the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government."'" Caffrey v. Department of Liquor Control for Montgomery County, 370 Md. 272, 305, 805 A.2d 268 (2002) (quoting Kirwan v. The Diamondback, 352 Md. 74, 81, 721 A.2d 196, 199 (1998) (holding that parking violations issued to the head coach and members of the basketball team at the University of Maryland were subject to the MPIA)); accord Fioretti v. Md. State Bd. of Dental Exam'rs, 351 Md. 66, 73, 716 A.2d 258, 262 (1998) (State Board of Dental Examiners failed to carry its burden that its records fell within the MPIA's exception for law enforcement reports compiled for investigatory purposes); A.S. Abell Pub.Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068, 1071 (1983) (statutorily created Maryland Insurance Guaranty Trust was an instrumentality of the State and therefore, subject to the MPIA). On several occasions, this Court has "`explained that the provisions of the statute" must be liberally construed . . . in order to effectuate the [MPIA's] broad remedial purpose."'" Caffrey, 370 Md. at 306, 805 A.2d at 288 (quoting Kirwan, 352 Md. at 81, 721 A.2d at 199). Therefore, finding that the MPIA is applicable to the BDC is consistent with the stated purpose and the intent of the statute; the public should have broad access to information concerning the operation of governmental instrumentalities especially when the instrumentality's operations may involve charting the course and laying the foundation leading to the involuntary, albeit legal, taking of constitutionally
The ordinary and popular meaning of the plain language of the statute does not require that an entity be established by a statute for it to be subject to the provisions of the MPIA. The statute only requires that the entity be a "unit or instrumentality" of the City for its provisions to apply.
Petitioner argues, in the alternative, that if we find ambiguity in § 10-611(g)(1)(i), that Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975) and Mezzanote, 297 Md. 26, 464 A.2d 1068, require us to find that the determining factor in whether the BDC is subject to the MPIA is whether it was created by law. Although we perceive no ambiguity in § 10-611(g)(1)(i), we will address these arguments.
Petitioner misconstrues the holdings of Moberly and Mezzanote. There is no one factor we looked to in either of those cases to determine whether an entity is an instrumentality of the state. Instead, we examined all aspects of the relationship between the entity and the state or political subdivision. In Moberly, the Court was asked to determine whether a statutorily established corporation, known as the Board of Governors of the Memorial Hospital of Cumberland, was subject to the provisions of the MPIA. The Moberly Court found that a statutorily established corporation was subject to the MPIA based on all aspects of the interrelationship between it and the City of Cumberland. 276 Md. at 225, 345 A.2d at 862-63. In Mezzanote, the Court was asked to determine whether the statutorily created Maryland Insurance Guaranty ("MIGA") was an instrumentality of the state for the purposes of the MPIA. The Mezzanote Court concluded that MIGA was subject to the provisions of MPIA only after: "[E]xamining all aspects of the interrelationship between the State and MIGA, including the degree of control exercised by the State over MIGA's operation. . . ." 297 Md. at 39, 464 A.2d at 1074. Thus, the fact that the Memorial Hospital of Cumberland and MIGA were created by statute was
With respect to the BDC, the following aspects of its relationship with the City make it an instrumentality of the City: The BDC's Board of Directors, to include the Chairman of the Board, are nominated or appointed by the Mayor of Baltimore; he has the power to remove members of the Board before their four year terms are up; the Mayor also has the power to fill vacancies; the City's Commissioner of the Department of Housing and Community Development and the City's Director of Finance are permanent members of the Board; the BDC receives a substantial portion of its budget from the City;
We hold that the trial court erred as a matter of law and that the City of Baltimore Development Corporation is, in essence, a public body for the purposes of the Open Meetings Act and that it is also an instrumentality of the City of Baltimore for the purposes of Maryland's Public Information Act.
The question presented by respondent on his cross-petition for a writ of certiorari was originally worded as:
At the trial level, respondent asked the Circuit Court for Baltimore City to void the BDC's Board of Directors meeting on November 18, 2004, presumably under § 10-510(d)(4) of the Open Meetings Act. The trial court never addressed this issue because it granted the BDC's motion for summary judgment, holding that the Open Meetings Act did not apply to the BDC. Carmel Realty placed the issue in the questions presented portion of its brief to the Court of Special Appeals and argued that the November 18, 2004 meeting should be voided. The intermediated appellate court, however, never addressed the issue in its unreported opinion. The precise issue of whether to void the meeting was not put directly before this Court in either the petition for writ of certiorari or the cross-petition for writ of certiorari. See Footnote 4, supra. We do note, however, that petitioner addresses it tangentially by urging us to remand issues that are not directly before us and that respondent urges us, in the latter pages of its brief, to void the meeting. In any event, the plain language of § 10-510(d)(4) prevents this Court from considering the issue because it has not been finally resolved at the trial level.
Section 10-510(d) provides in relevant part that:
Thus, under § 10-510(d)(4) of the Open Meetings Act, the decision of whether to void the action of a public body is discretionary upon a finding that the public body "willfully" failed to comply with one of the relevant provisions of the Open Meetings Act. Generally, discretionary findings which are reviewed by this Court are done so to determine whether the trial court abused its discretion. Goodman v. Commercial Credit Corp., 364 Md. 483, 491-92, 773 A.2d 526, 532 (2001). As stated above, there was no finding by the trial court that, with respect to the November 18, 2004 meeting, the BDC willfully failed to comply with the relevant provisions of the Open Meetings Act. Thus, no discretion has been exercised by any court. The trial court's failure to address the issue resulted, not from an effort to avoid using its discretion, but instead, from its erroneous conclusion that the Open Meetings Act did not apply in the first instance. Thus, there is nothing on this issue for us to address in the posture of the case as it appears before this Court.
Kelo, 545 U.S. at ___, 125 S.Ct. at 2677 (Thomas, J. dissenting).
Chapter 440 of the Acts of 2004. The added language (in all capital letters) and the deleted language (in brackets) does not substantially change the language of the statute for the purposes of petitioner's argument regarding the Attorney General's letter.
The City Solicitor, at oral argument and in response to this Court's query regarding his representation of the BDC in this matter, stated that it is not unusual for the City Solicitor to represent entities that are not part of the City of Baltimore. We believe, however, that the City Solicitor's representation of the BDC, under the circumstances, is one of the many characteristics of the interrelationship between the City and the BDC that indicates the latter is an instrumentality of the former for the purposes of the MPIA.