Lawyer wants to take issue to the top

After many rejections of petition complaint, last option is Supreme Court

June 23, 2013|By Arthur Hirsch, The Baltimore Sun

Howard County land-use attorney Susan Gray says there's just one option left in pressing her claim that the county has for years deprived citizens of their constitutional rights.

It's a long shot, she knows: the U.S. Supreme Court.

The case Gray, resident Paul F. Kendall and others have been pursuing since 2009 was recently rejected by the Maryland Court of Appeals. That ruling backed earlier rejections by the state Court of Special Appeals and Howard County Circuit Court.

Kendall, who is also a lawyer, has been representing himself in the appeal.

Even before that, the U.S. Circuit Court of Appeals ruled Gray's clients had no legal standing to bring the case, and the U.S. District Court found the case belonged in state courts, as it raised no federal constitutional issues.

The issue in dispute is Gray's claim that the county has subverted citizens' rights to challenge government decisions by referendum, and thus infringed on rights to free speech and due process.

The case involves more than 100 decisions, most made since 2006, approving sewer-system hookups and road and home construction. Those decisions — some of which affect the whole county, some applying only to individual properties — were made by the County Council, the Zoning Board, the Planning Board and the Department of Planning and Zoning.

In court pleadings, Gray and others have cited resolutions approving master plan revisions that expand the range of public utilities and building and road design standards.

They've also cited a resolution to close portions of roads in western Howard to make way for a new Route 32 interchange, and a decision by the County Council to change the zoning on about seven acres at Gorman Road to allow housing for seniors.

Gray, who has been active in land-use fights in Howard for more than 20 years, often on the side of those challenging development in the western part of the county, says the point isn't to reverse these decisions — many of which were not contested — but to compel the county to change the way it does business.

She and Kendall say agencies making decisions were not following part of the Howard County charter, which was enacted in 1994 and which says any "amendment, restatement or revision" of the county general plan should be considered legislative acts that can be carried out only by a council bill.

Such bills can be petitioned to referendum. A council resolution, or act of an agency or administrator, cannot.

The recent Maryland Court of Appeals ruling said Gray's clients don't have legal standing to bring the case because they had not shown they suffered "special damage" due to the lack of opportunity to challenge them via referendum.

Gray said the court in effect ruled that "the denial of the most fundamental right we have is not enough to get you into the courthouse door. That's phenomenally scary."

But the county's Office of Law, which represented Howard County in the case, applauded the opinion.

In an email, County Solicitor Margaret Ann Nolan wrote, "The court was right, and Susan Gray is wrong, just as every court has told her and the rest of the Kendall plaintiffs, some of whom have filed multiple meritless lawsuits over the last four years.

"This case was just the final chapter."

Nolan wrote that the court "saved hundreds of innocent County residents from harm, since the Kendall group's dubious legal attack jeopardized private property rights and scores of long-settled government approvals that had been fairly and lawfully obtained."

According to the U.S. District Court decision, the plaintiffs argued that the county's "motive in circumventing the 'required legislative process' is to benefit certain 'well-entrenched, politically connected, wealthy developers and landowners and their attorneys by preventing public objection through the mechanism of the referendum …'"

But Nolan said since the charter was amended in 1994 to include that provision, "the county has applied the referendum provisions in a manner that is respectful of the fundamental voting and free-speech rights of all Howard County citizens."

With the latest court ruling, Gray said the only remaining option is to "petition to the Supreme Court, which I presume is what we will do."

She acknowledged the odds are slim the Supreme Court will agree to hear the case. According to an article posted online by the publisher of California Lawyer magazine, the nation's highest court averaged 7,500 petitions to hear cases between 1989 and 2009 and granted an average of 93 of them, or 1.2 percent.

Still, Gray said she expected she would file a petition, as she remains convinced fundamental civil rights are at stake.

"This case very likely has national implications," she said.

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