George v. Baltimore Co. , 463 Md. 263 ( 2019 )

Anne George, et al. v. Baltimore County, Maryland, et al., No. 37, September Term, 2018,
Opinion by Adkins, J.
STANDING – TAXPAYER STANDING DOCTRINE – SPECIFIC INJURY:
To demonstrate special interest in a taxpayer standing suit, a taxpayer must (1) make a
good faith allegation of an illegal or ultra vires act by a municipal corporation or official;
and (2) show a “specific injury,” or that the act may injuriously affect the taxpayer’s
property through a potential pecuniary loss or increase in taxes. See Kendall v. Howard
Cty., 431 Md. 590, 605 (2013). Petitioners have established a reasonable likelihood of
potential pecuniary harm derivative of waste and mismanagement, a nexus between that
harm and the alleged illegal government act, and sufficiently quantified the alleged harm.
Consequently, we hold that Petitioners have demonstrated specific injury and have
standing under the taxpayer standing doctrine.
Circuit Court for Baltimore County
Case No. 03-C-14-014041
Argued: January 3, 2019
IN THE COURT OF APPEALS
OF MARYLAND
No. 37
September Term, 2018
ANNE GEORGE, et al.
v.
BALTIMORE COUNTY, MARYLAND, et al.
Barbera, C.J.
Greene
McDonald
Watts
Hotten
Getty,
Adkins, Sally D.,
(Senior Judge, Specially Assigned)
JJ.
Opinion by Adkins, J.
Watts, J., concurs.
Filed: April 1, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-04-01
14:49-04:00
Suzanne C. Johnson, Clerk
Taxpayer standing doctrine encourages the highest good governance standards by
empowering stakeholder oversight of local governments. Yet, these suits have the potential
to substantially burden the time and treasure of local governments, impeding their efforts
to serve the citizenry. Maintaining a balance between these competing forces has
sometimes resulted in varied, complicated, and seemingly contradictory legal edicts. But
our task, as we again address this topic, is eased by the recent and important decision in
State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md. 451 (2014), which did
much to untangle the web of taxpayer standing in Maryland.1
With State Center as our beacon, we resolve this case in favor of Petitioners, holding
that they possess the requisite taxpayer standing to pursue their claim against Baltimore
County. This is despite the County’s assertion that the “minor” harm alleged by the
taxpayers will not cause an increase in taxes, especially considering it has not raised the
property tax rate in 26 years or the income tax rate in 22 years.
FACTUAL OVERVIEW AND PROCEDURAL POSTURE
The present case involves three Baltimore County taxpayers, Anne George, Jody
Kesner, and Jody Rosoff (collectively, “Petitioners” or “Taxpayers”), and their lawsuit
against Baltimore County (“County”) and various County administrators. Petitioners’ suit
1
The phrasing of the issue in our order for certiorari was as follows:
Can a government entity eliminate the right of taxpayers “to
bring a lawsuit in this State to prevent waste or unlawful use of
public property and funds,” State Ctr., LLC v. Lexington
Charles Ltd. P’ship, 438 Md. 451, 560 (2014), by not
increasing property tax rates for some period of time?
revolves around the County’s operation of the Baltimore County Animal Shelter (“BCAS”)
and alleged waste at the facility.
In December 2014, Taxpayers filed a complaint in the Circuit Court for Baltimore
County seeking preliminary and permanent injunctions, a declaratory judgment, and a writ
of mandamus. Taxpayers alleged they were entitled to bring suit under the taxpayer
standing doctrine because they were “injured by the increased tax burden caused by [the
County’s] illegal acts, in addition to other pecuniary injuries from having to care for
animals that have been harmed by [the County’s] acts.” They also claimed that various
County actions resulted in over-expenditure on medical care and staffing and under-
collection of fees.
In their complaint, Taxpayers alleged that the County, in its management of BCAS,
violated numerous provisions of Baltimore County Code, Article 12. Specifically,
Taxpayers stated that the County failed to “[a]ppoint, train, and qualify” appropriate
individuals to work in animal control, Balt. Cty. Code § 12-1-103(2); maintain a program
to assist volunteers, id. § 12-1-103(3); provide appropriate facilities and care for animals,
id. § 12-1-103(4); attempt to locate owners of stray animals, id. §§ 12-1-202(a), 12-3-
203(a); hold animals for four business days in a “humane manner,” id. §§ 12-3-201(b), 12-
3-202(b); put animals up for adoption only if they meet certain standards, id. § 12-3-204(d);
and maintain holding facilities that meet the minimum standards of Article 12, id. § 12-6-
103.2 Taxpayers alleged that these regulations are routinely violated.
2
Since the commencement of this action, Baltimore County Code §§ 12-3-201(b),
12-3-202(b), and 12-3-203(a) have been repealed and replaced with new language.
2
The County responded with a motion to dismiss or, in the alternative, motion for
summary judgment, claiming, among other things, that Taxpayers lacked standing to bring
their claim. The County argued that Taxpayers “failed to adequately allege any illegality
or ultra vires act that reasonably may result in a pecuniary loss or a tax increase to survive
[the] motion.” The motion was accompanied by an affidavit from the Director of Budget
and Finance for Baltimore County, Keith Dorsey (“Dorsey Affidavit”). The Dorsey
Affidavit asserted that Baltimore County property taxes had not been increased in 26 years,
the income tax had not been increased in 22 years, and that BCAS constituted such a small
fraction of the overall budget “that no taxes would be increased as a result of operation of
the Animal Shelter.”
Taxpayers’ response characterized the County’s motions as merely alleging a failure
to show that taxes will increase, not rebutting Taxpayers’ charge of “other pecuniary loss.”
Relying mainly on their complaint, the County’s motion to dismiss or for summary
judgment, and the Dorsey Affidavit, the response asserted that Taxpayers suffered a
pecuniary loss “from the illegal expenditure of taxpayer funds,” which included the waste
of tax-derived funds “on excess veterinary care and medications, food and other
necessities, euthanasia, and employees.” Moreover, with fewer animals suitable for
adoption, Taxpayers asserted a loss of revenue from adoption and licensing fees.
Taxpayers also alleged other pecuniary losses, separate from those involving the waste of
tax-derived funds, caused by veterinary expenses they incurred caring for three different
animals adopted from BCAS and allegedly mistreated while in the County’s care.
3
Significantly, on the same day that Taxpayers filed their response, they also filed a
separate motion for preliminary injunction and request for hearing. Attached to the motion
were 18 separate affidavits. We summarize the motion and affidavits as follows. After
adopting animals from BCAS, numerous individuals discovered that their pets were
“severely underfed.” There were allegations that animals had been left wet and sitting in
pooled water, resulting in rashes, irritation, and bleeding. Several affiants claimed that
BCAS routinely failed to provide veterinary care, “isolate contagious animals from other
animals,” or scan for identification microchips. These failures resulted in deteriorating
health conditions, unnecessary euthanasia, and animals being held in the shelter without
their owner’s knowledge. BCAS also failed to sterilize animals before they were offered
for adoption. Additionally, affiants claimed that employees and volunteers were
improperly trained and inadequately supervised.
At the hearing, the judge denied the motion to dismiss and focused on summary
judgment. On two occasions, the parties pointed the judge to the complaint and the
preliminary injunction motion and attached affidavits for additional details regarding
Taxpayers’ alleged injury. There was significant debate, and some confusion, regarding
the type of harm required to grant taxpayer standing under State Center, a leading taxpayer
standing case authored by Judge Glenn T. Harrell, Jr. for this Court.
The debate was twofold. First, there was disagreement regarding the requirement
that “the taxpayer must allege . . . a special interest distinct from the general public,”
State Center, 438 Md. at 556 (emphasis added). The dispute centered around the
interpretation of the word “taxpayer” as a subset of “general public”—i.e., whether such a
4
relationship compared specific taxpayers in a political subdivision to taxpayers generally
in the same subdivision, or specific taxpayers in the political subdivision to residents
generally. Second, the parties disagreed about whether the Dorsey Affidavit, stating that
taxes had not and would not be raised, foreclosed Taxpayers’ argument that illegal County
actions could reasonably be expected to result in “pecuniary loss or an increase in taxes,”
id. at 557 (emphasis removed).
In a written opinion, the hearing judge concluded that, while Taxpayers pled
sufficient facts to withstand the motion to dismiss, the alleged pecuniary injury must be
more developed to survive summary judgment. The judge ruled that Taxpayers did not
“specifically allege ‘waste of tax dollars’ in their Complaint.” In the court’s view,
Taxpayers’ argument centered entirely around the question of a potential tax increase or
decrease. Significantly, the court determined that Taxpayers never rebutted the Dorsey
Affidavit, which “established that any alleged illegal acts have not and will not result in
increased taxes or pecuniary loss to [Taxpayers].” For these reasons, summary judgment
was granted.
In an unreported decision, the Court of Special Appeals affirmed the Circuit Court.
See George v. Balt. Cty., No. 47, Sept. Term 2016, 2018 WL 2948204 (Md. Ct. Spec. App.
June 12, 2018). The intermediate appellate court held that “the County’s actions were not
reasonably likely to result in a pecuniary loss to [Taxpayers] because the County’s actions
were not likely to affect [their] taxes.” Id. at *5. In dissent, Senior Judge Harrell, sitting
by designation, stated that the majority erred when it “reduce[d] the disjunctive standard
5
of potential pecuniary loss or tax increase into a single category,” one entirely about
taxation. Id. at *6.
DISCUSSION
Standard of Review
In Maryland, a court shall grant summary judgment only if “there is no genuine
dispute as to any material fact and . . . the party in whose favor judgment is entered is
entitled to judgment as a matter of law.” Maryland Rule 2-501(f). “Whether summary
judgment was granted properly is a question of law.” Lightolier, a Division of Genlyte
Thomas Grp. LLC v. Hoon, 387 Md. 539, 551 (2005). Consequently, these determinations
are made without deference to the deciding and reviewing courts. See id. “We review the
record in the light most favorable to the non-moving party and construe any reasonable
inferences that may be drawn from the well-pled facts against the moving party.” Barclay
v. Briscoe, 427 Md. 270, 282 (2012).
Summary Judgment and Pleadings
To determine whether a genuine dispute of material fact exists, we must first decide
which evidence in the record can be reviewed to make such a determination. Taxpayers
maintain that a material dispute exists as to whether Baltimore County wasted government
funds through the various actions described above. The County, on the other hand, asserts
that Taxpayers’ response to the motion for summary judgment was insufficient, as their
arguments are unsupported and “speculative at best.” Taxpayers’ response, according to
the County, did not contain the admissible evidence required under Md. Rule 2-501 and,
therefore, failed to sufficiently rebut the Dorsey Affidavit.
6
Under Maryland Rules, “[a]ny party may file a written motion for summary
judgment of all or part of an action on the ground that there is no genuine dispute as to any
material fact and that the party is entitled to judgment as a matter of law.” Md. Rule 2-
501(a). This motion must be supported by affidavit if it is: “(1) filed before the day on
which the adverse party’s initial pleading or motion is filed or (2) based on facts not
contained in the record.” Id. The County filed such an affidavit—the Dorsey Affidavit—
purporting to establish that taxes had not and would not be raised, even if the alleged
violations were occurring.
If the opposing party chooses to reply, it must answer, in writing, “identify[ing] with
particularity each material fact as to which it is contended that there is a genuine
dispute . . . .” Md. Rule 2-501(b). Additionally, as to these alleged material facts, the
opposing party must “identify and attach the relevant portion of the specific document,
discovery response, transcript of testimony (by page and line), or other statement under
oath that demonstrates the dispute.” Id. “A response asserting the existence of a material
fact or controverting any fact contained in the record shall be supported by an affidavit or
other written statement under oath.” Id. We have yet to interpret the word “supported,”
above, as meaning “attached to the responsive filing, only.”
“[F]acts alleged in pleadings are not, by that means alone, before the court as facts
for summary judgment purposes. Ordinarily, mere allegations neither establish facts, nor
show a genuine dispute of fact.” Vanhook v. Merchants Mut. Ins. Co., 22 Md. App. 22, 27
(1974) (citation omitted). Still, courts should look to the “pleadings, depositions, and
admissions on file, together with the affidavits, if any” to determine whether a dispute
7
exists. Cox v. Sandler’s, Inc., 209 Md. 193, 197 (1956) (emphasis added). This means that
courts should review any filing that shows, “in detail and with precision, by facts
admissible in evidence,” Mullan Contracting Co. v. IBM Corp., 220 Md. 248, 257 (1959)
(citations omitted), that there is a genuine dispute. We have before deemed it appropriate
to consider supplemental affidavits filed separately from the plaintiff’s response and prior
to a hearing on a motion for summary judgment. See Lynx, Inc. v. Ordnance Prods., Inc.,
273 Md. 1, 20 (1974).
The Circuit Court opinion granting summary judgment states that Taxpayers “did
not provide a counter-affidavit or an affidavit pursuant to Md. Rule 2-501(d),” allowing
for “affidavits of defense not available.” Whether or not this is strictly true, Taxpayers
submitted 18 affidavits with their motion for preliminary injunction, which was filed on
the same day as the response to the motion to dismiss or for summary judgment. These
affidavits were referenced in the motions hearing, but never mentioned in the judge’s final
opinion. So long as these affidavits meet the standard set forth in the Maryland Rules, 3
they should be factored into the overall summary judgment determination.
Keeping in mind the filings that the Circuit Court had at its disposal at the point of
the hearing, we must determine whether they create a genuine dispute of material fact.
Specifically, we must decide whether Taxpayers’ allegations satisfy the specific injury
requirement, discussed in detail below. We turn to that question now.
Maryland Rule 2-501(c) provides: “An affidavit supporting or opposing a motion
3
for summary judgment shall be made upon personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit.”
8
Taxpayer Standing Doctrine
Taxpayer standing doctrine permits a taxpayer to “invoke the aid of a court of equity
to restrain the action of a public official, which is illegal or ultra vires and may injuriously
affect the taxpayer’s rights and property.” Inlet Assocs. v. Assateague House Condominium
Assn., 313 Md. 413, 440–41 (1988) (citation omitted). Such a distillation has come to seem
oversimplified, as the doctrine has grown and become “disorganized” and, “at times,
seemingly contradictory . . . .” State Center, 438 Md. at 540–41. In State Center, Judge
Harrell, writing for this Court, clarified some aspects of taxpayer standing that we discuss
further below. In his words, “[T]he conceptual basis of the doctrine is that the action is
brought by complainants, as taxpayers and on behalf of all other similarly situated
taxpayers.” Id. at 547 (emphasis omitted).
The taxpayers, in essence, are asserting the rights of their government against local
administrators. Thus, we have likened the taxpayer suit to a derivative shareholder suit,
the shareholders of a government being the taxpayers. See id. at 541. In this way,
Maryland has “gone rather far in sustaining the standing of taxpayers” to sue for illegal or
ultra vires acts, compared to other jurisdictions. Inlet Assocs., 313 Md. at 441 (citation
omitted).
There are two broad requirements to successfully assert taxpayer standing. The first
requirement is taxpayer status. To establish eligibility to bring the suit, the plaintiff must
demonstrate that: (a) “the complainant is a taxpayer,” and (b) “the suit is brought, either
expressly or implicitly, on behalf of all other taxpayers.” State Center, 438 Md. at 547. In
this case, the parties do not contest that Taxpayers have sufficiently pled this element.
9
The second broad requirement is that parties must assert a “special interest,”
alternatively referred to as the “special damage” requirement. Special interest requires a
taxpayer to allege: “[(1)] an action by a municipal corporation or public official that is
illegal or ultra vires[;] and [(2)] that the action may injuriously affect the taxpayer’s
property, meaning that it reasonably may result in a pecuniary loss to the taxpayer or an
increase in taxes.” Kendall v. Howard Cty., 431 Md. 590, 605 (2013) (citation omitted).
These are known as the (1) “illegal or ultra vires act” prong, and (2) the “specific injury”
prong. See State Center, 438 Md. at 555–56.
The illegal or ultra vires act prong “has been applied leniently and seems rather easy
to meet . . . .” Id. at 556. Plaintiffs must simply “allege, in good faith, an ultra vires or
illegal act by the State or one of its officers . . . .” Id. The County does not contest that
Taxpayers have successfully met this element of taxpayer standing. Taxpayers have made
good faith claims of illegality by enumerating several alleged violations of Article 12 of
the Baltimore County Code.
The specific injury prong is more opaque, and often proves a “stumbling block.” Id.
at 572. Plaintiffs establish specific injury by demonstrating the appropriate type of harm,
a nexus between the illegal or ultra vires act and the alleged harm, and some modest
showing regarding the degree of harm. See id. at 560.
Type of Harm
The heart of both parties’ substantive arguments lies in the “type of harm” alleged.
Taxpayers argue that the Court of Special Appeals erred in conflating “pecuniary loss” and
“increase in taxes” by ignoring the disjunctive, “or.” They characterize State Center, when
10
read as a whole, as supporting the idea that “a waste of already-collected funds can ‘affect’
taxes just as much as an ensuing rate hike.” Treating an increase in taxes as a necessary
element to establish taxpayer standing, Taxpayers argue, would unduly limit the doctrine.
The County retorts that Taxpayers failed to present any well-pleaded facts of
taxpayer waste. They assert that Taxpayers’ allegations are generalized, not based on
personal observation, and fail to allege any pecuniary loss. To support this position, the
County argues that only three of the animals identified in the complaint had any direct
personal contact with Petitioners. Thus, according to the County, Taxpayers’ harms also
were not distinct from those of the general public.
To demonstrate the type of harm necessary for specific injury, plaintiffs must show,
first, that they “reasonably may sustain a pecuniary loss or a tax increase,” Inlet Assocs.,
313 Md. at 441 (citation omitted), and, then, that they have a “special interest distinct from
the general public,” State Center, 439 Md. at 556.
Taxpayers have been consistently required to establish “that the action being
challenged results in a pecuniary loss or an increase in taxes.” Id. at 556–57 (citation
omitted). We agree with Judge Harrell’s dissent in the Court of Special Appeals, as it
reinforces the importance of the disjunctive “or” in the foregoing standard. Yet, in
assessing standing, we have never asked for more than a “potential” showing of such
harms, id. at 559, and have “exhibited great leniency in [our] interpretation of ‘potential
pecuniary loss,’” id. at 561 (citations omitted). Thus, a reasonable possibility of either
pecuniary loss, or a tax increase, must be shown.
11
Moreover, “[t]his Court has recognized repeatedly that taxpayers have the right to
bring a lawsuit in this State to prevent waste or unlawful use of public property and funds.”
Id. at 560 (emphasis removed). We have stated that an illegal or ultra vires act can cause
pecuniary harm in the form of “an assessment of property or . . . the levy, collection,
expenditure, appropriation, or diversion of public taxes.” Ruark v. Int’l Union of Operating
Eng’rs, 157 Md. 576, 590 (1929). Consequently, raising taxes is not the only valid type of
harm that can be alleged.
We have spilled much ink delineating the line between sufficient allegations of
waste resulting in potential pecuniary loss, and those that are too speculative. Early on, in
Sun Cab Co. v. Cloud, 162 Md. 419, 427 (1932), we held that “taxpayers interested in
avoiding the waste of funds derived from taxation” could bring suit to enjoin a “void
referendum.” This case has been described as among the more “lenient interpretations” of
potential pecuniary loss. State Center, 438 Md. at 563. Again, in James v. Anderson, 281
Md. 137, 142 (1977), we decided that allegations of decreased efficiency resulting from an
ultra vires act were enough to maintain a suit. Yet, in Floyd v. Mayor and City Council of
Baltimore, ___ Md. ___, ___ (2019), Maj. Slip Op. at 32–33, we reined in any speculation
that a potential need to fend off charges of illegality is sufficient to confer standing.
Instead, we decided that to allow the threat of lawsuit, itself, to provide the necessary
pecuniary loss would be circular and insufficiently concrete. Floyd, Maj. Slip Op. at 33.
Thus, we narrowed the universe in which waste results in an adequate claim of pecuniary
loss.
12
The County claims that Taxpayers inadequately raise the issue of taxpayer waste.
We disagree. In their response to the motion to dismiss or for summary judgment,
Taxpayers specifically allege that “the County wastes taxpayer derived funds through
numerous specific violations of law . . . .” Examples of such waste include excess
expenditures on veterinary care, food, and medications; the cost of maintaining animals
that, if cared for properly, would be eligible for adoption; lost revenue due to these non-
occurrent adoptions; and excessive staffing resulting from an inadequate volunteer
program. Taxpayers’ complaint also specifically alludes to “other pecuniary injuries,”
beyond increased taxes, and claims that various County actions result in over-expenditure
on medical care and staffing and under-collection of fees—i.e., waste.
The County points us to the line in State Center providing that “the issue is not what
‘type’ of harm is sufficient necessarily, but rather a much more forgiving question of
whether the type of harm is one that may affect the complainant’s taxes.” 438 Md. at 565.
They argue that this demonstrates that a tax increase, or threat of one, is required for
taxpayer standing. Our interpretation of State Center differs somewhat, as we view the
term “affect” in a slightly broader context. To limit the type of harm that can “affect” taxes
only to harms that actually result in tax increase is to ignore the statement—ten words
earlier—that the standard elucidated is a “much more forgiving” one. It is sufficient for a
given harm to affect taxes by increasing them. But, such an effect is not necessary. We
are willing to recognize substantial waste in government operations, even without potential
tax increase, as a pecuniary loss sufficient to confer standing. This is because taxpayers,
as “shareholders,” are reasonably entitled to a sound and careful use of funds.
13
This analysis sheds light on why the Circuit Court erred in placing almost total
reliance on the Dorsey Affidavit, concluding that it “established that any alleged illegal
acts have not and will not result in increased taxes or pecuniary loss to [Taxpayers].” The
Dorsey Affidavit certainly establishes that Baltimore County has not raised the property
tax rate in 26 years and has not increased the income tax rate in 22 years. The affidavit
also appears to appropriately contextualize the “Animal Services Program” within the
broader County budget.4 Yet, it does not address whether the government expenditure was
wasteful.
Taxpayers’ 18 affidavits, on the other hand, relate to the issue of waste. Upon
review, the affidavits state the following facts, at least for the purposes of a summary
judgment motion. First, affiants attested that multiple animals were not sterilized, and any
record of sterilization was inadequate. Multiple affiants also alleged personal knowledge
of animals that BCAS never scanned for microchips, and, at least one animal is alleged to
have been euthanized as a result of this failure. Many allegations related to generally
inadequate veterinary care, food, and water supply. Specifically, water appeared to have
been inaccessible to many animals. Many affiants stated that animals recovered or adopted
from BCAS were ill. Moreover, others observed that BCAS failed to separate sick animals
from healthy ones. Numerous individuals observed damp conditions and sitting water on
4
We doubt, however, whether an affidavit stating that taxes will not rise in the future
can establish that fact. Moreover, we also question whether any statement about future
unsettled Baltimore County tax policy is within the cognition of any lay witness or
admissible as evidence in court, as required under Md. Rule 2-501(c). Such a statement is
highly speculative.
14
the floors of the shelter. Finally, affiants claim that there were too few qualified staff and
an inadequate volunteer program.
Consequently, Taxpayers contend, the County has wasted taxpayer funds. They
claim that the County’s actions “increase the number of animals that must be housed at
BCAS and therefore impose increased maintenance costs.” Such actions allegedly are
wasteful in that they impose expenses on the public purse “for materials like medications
for animals that avoidably fall ill and euthanizing agents for animals that are unnecessarily
euthanized.” Finally, Taxpayers assert, with fewer animals suitable for adoption, the
County lost revenue from adoption and licensing fees. These allegations of waste amount
to substantial inefficiency and unlawful misuse of public property and treasure, regardless
of whether they are likely to cause an increase in taxes. Taxpayers have successfully
alleged that, because BCAS’s ineffectual management resulted in the provision of more
expensive shelter services and decreased revenue, its use of taxpayer funds was wasteful.
As discussed previously, Taxpayers must also establish a “special interest” in the
wasted funds that is “distinct from the general public.”5 State Center, 438 Md. at 556. We
have explained that entitlement to sue is based on the taxpayer’s “equitable ownership of
[public] funds and their liability to replenish the public treasury.” Id. at 558–59 (cleaned
up). Surely the “taxpayer” to which we referred means any individual who may be liable
5
“The distinction between resident and taxpayer is significant,” and has been
subject to much consternation. State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md.
451, 559 n.65 (2014). To illuminate this distinction, we provided that, “[a] party may be a
resident of the State (and, thus, have a ‘general interest’ in the State’s actions), but not be
a taxpayer whose pecuniary interest would be affected by that action (and, thus, not have
the requisite ‘special interest’).” Id.
15
to replenish the relevant fisc. Conversely, the “general public” includes all those not
subject to such liability. Hence, “taxpayer” means those in the relevant jurisdiction subject
to the taxation which is alleged to have been increased or wasted, while the “general public”
amounts to those who are not subject to such taxation.
To explain, the taxpayers presently at issue are all those liable to replenish the fisc,
via taxation, from which BCAS is funded, as this is the money that is allegedly being
misused or wasted.6 Here, this includes any Baltimore County taxpayer contributing to
general fund tax revenues, as BCAS operates using monies supplied from the Baltimore
County general fund. The “general public,” on the other hand, includes all those not subject
to such liability. Thus, the taxpayers of Baltimore County, as represented by the present
Petitioners, are sufficiently distinct from the general public.7
Nexus
We have recognized that the plaintiff must also clearly demonstrate a nexus between
“the potential pecuniary damage and the challenged act.” Floyd, Maj. Slip Op. at 31–32.
As part of this showing, “the taxpayer must be asserting a challenge and seeking a remedy
6
For information regarding the taxes levied on Baltimore County residents, see Tax
Rates, Balt. Cty. Gov’t (Oct. 18, 2018), https://www.baltimorecountymd.gov/Agencies/
budfin/taxpayerservices/taxrates.html [archived at https://perma.cc/V4H3-N6DT]. They
include a real property tax, personal property tax, public service taxes, and income tax.
7
This explains the statement by Judge Harrell (ret.), in dissent, that he was “not
certain . . . that the individual actual expenditures incurred by [Taxpayers] who claimed to
have spent them should receive much weight in the analysis of standing.” See George v.
Balt. Cty., No. 47, Sept. Term 2016, 2018 WL 2948204, at *6 n.4 (Md. Ct. Spec. App. June
12, 2018). Rather, such harm is more appropriate for a private action.
16
that, if granted, would alleviate the tax burden on that individual and others[.]” State
Center, 438 Md. at 572. The County argues that Taxpayers never established such a nexus.
We do not agree.
As described at length above, Taxpayers allege a nexus between the potential
pecuniary damage—waste of government resources within a program funded from a pot
that Petitioners are liable to replenish—and the challenged illegal act—the alleged
violations of Article 12 of the Baltimore County Code. We refer again to the above analysis
to illuminate this point. As their remedies, Taxpayers seek a declaratory judgment, writ of
mandamus, and preliminary and permanent injunctions enjoining the alleged illegal
activity.8 It is self-evident that if waste and mismanagement at the shelter existed, any such
relief would alleviate same.
Degree of Harm
Finally, there must be some modest showing regarding the degree of harm suffered
by the taxpayers. “It is well-settled that the individual’s monetary burden does not need to
be calculable at the time of filing suit. Equally well-settled, however, is the requirement
that there must be a ‘clear showing’ that a monetary burden is alleged.” State Center, 438
Md. at 580. Uncertainty surrounding the potential loss to the taxpayer is not disqualifying,
8
Taxpayers seek no monetary damages. This action is typical of taxpayer suits, and
indeed, taxpayer standing presupposes that only declaratory and injunctive relief will be
permitted, and not money damages or attorney’s fees. See Citizens Planning & Hous. Ass’n
v. Cty. Exec. of Balt. Cty., 273 Md. 333, 339 (1974) (“[T]he principle has become
established that a taxpayer may invoke the aid of a court of equity to restrain the action of
a public official or an administrative agency . . . .”). The absence of monetary relief
curtails the likelihood of frivolous taxpayer suits.
17
as this uncertainty “is the reason that we do not require taxpayers to demonstrate in the
pleading the exact pecuniary loss or increase in taxes.” Id. at 577.
To be sure, there must be some degree of certainty that the loss experienced by
taxpayers is not zero. The Dorsey Affidavit confirms that the operational budget for the
Animal Services Program is approximately $2,260,631 per fiscal year. Waste of funds in
the manner described and failure to collect adoption and license fees certainly demonstrate
some monetary burden.
CONCLUSION
In sum, Taxpayers have established pecuniary harm derivative of waste and
mismanagement, a nexus between that harm and the alleged illegal government act, and
sufficiently quantified the alleged harm. For these reasons, we hold that Taxpayers have
demonstrated specific injury and, thus, possess standing to pursue their claim under the
taxpayer standing doctrine. Consequently, the motion for summary judgment should have
been denied. We reverse the Court of Special Appeals and remand to that Court with
instructions to reverse the Circuit Court and remand to it for further proceedings consistent
with this opinion.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED WITH
INSTRUCTIONS TO REVERSE THE
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AND
REMAND TO THAT COURT FOR
FURTHER PROCEEDINGS CONSISTENT
HEREWITH. COSTS TO BE PAID BY
RESPONDENT.
18
Circuit Court for Baltimore County
Case No. 03-C-14-014041
Argued: January 3, 2019
IN THE COURT OF APPEALS
OF MARYLAND
No. 37
September Term, 2018
______________________________________
ANNE GEORGE, et al.
v.
BALTIMORE COUNTY, MARYLAND, et al.
______________________________________
Barbera, C.J.
Greene
McDonald
Watts
Hotten
Getty
Adkins, Sally D. (Senior Judge,
Specially Assigned),
JJ.
______________________________________
Concurring Opinion by Watts, J.
______________________________________
Filed: April 1, 2019
Respectfully, I concur. I agree with the Majority that, under the circumstances of
this case, Anne George, Jody Kesner, and Jody Rosoff (together, “Petitioners”) satisfied
the requirements of taxpayer standing, and that the Circuit Court for Baltimore County
improperly granted the County’s motion for summary judgment. See Maj. Slip Op. at 18.
More particularly, I agree with the Majority that Petitioners have satisfied the specific
injury prong of the special interest requirement. See id. I write separately, however,
because, from my perspective, the specific injury that Petitioners alleged, as described by
the Majority, is not pecuniary loss, but rather a potential increase in taxes. In other words,
in my view, consistent with case law, pecuniary loss is not the equivalent of a potential
increase in taxes; instead, pecuniary loss could encompass circumstances that do not
involve a potential increase in taxes, as pecuniary loss and an increase in taxes are distinct
types of harm.
The majority opinion defines taxpayer standing as consisting of two broad
requirements—“taxpayer status” and “special interest[.]” Id. at 9-10. “Taxpayer status,”
or establishing eligibility to bring a suit, requires that a complainant demonstrate that the
complainant is a taxpayer, and that “the suit is brought, either expressly or implicitly, on
behalf of all other taxpayers.” Id. at 9 (cleaned up). To satisfy the “special interest”
requirement, the complainant must allege both “an action by a municipal corporation or
public official that is illegal or ultra vires” and “that the action may injuriously affect the
taxpayer’s property, meaning that it reasonably may result in a pecuniary loss to the
taxpayer or an increase in taxes.” Id. at 10 (cleaned up). With respect to the latter “specific
injury” prong, a complainant “establish[es] specific injury by demonstrating the
appropriate type of harm, a nexus between the illegal or ultra vires act and the alleged
harm, and some modest showing regarding the degree of harm.” Id. (citation omitted).
Although phrased slightly differently, in Joan Floyd, et al. v. Mayor and City
Council of Baltimore, ___ Md. ___, ___ A.3d ___, No. 35, Sept. Term, 2018 (Md. 2019),
we describe taxpayer standing in a similar manner. In Floyd, Slip Op. at 15, we explain:
As an initial matter, a complainant must demonstrate that he, she, or
it is eligible under the taxpayer standing doctrine; specifically, to establish
eligibility to maintain a suit under the taxpayer standing doctrine, a
complainant must allege two things: (1) that the complainant is a taxpayer;
and (2) that the suit is brought, either expressly or implicitly, on behalf of all
other taxpayers.
(Cleaned up). And, we further explain that a complainant must show a special interest in
the subject matter of the suit distinct from that of the general public by alleging both an
illegal or ultra vires action by a municipal corporation or public official and “that the action
may result in a pecuniary loss to the taxpayer or an increase in taxes.” Id. at 15-16 (cleaned
up). As to the “specific injury” prong, in Floyd, id. at 16, we state that a complainant must
show “that the action being challenged results in a pecuniary loss or an increase in taxes[,]”
and “[t]he harm alleged must be particularized and pecuniary, as opposed to harms to the
general public[.]” (Cleaned up). And, significantly, in Floyd, id. at 16, we point out that
“there must be a nexus between the showing of potential pecuniary damage and the
challenged act.” (Cleaned up). Thus, the majority opinion in this case and in Floyd both
set forth the same requirements for taxpayer standing.
The circumstances of this case, however, differ from those of Floyd in terms of what
is under consideration. In Floyd, id. at 30-31, the taxpayers alleged a theory of pecuniary
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loss or increase in taxes that was vague and not easily understandable; and, among other
things, they alleged that adoption of the zoning map by ultra vires or illegal means would
potentially create costs related to defending against challenges to the comprehensive
rezoning and zoning map. Under those circumstances, in Floyd, id. at 29-30, we concluded
that the taxpayers failed to show a special interest in the subject matter of the case that was
distinct from that of the general public because they failed to sufficiently allege pecuniary
loss or an increase in taxes. In Floyd, this Court was not confronted with defining
“pecuniary loss.” By contrast, in this case, Petitioners have alleged taxpayer standing
based on preventing waste or unlawful use of public property and funds. See Maj. Slip Op.
at 1 n.1, 3-4. What is at issue in this case is whether an allegation of pecuniary loss that is
separate from an actual increase in taxes is sufficient to show taxpayer standing and
whether the losses that Petitioners alleged—including, among other things, veterinary
expenses, and loss of revenue from adoption and licensing fees—constitute such pecuniary
losses.
I agree with the Majority that Petitioners sufficiently alleged taxpayer standing, but
for different reasons. The Majority holds that Petitioners “have established pecuniary harm
derivative of waste and mismanagement, a nexus between that harm and the alleged illegal
government act, and sufficiently quantified the alleged harm.” Id. at 18. In so holding, the
Majority takes great pains to point out that pecuniary loss and an increase in taxes are
distinct types of harm. For example, the Majority explains:
Taxpayers have been consistently required to establish that the action
being challenged results in a pecuniary loss or an increase in taxes. We agree
with Judge Harrell’s dissent in the Court of Special Appeals, as it reinforces
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the importance of the disjunctive “or” in the foregoing standard. Yet, in
assessing standing, we have never asked for more than a potential showing
of such harms, and have exhibited great leniency in our interpretation of
potential pecuniary loss[.] Thus, a reasonable possibility of either
pecuniary loss, or a tax increase, must be shown.
Id. at 11 (cleaned up) (emphasis in original). The majority opinion expressly acknowledges
that “raising taxes is not the only valid type of harm that can be alleged.” Id. at 12. I fully
agree with Majority on this point.
In reading the majority opinion, however, it becomes clear that the Majority
describes potential pecuniary loss as a circumstance in which there is a potential for an
increase in taxes, but where the increase has not actually occurred; i.e., in my view, despite
taking care to distinguish between pecuniary loss and an increase in taxes, the Majority
appears to, at the end of the day, equate the two. For example, the Majority states:
Consequently, [Petitioner]s contend, the County has wasted taxpayer
funds. They claim that the County’s actions “increase the number of animals
that must be housed at [Baltimore County Animal Shelter] and therefore
impose increased maintenance costs.” Such actions allegedly are wasteful in
that they impose expenses on the public purse “for materials like medications
for animals that avoidably fall ill and euthanizing agents for animals that are
unnecessarily euthanized.” Finally, [Petitioner]s assert, with fewer animals
suitable for adoption, the County lost revenue from adoption and licensing
fees. These allegations of waste amount to substantial inefficiency and
unlawful misuse of public property and treasure, regardless of whether they
are likely to cause an increase in taxes. [Petitioner]s have successfully
alleged that because [Baltimore County Animal Shelter]’s ineffectual
management resulted in the provision of more expensive shelter services and
decreased revenue, its use of taxpayer funds was wasteful.
Id. at 15. Although the Majority indicates that these allegations of waste may result in
pecuniary loss regardless of whether they are likely to increase taxes, what the Majority
describes as waste are actually expenses or lost revenue that could potentially result in an
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increase in taxes. Stated otherwise, these are circumstances that could lead to an increased
tax burden, but, in this case, have not yet done so.
Similarly, as to the Dorsey Affidavit,1 the Majority expressly concludes:
We doubt[] whether an affidavit stating that taxes will not rise in the
future can establish that fact. Moreover, we also question whether any
statement about future unsettled Baltimore County tax policy is within the
cognition of any lay witness or admissible as evidence in court, as required
under Md. Rule 2-501(c). Such a statement is highly speculative.
Maj. Slip Op. at 14 n.5. As I see it, ultimately, the Majority attempts to have it both ways
by claiming that potential pecuniary loss and a potential increase in taxes are different types
of harm—and I quite agree with the Majority on this point—yet, acknowledging that the
waste alleged by Petitioners may result in a potential increase in taxes. The Majority
provides no definition of pecuniary loss other than to imply that it may be different than a
potential increase in taxes, and proceeds to identify as pecuniary loss circumstances such
as “waste” that may result in an increase in taxes. I would simply acknowledge that
Petitioners have alleged conditions that could have resulted in an increase in taxes, but did
not, and thus have satisfied the special injury necessary for taxpayer standing.
In State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 556-57, 92 A.3d
1
The majority opinion describes the Dorsey Affidavit as an affidavit from the
Director of Budget and Finance for Baltimore County that
asserted that Baltimore County property taxes had not been increased in 26
years, the income tax had not been increased in 22 years, and that [Baltimore
County Animal Shelter] constituted such a small fraction of the overall
budget “that no taxes would be increased as a result of operation of the
Animal Shelter.”
Maj. Slip Op. at 3.
-5-
400, 463 (2014), with respect to taxpayer standing and specific injury, this Court reiterated
the well-settled principle that a complainant must allege “a special interest distinct from
the general public” by “showing that the action being challenged results in a pecuniary loss
or an increase in taxes.” (Cleaned up). A “special interest that is distinct from the general
public” may be “the increased burden of taxation[,]” i.e., alleging a potential increase in
taxes is sufficient. Id. at 557, 92 A.3d at 463 (cleaned up). We emphasized that a
complainant “is not required to allege facts which necessarily lead to the conclusion that
taxes will be increased; rather[,] the test is whether the taxpayer reasonably may sustain a
pecuniary loss or a tax increase—whether there has been a showing of potential pecuniary
damage.” Id. at 559, 92 A.3d at 464 (cleaned up).
In State Ctr., id. at 583, 92 A.3d at 479, this Court “conclude[d] that [the plaintiff]s
pleaded [the] taxpayer standing doctrine sufficiently[.]” We determined that there was a
nexus between the plaintiffs’ allegations of taxpayer harm and the allegedly illegal acts of
public officials. See id. at 577, 92 A.3d at 475. And, we noted that the plaintiffs had
alleged that: the project at issue was expected to cost $1.5 billion; a State agency had
assumed the obligation to design, finance, construct, operate, and maintain an underground
garage for the project, and agreed to contribute up to $28 million in taxpayer funds toward
the cost of the garage design and construction; and issuance of $33 million in bonds
supported by taxpayer revenues to build the parking garage had been approved. See id. at
577, 92 A.3d at 475. Moreover, the plaintiffs had alleged that they would “uniquely bear
the excessive costs” and increased taxes as a result of the State’s failure to use a competitive
bidding process. Id. at 579, 92 A.2d at 476-77. We determined that these “allegations
-6-
[were] sufficient” to establish a nexus. Id. at 580, 92 A.3d at 477. Finally, we stated that,
although a plaintiff must make “a clear showing that a monetary burden is alleged[,]” a
taxpayer is “not required to prove an exact amount of pecuniary damage that he[,] she[, or
it] will suffer.” Id. at 580, 92 A.3d at 477. As such, we determined that the plaintiffs had
“pleaded sufficiently a loss of revenue from the public funds as contributed by them as
taxpayers.” Id. at 581, 92 A.3d at 478. Stated otherwise, alleging a potential increase in
taxes is sufficient to satisfy the specific injury prong.
Here, although the Majority does not rule out the possibility that pecuniary loss
could be different than a potential increase in taxes, the situation in this case is that the
Majority describes the pecuniary loss alleged by Petitioners by stating: “We are willing to
recognize substantial waste in government operations, even without potential tax increase,
as a pecuniary loss sufficient to confer standing. This is because taxpayers, as
‘shareholders,’ are reasonably entitled to a sound and careful use of funds.” Maj. Slip Op.
at 13. Clearly, the County’s sound and careful use of funds is necessary to avoid a potential
increase in taxes. Similarly, the Majority states that Petitioners “allege a nexus between
the potential pecuniary damage—waste of government resources within a program funded
from a pot that Petitioners are liable to replenish—and the challenged illegal act[.]” Id. at
17. With these observations, the Majority likens pecuniary loss to a potential increase in
taxes. The Majority also recounts Petitioners’ allegations as including increased
maintenance costs, taxpayer expenses for items such as medications, and lost revenue from
adoption and licensing fees. These additional costs and lost revenues are circumstances
that could theoretically result in an increase in taxes. For these reasons, the Majority is
-7-
correct that Petitioners have sufficiently established taxpayer standing. To the extent that
the majority opinion expressly states that pecuniary loss and an increase in taxes are distinct
harms, and does not rule out that pecuniary loss could be different from a potential increase
in taxes—i.e., that pecuniary loss is not limited to a potential increase in taxes—I agree.
Significantly, in this case, in the Court of Special Appeals, in a dissenting opinion,
Judge Glenn T. Harrell, Jr., indicated the same—that pecuniary loss and an increase in
taxes are distinct types of harm—explaining:
[T]he Majority opinion in its analysis reduces the disjunctive standard of
potential pecuniary loss or tax increase into a single category—it is all about
taxation. Although I understand that the name of the legal concept at issue
is “taxpayer” standing, that does not mean (or justify) collapsing the
alternative basis of “potential pecuniary loss” into the separate category of
increased taxation.
The cases, albeit without crystal clarity, distinguish that “potential
pecuniary loss” is indeed a separate category for standing from increased
taxation. For example, the Court of Appeals, in James v. Anderson, 281 Md.
137, 377 A.2d 865 (1977), held that alleging a “decrease in efficiency which
would result from the alleged [governmental] ultra vires acts” was “sufficient
for a taxpayer of the county involved to maintain a suit.” 281 Md. at 142,
377 A.2d at 868. The bar is not set high in meeting this standard. In Sun
Cab Co. v. Cloud, 162 Md. 419, 159 A. 922 (1932), the Court of Appeals
demonstrated great leniency in accepting as sufficient a plea of potential
pecuniary loss where a plaintiff claimed an interest in avoiding waste of
public funds by local government in conducting an arguably invalid
referendum vote. 162 Md. at 426, 159 A. at 925.
Anne George, et al. v. Baltimore Cty., Md., et al., No. 47, Sept. Term, 2016, 2018 WL
2948204, *6 (Md. Ct. Spec. App. June 12, 2018) (Harrell, J., dissenting) (last alteration in
original). In analyzing the allegations in this case, Judge Harrell recognized that some of
the Petitioners had alleged pecuniary losses distinct from increased taxes, stating:
[Petitioners] allege that Baltimore County was grossly defective and/or
-8-
inefficient in its operation of its Animal Shelter, all of which resulted in the
unnecessary or exorbitant expenditure of public funds and even direct
personal pecuniary losses to citizens who ended-up having to obtain proper
veterinary case (or euthanasia) for adopted animals who had been neglected
or mistreated at the Shelter. Mr. Dorsey’s (the County’s Budget & Finance
Director) affidavit, in which the circuit court and the Majority opinion place
much stock, made no attempt to counter [Petitioners’] claims of potential or
actual pecuniary loss, except as to the unlikelihood of increased or decreased
taxes. I conclude that [Petitioners] demonstrated sufficiently a triable
controversy.
Id. (footnote omitted). I agree with Judge Harrell’s well-reasoned assessment of the case.
In any event, I am in agreement with the Majority’s apparent conclusion that
alleging circumstances that involve a potential increase in taxes is sufficient to satisfy the
specific injury prong of the special interest requirement, and that, here, Petitioners have
done so and have otherwise satisfied the requirements to establish taxpayer standing.
Whether the harm is described as pecuniary loss or a potential increase in taxes, it is enough
under the circumstances of this case.
For the above reasons, respectfully, I concur.
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