Could a Maryland county amend its charter to require a municipality's consent before county laws applied inside that town?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General whether a newly enacted law governing the relationship between county and municipal laws, known informally as the "Tillie Frank" legislation and set to take effect January 1, 1984, would allow a charter county to amend its charter so that county laws would apply within the county's municipalities only with those municipalities' consent. The opinion concluded that it would. It reasoned that the Court of Appeals had already held that the Maryland Constitution's home rule provisions permit the General Assembly to regulate, by public general law, how charter county and municipal laws relate to each other, and that a county charter itself could likewise condition county law's application within municipalities on municipal approval, since that kind of provision is part of the basic organizational framework a charter is meant to establish. The opinion then examined the new statute's text and found that it presupposed the existence of validly enacted county legislation under a county's own charter requirements, so that a charter provision conditioning county law's application on municipal consent would simply mean that no county law lacking that consent existed to trigger the statute's conflict rules in the first place, meaning there was no conflict between such a charter provision and the new law.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion analyzed a statute, Chapter 398, Laws of Maryland 1983, that had not yet even taken effect at the time of the opinion (its effective date was January 1, 1984), and rested heavily on the Court of Appeals' then-recent decision in Town of Forest Heights v. Frank. Maryland's statutory framework governing county-municipal relations, later codified in Article 23A of the Maryland Code, has continued to develop since 1983; verify the current version of that framework and any more recent case law before relying on any specific rule described here.

Common questions

Could a Maryland county require a town's permission before the county's own laws applied inside that town?
Yes, according to this opinion. It concluded that the newly enacted Chapter 398, Laws of Maryland 1983, did not conflict with, and in fact was consistent with, a charter amendment making county laws inapplicable within a municipality unless that municipality consented.

Did a county need a constitutional amendment to limit how its laws applied within its own towns?
No. The opinion pointed to the Court of Appeals' decision in Town of Forest Heights v. Frank, which held that Article XI-A, §3 of the Maryland Constitution does not bar charter county ordinances from applying within municipalities generally, and that the General Assembly may regulate the county-municipal relationship by ordinary public general law, without a constitutional amendment.

Would this kind of charter provision conflict with the new statute governing county and municipal laws?
The opinion found no conflict. It reasoned that the new statute's conflict-resolution rules presupposed validly enacted county legislation in the first place, so if a county's own charter conditioned the validity of county laws within municipalities on municipal consent, there simply would be no county law to trigger those conflict rules absent that consent.

Background and statutory framework

The opinion began with the Court of Appeals' decision in Town of Forest Heights v. Frank, which held that Article XI-A, §3 of the Maryland Constitution does not preclude charter county ordinances from applying within a county's municipalities generally, only from being applied to particular, singled-out municipalities, and that the General Assembly retains authority to regulate the relationship between charter county and municipal law through public general legislation. Based on that authority, the General Assembly at its 1983 session enacted Chapter 398, comprehensive legislation adding new provisions to Article 23A of the Maryland Code, codified as §§2(a), 2B, and 2C, that set out general rules for when county legislation applies within a municipality. Under §2B(a), county legislation does not apply within a municipality if it by its terms exempts the municipality, conflicts with municipal legislation, or touches a subject the municipality has specifically or generally exempted itself from, subject to further exceptions in §2B(b) and (c).

The opinion reasoned that these conflict rules in §2B necessarily presuppose "valid legislation," meaning county legislation enacted in accordance with that county's own charter requirements. If a county's charter itself makes county ordinances subject to municipal approval, the opinion concluded there is no need to even reach §2B's conflict analysis, since no valid county legislation exists within a non-consenting municipality to begin with, a reading reinforced by Article 23A, §2(a) as amended by Chapter 398. The opinion also read §2B(a)(1)'s phrase "by its terms exempts the municipality" to include not just exemptions expressly stated in an individual ordinance but also exemptions necessarily implied by a charter's own consent requirement. The opinion further relied on its own earlier analysis in 67 Opinions of the Attorney General 300 (1982), which had concluded that a charter provision conditioning county law on municipal approval is a proper subject for a charter because it is part of the "broad organizational framework" a charter establishes, quoting Cheeks v. Cedlair Corp., and does not strip the county council of its essential lawmaking primacy. Because any conflict between a charter and a public general law must be resolved in favor of the public general law under Wilson v. Board of Supervisors of Elections, the opinion's ultimate conclusion turned on finding no such conflict here.

Citations

Statutes:

• Article XI-A, §3 of the Maryland Constitution (home rule; charter county ordinances within municipalities)
• Article 23A, §2(a) (validity of public local law relative to municipal ordinances, as amended)
• Article 23A, §2B (general conflict rules between county and municipal legislation)
• Article 23A, §2B(a) (county legislation inapplicable in a municipality under specified conditions)
• Article 23A, §2B(a)(1) (county legislation that "by its terms exempts the municipality")
• Chapter 398, Laws of Maryland 1983 (the "Tillie Frank" legislation, effective January 1, 1984)

Cases:

• Town of Forest Heights v. Frank, 291 Md. 331 (1981)
• Cheeks v. Cedlair Corp., 287 Md. 595, 607 (1980)
• Wilson v. Board of Supervisors of Elections, 273 Md. 296, 301 (1974)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Local Government—Charter Counties—Municipalities—Constitutional Law—Home Rule Powers—Conflicts Between Jurisdictions—County Charter May Condition Effect of County Law in Municipality on Consent of Municipality.

July 5, 1983

The Honorable Eileen M. Rehrmann
Maryland House of Delegates

You have requested our opinion on whether Article 23A, §§2(a) and 2B of the Maryland Code, as enacted by Chapter 398, Laws of Maryland 1983, would permit the amendment of a county charter to make application of the county's laws within the county's municipalities subject to the approval of those municipalities. Chapter 398, the so-called "Tillie Frank" legislation, will specify in statute the relationship between county and municipal laws. It takes effect on January 1, 1984.

For the reasons given below, we have concluded that the new statute will permit the kind of charter amendment that you describe.

I
Background

In Town of Forest Heights v. Frank, 291 Md. 331 (1981), the Court of Appeals held that Article XI-A, §3 of the Maryland Constitution does not preclude the application of charter county ordinances within a county's municipalities generally, but only bars the application of such ordinances to particular municipalities. 291 Md. at 346. However, the Court also held that, in defining the powers of charter counties and municipalities, the General Assembly may regulate the relationship of charter county and municipal law by public general law. Id. Accordingly, we recently advised that a constitutional amendment would not be required to limit the application of charter county ordinances within a county's municipalities. 67 Opinions of the Attorney General 254 (1982).

At its recent session, the General Assembly enacted Chapter 398, Laws of Maryland 1983: comprehensive legislation designed to regulate the relationship of county and municipal law. See generally Bill Review Letter (House Bill 1277) from Stephen H. Sachs, Attorney General, to Harry Hughes, Governor (May 2, 1983).

II
Issue Presented

Although the General Assembly may regulate the relationship of county and municipal laws by legislation, a county charter may also regulate this relationship by a provision that would make county laws subject to municipal approval. 67 Opinions of the Attorney General 300 (1982). That kind of provision would be a proper subject for a charter, because it would be "an element of the 'broad organizational framework establishing the form of and structure of government in pursuance of which the political subdivision is to be governed and local laws enacted'". 67 Opinions of the Attorney General at 305 (quoting Cheeks v. Cedlair Corp., 287 Md. 595, 607 (1980)). Moreover, such a provision would not deprive the county council of its essential primacy as the county's lawmaking body. 67 Opinions of the Attorney General at 303-05.

Thus, the only issue here is whether this type of charter amendment would conflict with the newly enacted Chapter 398. "Any conflict between a county or city charter and a public general law must be resolved in favor of the public general law." Wilson v. Board of Supervisors of Elections, 273 Md. 296, 301 (1974).

III
Analysis

In our view, Chapter 398 would not conflict with a charter amendment that would make county laws subject to municipal approval. Rather, an amendment of that kind would be entirely consistent with the statute.

Chapter 398 amends the Maryland Code by adding a series of new provisions, to be codified as Article 23A, §§2(a), 2B, and 2C, that define the relationship of county and municipal laws. Under §2B(a), the general rule is as follows: "[L]egislation enacted by a county does not apply in a municipality located in such county if the legislation: (1) By its terms exempts the municipality; (2) Conflicts with legislation of the municipality . . . ; or (3) Relates to a subject with respect to which the municipality . . . specifically exempts itself . . . [or] generally exempts itself from all county legislation covered by . . . grants of authority to the municipality." Several detailed exceptions to §2B(a)(2) and (3), as well as certain exceptions to these exceptions, are set out in §2B(b) and (c).

The references to "legislation" in §2B surely presuppose valid legislation, that is, legislation enacted in accordance with the requirements of a county's charter. If the charter permits legislation that purports to apply to all municipalities, then the elaborate conflict ground rules in §2B will control. But, if the charter itself subjects county ordinances to municipal approval, there is no need even to resort to §2B. See Article 23A, §2(a), as amended by Chapter 398 (if "public local law" does not apply to municipality by virtue of a charter requirement, then municipal ordinances are "not contrary" to public local law; hence, §2B need not be consulted).

Moreover, under §2B(a)(1), county legislation "does not apply in a municipality ... if the legislation . . . [b]y its terms exempts the municipality". We read the phrase "by its terms" to comprehend not only "terms" expressly stated in a county ordinance but also "terms" necessarily implied by charter, here, a charter requirement that county laws are applicable only with municipal approval. Thus, legislation in a county with that charter requirement would "not apply in a municipality", in accordance with §2B(a)(1).

IV
Conclusion

In summary, it is our opinion that Chapter 398, Laws of Maryland 1983, permits the amendment of a county charter to make the application of the county's laws within the county's municipalities subject to the approval of those municipalities.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel
Opinions and Advice
Avery Aisenstark, Chief Counsel
Opinions and Advice

Editor's Note: The preceding Opinion was originally written as a letter of advice. Because of the importance of the issue to local governments, it is published here in a slightly revised format.