a citizen’s journal by Thomas Nephew

Garrett Park, Maryland SLAPPed — then stifles itself

Posted by Thomas Nephew on October 12th, 2007

The term SLAPP (“Strategic Lawsuits Against Public Participation”) is used to describe a lawsuit “involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance,” and more generally suits arising from speech in connection with a public issue.

Though it hasn’t reached actual litigation yet — and perhaps never will — something very much like that has happened to Garrett Park, Maryland impeachment advocates and their city government.

The story begins on September 10th, when the Garrett Park city council first considered passing a resolution supporting impeachment. Nine citizens of the small (pop. 917 in 2000) town testified for it, one suggested a referendum. For whatever reason, the latter suggestion prevailed in a 3-2 vote.

Or so it seemed. A legal firm representing two Garrett Park residents unhappy with the vote claimed in a September 27 letter that the Garrett Park council could not call for such a referendum, under state law and the town charter, since there was no ordinance for the referendum to refer to:

Pursuant to the Annotated Code of Maryland, Art. 23A, the powers of a municipal corporation such as Garrett Park are limited to those powers specifically enumerated in Section 2 of Article 23A. The power to vote a referendum is not among those powers, because, among other reasons, under the Constitution of Maryland, Art XVI, the referendum is reserved solely to the people. In order to exercise the power of referendum, either for the purpose of amending the municipal charter (Ann Code of Maryland, Art. 23A, Section 13) or for submitting an ordinance of the Town Council for the approval or disapproval of the qualified voters of the town (Garrett Park Charter, Section 78-15), a petition of not less than twenty percent of the qualified voters of the town is required. It is our understanding that you do not have before you a petition of at least 20% of the qualified voters on this matter, and even if you did, the question of impeaching President Bush and Vice President Chaney (sic) is neither an ordinance of the Town Council nor a proposed charter amendment, so submitting the matter to referendum is improper. Lastly, because the Town Council, as a legislative body, lacks the power of referendum, the vote on September 10, 2007 to refer the matter to referendum was also improper.

(Links added.) The mayor and town council hastily agreed — having established meanwhile that the proper sequence of votes on the various motions of the evening had not occurred, so that the referendum vote itself was procedurally out of order. (Parliamentarians can peruse the mayor and town council’s explanatory letter of October 2, and a local “e-Bugle” newsletter covering the meeting, to check whether I — and the elected leaders of Garrett Park — have this part of the story right.) From the council’s letter:

Further research after the September meeting has led the Council to understand that it does not have the authority to call for a referendum on the issue of impeachment of the President and Vice President. Under state law and the Town Charter, referendums may only be held for Charter amendments or approval or disapproval of ordinances of the Town based on petitions with the signature of 20% of the registered voters of the town.

Notice so far that even if both the legal firm and the town fathers are absolutely right about all of the above, they are saying a very limited thing at this point: for lack of (1) a relevant ordinance or Charter amendment and (2) signatures from 20% of Garrett Park, a referendum can not be called by the Garrett Park town council. As will be seen below, it is not clear that everyone is absolutely right even about that — but the story takes a far more disturbing turn at this point.

At their October 8th town council meeting, far from revisiting the impeachment issue as promised in their October 2 letter, the city’s elected leaders “declined, on advice of counsel, to take any further action on the impeachment resolution that had been acted upon inconclusively at the Council’s previous meeting. The Council members and the Mayor had been advised by the town attorney, it was announced, that any further action or, indeed, any further public discussion of the matter within or beyond the Council chamber, would make them collectively and individually liable for legal damages.”*

This seems clearly and perniciously wrong to me, simply as a matter of common sense — but also as a matter of a look (admittedly untrained) at the statutes involved. Maryland’s Article 23A, Section 2:

(a) “General Authority”: Municipalities can “pass such ordinances not contrary to the Constitution of Maryland, public general law, or, except as provided in § 2B of this article, public local law as they may deem necessary in order to assure the good government of the municipality, to protect and preserve the municipality’s rights, property, and privileges,…”

(b) “Express Powers”: municipalities can pass ordinances…

(2) To expend municipal funds for any purpose deemed to be public and to affect the safety, health, and general welfare of the municipality and its occupants, […]
(7) To provide, maintain and operate such community and social services for the preservation and promotion of the health, recreation, welfare and enlightenment of the inhabitants of the municipality as the legislative body may determine. […]
(29) To provide for special elections for municipal purposes at such times and places as may be determined, and subject to the provisions of the charter of said municipality.

Garrett Park Charter, Section 78-17 (Powers of Council enumerated):

(1) the council shall have the power to pass all such ordinances not contrary to the Constitution or the laws of the State of Maryland or this charter as it may deem necessary for … the protection and preservation of the town’s property, rights, and privileges… and for the promotion of the … welfare … of the residents … in the town. […]
(15) Cooperative activities. To make agreements with other… governmental authorities for cooperation in the performance of any governmental activities […]
(56) Saving clause. The enumeration of powers in this section is not to be construed as limiting the powers of the town to the several subjects mentioned.

It seems clear enough from the above that a resolution recommending impeachment, and forwarding that recommendation to the Maryland congressional delegation, is well within the prerogatives of the Garrett Park town council.

What’s more, it’s seems quite arguable that from Maryland’s point of view at least, the Garrett Park council can call a referendum — or “special election for municipal purposes”, if you will — on whether to hold a “Bologna Sandwich Day” or a “Ham Sandwich Day,” should that seem to promote the welfare of town residents. (I imagine the 20% signature quota may be a valid hurdle under Garrett Park’s own charter; given that 104 were already collected, they can’t be far shy of the mark if the total population is around 1,000.)

Moreover, should these enumerated, express powers fail to to be enough under state law, it simply cannot be true that the State of Maryland can limit the power of the people to seek redress of grievances under their First Amendment rights through their elected officials.

This may seem like a tempest in a teapot to people outside Maryland, or even outside Garrett Park. While I reiterate that I’m no lawyer, I suspect that this is important — even as I hope that I’m making too much of it. At minimum, the residents of a town have arguably been silenced by one lawyer, two clients, and one somewhat timorous city leadership and attorney. But that has also brought into question their fellow citizens’ rights to have grassroots efforts like Takoma Park’s successful impeachment resolution — or Garrett Park’s abortive one — considered and acted on.

* Personal e-mail communication from a Garrett Park resident who attended the meeting. Emphasis added.
NOTES: lawyer letter via I’m not sure the 10th amendment argument there applies, since that amendment reserves unenumerated powers to the people or the States.

12 Responses to “Garrett Park, Maryland SLAPPed — then stifles itself”

  1. Nell Says:

    That’s grim. Surely all it will take is some starch in the spine of the town council members, because if the two soreheads and their lawyer try to take it to court it will be dismissed immediately.

  2. CharleyCarp Says:

    Even winning a suit costs money. $20,000 divided by, what, 300 households isn’t real expensive, but then again it’s not nothing either.
    I’m not familiar with the Maryland law on this subject: maybe the case on the Friendship Heights smoking ban sheds some light on municipal powers. (FH isn’t a municipality, and iirc its ban was overturned).

  3. Thomas Nephew Says:

    Nell: happened to (well, didn’t just happen to) speak with ex-mayor of the town today. Though she’s moved up to county council, she said …um… the town is small and these are not people who planned to seek the limelight or bruising confrontations. It’s a shame their plaintiff neighbors won’t play by the same unspoken rules.
    CharleyCarp: Thanks very much for your comment, I’m pleased you noticed this. If the suit were followed through, and were flatly frivolous in a SLAPP way, could counterclaims be levied against the frivolous plaintiffs? That’s probably well beyond the comfort level of the council, but this really seems like a pernicious effect on debate to me. I’ll look into the Friendship Hts. story, though I’d imagine if they’re not a municipality and not “even” protected by Art 23A, that strains the comparison.
    I mainly hope the example doesn’t spread; maybe some kind of Maryland municipal league or the ACLU might have an interest in having a look at this.
    Thanks for your pro bono work at Guantanamo.

  4. Thomas Nephew Says:

    Even winning a suit costs money. $20,000 divided by, what, 300 households isn’t real expensive, but then again it’s not nothing either.
    Wait, I thought they already have an attorney. Is that a salaried position, or … oh. 917 people. I imagine it’s somebody on retainer who’d suddenly start charging a load of bucks if he/she actually did real legal work on their behalf, instead of just telling them to keep their heads as low as possible.

  5. mairi morrison Says:

    i live in garrett park….i don’t agree with the substantive position of the Martin’s the couple who retained an attorney but i do agree they have right to sue
    in fact, the council members were thrilled at the attorney letter…they were trying to wriggle out of doing the referendum (itself a dodge as the original motion was to pass a motion to call for impeachment to be sent to congress (along with 83 other municipalities)
    frankly, the current members and nancy floreen, the former mayor, always get there way

  6. Thomas Nephew Says:

    Thanks very much for commenting, Mairi.
    I don’t dispute anyone’s right to sue if they have standing and so desire; however, I do think there is such a thing as a frivolous lawsuit, or a pernicious one, and I think this is an example. The complainants have set out a pinched and misleading reading of the law (in my “expert” opinion), one that would require time and effort to refute that your elected officials apparently can’t be bothered to expend.
    If this bothers you and other Garrett Parkers enough, in the long run the main remedy is to get a new mayor and council members. In the short run, though, it looks like they’ve “won”: that is, they’ve helped prevent your town from making itself heard about impeachment.
    And the precedent they’re setting, at least within your town, can be used to squelch other community efforts as well; all such efforts are now at the mercy of any crank with a checkbook and a lawyer — whether the issue at hand is impeachment or, say, Garrett Park Nuclear Free Zone Day.

  7. mairi morrison Says:

    the people who have sued are not cranks
    the council had no intention of running the referendum
    they were pleased to have an excuse not to do it
    as your own site notes, there are many arguments in response to the martin’s attorneys
    the town council and mayor choose not to fight the “suit” and it is not yet a suit because they don’t wish to pursue it
    very few people vote in garrett park, because, not because they are apathetic but because the same small group of people, which include the current council and mayor do whatever they want
    if they wanted to hold a referendum, they would do so

  8. mairi morrison Says:

    on a similar point, nancy floreen the former mayor and the then council said in advance of passing what was probably an unconstitutional encroachment on property rights “they can sue is”
    they, a group of people which included the martins, my parents and seven other families did so
    in the end, the suit was rendered moot because the 6 month moratorium came to an end (it could have been extended under the doctrine “capable of repetition yet evading review)
    i know some folks were angry at those who sued, but i argued, be angrier at your council and mayor who don’t care about the law and will try it on thinking nobody will sue
    if the suit is frivolous, which is a very high standard, of course it would be dismissed

  9. Thomas Nephew Says:

    if they wanted to hold a referendum, they would do so
    But they did want to: they voted to hold one. Then they were scared out of doing so.
    i know some folks were angry at those who sued, but i argued, be angrier at your council and mayor who don’t care about the law and will try it on thinking nobody will sue
    So lay it out for us: is that what you think about this impeachment related case, too, or not? The plaintiffs* in the property rights lawsuit may well have had a point — and still be wrong in this instance of legal action.
    You’re right that “frivolous” is a high legal standard, and it may not apply here — although then again, other MD communities don’t seem to suffer the same apprehensions Garrett Park does. But “pernicious” is simply this American’s judgment about the effect of the complaining parties — and the Garrett Park city leadership — on a community’s and its citizens’ rights and prerogatives to engage in joint action and exercise their freedom of speech.
    * I’d like to keep their name out of this discussion, even though it can be found elsewhere.

  10. mairi morrison Says:

    i am not trying to get into an argument
    merely give you a few facts about what actually happened
    they didn’t want to hold a referendum…they were already scared…the martin’s gave them a perfect opportunity to bow out
    it is amusing to me that you hope to keep names that are a matter of public record a secret..what is the problem
    i don’t intend to participate anymore…talk about scared…there is no reason anyone’s names should be secret..unless people are ashamed of themselves
    what is actually going on in the town…

  11. mairi morrison Says:

    i’m on a different page from the martin’s in terms of the underlyping point…but as an attorney…i certainly recognise that they not only have a point but a legal argument
    funny that the council and mayor suddenly aren’t willing to make a legal argument on the contrary side
    perhaps someone from the pro impeachment measure side should sue them and squeeze them into taking a true stand
    i’d enjoy that

  12. Thomas Nephew Says:

    Obviously it’s easy to learn who the plaintiffs are, just by following the link. I only meant to try to keep the names out of it as a courtesy, as a way of not waving a red cape at anyone. I find that online discussions that name names are more likely to turn into angry arguments, where staying with generic descriptions reduces that possibility. I’m not scared, nor did I mean to suggest you’d done anything wrong (let alone actionable).
    I’m still not clear whether your disagreement with the plaintiffs is about impeachment per se (I assume they’re against it), or about the town’s right to pursue a referendum or hold a council vote about impeachment. Your comment that they have a legal argument doesn’t say whether you think it’s a compelling, winning argument.
    Thanks very much for all your input.

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