Monday •  October 17, 2022

Guest Post: Maryland’s High Court Misses Badly on HCPSS Student Member of the Board Case

By Gene Harrington

The Maryland Court of Appeals – the state’s highest court – erred badly last month when it upheld the constitutionality of a state law authorizing a 16–17-year-old student – elected by 11–17-year-olds – to serve on the Howard County Board of Education (BOE) and cast binding votes.

The main premise of the Court’s decision was that the Maryland General Assembly has absolute authority to determine the makeup of local boards of education, their membership, and qualifications, as well as who can select said members.  This includes disregarding constitutional guardrails pertaining to office eligibility and voting age, residency, and other requirements. 

In its opinion, the Court cites a 1933 Court of Appeals case, Calvert County v. Monnett, to argue its finding.  Specifically, the ruling reads, quoting in part from the 1933 case:

“Unlike the offices created by the Constitution “where the office is of legislative creation, the General Assembly can modify, control, or abolish it, and within these powers is embraced the right to change the mode of appointment.”

The quoted phrase, however, is taken out of context.  In fact, Calvert County v. Monnett is largely contrary to the Court’s recent decision, specifically finding that offices created by the legislature are indeed subject to parts of the Constitution. 

The 1933 case involved whether the treasurer of Calvert County – an office, like local BOEs, that was established by the General Assembly not the State Constitution – is subject to a constitutional provision prohibiting the decrease of a public officer’s salary during his or her term in office.  This section of the Constitution was added to protect public officials from improper pressure by threats of diminution of compensation, which would seem an important safeguard regardless of the origins of the office. The treasurer’s salary had been cut by the General Assembly after his term had commenced and he sued on the grounds that such action was unconstitutional. The Court agreed with the treasurer. 

The 1933 Court clearly stated that there is a difference between an office specifically established by the Constitution and one created by legislation, but that distinction only applies in some matters – namely the power to alter the terms of office and abolish it.  In other words, a legislatively-created office is still subject to much of the State Constitution such as provisions pertaining to office eligibility, elective franchise, and intimidation of public officials.  

Indeed, the Court further opined in the 1933 decision, quoting from a Superior Court of Pennsylvania decision:

“Many important offices exist which are not provided for by the constitution, and the number is increasing from year to year.  The duties of these officials are various and some of them highly important.…  It is hardly to be supposed that the general expression of the Constitution would have been used in view of the number of offices then in existence and likely to be created by the will of the legislature if the prohibition was only to apply to comparatively small numbers whose existence was required by that instrument.”

It defies logic that the election of members of a local Board of Education – legally considered a state agency – albeit one with local flavor – would not be subject to the State Constitution, especially Section 1, Article I that pertains to whom is eligible to vote.  It is certainly the purview of the General Assembly to abolish or alter the terms of an office it created but if it establishes that the members of a local BOE are elected, then the election must be conducted within the confines of the State Constitution.  

Unfortunately, the Court’s recent decision is likely to invite additional legislation expanding Student Member of the Board (SMOB) voting rights throughout Maryland.  Indeed, during the 2022 legislative session House Majority Leader Eric Luedkte introduced a bill requiring all 24 local school boards to add a SMOB with the authority to vote on all issues but teacher and staff disciplinary matters.  Presently, eight of Maryland’s 24 jurisdictions – Baltimore City and Anne Arundel, Baltimore, Charles, Harford, Howard, Montgomery, and Prince George’s Counties – grant SMOBs a binding vote.  Unlike Majority Leader Luedtke’s bill, all of the enacted bills granting voting rights to SMOBs were put forward by legislators from those respective jurisdictions.

While Majority Leader Luedtke’s measure didn’t move at all, there is a strongly likelihood that bill will be back in 2023.  Furthermore, bills expanding the voting authority of SMOBs in Baltimore City and Baltimore County did clear the General Assembly during the 2022 session but were vetoed by Governor Larry Hogan in late May, partly because of the then-pending Court of Appeals case.  Those bills will almost certainly be reintroduced as well.  In addition, Delegate Eric Ebersole, who previously represented Howard County but no longer will after the latest redistricting, put forward a bill to the Howard County Legislative Delegation in the 2022 session that proposed to give the Howard County SMOB the power to vote on the capital and operating budgets.  The Delegation never acted on the draft bill, and it wasn’t formally introduced. 

Hopefully, the pending federal case – Kim et al. v. Board of Education of Howard County – challenging the constitutionality of Maryland law permitting 11–17-year-old Howard County Public School System students to elect a 16–17-year-old student will rectify the Court of Appeals mistake.

DISCLAIMER: This post is a HoCo Watchdogs Guest Reader Contribution. 

The opinions and views expressed in this publication are solely those of the listed author and do not necessarily reflect the opinions or views of HoCo Watchdogs, LLC or the HoCo Watchdogs main blog author, Steven Keller.