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John C. Murphy, Esq.
Law Office of John C. Murphy
On November 3, 2006, the Court of Appeals issued a 37 page
opinion holding the Baltimore Development Corporation (BDC)
subject to the State opening meetings and public information
laws.
The sunshine laws have been around since the 1970s and at
first glance one would assume that BDC would be subject to these
laws. Indeed that was the very first question posed by Chief
Judge Joseph Murphy to BDC in the argument before the Court of
Special Appeals—why in the world would a powerful City
development agency like BDC not be subject to these laws?
The City’s defense boiled down to the contention that it was
a private corporation and, as such, was not subject to the State
laws which are aimed at public meetings, that is, meetings
conducted by units of government , or public documents, that is
documents generated by units of government. For the public
meetings law, it came down to a question of statutory
construction. The law states that a public body “includes”
entities where a majority of the board members are appointed by
the Mayor. SG 10-502 (h)(2). The City unsuccessfully argued that
“includes” did not extend the reach of the law to
non-governmental entities. Instead, the Court of Appeals held
that in this case the word “includes” performed the function of
extending the law to private corporations where the board was
publicly appointed.
For the public information law, the law applies to an
“instrumentality” of government, SG. 10-611 (g)(1)(i). Here the
Court of Appeals held that it was obvious that BDC performed
public functions and that it fit the normal concept of
“instrumentality”.
So from a purely legal standpoint, it was not a difficult
case. It also did not help BDC that it was represented in the
proceedings by the City Solicitor who normally represents only
units of the Baltimore City government, not private interests or
private corporations. The strongest argument asserted for BDC’s,
was that it had performed wonderful work over the years like the
Inner Harbor, so why hamper it with restrictions that might make
its life more difficult. Indeed there have been sporadic efforts
over the years in the General Assembly to bring BDC and agencies
like it under the Sunshine laws. One can assert that given BDC’s
prominence, if it operated with an immunity from the Sunshine
laws, that immunity must have flowed from the consent of the
General Assembly.
If the scales needed to be tipped, the Supreme Court case of
Kelo v. City of New London, 545 U.S. 469 (2005) was there to do
the tipping. Baltimore City undertakes eminent domain on a
massive scale, mostly under the aegis of BDC. The Court of
Appeals just could not accept the contention that an agency
carrying on eminent domain programs was immune from the Sunshine
laws. Judge Cathell’s opinion quoted extensively from Kelo and
he wrote that given the justifiable concern with the seizure of
private property for development projects such as upheld in Kelo,
condemnation proceedings “should be even more open to public
scrutiny”.
The public meetings and freedom of information laws are often
of great use to practitioners. It is difficult to represent
clients, if the agency is meeting behind closed doors. Access to
documents is often of immeasurable help. So given that BDC is an
incredibly powerful agency, orchestrating the investment of
hundreds of millions of dollars in private and public money and
having a profound effect on Baltimore City, the decision is of
great importance. The decision will also no doubt have
application to other organizations both in the City and outside.
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