IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

*
BOARD OF EDUCATION
OF MONTGOMERY COUNTY

Plaintiff *

v. *

*
MONTGOMERY COUNTY,
MARYLAND

Defendant *

* * * * * * * * * * * *

MEMORANDUM IN SUPPORT OF
MOTION FOR INJUNCTIVE RELIEF

I. INTRODUCTION

The Board of Education of Montgomery County (the “School Board”) seeks injunctive

relief directing the Montgomery County Council (the “Council”) to comply with the

provisions of § 5-102 of the Annotated Code of Maryland, Education Article (“ED”). Section

5-102 sets forth a clear and unambiguous process for the development of the School Board’s

annual budget. In contravention of § 5-102, the Council has made reductions to the annual

budget proposed for the School Board by the County Executive. As the Council is not

authorized to make these reductions, injunctive relief is warranted.

II. OVERVIEW OF THE BUDGET PROCESS AND REQUIRED FUNDING

The Education Article prescribes the process by which the annual budgets for county

board’s of education are developed. That process is straightforward. The Education Article

also prescribes the minimum funding levels for the county boards’ annual budgets. That
computation is more complex and the Maryland Office of the Attorney General has recently

issued an opinion which succinctly describes that computation. First, the budget process.

A. The Budget Process

The School Board, with the advice of its Superintendent, develops a recommended

annual budget containing the statutorily required information organized by categories. ED §

5-101. The School Board then submits its proposed budget to the County Executive. ED § 5-

102(b).

The County Executive may deny or reduce in part major categories of the School

Board’s proposed budget, in which event the County Executive must provide a written

explanation detailing the reason for the denial or reduction. ED § 5-102(c)(2). See also,

Board of Education of Montgomery County v. Montgomery County, Maryland, 237 Md. 191,

205 A.2d 202 (1964). Thereafter, the Council “may restore any denial or reduction made by

the county executive in the annual budget submitted by the county board.” ED § 5-102(c)(3).

B. Maintenance of Effort (MOE) Funding Requirements

The amount requested by the School Board in its annual budget must contain at least

the same level of funding that the School Board received from local sources the prior fiscal

year. ED § 5-103(a) and § 5-202. As stated in a recent opinion from the Attorney General:

A county government’s power to reduce a local school board’s budget is

limited by the State “foundation program” and the MOE requirements in the
State education law. See 64 Opinions of the Attorney General 51, 53 (1979)
(requirement to levy taxes to raise sufficient funds for the minimum county
share – what is now called the foundation program – is mandatory); 76
Opinions of the Attorney General 153, 162 (1991) (failure of county to meet its
MOE requirement would result in forfeit of increase in State aid otherwise due
the local board). The foundation program is essentially a computation based
on pupil enrollment and a dollar amount per pupil. See ED §5-202(a)(5).

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 Responsibility for funding the foundation amount in each jurisdiction is
divided between the State and the county according to a complex formula that
takes into account the relative wealth of each jurisdiction. ED §5-202(a); see
also COMAR 13A.02.06.03.

In order to receive the full State share of the foundation program for the local
school system, a county must satisfy certain conditions. In particular, the
county governing body must levy an annual tax sufficient to fund the local
share of the foundation program. ED §5-202(d)(1)(I). In addition, it must
appropriate local funds for the school operating budget “in an amount no less
than the product of the county’s full-time equivalent enrollment for the current
fiscal year and the local appropriation on a per pupil basis for the prior fiscal
year.” ED §5-202(d)(1)(ii). Because the latter provision requires the county to
maintain at least the same level of per-pupil funding as in the previous year, it
is sometimes referred to as the “maintenance of effort” requirement.

94 Opinions of the Attorney General 177, 181 (2009) (emphasis supplied).

The School Board may request, and the Council may appropriate, funds in excess of

the MOE level. ED § 5-103(a), (b). See also, 94 Opinions of the Attorney General 177, 183

(2009). Thus, the Council’s “local appropriation for its school system is made up of the local

foundational share, additional amounts necessary to satisfy the MOE requirement, and any

amount in excess of the MOE level that the county chooses to appropriate.” Id.

If the county’s fiscal condition “significantly impedes” the county’s ability to meet the

MOE level, the county may request that the State Board of Education grant a temporary or

partial waiver of the MOE requirement. ED § 5-202(d)(7); 94 Opinions of the Attorney

General 177, 184 (2009). If the county does not meet its MOE funding obligation and does

not obtain a waiver of that obligation, a penalty is imposed on the school system:

Enforcement of the MOE requirement is assigned to the State Board. If the

State Superintendent finds that a county is out of compliance, the
Superintendent is to notify the county of its noncompliance. ED §5-213(b)(1).
The county may dispute that finding before the State Board, which makes a
final determination as to the county’s compliance. ED §5-213(b)(2). A

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 certification of noncompliance is sent to the State Comptroller, who is to
withhold a portion of the local board’s State aid. ED §5-213(b)(3). The penalty
is defined as the amount by which “the State’s aid due the county in the current
fiscal year [under ED §5-202] exceeds the amount which the county received
in the prior fiscal year.” Id.; see also 76 Opinions of the Attorney General at
161-62; Letter of Assistant Attorney General Bonnie A. Kirkland to Senator
Richard S. Madaleno, Jr. (May 20, 2009).

94 Opinions of the Attorney General 177, 184 (2009).

III. FACTUAL BACKGROUND

On December 9, 2009, the Superintendent of the Montgomery Count Public Schools

(MCPS) submitted to the School Board a proposed annual budget for Fiscal Year 2011 (FY

2011). The Superintendent’s proposed budget for FY 2011 was $2,226,134,843. Of that

amount, it was estimated that $1,553,968,214 would be derived from county funds. Exhibit

A.

In February 2010, the School Board adopted a Fiscal Year 2011 annual budget in the

amount of $2,263,286,410. Of that amount, it was estimated that $1,553,934,287 would be

derived from county funds. This proposed budget was submitted by the School Board to the

County Executive and the Council on February 26, 2010. Exhibit B.

The County Executive, as authorized by statute, recommended reductions to the

School Board’s proposed annual budget for FY 2011. The County Executive’s recommended

budget for the School Board was $2,125,542,225. Of that amount, $1,415,085,344 would be

derived from county funds. Exhibit C. Because this amount of county funding was less than

was budgeted by the Council for the School Board the prior fiscal year, and thus failed to

satisfy the MOE requirement, the Council and the County Executive submitted a request to

the State Board of Education on March 31, 2010, seeking a waiver of the MOE requirement

for FY 2011. Exhibit C. On ----, the State Board of Education approved/denied the request
for a MOE waiver.

Thereafter, on ----, the Council approved a FY 2011 annual budget for the School

Board in the amount of $---------. Of that amount, $------ is derived from county funds. This

amount was $----- lower than was recommended by the County Executive. In so doing, the

Council exceeded its legal authority.

IV. DISCUSSION

A. The Standard For Injunctive Relief

The grant or denial of injunctive is governed by consideration of the following factors:

(1) the likelihood that the plaintiff will succeed on the merits;

(2) the "balance of convenience" determined by whether greater injury would be done
to the defendant by granting the injunction than would result from its refusal;

(3) whether the plaintiff will suffer irreparable injury unless the injunction is granted;
and;

(4) the public interest.

Ehrlich v. Perez, 394 Md. 691, 708, 908 A.2d 1220, 1230 (2006); State Dep't v. Baltimore

County, 281 Md. 548, 554-57, 383 A.2d 51 (1977).

As set forth in the following section, the School Board has demonstrated a high

likelihood that it will succeed on the merits of its claim, i.e., that the Council was without

authority to make reductions to the FY 2011 budget proposed for the School Board by the

County Executive. The School Board need only show that it has a “real probability” of

prevailing on the merits, as opposed to a “remote possibility.” Fogle v. H & G Restaurant,

Inc., 337 Md. 441, 456, 654 A.2d 449, 456-57 (1995).

As to the “balance of convenience” factor, the injury to the School Board if the

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injunction is not granted is far greater than the injury to the Council if the injunction is

granted. Given that the County Executive has proposed a comprehensive budget for the

county (which subsumes the budget for the School Board) that enables the county to perform

its necessary functions, the Council is hard-pressed to argue that it will be injured if the

injunction is granted. Conversely, the County Executive has recommended a budget for the

School Board for FY 2011 that fails to satisfy MOE funding levels. On top of that reduction

to the prior fiscal year’s level of funding, the Council has now instituted yet another reduction

to the level of funding for the School Board.1 The “balance of convenience” clearly favors the

School Board’s position.

The School Board will be irreparably harmed if the injunction does not issue. Through

its ultra vires action, the Council has reduced the School Board’s annual budget in the amount

of $-----------. Irreparable harm “need not be beyond all possibility of compensation in

damages, nor need it be very great. Thus, it has been held that irreparable injury is suffered

whenever monetary damages are difficult to ascertain or are otherwise inadequate.”

Maryland-National Capital Park and Planning Commission v. Washington National Arena,

282 Md. 588, 615-16, 386 A.2d 1216 (1978) (internal citations omitted). The monetary

damages here can be ascertained and they are great. Further, a delayed restoration of the

School Board’s budget is otherwise inadequate as the school system will be immediately

impacted by the Council’s unauthorized budgetary reduction. Schools are scheduled to open

for students on Monday August 30, 2010. Teachers return on Monday August 23, 2010.

1
Additionally, because the State Board of Education did not grant the Council’s
request for a MOE waiver, the School Board is subject to a substantial financial penalty. ED
§ 5-213.

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Between now and then, teachers must be hired (or laid off) and class schedules developed for

over 140,000 students. Delay in funding will wreak havoc on the public school children of

this county.

As to the public interest factor, such is furthered when the Council is prohibited from

usurping the authority of the County Executive to the School Board’s detriment. The grant of

the injunction, which would restore the School Board’s funding to the level determined by the

County Executive, also “ensures that State policy decisions to improve public education are

not defeated by local funding decisions.” 94 Opinions of the Attorney General 177, 184

(2009). Further, as noted, because the County Executive was able to develop a county-wide

budget that enables the county to perform its necessary functions, it is difficult for the

Council to maintain that the issuance of the injunction would be against the public interest.

B. The Council Improperly Reduced The School Board’s Annual Budget

The budget provisions in the Education Article are “part of a carefully conceived

legislative structure in which the respective powers and limitations of local school boards, the

State Board of Education and county governments are delineated and balanced.” Board of

Education of Montgomery County v. Montgomery County, Maryland, 237 Md. 191, 205 A.2d

202 (1964). Section 5-102 of the Education Article sets forth a clear and unambiguous

process for the development and approval of the School Board’s annual budget. It provides,

in relevant part, as follows:

(b) Submission. (1) Each county board shall submit an annual school budget in writing
to the county commissioners, county council, or the county executive.

(2) The budget shall be submitted not less than 45 days before the date for levying
local taxes or on an earlier date on or after March 1 as may be requested by the county

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 fiscal authority.

(c) Reduction by county executive. (1) This subsection applies only to a county that
has a county governing body that consists of a county executive and county council.

(2) The county executive shall indicate in writing which major categories of the
annual budget of the county board have been denied in whole or reduced in part and
the reason for the denial or reduction.

(3) The county council may restore any denial or reduction made by the county
executive in the annual budget submitted by the county board.

(Emphasis supplied.)

As § 5-102(c) makes clear, the authority to deny or reduce the annual budget submitted

by the School Board rests solely with the County Executive. The Council is not granted

authority in this provision to make such denials or reductions. Rather, the authority of the

Council is limited to restoring any denial or reduction made by the County Executive. Thus,

the budget proposed by the County Executive for the School Board sets the funding floor for

what ultimately must be approved by the Council. Accordingly, while the Council may

provide the School Board with additional funding by restoring the County Executive’s

proposed denials or reductions to the School Board’s budget, it may not usurp the County

Executive’s role by itself making those denials or reductions.

The language of § 5-102(c)(3) is clear. Under that provision, the Council’s role in the

approval of the School Board’s annual budget is limited to either 1) approving the budget

proposed by the County Executive, or 2) restoring “any denial or reduction made by the

County Executive in the annual budget submitted by the county board.” This limitation on the

Council necessarily means that the Council lacks authority to deny or reduce the annual

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budget proposed by the County Executive.2 First, this authority is expressly granted to the

County Executive in § 5-102(c)(2). No such authority is granted to the Council. If the

General Assembly intended the Council to have this authority, it could have easily done so in

the statute. Under the statutory construction doctrine of expressio unius est exclusio alterius,

the specific grant of this authority to the County Executive (and to no other) reflects the

exclusion of this authority to all others. Expressio unius est exclusio alterius is defined as:

A canon of construction holding that to express or include one thing implies

the exclusion of the other, or of the alternative. For example, the rule that
“each citizen is entitled to vote” implies that noncitizens are not entitled to
vote.

Black’s Law Dictionary (8th ed. 2004).

“Maryland has long recognized this basic rule. Gay Investment Co. C. Comi, 231 Md.

433, 438, 187 A.2d 463, 466 (1963); Johns v. Hodges, 62 Md. 525, 538 (1884).” Biggus v.

Ford Motor Credit Co., 328 Md.188, 613 A.2d 986 (1992) (“This is in keeping with the

familiar maxim of statutory construction that ‘expressio unius est exclusio alterius’ – the

expression of one thing is the exclusion of another.”)

Referring to this doctrine, the Court of Appeals opined:

Stated another way, when a statute designates the parties granted a right, only
such parties as are designated have the right and all omissions should be
understood as exclusive. American Sec. & Trust Co. v. New Amsterdam Cas.
Co., 246 Md. 36, 41, 227 A.2d 214, 216-17 (1967); Thanhauser v. Savins, 44
Md. 410, 414 (1876); 2A, Sutherland, Statutory Construction, § 47.23 163 (4th
ed. C. Sands 1973).

2
If the budget proposed by the County Executive contains additional funds beyond
those necessary to meet the MOE funding level, the Council may reduce those additional
funds. ED § 5-103(c). This provision is inapplicable here because the County Executive did
not propose an annual budget for the School Board which satisfied the MOE funding
requirements.

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Montgomery v. State, 292 Md. 155, 162-163, 438 A.2d 490, 493 (1981)(emphasis supplied),

superseded by statute on other grounds as stated in In re Ryan S., 369 Md. 26, 797 A.2d 39

(2002).

As noted, the statute applicable here, § 5-102(c) of the Education Article, grants

authority to deny or reduce the annual budget proposed by the School Board to the County

Executive only. Accordingly, other parties, such as the Council, lack such authority.

Similarly, in Office & Professional Employees International Union v. Mass Transit

Administration, the Court of Appeals stated that:

It is a settled principle of statutory construction that the Legislature's

enumeration of one item, purpose, etc. ordinarily implies the exclusion of all
others. State Insurance v. Nationwide, 241 Md. 108, 117, 215 A.2d 749
(1966); Trust Co. v. Ward Baking Corp., 177 Md. 212, 220, 9 A.2d 228
(1939); Railroad Co. v. Lichtenberg, 176 Md. 383, 390, 4 A.2d 734, appeal
dismissed, 308 U.S. 525, 60 S.Ct. 297, 84 L.Ed. 444 (1939); Vanderford v.
Farmers' Bank, 105 Md. 164, 168, 66 A. 47 (1907) ("the express mention of
one thing implies the exclusion of another"); 2A Sutherland, Statutory
Construction, §§ 47.23, 47.24 (4th ed. 1973). The principle is often expressed
as the latin maxim "expressio unius est exclusio alterius," Gay Investment v.
Comi, 230 Md. 433, 438, 187 A.2d 463 (1963). A related principle is that
where a statute authorizes or permits a person or agency to take a certain type
of action in a particular manner, such manner becomes a mandatory limitation,
and the action must be taken in conformity with it. Trust Co. v. Ward Baking
Corp., supra, 177 Md. at 220 ("`A statute that directs a thing to be done in a
particular manner ordinarily implies that it shall not be done otherwise.'"); 2A
Sutherland, supra, §§ 57.14-57.18.

Mass Transit Administration, 295 Md. At 96, 453 A.2d at 1195 (1982) (emphasis supplied).

Again, § 5-102(c)(2) empowers the County Executive to reduce the School Board’s

proposed budget and, pursuant to the foregoing, “it shall not be done otherwise” by the

Council. Id. By the same token, § 5-102(c)(3) limits the authority of the Council to restoring

“any denial or reduction made by the County Executive in the annual budget submitted by the

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county board.” In keeping with the canon expressio unius est exclusio alterius, the expression

of this authority to restore denials or reductions to the budget reflects the exclusion of the

additional authority to deny or reduce the budget proposed by the County Executive.

In sum, by reducing the FY 2011 budget proposed for the School Board by the County

Executive, the Council has usurped the authority of the County Executive and gone beyond

the limited authority granted it by ED § 5-102(c)(3). Accordingly, injunctive relief directing

the Council to return this unauthorized reduction is warranted.

V. CONCLUSION

For all of the foregoing reasons, the School Board respectfully requests that the Court

issue an injunction directing the Council to fund the School Board’s FY 2011 budget at the

level proposed by the County Executive in accordance with ED § 5-102.

__________________________________
Judith S. Bresler
CARNEY, KELEHAN, BRESLER
BENNETT & SCHERR, LLP
10715 Charter Drive
Columbia, Maryland 21044
410-740-4600
Attorney for Plaintiff Board of Education

CERTIFICATE OF SERVICE

I HEREBY CERTIFY on this ____ day of ____ 2010, a copy of the foregoing was
mailed, first class postage prepaid, to: -------------------------.

________________________________
Judith S. Bresler

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