Municipalities - Charter Amendment Process - Preemption - A Municipality May Not Require That All Charter Amendments Go Through an Advisory Referendum Before Being Considered by the Legislative Body

MUNICIPALITIES
CHARTER AMENDMENT PROCESS – PREEMPTION – A
MUNICIPALITY MAY NOT REQUIRE THAT ALL CHARTER
AMENDMENTS GO THROUGH AN ADVISORY REFERENDUM
BEFORE BEING CONSIDERED BY THE LEGISLATIVE BODY
July 31, 2017
The Honorable Patrick Wojahn
Mayor, City of College Park
You have asked whether the Council of the City of College
Park may amend the City Charter to require that all future charter
amendments be subject to a non-binding referendum before the
Council may vote on adopting the amendment. In keeping with our
procedures for addressing local governments’ opinion requests,
you provided the City Attorney’s analysis of the question. Noting
that no Maryland law explicitly prohibits a municipality’s use of an
advisory referendum for a charter amendment, the City Attorney
advised that a supportable argument could be made that the City
may adopt the requirement that you describe.
In our opinion, the State statutes that prescribe the process for
amending municipal charters do not permit municipalities to
require an advisory referendum as an additional step in that
process. Therefore, the City may not condition the commencement
of the charter amendment process on the submission of the
proposed amendment to the City’s electorate for what amounts to
a straw vote.
I
Background
A. The History of the Proposal
Currently, the City’s charter provision on referenda addresses
only binding referenda. That provision requires the Mayor and
Council (“Council”) to submit the issuance of bonds to a binding
referendum and authorizes the Council “to place other items,
except Charter amendment resolutions, to automatic and binding
referendum by a majority vote of said Council.” City Charter of
College Park (“Charter”) § C4-9. With respect to referenda on
charter amendments, the Charter currently incorporates by
reference the process stated in Title 4, Subtitle 3 of the Local
Government Article of the Maryland Code. See Charter § C5-1.

3
4 [102 Op. Att’y

Title 4 of the Local Government Article provides two
methods of adopting charter amendments: A “legislative” method,
by which the city council itself enacts the amendment by
resolution, Md. Code Ann. Local Gov’t § 4-304,1 and the “petition”
method, where the charter amendment is initiated by the voters
directly, § 4-305. See also Md. Const., Art. XI-E, § 4. Your
opinion request arises out of a proposal that the City change the
legislative method of amending the Charter. The proposed change
would add a preliminary step to that method: Before adopting a
resolution to amend the charter, the Council would have to submit
the amendment to the City’s electorate in an advisory referendum,
commonly referred to as a “straw vote.” The straw-vote
requirement would apply only to charter amendment resolutions; it
would not apply to other types of resolutions that the Council might
consider.
A similar proposal was part of a bill introduced in the 2015
session of the General Assembly. That bill, House Bill 682, would
have authorized municipalities to amend their charters to permit the
legislative body to submit a proposed charter amendment to a
referendum. The bill also would have changed the petition method
by allowing a municipality to lower the threshold for petitioning a
resolution to referendum, and for initiating an amendment by
petition, from 20% to as low as 5%.
In response to a question about the Legislature’s authority
regarding municipal charter amendments, our Office advised that
the General Assembly could amend the statute to allow a
municipality to require a binding referendum on its charter
amendments and to alter the petition thresholds as proposed. Letter
from Kathryn M. Rowe, Assistant Attorney General, to Del.
Joseline A. Peña-Melnyk (Feb. 5, 2015). The letter cautioned,
however, that the authorization in State law must apply to all
municipalities equally to satisfy the constitutional directive that
“general laws . . . shall in their terms and in their effect apply alike
to all municipal corporations . . . .” Md. Const., Art. XI-E, § 1. The
advice letter also noted that, while the Legislature may change the
law, “municipalities [are] not free to make their own rules” for
adopting charter amendments. Rowe Letter at 2 (citing Hitchins v.
City of Cumberland, 208 Md. 134, 143 (1955)).
As explained by the bill’s sponsor, the bill arose out of
College Park’s particular demographic circumstances. See 2015

1
All references are to the Maryland Code Annotated, Local
Government Article (2013, 2016 Supp.), unless otherwise noted.
Gen. 3] 5

Leg., Reg. Sess., Hearing Before the House Environmental and
Transportation Committee on H.B. 682 (written testimony of Del.
Joseline A. Peña-Melnyk, March 3, 2015). Delegate Peña-Melnyk
testified that, because a significant number of College Park’s
registered voters are former students who have since left the City,
it is harder for petitioners in College Park to meet the 20% signature
threshold than it is for residents in municipalities with less transient
populations. Id. Also, many of the current student voters reside in
dormitories and other restricted-access housing, which makes it
difficult to obtain their signatures in petition drives. Id. Together,
these two conditions limit the effectiveness of the petition process
as a check on legislatively-adopted charter amendments. Id.
The Maryland Municipal League (MML) opposed the bill. In
its testimony, MML testified that the 20% threshold worked well
for municipalities generally, and that the law should not be changed
to accommodate one locality. See 2015 Leg., Reg. Sess., Hearing
Before the House Environmental and Transportation Committee on
H.B. 682 (testimony of Candace Donoho, Director, Govt’l
Relations, March 3, 2015). The bill did not make it out of
committee, and the statutory procedures for amending a municipal
charter remained unchanged.
B. The Legislative Method for Amending Municipal Charters
The Maryland Constitution provides for the adoption and
amendment of a municipal charter by either the legislative method
or the petition method. See Md. Const., Art. XI-E, § 4. The same
section requires the General Assembly to “amplify the provisions”
of Article XI-E by general law. Id. The General Assembly has done
so for both methods. See, e.g., § 4-304 (legislative method); § 4-
305 (petition method); § 4-307 (referendum on amendments
proposed by either method). Only the legislative method is relevant
to your inquiry.
The legislative method is “amplified”—and regulated—by
various sections in Title 4, subtitle 3, of the Local Government
Article. Section § 4-304 prescribes the first step: the municipal
governing body’s adoption of a resolution to initiate a charter
amendment. Under § 4-304(a), local governments are authorized to
adopt charter amendment resolutions “in the same manner as other
resolutions in the municipality by a majority of all the individuals
6 [102 Op. Att’y

elected to the legislative body.”2 Section 4-303 regulates the
formatting and contents of the resolution. Among other things, the
resolution must “contain the exact text of the proposed charter
amendment, prepared so that each provision is shown as the
provision would read when amended or enacted,” § 4-303(a)(1),
must be numbered in a certain way, id., (c), and must indicate the
changes in certain typefaces, id., (e).
The second step in the legislative method of adopting charter
amendments is the provision of a 40-day notice period during
which the municipality’s voters may seek a referendum on the
proposed amendment. Once the local governing body adopts the
resolution, the municipality’s chief executive officer must post the
resolution in the “main municipal building” for 40 days and publish
it four times during that period, at weekly intervals, in a newspaper
of general circulation. § 4-304(b).
The third step depends on whether the legislative body
receives a petition for a referendum on the proposed amendment.
If no one files a petition on or before the 40th day after adoption,
the amendment takes effect on the 50th day after the adoption of
the resolution, and the next steps relate merely to codification and
reports to the Department of Legislative Services. §§ 4-304(c), 4-
308 through 310; see also Hitchins, 208 Md. at 142 (stating that the
resolution becomes part of the charter unless a referendum vote is
demanded); Blackwell v. City of Seat Pleasant, 94 Md. App. 393,
398-99 (1993) (explaining the process). If, instead, the legislative
body receives a timely petition for referendum that is signed by at
least 20% of the qualified voters for the municipality’s general
election, the legislative body must “specify by resolution” the date
of a referendum. § 4-304(d)(5). The referendum may be scheduled
for either the next municipal general election or a special election
held “not less than 40 days or more than 60 days after the resolution
scheduling the referendum is adopted.” Id., (d)(6). Whether or not
the proposed amendment is petitioned to referendum, the
governing body may not rescind the proposal “in any manner
except by another charter amendment.” § 4-306.

2
Before recodification into the Local Government Article, this
provision read: “The legislative body . . . may initiate a proposed
amendment . . . by a resolution which, except as otherwise specified in
this subtitle, is ordained or passed as in the usual course of considering
resolutions in the government of the municipal corporation.” Md. Ann.
Code, Art. 23A, § 13(a) (2011 Repl. Vol.).
Gen. 3] 7

II
Analysis
Article XI-E of the Constitution, the “municipal home rule
amendment,” permits municipalities to govern themselves in local
matters. See Clough v. Mayor & Council of Hurlock, 445 Md. 364,
369 (2015) (describing the grant of home rule to municipalities);
Inlet Associates v. Assateague House Condominium Ass’n., 313
Md. 413, 425 (1988) (same). Specifically, residents of an area may
elect to incorporate a municipality under a charter, Art. XI-E,
§§ 3, 4, which then serves as “the organic, the fundamental law,
establishing basic principles governing relationships between the
government and the people, and among the various governmental
branches and bodies.” Clough, 445 Md. at 369 (quoting Cheeks v.
Cedlair Corp., 287 Md. 595, 607 (1980)); see also 88 Opinions of
the Attorney General 103, 109-11 (2003) (explaining municipal
home rule); 80 Opinions of the Attorney General 227, 229 (1995)
(same).
Still, municipalities, like counties, “are but local divisions of
the State.” Rockville v. Randolph, 267 Md. 56, 62 (1972). As
creations of the State, municipalities possess only the powers that
the State has granted to them—expressly or impliedly—through
the Maryland Constitution or the enactments of the General
Assembly. See Kent Island Def. League, LLC v. Queen Anne’s
County Bd. of Elections, 145 Md. App. 684, 688-89 (2002)
(explaining the State’s grant of powers to municipalities); Town of
La Plata v. Faison-Rosewick, LLC, 434 Md. 496, 523 (2013)
(noting the implicit authority to carry out “‘fairly implied’ powers
incident to those duties or authority expressly granted” (citation
omitted)). Even when a municipality enacts a law or charter
provision on a subject within its delegated powers, that provision
is subject to laws enacted by the General Assembly. See Md.
Const., Art. XI-E, § 6 (providing generally that “[a]ll charter
provisions, or amendments thereto, adopted under the provisions
of this Article, shall be subject to all applicable laws enacted by the
General Assembly”); see also Allied Vending, Inc. v. City of Bowie,
332 Md. 279, 295 (1993) (explaining the constitutional limits on
municipal powers).
Your question, therefore, raises two issues: whether the
charter amendment process is a subject that falls within a broad
category of powers that municipalities may address in their
charters; and, if so, whether the addition of a straw-vote
requirement to that process would be preempted by State statute.
8 [102 Op. Att’y

The first issue does not pose an obstacle to the proposed straw vote
requirement; the second does.
A. Whether the Proposed Procedure Falls Within a Category
of Powers that a Municipality May Address in its Charter
The Maryland Constitution expressly authorizes
municipalities to adopt charters, and charter amendments, that
address the “incorporation, organization, government, or affairs”
of the municipality. Md. Const., Art. XI-E, § 3; Birge v. Town of
Easton, 274 Md. 635, 644-45 (1975). The courts have interpreted
Article XI-E, § 3 to allow home-rule jurisdictions to address only
those matters in their charters; the basic function of a home-rule
jurisdiction’s charter is not to legislate, but to “distribute power
among the various agencies of government, and between the
government and the people who have delegated that power to their
government.” Save Our Streets v. Mitchell, 357 Md. 237, 248
(2000) (internal quotation marks omitted); see also Mayor & City
Council of Ocean City v. Bunting, 168 Md. App. 134, 147 (2006)
(“[A]n amendment to a charter ‘is necessarily limited in substance
to amending the form or structure of government initially
established by adoption of the charter.’” (quoting Cheeks, 287 Md.
at 607)).
For example, the Court of Appeals held that a proposal to
create a rent-control system was legislative in nature and thus not
“charter material.” Cheeks, 287 Md. at 614; see also Save Our
Streets, 357 Md. at 255 (holding that proposed amendment to
prohibit the use of county funds for speed bumps was not charter
material). Permissible municipal charter provisions, on the other
hand, have included debt and tax-rate limits, Woelfel v. Mayor and
Aldermen of Annapolis, 209 Md. 314, 318-19 (1956), terms of
office and term limits, Town of Glenarden v. Bromery, 257 Md. 19,
25 (1970), and authorization for a municipal utility to provide
telecommunication services, 88 Opinions of the Attorney General
at 111; see also 88 Opinions of the Attorney General 156, 160 n.6
(2003) (providing examples of permissible and impermissible
charter amendments).
The proposed change in College Park’s charter amendment
procedure addresses a subject within its municipal powers and
qualifies as charter material. That is, the proposed addition of a
step to the charter amendment process would relate to “the
organization, government, or affairs” of the municipality, as
authorized by Article XI-E, § 3 of the Maryland Constitution.
Also, the change would be structural, not legislative, and therefore
would be proper material for a charter, as opposed to an ordinance.
Gen. 3] 9

This result does not end the analysis, however. Instead, we must
now turn to whether the provisions of the Local Government
Article preempt the proposed change.
B. Whether the Proposed Procedure Would Conflict With, or
Otherwise Be Preempted By, State Law
The Maryland Constitution expressly makes “[a]ll charter
provisions, or amendments thereto . . . subject to all applicable laws
enacted by the General Assembly.” Md. Const., Art. XI-E, § 6. Put
another way, any conflict between a municipal charter provision
and State law must be resolved in favor of the State law. See
Hitchins, 208 Md. at 143 (holding that State statutes superseded
city charter provisions).
The preemption doctrine “is grounded upon the authority of
the General Assembly to reserve for itself exclusive dominion over
an entire field of legislative concern.” Ad+Soil, Inc. v. County
Commissioners, 307 Md. 307, 324 (1986). Under the doctrine of
preemption, “legislative acts by a local jurisdiction that conflict
with a public general law or that deal with an area in which the
General Assembly has occupied the entire field or which deal with
an area that the General Assembly has expressly reserved to itself,
are invalid.” Kent Island Def. League, 145 Md. App. at 689.
Therefore, the courts look to whether the Legislature intended to
retain, delegate, or share its power to regulate the field in which the
activity falls. See Ad+Soil, 307 Md. at 324-26.
State law may preempt local law in one of three ways: (1)
preemption by conflict, (2) express preemption, or (3) implied
preemption. Altadis U.S.A., Inc. v. Prince George’s County, 431
Md. 307, 311 (2013); Allied Vending, 332 Md. at 297-98. As noted
by the City Attorney, there is no express conflict between the
proposed advisory referendum procedure and State law; the
applicable State statutes do not expressly prohibit, or even mention,
advisory referenda on proposed charter amendments. Compare
Montgomery County v. Atlantic Guns, Inc., 302 Md. 540, 543
(1985) (finding express preemption when uncodified language
stated that “the State of Maryland hereby preempts the right of the
political subdivisions to regulate” the wearing, carrying, or
transporting of handguns) with Ad+Soil, 307 Md. at 324 (finding
no express preemption where State statute contained no “language
prohibiting local legislation”). Instead, we evaluate whether local
legislation on the charter amendment process is preempted by
implication or by conflict.
10 [102 Op. Att’y

1. Implied Preemption by Occupation of the Field
Implied preemption occurs when “local law deals with an area
in which the State Legislature has acted with such force that an
intent by the State to occupy the entire field must be implied.”
Talbot County v. Skipper, 329 Md. 481, 488 (1993) (internal
quotation marks and brackets omitted). Although there is no set
formula for divining legislative intent, “the primary indicia of a
legislative purpose to preempt an entire field of law is the
comprehensiveness with which the General Assembly has
legislated in the field.” Id. (internal quotation marks omitted). The
fact that the General Assembly has legislated on a particular
subject, however, does not invariably preclude all local regulation
of a field. Dual regulatory processes may co-exist when local
regulation augments, and does not conflict with, the State’s
regulation. See, e.g., Maryland Reclamation Associates v. Harford
County, 414 Md. 1, 40 (2010) (holding that State waste disposal
permitting process complemented, rather than preempted, the
county’s planning and zoning role); Mayor & City Council of
Baltimore v. Hart, 395 Md. 394, 409 (2006) (holding that city
directive on the operation of emergency vehicles was not
preempted by State statute because the directive and the statute
furthered the same purpose).
The Court of Appeals—noting the considerable detail with
which the General Assembly has legislated on the topic—has
concluded that the State has entirely occupied the field with respect
to the charter amendment process, and, therefore, that State statutes
supersede a local government’s efforts to alter that process.
Hitchins, 208 Md. at 144; see also Mayor of City of Hagerstown v.
Lyon, 236 Md. 222, 228 (1964); Blackwell, 94 Md. App. at 400; 74
Opinions of the Attorney General 183, 184-85 (1989); 58 Opinions
of the Attorney General 153, 156 (1973). In Hitchins, the
Cumberland city charter had required a referendum on every
charter amendment initiated by the legislative route and had
permitted the initiation of amendments by a petition of 10% of the
city’s voters. 208 Md. at 139. Then, as now, State law did not
require a referendum on a legislatively-adopted charter amendment
unless at least 20% of a municipality’s qualified voters so
petitioned, and a petition of at least 20% of the voters was needed
to initiate an amendment. Id. at 141-42; see also §§ 4-304, 4-305.
Holding that State law preempted these charter provisions, the
Court stated that it was “clear” that the State laws “enacted to
implement Article XI-E, and particularly to implement Section 4
thereof, occupy the whole field of amendments to charters of
municipalities.” Hitchins, 208 Md. at 143.
Gen. 3] 11

In Lyon, a mayor claimed that charter amendments initiated
by the legislative method were ordinances, subject to his veto,
rather than resolutions, which were not. The Court concluded, with
“no great difficulty,” that the question was “controlled by the State
law . . . and not by the provisions of the [city charter] dealing
generally with the passage of ordinances.” 236 Md. at 228, 229.
Similarly, in Blackwell, the Court of Special Appeals held that an
amendment initiated by the legislative method was rendered
“inoperative” when the municipality posted notice of the governing
body’s resolution after the stated effective date of the amendment
and after the voters’ right to petition it to referendum had expired.
94 Md. App. at 406-07.
At the same time, the Court has declined to invalidate charter
amendments for “literal” noncompliance with State law when there
is no evidence that the legislative body or the electorate was misled.
Thus, in Lyon, the Court upheld the validity of a legislatively-
adopted charter amendment in which the entirety of the amended
provision—old and new language alike—appeared in italics, rather
than just “the new matter,” as State law required. 236 Md. at 232-
33. The Court noted that neither the legislators nor the voters could
have been confused by the “failure to comply literally” with State
law. To invalidate the amendment on the basis of technical
noncompliance with State law, the Court observed, would “place a
premium on form and require a disregard of substance.” Id. at 234.
Likewise, the Court has stated that municipal officials may
administer the process with “additional standards and safeguards,”
such as requiring that notice be posted in ways additional to that
required by the statute. See Reed v. Town of North East, 226 Md.
229, 249 (1961). In Reed, the Court concluded that the requirement
in § 4-304(b)(2) that a charter amendment resolution be posted in
“a newspaper” did not preempt local legislation requiring
resolutions to be posted in two newspapers, because the measure
“would appear to be simply an enlargement upon procedural
regulation.” Id. The Court found the “enlargement” in Reed to be
analogous to a local measure that had permissibly set a date
certain—September 1—for an application-filing deadline, when
State law required only that the application be filed before the
annual revision of the tax list. 226 Md. at 248-49 (discussing
Eastern Tar Products Corp. v. State Tax Comm., 176 Md. 290
(1939)).
Here, the proposed advisory referendum requirement would
not merely deviate from an administrative aspect of the State law
and would not simply enlarge upon an existing procedural
12 [102 Op. Att’y

regulation. Instead, it would substantively alter College Park’s
method of adopting charter amendment resolutions by creating a
new procedure for those resolutions alone. In so doing, the advisory
referendum would limit the City Council’s discretion to address a
charter amendment resolution at any time. We therefore conclude
that State law would impliedly preempt an advisory referendum
requirement for charter amendments.
2. Conflict Preemption Under Article XI-E, § 6
We also conclude that the proposed charter amendment
process would be preempted by conflict. Preemption by conflict
occurs when a local ordinance “either prohibits an act that under
State law is permitted, or it permits an act that under State law is
prohibited.” Worton Creek Marina, LLC v. Claggett, 381 Md. 499,
515 (2004). As we have previously advised, courts will infer the
Legislature’s intent to displace local regulation either from “a
verbal conflict” (i.e., when the language of the State and local law
are in conflict) or from a “functional conflict” (i.e., when the impact
of the local law interferes with the State law’s function). Hart, 395
Md. at 408-09; see generally 98 Opinions of the Attorney General
60, 91 (2013).
There is no verbal conflict here; the applicable State statutes
do not expressly prohibit advisory referenda on proposed charter
amendments. There is, however, a functional conflict. We see two
areas of conflict.
First, under the State-law procedures, municipal governing
bodies must adopt charter amendment resolutions “in the same
manner as other resolutions in the municipality by a majority of all
of the individuals elected to the legislative body.” § 4-304(a).
Under the proposed amendment, as we understand it, College Park
would adopt charter amendment resolutions in a manner different
from that used for other resolutions: For charter amendment
resolutions alone, the City Council would first have to submit the
proposed change to the electorate for an advisory vote.3

3
For discussions about whether a charter home-rule county may
hold straw votes, see Montgomery County v. Bd. of Supervisors of
Elections, 311 Md. 512, 521-22 (1988); 61 Opinions of the Attorney
General 384 (1976) (General Assembly authorization needed); 61
Opinions of the Attorney General 391, 395-97 (1976) (expressing
“serious doubt” about submitting a charter resolution to referendum
Gen. 3] 13

Second, the addition of an extra step at the beginning of the
charter amendment procedure significantly alters the schedule that
§ 4-304 sets for the adoption of charter amendments. Although the
Court of Appeals has not addressed changes in the statutory
schedule for charter amendments, it has addressed the subject in
the context of the somewhat analogous procedures for petitioning
a municipal annexation resolution to referendum. See Koste v.
Town of Oxford, 431 Md. 14, 33-34 (2013); see also Town of New
Mkt. Frederick County v. Milrey, Inc.-FDI P’ship, 90 Md. App.
528, 542-44, 547-48 (1992) (referring to Hitchins and Lyon in
analyzing town’s compliance with the statutory annexation
procedures).
The annexation procedures at issue in Koste, like the charter
amendment procedures here, prescribed the steps to be followed
and the time periods for the governing body’s adoption of a
resolution and provision of notice. In that case, the annexation
resolution would take effect forty-five days after the governing
body’s adoption of it, unless the requisite number of voters had
petitioned it to referendum within that 45-day period. 431 Md. at
21-22. Some of the Koste petitioners had signed the petition before
the town commissioners had adopted the resolution. When the
commissioners rejected those signatures and refused to refer the

when the effect of the particular referendum would be that of a “straw
vote”). In Montgomery County, the Court broadly stated “the principle
that ‘straw votes’ are impermissible in this State.” 311 Md. at 521 (citing
Levering v. Supervisors of Elections of Baltimore City, 129 Md. 335,
338-40 (1916)). Relying on Levering, the Court reasoned, in part, that
general election ballots would be overcrowded with questions. Id. at
522.

Whether that principle applies to municipalities, which did not have
home rule when Levering was decided, is unclear. We have previously
noted that the authority of municipalities to allocate powers between
their governing bodies and their voters is likely broader than that of
counties, because Article XI-E does not require municipalities to
delegate legislative authority exclusively to the governing body. See 88
Opinions of the Attorney General 156, 161-62 (2003). And, in contrast
to the applicable law when Levering was decided, the law now contains
a mechanism for guarding against overcrowding the State ballot with
local questions. The State Board of Elections now has the opportunity
to review and approve municipal ballot questions before they appear on
the State ballot. See § 4-108.3 (providing for inclusion of municipal
questions on the State ballot under certain circumstances). It is, thus, no
longer necessary to prohibit straw votes altogether, at least not to prevent
overcrowding of the State ballot.
14 [102 Op. Att’y

resolution to referendum, a voter sought a judicial determination
that the signatures were valid. Id. at 17-18. The Court held that
the signatures were not valid, and it concluded that “[t]he General
Assembly intended for the post-enactment forty-five (45) day
period to act as a beginning and ending period for the petition
circulation and submission process.” Id. at 36. The Court
explained:
The General Assembly, in imposing
substantial requirements and restrictions on
the referendum process generally, was mind-
ful of the legitimate concern that legislative
governance could be slowed down dram-
atically if referendum elections were too
frequent occurrences. If referendum elections
were to become a more routine occurrence, it
would take substantially longer and exhaust
substantially more resources for laws to
become enacted (if at all), thus stagnating
potentially the legislative process. See [Mayor
and Town Council of Oakland v. Mayor and
Town Council of Mountain Lake Park, 392
Md. 301, 332 (2006)] (“[I]f the petition is
accomplished appropriately and defended
during the signature verification process,
there remains a very costly and time
consuming political process leading up to the
referendum election.”) (Cathell, J. concurring).
Consequently, when the General Assembly
intends to impose a substantial restriction on
the referendum process, that purpose will not
be disturbed by the Judiciary, except upon the
clearest justification and grounds.
Koste, 431 Md. at 33-34.
Here, State law sets a timetable that begins with the governing
body’s resolution proposing the charter amendment and ends with
the adoption of the amendment. Specifically, the municipality
must publish the resolution “for the 40 days after the resolution is
adopted”; any petition for referendum must be filed within that 40-
day period; and, absent a sufficient petition, the amendment will
take effect on the 50th day after the resolution is adopted. § 4-
304(b), (c). Beginning the charter amendment process with a straw
vote would delay the adoption of the resolution well beyond the 50-
day period contemplated by the statute.
Gen. 3] 15

For this reason, the addition of a non-binding referendum to
the charter amendment process is not the sort of variance from State
law that the Court of Appeals has upheld on the grounds that it
merely “enlarges upon” a State statute “by requiring more than the
statute requires.” Reed, 226 Md. at 248. The local measures upheld
on this ground performed the same function as a correlative State-
law provision but did so by requiring additional or more specific
steps not required by State law. In Reed, for example, the Court
upheld a local requirement that charter amendments be published
in two newspapers even though State law required only one. And,
in Eastern Tar Products, the Court declined to invalidate a local
requirement that an application for tax exemption be submitted by
a date certain rather than “before the annual revision and correction
of the tax lists,” as State law had required. 176 Md. at 294.
A requirement that a municipal legislative body submit all
proposed charter amendments to a non-binding referendum does
not “enlarge” upon any goal of the charter amendment process set
forth in State law. Instead, it would significantly disrupt the
schedule set forth in State law, lead to frequent advisory referenda,
and delay the governing body’s enactment of charter amendments,
perhaps significantly. We thus conclude that a local measure
requiring a mandatory straw vote before the municipal legislative
body can vote on a charter amendment would be preempted, both
by conflict and by the General Assembly’s implied occupation of
the field of the charter amendment process.
III
Conclusion
In our opinion, an amendment of the City Charter mandating
an advisory referendum before the City Council may vote on a
charter amendment resolution would be preempted by the State law
that establishes the process for adopting municipal charter
amendments. Only if the applicable State statutes were amended
to permit the advisory referendum and to create the process for its
implementation could the City Council establish this prerequisite
to amending its charter.
Brian E. Frosh
Attorney General

Karen L. Federman Henry
Assistant Attorney General
Adam D. Snyder
Chief Counsel, Opinions & Advice