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CHARTER HOME RULE COUNTIES

PUBLIC OFFICERS AND EMPLOYEES ) CONSTITUTIONAL LAW )

RECALL PROVISION IN COUNTY CHARTER WOULD BE

UNCONSTITUTIONAL

October 18, 1995

The Honorable Marvin H. Smith, Chairman

Caroline County Governmental Study Commission

You have requested our opinion concerning the validity of a

recall provision in a county charter. In our opinion, such a provision

would be unconstitutional.

I

Nature of Recall

The County Commissioners of Caroline County have

appointed a commission to study the county government. The

commission, known as the Caroline County Governmental Study

Commission, has been asked to consider whether it would be better

for the county to adopt charter government under Article XI-A of the

Constitution in lieu of the present code county government under

Article XI-F. Among the arguments advanced by the proponents of

charter government is that the charter could provide for the recall of

the county’s elected officials.

Recall generally refers to the termination of an elected

official’s tenure before the end of the term as the result of a special

election called by a certain percentage of voters. Poprosky v. Shea,

573 A.2d 756, 758 (Conn. App. 1990); Collins v. Morris, 438 S.E.2d
18 [80 Op. Att’y

1

 Recall is to be distinguished from removal for cause as the result of

legal proceedings. See, e.g., Article XV, §2 of the Constitution.

2

 Of the related voter participation devices of legislative initiative and

referendum, the Court of Appeals has held that, on the one hand, the

initiative violates the Charter County Home Rule Article, Article XI-A, §3.

Maryland State Administrative Board of Election Laws v. Talbot County,

316 Md. 332, 349, 558 A.2d 724 (1988). On the other hand, the Court

held that the referendum is proper charter material. Ritchmount

Partnership, 283 Md. at 64. The distinction is that the initiative

completely deprives the county council of its legislative power in violation

of Article XI-A, §3, while the referendum does not. Talbot County, 316

Md. at 347-49.

896, 897 (Ga. 1994); Wallace v. Tripp, 101 N.W.2d 312, 314 (Mich.

1960).1

 In advocating a recall provision in a county charter, the

proponents are evidently referring to the recall of the elected

officials whose positions would be established by a charter ) that is,

the council and the executive, if the executive is elected. See Article

XI-A, §3.

II

Constitutional Conflict

In interpreting the Charter County Home Rule Article, Article

XI-A, the Court of Appeals has said that a county charter is the

equivalent of a constitution, concerned with the distribution of

power among the agencies of government and between the

government and people. Board of Supervisors of Elections v.

Smallwood, 327 Md. 220, 236-37, 608 A.2d 1222 (1992). The

power to adopt a charter is derived directly from the Constitution

and does not require implementing legislation. Ritchmount

Partnership v. Board of Supervisors of Elections, 283 Md. 48, 58,

388 A.2d 523 (1978). 

A recall provision can reasonably be regarded as proper charter

material, not requiring statutory authorization.2 Nevertheless, all

charter provisions are subject to the federal and State constitutions

and public general laws of the State. See Maryland Constitution,

Article XI-A, §1; Ritchmount, 283 Md. at 59. As you suggested in
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3

 Article XVII, §3 does not apply to municipalities. We express no

opinion about the constitutionality of recall provisions in a municipal

charter. See generally Town of Glenarden v. Bromery, 257 Md. 19, 262

A.2d 60 (1970) (issue raised but not decided). 

your letter, there is a substantial question of whether a recall

provision would be contrary to the Fewer Elections Amendment of

the State Constitution. 

In relevant part, the Fewer Elections Amendment (or

Quadrennial Elections Amendment, as it is sometimes called)

provides that elections for State and county officials shall be held

every four years. Article XVII, §2. Except for judges, all elected

State and county officials “shall hold office for terms of four years,

and until their successors shall qualify.” Article XVII, §3. 

The evident purpose underlying the mandatory term “shall

hold” is to promote stability in government through fixed terms. Of

course, the general rule of a four-year term is subject to qualification

in the case of removal for cause as the result of legal proceedings.

See Article XV, §2. A term can also be shortened due to the

adoption of charter home rule under Article XI-A. County

Commissioners v. Supervisors of Elections, 192 Md. 196, 213, 63

A.2d 735 (1949). However, the recall concept ) allowing a popular

vote to terminate an elected official’s tenure prior to the end of the

four-year term ) is flatly inconsistent with the general principle that

once officials have been elected, they are to serve a fixed term of

four years.3

 

As the Georgia Supreme Court put it, “Recall is a procedure

whereby it is the voters themselves who make the ultimate

determination as to whether an official should retain his office for

the duration of the term to which he was elected.” Collins v. Morris,

438 S.E.2d at 897. In Maryland, however, that “ultimate

determination” is made by Article XVII, §3 of the Constitution, not

the voters.
20 [80 Op. Att’y

III

Conclusion

In summary, it is our opinion that adoption of a recall provision

in a county charter would violate the Fewer Elections Amendment

of the Maryland Constitution. 

J. Joseph Curran, Jr.

Attorney General

Richard E. Israel

Assistant Attorney General

Jack Schwartz

Chief Counsel

Opinions & Advice
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