Gresham v. Baltimore Police Dept.

Donald Gresham, et al. v. Baltimore Police Department, et al., No. 0307, September Term,
2023. Opinion by Nazarian, J.

JUSTICIABILITY – STANDING – GENERAL STANDING

Standing to bring a judicial action requires the challenger to allege that they are personally
and specifically aggrieved. When challenging the actions of a government official or entity,
the challenger must allege an injury that is distinct from the impact the action has on the
public.

JUSTICIABILITY – POLITICAL QUESTION

A legislature’s policy judgments are unreviewable as they present political questions.
However, claims that challenge the legality of the legislature’s actions may be subject to
judicial review.
Circuit Court for Baltimore City
Case No. 24-C-22-005368
REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 0307

September Term, 2023
______________________________________

DONALD GRESHAM, ET AL.

v.

BALTIMORE POLICE DEPARTMENT, ET
AL.
______________________________________

Nazarian,
Leahy,
Wright, Alexander, Jr.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Nazarian, J.
______________________________________

Filed: March 27, 2024

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2024.03.27
15:39:53
-04'00'

Gregory Hilton, Clerk
In 2019, the Maryland General Assembly enacted the Community Safety and

Strengthening Act. The legislation authorized The Johns Hopkins University to create a

campus police force. Once the law was effective, Johns Hopkins and the Baltimore Police

Department signed a Memorandum of Understanding that established the future police

department’s responsibilities, limitations, and jurisdiction. Soon after, Donald Gresham,

Joan Floyd, and Kushan Ratnayake (the “Challengers”) filed suit in the Circuit Court for

Baltimore City, seeking ostensibly to challenge the Memorandum. After the court denied

injunctive relief, they dismissed the first suit voluntarily. Weeks later, they sued again, this

time seeking a declaratory judgment against Johns Hopkins and the Baltimore City Police

defining the parties’ respective rights and obligations under the Memorandum and, it

seems, to declare the Memorandum (and the impending Johns Hopkins Police Department)

“invalid, null and void.” Johns Hopkins moved to dismiss the case on the grounds that

(1) the Challengers lacked standing, (2) their claims weren’t ripe, (3) the complaint raised

nonjusticiable political questions, and (4) even if justiciable, the complaint failed to state a

claim. The circuit court dismissed the case on all four grounds, the Challengers appeal, and

we affirm.

I. BACKGROUND

A. The Community Safety And Strengthening Act.

During its 2019 Session, the Maryland General Assembly considered Senate Bill

793, the “Community Safety and Strengthening Act” (the “Act”). The purpose of the Act

was to authorize The Johns Hopkins University (“Johns Hopkins” or “JHU”) to create its

own police force. Eventually, the bill passed and, after the Governor signed, was codified
as Maryland Code (2019, 2022 Repl. Vol.), § 24-1201 et seq. of the Education Article

(“ED”).

The Act required Johns Hopkins, as a condition of establishing and maintaining its

police force, to implement standards for its police officers (under ED § 24-1203) and enter

a memorandum of understanding (“MOU”) with the Baltimore Police Department

(“BPD”). See ED § 24-1202. Importantly, the Act limited the JHU Police Department’s

(“JHUPD”) jurisdiction to an area known as the “campus area.” The campus area includes,

and save for transient exceptions is limited to, property owned, leased, operated or

controlled by Johns Hopkins and the immediately adjacent public property:

(c)(1) “Campus area” means any property that is:
(i) Owned, leased, operated by, or under the control of the
University;
(ii) Located on:
1. The Homewood campus, meaning the area bounded
by West University Parkway and East University
Parkway on the north, East 28th Street and West 28th
Street on the south, Remington Avenue and Stony Run
stream on the west, and North Calvert Street on the east;
2. The East Baltimore campus, meaning the area
bounded by East Eager Street on the north, East
Baltimore Street on the south, North Caroline Street on
the west, and North Castle Street on the east; or
3. The Peabody campus, meaning the area bounded by
West Madison Street and East Madison Street on the
north, East Hamilton Street and West Hamilton Street
on the south, Cathedral Street on the west, and Saint
Paul Street on the east; and
(iii) Used for educational or institutional purposes.

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(2) “Campus area” includes the public property that is
immediately adjacent to the campus, including:
(i) A sidewalk, a street, or any other thoroughfare; and
(ii) A parking facility.

ED § 24-1201(c). The Act allows the JHUPD to exercise its powers beyond the campus

area only if (1) the majority of individuals from nearby communities agree and (2) the

Baltimore City Council approves a resolution that confirms community support. ED

§ 24-1202(2)(ii). To date, neither of these conditions has been met (or attempted).

B. The Memorandum Of Understanding.

On December 2, 2022, JHU and the BPD executed the MOU. Among its provisions,

the MOU restricted the JHUPD’s jurisdiction to the “campus area.” Soon after, as required

by the Act, the MOU was published for review and comment. Specifically, the parties:

(1) Post[ed] publicly the proposed memorandum of
understanding document for 30 days on [a] website available
to the public;
(2) [P]rovid[ed] the Baltimore City Council 30 days after
the public posting period specified in item (1) of this
subsection to review and submit written comments to the
University on the proposed memorandum of understanding;
(3) [P]rovide[d] affected individuals, neighborhoods,
community groups, and local officials with an opportunity to
review and comment on the proposed memorandum of
understanding; and
(4) [H]ost[ed] at least two public forums to present the
proposed memorandum of understanding; (i) one of which
[JHU] [held] on or near the Homewood and Peabody
campuses; and (ii) one of which [JHU] [held] on or near the
East Baltimore campus.

The Challengers then filed suit against Johns Hopkins, BPD, and the State of Maryland

“seeking an injunction preventing BPD from entering into the MOU.” They alleged that a

3
charter amendment on the ballot for the November 2022 election would, if approved,

transfer control over BPD from the State of Maryland to the City of Baltimore. The

Challengers’ attempts to obtain an injunction failed and they dismissed their first suit

voluntarily on December 7, 2022.

C. Pertinent Procedural History.

On December 30, 2022, the Challengers filed a complaint seeking a declaratory

judgment stating that the MOU is “invalid, null and void” and cannot be “replaced,

corrected, or ‘cured’” by JHUPD and BPD after BPD becomes an agency and

instrumentality of Baltimore City. They argued that the multiple issues with the MOU

authorized the circuit court to “determine and adjudicate the rights, status, powers,

responsibilities and liabilities of the [Challengers] and [BPD and JHU] with respect to the

[MOU].” One of the alleged issues includes JHU’s mapping of the “campus area” which,

they contended, included properties outside of its limited jurisdiction. Other alleged

problems are that the MOU “assigned policing powers and responsibilities to a non-existent

law enforcement agency” and that the Challengers allege a right to live in and travel to and

from their homes without being subjected to “the policing powers of University officers

that are unlawfully established and exercised.” Finally, the Challengers asserted that

because of the supposed uncertainties and inaccuracies surrounding the MOU, they had the

right to know which law enforcement agency had jurisdiction over their properties.

Ultimately, the complaint asked the court to declare the MOU invalid, and incurably so.

In response, JHU and BPD moved to dismiss the Challengers’ complaint in

February 2023. After a hearing on March 30, 2023, the circuit court dismissed the

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Challengers’ complaint on four alternative grounds: (1) they lacked standing to challenge

the MOU, (2) their complaints about the MOU weren’t ripe, (3) their challenges to the

MOU were nonjusticiable political questions, and (4) even if justiciable, their allegations

failed to state a claim upon which relief could be granted. The Challengers appealed timely.

We supply additional facts as necessary below.

II. DISCUSSION

The Challengers raise four issues on appeal, 1 which we rephrase: whether the circuit

1
The Challengers’ brief lists their Questions Presented as:
1. The Circuit Court erred when it ruled that the Complaint
was based on a non-justiciable “political question.”
2. The Circuit Court erred when it ruled that the
Appellants lacked standing and the Complaint was not ripe.
3. The Circuit Court erred when it dismissed the
Complaint for failure to state a claim and declined to issue a
Declaration.
Johns Hopkins’ brief lists their Questions Presented as:
1. DID THE CIRCUIT COURT PROPERLY DISMISS
APPELLANTS’ DECLARATORY JUDGMENT CLAIM
FOR LACK OF STANDING?
2. DID THE CIRCUIT COURT PROPERLY DISMISS
APPELLANTS’ DECLARATORY JUDGMENT CLAIM
ON THE ALTERNATIVE GROUND THAT IT IS
UNRIPE?
3. DID THE CIRCUIT COURT PROPERLY DISMISS
APPELLANTS’ DECLARATORY JUDGMENT CLAIM
ON THE ALTERNATIVE GROUND THAT IT
PRESENTS A POLITICAL QUESTION?
4. DID THE CIRCUIT COURT PROPERLY DISMISS
APPELLANTS’ DECLARATORY JUDGMENT CLAIM
ON THE ALTERNATIVE GROUND THAT IT FAILS

Continued . . .

5
court erred in dismissing the Challengers’ declaratory judgment claim based on

(1) standing, (2) ripeness, (3) the political question doctrine, and (4) failure to state a claim.

For reasons stated below, we affirm.

“‘[T]he standard of review of the grant or denial of a motion to dismiss is whether

the trial court was legally correct.’” Lipp v. State, 246 Md. App. 105, 110 (2020) (quoting

Howard v. Crumlin, 239 Md. App. 515, 521 (2018)).

A. The Challengers’ Declaratory Judgment Allegations Are Not
Justiciable.

The Challengers’ first overall contention is that the circuit court erred in dismissing

their case on three different justiciability grounds. As we discuss below, though, the circuit

court concluded properly that (1) the Challengers lacked standing to challenge the MOU,

(2) their claims were not ripe in any event, and (3) their claims raised nonjusticiable

political questions.

1. The Challengers lack standing to bring these claims.

Not just anyone can file a lawsuit. “‘[S]tanding . . . [goes] to the very heart of

whether the controversy before the court is justiciable.’” State of Md. Comm’n on Hum.

Rels. v. Anne Arundel County, 106 Md. App. 221, 236 (1995) (quoting Sipes v. Bd. of Mun.

& Zoning Appeals, 99 Md. App. 78, 87–88 (1994)). Plaintiffs can establish standing in

three different ways: (1) general standing, (2) property owner standing, and (3) taxpayer

standing. The Challengers don’t specify the form of standing they claim to have, but the

TO STATE A CLAIM UPON WHICH RELIEF CAN BE
GRANTED?

6
circuit court held, and we agree, that they cannot satisfy the requirements for any category.

a. The Challengers’ claims can’t confer general
standing.

To begin, the Challengers lack general standing. “The requirement of standing ‘is

designed to ensure that a party seeking relief has a sufficiently cognizable stake in the

outcome so as to present a court with a dispute that is capable of judicial resolution.’” Pizza

di Joey, LLC v. Mayor & City Council of Balt., 470 Md. 308, 343 (2020) (quoting Kendall

v. Howard County, 431 Md. 590, 603 (2013)). “‘Under Maryland common law, standing

to bring a judicial action generally depends on whether one is aggrieved, which means

whether a plaintiff has an interest such that he or she is personally and specifically affected

in a way different from the public generally.’” Id. (emphasis added) (quoting Kendall, 431

Md. at 603). In a normal civil case, an injury (physical, financial, or otherwise) gives rise

to standing. When attempting to challenge the actions of government officials—or, in this

instance, an agreement between government officials and a private entity that has been

authorized by statute—individual standing requires the plaintiff to allege an injury distinct

from the impact that the action has on the public in general. Put another way, people who

disagree with a government action can’t challenge it in court based on their disagreement—

they must allege an injury distinctive to them that isn’t felt or experienced by the public as

a whole.

The Challengers seek to distinguish themselves from the general public in this case

on the ground that they live “near one of the three University police overlay districts.”

(Emphasis added). They assert further that “in their ordinary activities and regular daily

7
life, they use public streets and sidewalks designated in the MOU as within the ‘primary’

jurisdiction of the University’s law enforcement agency.” But these statements undermine

the Challengers’ claims rather than supporting them. They concede explicitly that they

don’t live within the JHUPD jurisdiction, but only live near it, as do lots of other people.

In no way do they allege a personal and specific impact on their lives that is different from

the public that lives near the “campus area” or travels through it. And even if the

Challengers’ sidewalks and public streets fell within JHUPD’s jurisdiction, which they

don’t, that still would not establish that they were aggrieved personally by the MOU or by

the establishment of the JHUPD. Compare Pizza di Joey, LLC., 470 Md. at 344 (The

Supreme Court of Maryland found standing where “but for the 300-foot rule, they would

have focused their mobile vending businesses in various specific commercial districts in

the City . . . . In other words, the Food Trucks specifically altered their business plans as a

result of the 300-foot rule.”). And because the Challengers haven’t alleged any basis on

which a court could find them different from the general public, they lack general standing

to challenge the MOU.

b. The Challengers’ claims don’t confer property
owner standing.

Next, the Challengers lack property owner standing. “The property owner standing

doctrine recognizes that owners of real property may be ‘specially harmed’ by a decision

or action (usually related to land use) in a manner different from the general public.” State

Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 519 (2014). Unlike general

standing, “[t]he basis of this type of ‘standing’ is found in the zoning law concept of

8
‘special aggrievement,’ which stems, in turn, from the State’s statutory zoning laws.” Id.

The Challengers haven’t alleged that they have property owner standing, but even if they

had, it’s not available in their case. Neither the MOU nor the creation of the JHUPD affects

how any individual or entity, including the Challengers, may use their land, nor does it

implicate any zoning laws. Additionally, there is nothing in the Challengers’ complaint that

connects the police force’s presence to their property rights, even if they live inside a zone

that arguably could bring them inside property owner standing for a zoning claim (which,

of course, is not what this is). The MOU represents a (statutorily required) step toward

creating a police force that has jurisdiction over the JHU campus, JHU’s properties, and

certain areas of public space abutting the campus. There is no zone around which this

Memorandum can confer property owner standing to challenge it or any element of it, as a

change to the zoning law might.

c. The Challengers lack taxpayer standing.

Finally, the Challengers lack taxpayer standing. Plaintiffs must satisfy two separate

requirements to demonstrate taxpayer standing. Paula v. Mayor & City Council of Balt.,

253 Md. App. 566, 586 (2022). The first is “status, meaning the complainant must show

he is a taxpayer and ‘the suit is brought, either expressly or implicitly, on behalf of all other

taxpayers.’” Id. (quoting George v. Baltimore County, 463 Md. 263, 275 (2019)). The

second part involves asserting a special interest, and the complainant must allege further

that “an action by the government is illegal . . . and that such action satisfies the ‘specific

injury prong,’ such that it may ‘injuriously affect the taxpayer’s property, meaning that it

9
reasonably may result in pecuniary loss to the taxpayer or an increase in taxes.’” Id.

(quoting George, 463 Md. at 275–76).

As with property owner standing, the Challengers haven’t asserted taxpayer

standing, at least not using those words. And at no point did the Challengers claim,

explicitly or implicitly, that they brought this suit on the behalf of anyone else—which

means they would be unable to meet the first prong in Paula. Id. at 586. Second, the

Challengers have not pointed to any pecuniary losses they may experience as taxpayers as

a result of the MOU and JHUPD. And third, the negotiation between BPD and JHU was

anticipated, and indeed required, under ED § 24-1201 et seq., which included an MOU

among the conditions precedent to the creation of the JHUPD. See ED § 24-1202. The

Challengers have failed to allege taxpayer standing as well.

2. The Challengers’ claims also aren’t ripe.

Even if the Challengers had standing to bring these claims, the claims themselves

must be ripe for decision. These claims aren’t. “A controversy is ripe when ‘there are

interested parties asserting adverse claims upon a state of facts which must have accrued

wherein a legal decision is sought or demanded.’” Heritage Harbour, LLC v. John J.

Reynolds, Inc., 143 Md. App. 698, 711–12 (2002) (quoting Boyds Civic Ass’n v.

Montgomery Cnty. Council, 309 Md. 683, 690 (1987)). “‘[T]he declaratory judgment

process is not available to decide purely theoretical questions or questions that may never

arise . . . .’” Id. at 712. (quoting Hamilton v. McAuliffe, 277 Md. 336, 340 (1976)). “To

address issues which are non-justiciable because they are not ripe ‘would place courts in

the position of rendering purely advisory opinions, a long forbidden practice in this State.’”

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Id. (quoting Hatt v. Anderson, 297 Md. 42, 46 (1983)). “Generally, an action for declaratory

relief lacks ripeness if it involves a request that the court declare the rights of parties upon

a state of facts which has not yet arisen, or upon a matter which is future, contingent and

uncertain.” Id. (cleaned up).

One of the primary assertions the Challengers made at the circuit court is that they

“have the right to live in, and travel to and from, their homes—including travel in and

around [the] ‘Campus Area’—without being subjected to the policing powers of University

officers that are unlawfully established and exercised.” And on appeal, they argue that their

claim is ripe because their “movements regularly place them on public streets within those

overlay districts. The Complaint was ripe when it was filed.” But all of this is speculative:

they have assumed, before the JHUPD has even come into being, that the JHUPD will

exceed its statutory authority, violate the MOU, and cause negative impacts on them. The

Challengers have not alleged any past or present or actual harm as a result of the MOU and

the JHUPD, nor a likelihood of discernible harm in the near future. Their complaint posits

only they will be living near and possibly traveling through the JHUPD’s jurisdiction,

which could possibly lead to harm. Those theoretical and amorphous possibilities do not

comprise a justiciable controversy, id., and the circuit court was correct to find the

Challengers’ complaints were not ripe.

3. The Challengers’ claims raise nonjusticiable political
questions.

Although couched in terms of challenging the validity of the MOU, the

Challengers’ complaint and arguments here sound overwhelmingly in unhappiness about

11
the General Assembly’s decision to authorize Johns Hopkins to form a police department

in and on its campus. The question, though, is whether their opposition to that

quintessentially political question can support one or more claims justiciable by a court.

Claims that present political questions are unreviewable because they cannot be resolved

using judicially created standards. Fuller v. Republican Cent. Comm. of Carroll Cnty., 444

Md. 613, 623 (2015). To determine whether a claim is justiciable and not a political

question, “we determine first whether the claim presented and the relief sought are of the

type which admit of judicial resolution.” Id. (cleaned up). “And second, whether the

structure of government renders the issue presented a political question—that is, a question

which is not justiciable in federal or State court because of the separation of powers

provided by the Constitution.” Id. (cleaned up).

The Challengers argue that their claims are not political questions because, they say,

a court can review the provisions of the MOU. For what exactly, they don’t say. But, they

resist the notion that Johns Hopkins and the BPD were authorized by the Act to enter into

this MOU on these terms. And in any event, the relief they seek—a declaratory judgment

invalidating the MOU and declaring it uncurable—challenges the existence of the MOU

itself and not its compliance with the statute or its implementation. We agree with the

circuit court that it’s not our place—and by our, we mean the judicial branch—to pass on

the wisdom of this decision. If the Challengers were arguing that the statute exceeded the

General Assembly’s authority under the Maryland Constitution to pass the Act, or some

piece of it, that would be different. But as the circuit court noted aptly, the Challengers’

12
real dispute lies with the General Assembly’s policy judgments, and those are not matters

courts should be reviewing:

[I]f [the court were] to invalidate the memorandum of
understanding merely because the [Challengers] oppose the
creation of the Johns Hopkins Police Department without
finding some constitutional flaw in the authorizing statute, it
would be a policy determination that encroaches upon the
legislature’s authority and therefore raises a political question.

As such, the complaint fails to satisfy both of the elements discussed in Fuller. See Fuller,

444 Md. at 623. And neither of the cases the Challengers cite in support of their effort to

avoid the political question doctrine—State v. Board of Regents and Jackson v. Millstone—

even addresses the doctrine, let alone overcomes it here. 2 The Challengers’ claims present

nonjusticiable political questions, and the circuit court dismissed them correctly on that

ground.

B. The Circuit Court Dismissed The Declaratory Judgment Claim
Correctly For Failure To State A Claim.

Having decided that the Challengers’ claims are not justiciable, we could, and

normally would, stop there. Nevertheless, since the circuit court went on to find in the

alternative that the complaint failed to state a claim, we’ll address that in the alternative as

well. Because Johns Hopkins moved to dismiss for failure to state a claim upon which

2
Jackson v. Millstone, 369 Md. 575, 578–79 (2002), challenged the application of a
specific regulation to two requests “for preauthorization for liver transplant surgeries.”
That case never discussed the political question doctrine because it wasn’t necessary
for the resolution of that case. In Stern v. Board of Regents, University System of
Maryland, 380 Md. 691, 694–95 (2004), students sued the Board of Regents alleging,
among other things, breach of contract. Eventually, the Supreme Court of Maryland
decided the suit was barred by sovereign immunity. Id. at 697. There too, there was no
discussion of the political question doctrine.

13
relief can be granted, we (like the circuit court before us) “‘assume the truth of all well-

pleaded facts and allegations in the complaint, as well as all inferences that can reasonably

be drawn from them.’” Lloyd v. Gen. Motors Corp., 397 Md. 108, 121 (2007) (quoting

Morris v. Osmose Wood Preserving, 340 Md. 519, 531 (1995)). The court may “order

dismissal only if the allegations and permissible inferences, if true, would not afford relief

to the plaintiff, i.e., the allegations do not state a cause of action.” Id. However, there are

limited circumstances in which a court may dismiss declaratory judgment actions, such as

when there is no justiciable controversy. Md. Code (1974 2020 Repl. Vol.), § 3-409(a)(1)

of the Courts and Judicial Proceedings Article; See State Center, L.L.C. v. Lexington

Charles Ltd. P’ship, 438 Md. 451, 590–91 (2014).

The Challengers argue that “[their] [c]omplaint was not a challenge to the enabling

legislation[,]” but then state that the “[c]omplaint challenges the validity of [the] MOU.”

But the Act authorized JHU and the BPD to negotiate and enter into an MOU, and although

the Challengers wish they had negotiated some of the terms differently, we agree with the

circuit court that their complaint doesn’t allege that the MOU violates the Act itself. Even

in asking the court to declare the MOU null and void, the complaint never asserts that the

MOU violates any provision of the Act itself. We agree with the circuit court that the

challenges to the MOU sound, in effect, as an attempt to invalidate the Act itself, a

nonjusticiable claim that fails for all of the reasons we have explained. This leaves no

ability on the part of the courts to grant relief. And although it generally is inappropriate to

grant a motion to dismiss a declaratory judgment claim without declaring the rights of the

parties, courts may do so when the controversy cannot be resolved by declaratory

14
judgment, Simmons v. Md. Mgmt. Co., 253 Md. App. 655, 705 (2022), and we agree that

this is such a case.

JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED.
APPELLANTS TO PAY COSTS.

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