Montgomery County voters do not have the power to limit their elected officials' ability to increase the county's controversial energy tax, a Circuit Court judge ruled Tuesday.
As a result, local activist Robin Ficker's proposed limits on the County Council's ability to increase the tax will not be on the November ballot unless Ficker successfully appeals the decision.
Ficker proposed an amendment to the county charter that would require a unanimous council vote before increasing the revenue earned by the energy tax by more than the rate of inflation.
On Aug. 13, he submitted 14,500 signatures -- he needed 10,000 to get the issue on the ballot -- to County Executive Ike Leggett, who was supposed to make sure the petition followed county and state election laws before passing it onto the county Board of Elections. But the next day, Leggett told Ficker that the county's authority to levy an energy tax cannot be challenged on a county ballot and refused to pass on the petition.
The Maryland General Assembly gave the authority to levy an excise tax -- like a sales tax on the energy tax -- to the county in 1963, County Attorney Marc Hansen explained in court Tuesday. Changing that authority in a fundamental way, such as requiring a unanimous vote, would be a significant change to state law, and the county cannot modify a state law.
Ficker drew comparisons to a nearly identical requirement on increases to the property tax, a requirement he helped establish by getting it on the 2008 ballot. But Hansen explained that the authority to levy a property tax was established by the county charter, not state law, which means the county has the authority to change it.
Ficker also challenged Leggett's decision not to pass the petitions onto the county Board of Elections, arguing that whether the proposed amendment was constitutional should have been a question answered by the board.
"Here, we have a county executive who apparently wants to be in charge of the executive branch of government as well as the judicial branch of government and is acting as a judge," Ficker said.
But Montgomery County Circuit Court Judge Nelson Rupp ruled that Leggett did not overstep his authority and that the petition does not comply with the law.
Ficker said he has not decided whether he will appeal. He also said he was already considering an alternative amendment for the next election cycle -- a requirement that any increase in property tax be reduced by the amount of revenue earned by an increase in the energy tax.