IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

------------------------------X
:
FARMLAND CHILD DEVELOPMENT :
CENTER, INC., :
:
Plaintiff, :
:
v. : Civil No. 448055
:
MONTGOMERY COUNTY ET AL., :
:
Defendants. :
:
------------------------------X

JUDGE'S RULING

Rockville, Maryland May 22, 2018

DEPOSITION SERVICES, INC.

12321 Middlebrook Road, Suite 210
Germantown, Maryland 20874
(301) 881-3344
 IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

------------------------------X
:
FARMLAND CHILD DEVELOPMENT :
CENTER, INC., :
:
Plaintiff, :
:
v. : Civil No. 448055
:
MONTGOMERY COUNTY ET AL., :
:
Defendants. :
:
------------------------------X

Rockville, Maryland

May 22, 2018

WHEREUPON, the proceedings in the above-entitled

matter commenced

BEFORE: THE HONORABLE RONALD B. RUBIN, JUDGE

APPEARANCES:

FOR THE PLAINTIFF:

ROBERT E. GRANT, Esq.

JAMES P. LILLIS, Esq.
Furey, Doolan, & Abell, LLP
7600 Wisconsin Avenue, Suite 600
Bethesda, Maryland 20814

FOR THE DEFENDANT MONTGOMERY COUNTY:

CLIFFORD L. ROYALTY, Esq.

State's Attorney's Office
50 Maryland Avenue, 5th Floor
Rockville, Maryland 20850
FOR THE DEFENDANT BOARD OF EDUCATION:

MS. HEATHER MITCHELL, Esq.

Venable LLP
210 West Pennsylvania Avenue, Suite 500
Towson, Maryland 21204

FOR THE DEFENDANT KIDS ADVENTURE LLC:

MR. NEAL HYMAN, Esq.

7315 Wisconsin Ave, Suite 500
Bethesda, Maryland 20814
 4

1 P R O C E E D I N G S

2 The case is before me, a fascinating case, and I

3 appreciate -- I know that everybody has been here basically all

4 day and it has been a long day. It has been a long day. On the

5 motion of the plaintiff, Farmland Child Development Center

6 Incorporated for an interlocutory injunction pending a trial on

7 the merits the standards that apply were set out a long time

8 ago by then Chief Judge Murphy of the Court of Appeals in the

9 Department of Transportation v. Armored Cars 299 Md. 392. They

10 were reiterated by Judge Cathell for the Court of Appeals in

11 Eastside Vend Distributors v. Pepsi 396 Md. 219. And I've also

12 looked for guidance to the decision of Judge Rudowsky in the

13 Court of Appeals in the Lerner case 306 Md. 771.

14 But I start with largely the Armored Cars formulation

15 because that was a case where a citizen asked the Circuit Court

16 to compel action or to force a government to do something. And

17 I think that's the formulation that the Court of Appeals has

18 embraced. There are four factors there. There is no particular

19 order in which to analyze them. Each case there would be more

20 or less weight.

21 The burden of proof under all circumstances at all

22 times is on the plaintiff as Judge Cathell said in Eastside

23 Vend to prove all four factors and prove in addition as I read

24 it that the balance of convenience militates in their favor.

25 The principal contention before me is structural. The

 5

1 legislature beginning in at least 1978 I find ordered that

2 quote school boards if they are going to allow public buildings

3 to be used for daycare, whether it is before school, after

4 school, whatever the circumstances are public buildings paid

5 for by the taxpayers in Annapolis it was ordered that the

6 school boards shall give priority to nonprofit childcare

7 programs.

8 That I find is a policy decision appropriately made

9 by the political branch of government. It is a decision for

10 them to make. It's certainly not a decision for me to make but

11 they have clearly expressed a clear legislative mandate. They

12 have used the word shall. It's mandatory. It's under the

13 ordinary rules of statutory construction. It's required. Give

14 priority. The Maryland case law is sparse as to give priority

15 but in ordinary parlance and given resorting to things as

16 commonplace as Black's Law Dictionary means that it comes

17 first.

18 It comes to the head of the line. Given special

19 treatment. Special status. The same is true under the federal

20 bankruptcy statutes that have been in place if somebody is a

21 priority creditor it means they get paid first unless there are

22 other circumstances. At the very least, this clear legislative

23 mandate in what is now 7-109 of the education article means

24 other things being equal these people are at the head of the

25 line. Here I am amply persuaded that the regulation adopted

 6

1 first by the county executive and later what do you c all it

2 ratified or codified into legislation by the city council

3 wholly fails to do that in any meaningful way, shape or form.

4 Respectfully, it is -- there is no -- there is no

5 operational validity to it. It's somebody threw a dart and

6 picked a number. There are in no way, shape or form in

7 operational terms, in analytical terms but frankly in common

8 sense or even in arithmetic terms does the use of the five

9 points as this -- you know it's interesting. There is this

10 whole long regulation and there is no description articulation

11 ever as to how this does this. So under -- I'm giving this

12 rational basis scrutiny. The lowest level of scrutiny available

13 under the sun of a court looking at either executive actin or

14 legislative action.

15 But under the forgiving -- very forgiving -- rational

16 basis test the five points is meaningless. It is totally

17 arbitrary. It is respectfully the fig leaf to do something to

18 comply with the legislative mandate which I find had been

19 ignored for decades. But it has no -- nobody could articulate.

20 Nobody who does it could articulate for me how this works to do

21 that. Lawyers have hypothesized certain things. But the policy

22 folks, the members of the government whose job it is to

23 implement it I heard from two of them.

24 None of them could explain to me how this really does

25 that. It's just what we did. Okay. I understand that. But I

 7

1 find that it wholly fails to quote give priority to nonprofit

2 childcare programs as directed by the general assembly. You

3 know the regulation and the enactment is long and convoluted

4 and involved and it's got lots of pieces but the entirety of

5 the give priority piece is on page 18 of 16 [sic] and it

6 consists of one, two, three, four, five lines. And there is no

7 explanation as to how or why or what.

8 It just -- that's what they said. It's I guess

9 possible that some enterprising appellate lawyer will come up

10 with some rational basis theory and argument. Well, what they

11 meant was this and this is how it works. None of that was

12 presented at the trial level. And is it possible it will be

13 presented at a trial on the merits? All things are possible. I

14 am highly doubtful that anybody will come up with some

15 nonspeculative non-arbitrary, non non-sensical rationale for

16 how this really works to give nonprofit childcare programs a

17 priority within any rational meaning of the term priority.

18 It may very well be that the legislature in view of

19 the county school boards didn't give them sufficient guidance.

20 There are many mechanisms for relief. The county school boards

21 can ask the secretary of the department of education what does

22 that mean? Can we have a regulation please? Or go to the

23 legislature. What does that mean? Can you be more clear in your

24 legislative history. So the notion that the school boards are

25 out to sea is interesting but not really. So I find it highly

 8

1 likely that the plaintiffs will succeed on the merits.

2 I find it highly unlikely that the defendants will

3 succeed on the merits of the validity of the regulation and

4 does it implement the legislative will. So that tilts

5 dramatically in favor of the plaintiff. That factor of

6 likelihood of success on the merits. Other factors that I have

7 considered. Because again this is for the purposes of a

8 preliminary injunction only. Balance of convenience determined

9 by whether the greater injury would be done to the defendant.

10 That is to say here we have governmental defendants and a

11 private entity defendant by granting the injunction than would

12 result from it's refusal? Here I have to dovetail or Segway

13 into the status quo. The status quo here is that Fairland

14 Child Development Center for the last nearly seven years has

15 been the childcare provider at Wayside Elementary.

16 I find the status quo is that they are the childcare

17 provider. Their permit is in place. Their contract is in

18 place. None of that expires until at least June 15 I find of

19 2018. That is the status quo as discussed in both eastside

20 vendors versus Pepsi and by Judge Rudowski in Lerner. And one

21 of the purposes perhaps the principal purpose of an

22 interlocutory injunction is to preserve the status quo pending

23 a more fulsome explication of the facts after a trial on the

24 merits. So preserving the status quo is the reason, frankly,

25 that Lerner came out the way it came out.

 9

1 Applying Armacost and Rowe the circuit court judge in

2 that case in Montgomery County forbid the Lerner Corporation

3 from completing a squeeze out merger and kicking somebody off

4 the board. Here the status quo is I find Farmland Child

5 Development Center is the childcare provider. They are the

6 nonprofit. That comports with the legislative will. What the

7 MCPS is proposing A not only doesn't comport with the

8 legislative will but is not the status quo.

9 So in balancing the harms I take into account

10 preservation of the status quo. If I don't preserve the status

11 quo here there will be irreparable harm I find to the plaintiff

12 and I find to the directive of the general assembly. In

13 addition, respectfully, there are serious on the public

14 interest. The public interest is having the will of the

15 general assembly respected. It doesn't matter whether I like

16 it or don't like it, a good idea, a bad idea. The general

17 assembly and clearly for a long time since at least 1978 has

18 decided that it is the public policy of the State of Maryland

19 to give priority to nonprofit childcare programs when those

20 programs are provided on taxpayer funded pieces of land, i.e.

21 our schools that were paid for by the taxpayers. It is a

22 government monopoly public education.

23 And those buildings are effectively government

24 utilities and we're leasing them out for entities to either

25 make money or not make money. But to take care of children.

 10

1 That's a legislative priority which I obviously respect. So

2 the public i9nterest here is not only to provide available

3 affordable childcare to all residents of the county who utilize

4 the public schools but do so in a way I find that comports with

5 what the general assembly said. That’s being done now to do

6 what has been proposed here I find is inimitable to the public

7 interest.

8 I have talked enough with counsel about the

9 contractual provisions which he says his client either doesn't

10 or won't enforce maybe. I stopped counting the number of anti-

11 taxpayer, anti-consumer provisions in that contract. Now, as

12 between sophisticated commercial parties, you know, agree to

13 what you want but these are take it or leave it contracts that

14 parents are presented with when they drop their kid off at the

15 public school. Parents have no bargaining power. These are

16 the equivalent of the old cognovits notes.

17 It's take it or leave it. It's like Verizon. You

18 want a phone? Here's the deal. If you don't want a phone?

19 That's fine. Parents have no choice. Sure. Can they go down

20 the road and have the child bused and vanned? I think in this

21 day and age the notion of childcare before and after school has

22 become part of the social fabric of our public school system.

23 And to -- to be blunt those provisions on this record are

24 substantively unconscionable. And I suspect they are

25 procedurally unconscionable because there is no bargaining

 11

1 power. But on the substance we can just list a few.

2 A one way ratchet on attorney's fees. Goes against

3 the American rule. Goes against what the Court of Appeals has

4 said. Violates substantive conscionability. Consumers

5 cannot -- taxpayers cannot bargain for that. And here I find

6 for whatever reason nobody in the public stepped in and said

7 wait a minute. Not in our schools. Maybe there is no provision

8 for the county attorney to review or MCPS to review it or any

9 of these other agencies. Okay. So it's was there to be seen.

10 Nobody read it. The principal of the school didn't read it.

11 Nobody on the committee read it I find. Until this trial nobody

12 looked at it. It's not in the public interest in my opinion.

13 Substantively and procedurally unconscionable and for

14 me to say that it's got to be pretty bad in my opinion. I am

15 not persuaded that the for profit entity will suffer undue or

16 irreparable harm. All bidders invest dollars to bid on

17 government contracts. The mere fact that somebody invested

18 dollars to bid on taxpayer money without more doesn't -- it

19 just means that they like getting public dollars because it is

20 guaranteed pay. That's part of the cost of doing business. I

21 will make provision I think in a bond however.

22 So with respect to the structural piece to me it is

23 clear. It is easy. The plaintiffs are likely to succeed on the

24 merits. The balance of convenience under Lerner and Eastside

25 Ven and Armacost greatly favors the plaintiff. I am persuaded

 12

1 by a preponderance of the credible evidence that the plaintiffs

2 have demonstrated to my satisfaction all four factors plus the

3 balance of convenience in this case. And for that reason alone

4 I'm going to issue an interlocutory injunction prohibiting the

5 county from awarding a contract under the system they have in

6 place.

7 But there are additional reasons I find. The

8 procedural piece. While the structural piece without more is

9 sufficient, there is sufficient concerns raised by what

10 actually happened here that when added to the structural piece

11 give the court great concern. Folks, I have the evidence that I

12 have. I have the committee I find and the key members of the

13 committee using metrics which were not mentioned in the statue.

14 That is to say discounts for government workers, teachers,

15 farmers and firefighters. Is there anything wrong with that per

16 se? No.

17 But that doesn't fulfill the statutory purpose and I

18 am not persuaded and I am reluctant to go farther but the

19 principal's testimony as to what she meant when she wrote that

20 down is not convincing to me today. It is because our

21 constituents she wanted them to have a discount. That's fine.

22 It has nothing to do with this statute. There are additional

23 concerns the court has with respect to I find undisclosed

24 potential conflicts of interest. If you are getting -- if you

25 or a close family member are getting a discount from the

 13

1 provide and you are voting on their contract as I read the

2 requirements it should have been disclosed.

3 It doesn't necessarily mean mandatory recusal. You

4 can shake your head. I'm sorry. You can disagree. I got it.

5 And that's fair. I respect that. But the notion that the

6 decider as to who gets the public money doesn't disclose that

7 to the committee and make it fair game. It should have been

8 disclosed. In addition, we had I find one committee member who

9 had a personal dispute with the plaintiff in this case. And

10 that was not disclosed.

11 And that's the person I find who tanked the score.

12 And the tanking of the score was obvious. I mean it. It was the

13 soviet judge judging either ice skating or gymnastics. It was

14 so far out of whack. It bore no relationship to all the other

15 scores. And I find it unbelievable and inexplicable that nobody

16 remembers any discussion about that because it wasn't five

17 points off, ten points off, a shade off. It was in left field.

18 And that would have come to somebody's attention and raised

19 eyebrows and yet the principal couldn't remember it. I don't

20 believe that. I'm not persuaded. And I'm sorry.

21 I don't like saying that but I have to call it as I

22 see it. And I'm sorry if others may not agree. I respect that

23 but I do believe that. So there were procedural laws that can

24 be remedied. So for all of those reasons I'm going to ask

25 counsel to get together and try to iron out the language. And
 14

1 I'm going to order the State -- the county -- to do it again.

2 It is. You have to come up with it. It's like the election

3 maps. I don't think it is the court's business to draw election

4 districts or to draft procurement regulations.

5 So I'm going to ask counsel to get together and come

6 up with a proposed form of preliminary injunction. I think the

7 language needs to be very precise. And I want to give time for

8 input, careful input by the lawyers. I'm going to ask that you

9 do it by like Friday. Because I think I understand in cases of

10 this nature you want to consult with your respective

11 constituencies. And I'm requesting proposed language from all

12 parties even though you disagree vehemently with what I did.

13 And I get that. You have waived nothing. I am still

14 asking the county attorney's office and MCPS lawyers to help me

15 propose language to do like a doctor as little harm as possible

16 under the circumstances within my appropriate judicial role. So

17 rather than me sort of just dictate it off the cuff I'm going

18 to give you all until close of business Friday to come up with

19 something. If you can't, I'll understand but at least give it a

20 good faith try.

21 And also come up with a proposed remedy. I'll take

22 suggestions on a proposed remedy. I'm not going to decree a

23 proposed remedy tonight. I'm going to let people consult with

24 their constituencies because I know that you've got to get

25 input and propose something that is realistic, sensible, fair

 15

1 and not crazy and is thoughtful. I do think that there should

2 be a bond because if I'm wrong and this is either not upheld on

3 the merits or not upheld on appeal there will be a cost.

4 And that cost is going to be to the taxpayers in some

5 way. Now, part of the problem is your client is a nonprofit.

6 The county municipality, the taxpayers end up paying for

7 everything all the time anyway. So let me hear from counsel as

8 to the appropriate -- I don't think the bond should be zero.

9 What are your thoughts?

10 MR. GRANT: Your Honor, as I heard the court laying

11 out it's rationale it seemed that the bond was -- the first

12 time the court mentioned the bond was in connection with any

13 possible harm to Kid's Adventures. I don't --

14 THE COURT: They do have an economic stake in the

15 outcome whether on the merits or on appeal and they're going to

16 come running in here and say we’ve been damaged.

17 MR. GRANT: Understood. And the evidence presented

18 today was that the maximum expenditure was $20,000. I would

19 submit that that is part of the cost of doing business. They

20 made a business judgment to expend that not knowing whether

21 they would be successful or not. But if the court is

22 considering -- is inclined to impose a bond requirement and is

23 considering a bond I would submit that's the appropriate amount

24 based on the records today.

25 THE COURT: Can your client do that?

 16

1 MR. GRANT: I'm not sure. But I think --

2 THE COURT: If the amount of its nature it is

3 typically going to be cash or collateral because the cost of

4 going to a third party for this --

5 MR. GRANT: Right.

6 THE COURT: -- relatively smaller dollar sum is a

7 premium.

8 MR. GRANT: So my first call tomorrow will be to the

9 bonding agency. I don't believe it should be a problem.

10 THE COURT: Okay.

11 MR. GRANT: If it emerges that it is going to be a

12 problem we'll come back to the court on that.

13 THE COURT: I'm inclined to impose a bond of $20,000

14 cash or collateral so that in the event that some party is

15 harmed and this injunction is lifted either at the end of the

16 trial or on appeal and there is damage they have recompense. I

17 don't find this is a no bond situation. All right. What else

18 folks? Anything else we need.

19 MS. MITCHELL: Point of clarification.

20 THE COURT: Yes, please.

21 MS. MITCHELL: By Friday you would like a proposed

22 form of preliminary injunction agreed to the by parties.

23 THE COURT: And a proposed remedy.

24 MS. MITCHELL: That's what my question was.

25 THE COURT: Yes, please.

 17

1 MS. MITCHELL: With respect to the proposed remedy

2 you want that by Friday?

3 THE COURT: If you can.

4 MS. MITCHELL: In the sense of --

5 THE COURT: I don't know how urgent this --

6 MS. MITCHELL: Let me ask --

7 THE COURT: -- is or isn't in your world. I don't

8 know.

9 MS. MITCHELL: I mean you're talking about a proposed

10 remedy with respect to this situation and not coming up with --

11 is that --

12 THE COURT: What's before me -- that's a fair point.

13 What's before me is this school, this contract, this vendor.

14 For now. It's not nationwide, county wide. I'm trying to make

15 this ruling because the court while I do respect the boundaries

16 of the executive, the legislative, and the judiciary. So it's

17 the plaintiff in front of me. It's this case. At least

18 certainly for now it's this contract. Is that clear enough? I

19 mean I'm not -- I'm not suggesting that you toss out your

20 entire necessarily countywide system. I have one plaintiff. One

21 school. One contract.

22 MR. GRANT: Here's my concern. You said -- I did

23 hear what you said about the regulation. I can't get a new one

24 passed between now and Friday. Right?

25 THE COURT: You know, I've actually seen that done.

 18

1 MR. GRANT: Okay. Not in this county. But maybe. So

2 my only concern is I'm in an odd position. I guess I can say to

3 the client the reg is not in effect anymore so you can make up

4 a new process that satisfies the judge's ruling. That's my

5 problem. It's not your problem. But I want you to know that I

6 have that problem.

7 THE COURT: And I'm not insensitive to it.

8 MR. GRANT: Okay.

9 THE COURT: I know that, you know, I get to go home

10 but now you all have to -- I know/

11 MR. GRANT: Okay.

12 THE COURT: So I don't mind you sharing it with me

13 and I am receptive to lawful logical common sense solutions.

14 I'm not looking to shut down anything.

15 MR. GRANT: Okay.

16 THE COURT: Or stop the entire world from turning on

17 it's axis.

18 MR. GRANT: Thank you, Your Honor.

19 THE COURT: But this is enjoined as of this minute.

20 So nobody should think it's not. I just -- it's now 6:30 and I

21 don't have the time to go draft something. I want to give

22 counsel an opportunity to come up with language that is

23 appropriate given the context that is --

24 MR. GRANT: Thank you, Your Honor. We'll do that. I

25 just have one more sort of clarifying question. So I

 19

1 understand that the court is enjoining -- is not going to order

2 the county to issue a permit to CDC for the upcoming school

3 year.

4 THE COURT: Not today.

5 MR. GRANT: Not today. But is enjoining the issuance

6 of a permit pending the trial on the merits.

7 THE COURT: Yes. And enjoining the usage of this

8 process to award contracts to childcare providers at our public

9 schools in Montgomery County.

10 MR. GRANT: So there was some testimony that I think

11 I heard tomorrow and the next day there are some events at the

12 school at which Kid's Adventures was intending to come in and

13 say we're the provider for next year. Do you want to sign a

14 contract with us. And I take it that the court is directing

15 that that not happen?

16 THE COURT: Assuming this ruling doesn't get

17 overturned on appeal that's not going to be the case but I

18 don't know as of now. They have the right to appeal. I don't

19 know.

20 MR. GRANT: Based on the testimony it sounded like

21 there was something that might be happening tomorrow and I'm

22 worried about the risk of confusion to parents who may hear

23 something but don't know.

24 THE COURT: The court has enjoined the award of this

25 contract under this procedure subject to appellate review

 20

1 obviously.

2 MR. GRANT: And pending issuance of a written order.

3 THE COURT: And pending the details because the

4 details are really more for what does the county do now? What

5 does the school system do now to have an election at this

6 school? Now, are other people going to run in here? I don't

7 know. I hope not. Other contractors? I hope not. I don't know.

8 I'm not asking for that.

9 MR. GRANT: I wonder and I apologize because I'm

10 thinking out loud a bit but I wonder whether the court might

11 enter an injunction today enjoining the -- or the license and

12 reserve the remedy piece for something to be submitted. Because

13 I am concerned that we would be able to point to something

14 concrete saying as of today the process has been halted,

15 understanding that the court wants us to come back with some

16 proposed remedy.

17 MR. ROYALTY: We heard your ruling, Your Honor. I

18 mean the county is going to abide by it as of right now. Right

19 this second. Okay? I can't speak for everyone else but we're

20 abiding but your ruling as of right now. I don't understand

21 what his concern is. If Kid's Adventure goes out and signs up

22 parents with this ruling hanging out there I'm not going to be

23 a part of that. The county is not going to be a part of that.

24 They'd be taking a huge risk.

25 MR. GRANT: I'm not trying to cast dispersions, Your

 21

1 Honor, but I heard the testimony that there was some event

2 tomorrow.

3 THE COURT: Well, maybe counsel can address that. Go

4 ahead, sir.

5 MR. HYMAN: There was -- I guess the timing is maybe

6 somewhat fortuitous. It was supposed to be yesterday and today.

7 The field where it was supposed to happen is flooded.

8 THE COURT: I'm not surprised.

9 MR. HYMAN: So now it is scheduled this sort of --

10 it's field day and Kid's Adventures was going not be there

11 tomorrow and Thursday to present itself as the, you know,

12 provider for next year, answer parent's questions, get them to

13 sign up on contracts. As soon as we leave here, my clients are

14 going to say what are we supposed to do tomorrow.

15 THE COURT: Well, do you have proposed language with

16 you?

17 MR. HYMAN: We had submitted, Your Honor --

18 THE COURT: Let me see it.

19 MR. HYMAN: Something with the complaint and then I

20 had sort of expanded on that to include a little bit more.

21 THE COURT: Can I look at it please?

22 MR. GRANT: I mean, Your Honor --

23 THE COURT: I mean I just asked to look at it. I

24 didn't say I --

25 MR. GRANT: Yeah. Yeah. No.

 22

1 THE COURT: -- would sign it. I just asked to look

2 at it.

3 MR. GRANT: Your order is that under this process

4 they can't award the contract.

5 THE COURT: They can't give you a permit.

6 MR. GRANT: Under this process.

7 THE COURT: Correct.

8 MR. GRANT: They have to come up with another

9 process. I guess -- I guess the question is what happens on

10 June 1 because that's not resolved.

11 MR. ROYALTY: We're going to have to figure it out.

12 That's my answer.

13 THE COURT: I think the county attorney's office is

14 going to be talking about what -- they may go to Annapolis

15 tomorrow and get this -- try to -- I don't know. I don't know

16 what they're going to do but they have all those rights. I

17 don't -- maybe you should talk with your -- I don't know. I

18 hear you and I'm not unsympathetic but I can't predict the next

19 move. I don't know.

20 MR. HYMAN: Your Honor, this will need some editing

21 just in the form of the court's ruling.

22 THE COURT: That's all right.

23 MR. GRANT: Is that the TRO order?

24 MR. HYMAN: Yes.

25 MR. GRANT: Okay.

 23

1 MR. GRANT: think -- if I may speak, Your Honor?

2 THE COURT: What's that? Go ahead.

3 MR. GRANT: No. I'm just saying this order I think is

4 doing what you said you can't do.

5 MR. HYMAN: Right. But in terms --

6 THE COURT: Well, it says -- well, let's go through

7 it together. It says -- forget the first page for a minute. It

8 says the county and MCPPS shall not enforce the resolution.

9 That's consistent.

10 MR. GRANT: Yes.

11 THE COURT: And shall not remove the plaintiff unless

12 and until the county and MCPPS adopt procedures that don't

13 violate the code. What's wrong with that?

14 MR. GRANT: It's leading them in the school

15 indefinitely and de facto awarding them a permit.

16 MR. HIGHLAND: Right. It's awarding the contract to

17 Farmland CDC which I think is what you said was a bridge too

18 far.

19 MR. GRANT: The status quo is their permit expires in

20 June. After that, the county has to come up with a new process

21 to decide who is going to be in the school next year

22 essentially under your rule.

23 THE COURT: Let's -- we're going to continue this

24 conversation. But I think what I want to do is I want to pin

25 this up but looking towards a better order on Friday. But I do

 24

1 think we should have something -- something to give guidance.

2 I'm listening. I'm not --

3 MR. GRANT: Okay. Well, then I would just stop at the

4 first --

5 THE COURT: Maybe.

6 MR. GRANT: you know. Period. That's what I would do

7 if I were the judge.

8 THE COURT: No. I'm looking. I am truly soliciting

9 guidance.

10 MR. GRANT: That's my take which is essentially what

11 you have already said I think.

12 MS. MITCHELL: Up to here?

13 MR. GRANT: Shall not enforce.

14 MR. HYMAN: Shall not enforce ICB resolution 07001.

15 Period.

16 MR. GRANT: That's where I'm putting the period.

17 Sorry. I should have been more clear.

18 THE COURT: Just give me one second, folks. I'm not

19 up to you yet.

20 MR. GRANT: Sorry.

21 THE COURT: But I will. Just give me --

22 MS. MITCHELL: Sure.

23 THE COURT: Okay. So this is just editorial but then

24 on the meat you say -- what if it says the defendant shall not

25 remove plaintiff either before the earlier to occur of June 15,

 25

1 2018 or the enactment et cetera. The earlier to occur of.

2 MR. ROYALTY: We're not going to remove them before

3 June 15. They have a permit and we're going to honor it. This

4 is all about next year. That's the only thing that is at issue

5 is who is going to be there next year. So we won't remove them.

6 I don't think that's what this case is about.

7 THE COURT: then --

8 MR. ROYALTY: No one is arguing --

9 THE COURT: What if I simply order -- this is for

10 discussion. What if I order the county and MCPPS to adopt

11 procedures that don't violate 7109-A-1 and a properly

12 constituted selection committee carries out those procedures.

13 MR. ROYALTY: That's interesting. Is that a violation

14 of separation of powers by a judge ordering the legislature to

15 take some act. You can say the act you took is illegal and

16 you're enjoined. But can you go the next step and say and I

17 want you to. And you're not specifying. You're just saying you

18 need to act. But of course we always have to act.

19 THE COURT: Well, it would be like telling the

20 legislature to draw districts that don't -- aren't jurymanded

21 to a constitutionally infirm degree.

22 MR. ROYALTY: Can the judiciary do that? Or can the

23 judiciary just say the maps you drew are illegal. And then as

24 you have said earlier you go back, legislature, and you figure

25 out how to write a legal one? I don't know. It seems to be

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1 implied in your ruling that we have to come up with a legal

2 process anyway. Isn't it? But I don't know. I just wonder if it

3 violates separation of powers.

4 MS. MITCHELL: Your Honor, isn't the -- isn't the

5 injunction -- aren't you -- what you're doing is you are

6 enjoining the county and MCPPS from awarding the 2017 --

7 MR. ROYALTY: 2018.

8 MS. MITCHELL: The 2018, 2019 permit until a process,

9 you know, that is court approved. Something to be determined

10 process is created? And obviously applied.

11 THE COURT: Here's what I'm going to do tonight and

12 then I will be happy to revisit it with counsel in a couple of

13 days. I'm going to order -- and this is going not be in writing

14 that MCP -- the defendants and MCPPS shall not enforce ICB

15 resolutions 07001 and that the county and MCPPS shall adopt

16 procedures which comport with 7109-A-1 of the education

17 article. I'm not telling you what they have to be but they have

18 to comport with it. And then we'll circle back towards the end

19 of the week because I do think there has to be some written

20 order in place now. I understand it is not everything you want.

21 MR. GRANT: Your Honor, my focus in asking for a

22 written order now is just very narrow answering the question

23 that counsel raised on behalf of his client. What happens

24 tomorrow? And I think the court's answer is don't anybody go

25 and present themselves as holding the license for 2018/2019.

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1 THE COURT: I'm going to set bond at $20,000. If

2 there is a problem, I'll listen. But I have to set bond. So let

3 me date it and sign it. Call it 6:45 p.m. on May 22, 2018.

4 Would you give counsel copies? Sorry for my handwriting. I

5 think I have to enter a written order. Thank you.

6 MR. GRANT: Thank you, Your Honor.

7 MR. ROYALTY: Thank you, Judge.

8 MS. MITCHELL: Thank you, Your Honor.

9 THE BAILIFF: All rise.

10 (The proceedings were concluded.)

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√ Digitally signed by E. Prettyman-Guay

DIGITALLY SIGNED CERTIFICATE

DEPOSITION SERVICES, INC. hereby certifies that the

attached pages represent an accurate transcript of the

electronic sound recording of the proceedings in the Circuit

Court for Montgomery County in the matter of:

Civil No. 448055

FARMLAND CHILD DEVELOPMENT CENTER, INC.

v.

MONTGOMERY COUNTY ET AL.

By:

_________________________
E. PRETTYMAN-GUAY
Transcriber