Why I Support Pumphrey's, But Not its Appeal

It may surprise some folks to learn that I fully support the City’s efforts to appeal the ruling against it in the Pumphrey’s matter.

Why?  The issue before the court was not whether the Mayor and Council made a bad decision to reverse the permission given to Pumphrey’s to build a parking lot.  The issue before the court was whether the Mayor and Council had the power to reverse the permission given to Pumphrey’s to build a parking lot.  That’s an entirely different matter.

Make no mistake:  I still believe – strongly – that it was a deeply unwise decision to yank the approval away from Pumphrey’s when no legal or procedural error occurred last term in the granting of the approval.  It was grossly unfair to a valued Rockville business, and it was a blow against pedestrian safety.  But I’m even more certain that the Mayor and Council had the power to make this deeply unwise decision.

Just as the last Mayor and Council had the power to grant Pumphrey’s permission to build their parking lot, this Mayor and Council had the power to revoke that permission.  The text amendment giving the approval and the one yanking it away are simply two legislative actions by a legislative body.  It is generally recognized that legislative bodies are free to make unwise legislative decisions.  Rockville’s Mayor and Council is no exception, and this particular unwise legislative decision should be no exception.

Let's put it this way. Say I'm playing softball and knock a ball through a small business' window, and it somehow gets to the point where I am sued for it. If the court were to hold me liable for the damage on the grounds that I were criminally insane, I would certainly appeal it. Not because I don't think I should pay to repair the window, and not because I don't support small business, but because I would like to take gentle exception to the idea that I'm criminally insane.

Who would do differently? Who would just say, 'Oh, I really should pay for that window, and I support small business, so I'll just accept the court's judgment that I'm criminally insane'?

That's what we're talking about here. The court came to an answer that I quite like, but for a reason I really disagree with. And in the law, the reasons matter. It's a subtle point, but I think it is an important one. Important enough for me to speak out on it when I could have just stayed silent and let the cards fall where they may.

There's a small possibility that the court came to the conclusion I like for a reason I like. But that is unlikely; courts in cases like this will usually track the arguments of one party of another, and if the court decided in favor of Pumphrey's, it is a reasonably safe assumption that the court agreed with Pumphrey's lawyers' arguments. I'd be delighted to be wrong on this, but the chances of that are low.

There's a secondary point on this: As a City official, it is my duty to support the City when there is legal action against it, period. If the Mayor and Council, or the Board of Appeals, or the Planning Commission get sued for a decision they make, it is my duty to support that decision to the end, whether I like the decision or not. I thought that one of the absolutely most shameful things the last Mayor and Council did was to deny legal representation to the Board of Appeals when one of its decisions was challenged in court, just because a majority didn't like the decision itself.

If a majority of the Mayor and Council vote to establish a law, it is the law, and I am bound to defend that law in court. Sure, I may try to get it overturned at the ballot box, but until that happens, it's my job to abide by it, enforce it, and defend it.

I did not support Pumphrey’s suit against the City in this matter, even though I deeply sympathize with what happened to them, and I do not support Pumphrey’s in its defense of the City’s appeal.  I strongly support the City’s appeal of this decision, and I will do everything I can to make sure the City wins it.

I really wish I had won this vote last year. The way it turned out, it sent a terrible message to Rockville’s residents and businesses that they cannot count on the word of their City.  But I lost this vote, fair and square, and that should be where the story ends.  Courts should not overturn any validly made legislative decision – even a chowderheaded one.

Tom Moore
Councilmember, City of Rockville

A version of this post first appeared at http://councilmembermoore.org/?p=167