The Special Laws Prohibition, Maryland’s Charter Counties, and the “Avoidance of Unthinkable Outcomes”

Dan Friedman

Recently, Maryland appellate courts have suggested that county councils in Maryland’s charter home rule counties are prohibited from adopting laws that violate the State constitutional prohibition on special laws. Although none of the traditional techniques of constitutional interpretation require that this should be the case, this article suggests that courts can and should reach this result through a doctrine that I will call the “avoidance of unthinkable outcomes,” an interpretive technique derived from the United States Supreme Court’s decision in Bolling v. Sharpe and the Supreme Court of Maryland’s decision in Attorney General v. Waldron. The article concludes with my view that constitutional interpretation requires an interpreter to use all available interpretive techniques, constrained by professional norms, to come to the best possible constitutional interpretation.