Ross v. Board of Elections

• Decision Date: 23 June 2005
• Docket Number: No. 131,131
• Parties: Glenn L. ROSS v. STATE BOARD OF ELECTIONS, et al.
• Court: Maryland Court of Appeals

876 A.2d 692

387 Md. 649

Glenn L. ROSS v. STATE BOARD OF ELECTIONS, et al.

No. 131, September Term, 2004.

Court of Appeals of Maryland.

June 23, 2005.

J. Carroll Holzer (Holzer & Lee, Towson), on brief, for Appellant/Cross-Appellee.

Richard D. Rosenthal (Mark D. Dopkin, Tydings & Rosenberg LLP, Baltimore), on brief, Michael D. Berman, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.; Judith A. Armold and William R. Varga, Asst. Attys. Gen., Baltimore), all on brief for Appellees/Cross-Appellants. Argued Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, Judge.

This matter arises out of the 2004 General Election for the Thirteenth Councilmanic District seat on the Baltimore City Council in which Paula Johnson Branch was the Democratic Party candidate and victor in the election, and Glenn L. Ross was the Green Party candidate and individual who, after the election, challenged Branch's qualifications to be on the ballot. We are presented with the question of the applicability of Maryland Code (2002), Sections 9-209¹ and 12-202² of the Election Law Article, which provide for judicial challenges to aspects of the election process. The Circuit Court for Baltimore City granted the Motion for Summary Judgment filed by the Respondents, the State Board of Elections and Ms. Branch, based on Petitioner Ross's failure to comply with the time limitations of Section 9-209 of the Election Law Article. We find that the Circuit Court erroneously relied upon Section 9-209 as it does not govern challenges to a candidate's qualifications to appear on the ballot. Because Ross's petition was untimely and thus, as a matter of law, barred by laches, we will uphold the Circuit Court's entry of summary judgment.

Background

Facts

The undisputed material facts of this case are as follows. Ms. Paula Johnson Branch filed a certificate of candidacy to run in the election for the Thirteenth Councilmanic District in Baltimore City on June 30, 2003, and in September of 2003, she won the Democratic Primary Election.³ Throughout 2003 and 2004, two campaign finance entities⁴ raising funds for Branch's campaign repeatedly failed to file the campaign finance reports required under Section 13-304 of the Election Law Article⁵ and received Show Cause notices from the State Board for these oversights.

On October 13, 2004, the Baltimore Sun ran an article titled, "Welch Critics Seeking to Remove Veteran Councilwoman From Ballot; Son Pleaded Guilty in June to Filing False Finance Reports," which mentioned that a committee supporting Branch was delinquent in its filings and that Ross, as the Green Party candidate, was raising it as an issue in the campaign. Laura Vozzella, Welch Critics Seeking to Remove Veteran Councilwoman From Ballot; Son Pleaded Guilty in June to Filing False Finance Reports, BALT. SUN, Oct. 13, 2004, at 1B. On October 22, 2004, Ross's campaign contacted the State Board via e-mail and requested that the Board discuss at its next meeting on October 26th, Branch's disqualification under Section 13-332 of the Election Law Article⁶ for the failure of the two campaign finance entities to comply with the reporting requirements of the Campaign Finance Title of the Election Law Article.

On October 26, 2004, the State Board considered the request that Branch be disqualified from being a candidate, but declined to rule. Mr. Giles W. Burger, Chairman of the State Board of Elections, stated:

I'm not going to make any statements that should somehow jeopardize the candidacies for next week. And if that disappoints the petitioners, I'm sorry about that, but I think that that is the right decision.

* * *

I want to thank you for coming, and as my colleagues said, we are interested in this issue. We'll take it up later. My only suggestion is to petition the General Assembly, perhaps take this up in the courts. But we are going to let stand the candidacies for the moment for this election.

Branch remained on the ballot and won the General Election on November 2, 2004 with 79.79% of the vote as compared to Ross's 12.22% of the vote. On November 5, 2004, Ross filed a petition for "Immediate Injunctive Relief and Declaratory Judgment Under Maryland Election Law and Request for Hearing" in the Circuit Court for Baltimore City. Specifically, Ross requested that the court enjoin the Baltimore City Board of Canvassers from certifying Branch as the victor in the election for Baltimore City Council for the Thirteenth Councilmanic District, that the court declare Branch ineligible to be a candidate for office and the election for the Thirteenth Councilmanic District void, and require that a new election be held.

Procedural History

While awaiting the ruling on his petition, Ross filed a Motion for Summary Judgment on December 3, 2004. The State Board filed its Motion to Dismiss or, in the Alternative, Summary Judgment, and Branch did so as well. On December 7, 2004, a trial judge denied Ross's petition. Ross immediately filed a second motion for temporary restraining order requesting that the Circuit Court enjoin Branch's swearing in, which the same trial judge also denied. On December, 9, 2004, Branch took the oath of office.

Prior to the Circuit Court ruling on his original Motion for Summary Judgment, Ross filed another Motion for Summary Judgment and Memorandum in Support Thereof. Branch and the State Board responded, and a hearing was set for January 10, 2005 before another judge of the Circuit Court.

At the hearing, Ross submitted on his memorandum. The judge then heard argument from the State Board and Branch concerning Sections 9-209 and 12-202 of the Election Law Article and the application of laches. The State Board argued that Ross's claim was barred under both Section 9-209 and Section 12-202 of the Election Law Article because he failed to satisfy either of the time periods set forth in those statutes. The Board asserted that Ross should have filed his petition on September 27th, rather than on November 5th, for it to have been timely under Section 9-209. Moreover, the State Board contended that Ross did not file his claim on a timely basis under Section 12-202 of the Election Law Article because he filed twenty-eight days after he first became aware of the alleged wrongdoing on October 13th, which was well beyond the ten-day period stipulated in Section 12-202.

Similarly, Branch argued that Ross's action was barred by the doctrine of laches because he failed to pursue his claim prior to the election and caused prejudice to her by waiting until after the election occurred. Moreover, Branch asserted that by failing to seek judicial redress prior to the election, Ross undermined the free election process and that laches properly should bar his claim. On January 19, 2005, the Circuit Court granted summary judgment in favor of all defendants and against Ross for failing to comply with Section 9-209 of the Election Law Article.

On January 24, 2005, Ross filed a Notice of Appeal in the Circuit Court, pursuant to Maryland Code (2002), Section 12-203(a) of the Election Law Article, which provides that "an appeal shall be taken directly to the Court of Appeals within 5 days of the date of the decision of the circuit court." This Court treated Ross's Notice of Appeal as a petition for writ of certiorari, and on February 3, 2005, we issued the writ, Ross v. Maryland State Board of Elections, 385 Md. 161, 867 A.2d 1062 (2005). Because Ross did not present questions to consider in his Notice of Appeal, we shall consider the questions enumerated by the State Board and Branch in their joint cross-petition for writ of certiorari:

1. Did the circuit court correctly determine that Ross's complaint could and should have been brought under Section 9-209 of the Election Law Article, thereby precluding any claim under Section 12-202, and that it was untimely under Section 9-209?

2. Assuming arguendo that the judicial review remedy of Section 9-209 was not a "timely and adequate remedy" available to Ross, did Ross's complaint satisfy the requirement of Section 12-202(b) that it be filed within 10 days after the act or omission complained of or the date the action or omission became known to Ross?

3. Even if Ross's complaint was timely under Section 12-202(b) of the Election Law Article, should summary judgment have been granted in Respondents' favor because there is no private cause of action to enforce the campaign finance reporting requirements of Title 13 of the Election Law Article?

4. Assuming that a private party can invoke the sanctions established in Part VII of Title 13, Subtitle 3 of the Election Law Article, should summary judgment have been granted in Respondents' favor because those sanctions were either moot or inapplicable?

5. In light of Baltimore City Charter, Article III, § 10(d), and before any determination of the Baltimore City Council in the matter, did the circuit court have jurisdiction to determine the election and qualifications of a member of the City Council?

We find that the Circuit Court erred in granting summary judgment in favor of Respondents based upon Section 9-209 of the Election Law Article. Nevertheless, because: Ross's claim remains untimely under the doctrine of laches as a matter of law; there are no disputes of material fact bearing on that issue; and there is no basis upon which the court could have legitimately denied summary judgment on that issue, which was properly raised by Respondents, we shall uphold the grant of summary judgment in favor of Respondents.⁷

Standard of Review

This Court reviews an order granting summary judgment de novo. O'Connor v. Baltimore County, 382 Md. 102, 110, 854 A.2d 1191, 1196 (2004)

; Todd v. MTA, 373 Md. 149, 154, 816 A.2d 930, 933 (2003); Beyer v. Morgan State Univ., 369 Md. 335, 359, 800 A.2d 707, 721 (2002); Schmerling v. Injured Workers' Ins. Fund, 368 Md. 434, 443, 795 A.2d 715, 720 (2002); Fister v. Allstate Life Ins. Co.,...