Doe v. Board of Elections

• Decision Date: 19 December 2008
• Docket Number: No. 61 September Term, 2008.,61 September Term, 2008.
• Citation: 962 A.2d 342,406 Md. 697
• Parties: Jane DOE, et al. v. MONTGOMERY COUNTY BOARD OF ELECTIONS.
• Court: Court of Special Appeals of Maryland

962 A.2d 342

406 Md. 697

Jane DOE, et al. v. MONTGOMERY COUNTY BOARD OF ELECTIONS.

No. 61 September Term, 2008.

Court of Appeals of Maryland.

December 19, 2008.

Jonathan S. Shurberg (Jonathan S. Shurberg, P.C., Silver Spring, MD; Joseph S. Kakesh of Arnold & Porter, L.L.P., Washington, DC; Susan L. Sommer and Natalie M. Chinof, Lamda Legal Defense and Education Fund, Inc, New York City), all on brief, for Appellants/Cross-Appellees.

Brief of Public Justice Center, Casa De Maryland and Maryland Disability Law Center as Amici Curiae for Appellants/Cross-Appellees: Gregory P. Care, Francis D. Murnaghan, Jr., Appellate Advocacy Fellow, Baltimore, MD.

Kevin Karpinski (Victoria M. Shearer of Karpinski, Colaresi & Karp, P.A., Baltimore, MD), on brief, for Appellee/Cross-Appellant.

Brief of Amicus Curiae, Maryland Citizens for a Responsible Government Corp., Supporting Appellee/Cross-Appellant: John R. Garza, Rockville, MD Benjamin W. Bull, Brian W. Raum, Austin R. Nimocks, Amy Smith, Alliance Defense Fund, Scottsdale, AZ.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BATTAGLIA, Judge.

The issue that presents itself in this case concerns whether the Montgomery County Board of Elections ("County Board") properly certified a petition for referendum proffered by the Maryland Citizens for Responsible Government ("Citizens Group") who sought to use the referendum process¹ to overturn Bill No. 23-07, enacted by the Montgomery County Council and signed by the County Executive, which would add "gender identity" as a protected characteristic under the County's anti-discrimination laws.² After the petition was certified for the November 2008 election ballot, twelve Montgomery County citizens, Jane Doe et al., ("Jane Doe") challenged the validity of the petition by filing, in the Circuit Court for Montgomery County, a Complaint for Judicial Review and Declaratory Judgment³ under Section 6-209 of the Election Law Article, Maryland Code (2003, 2007 Supp.).⁴ Both parties subsequently filed cross-motions for summary judgment, and the judge entered summary judgment on behalf of the County Board,⁵ holding that, although the number of signatures on the petition did not amount to the requisite 5% of registered voters, Jane Doe's complaint to remove the referendum from the ballot failed to properly raise the issue because it was time-barred, having been filed after the 10-day limitations period contained in Section 6-210(e).⁶ We granted cross-petitions for certiorari to answer the following questions, the first two presented by Jane Doe and the third by the Board:

1. Did the Circuit Court err in ruling that a voter challenge to certification of a referendum petition that failed to carry the required number of signatures, which challenge was filed within ten days of the certification, is nonetheless partially time-barred?

2. Did the Circuit Court err in ruling, contrary to the strict compliance standard dictated by this Court in an unbroken line of decisions, that specific signature requirements prescribed under the election laws for referenda petitions need not be met, with the result that a referendum petition carrying an insufficient number of valid signatures was certified for the ballot?

3. [Did] the Circuit Court err[ ] in holding that the Board is required to include inactive voters in calculating the total number of registered voters in Montgomery County and, thus, in calculating 5% of that number to determine the number of signatures required on the petition for referendum[?]

I. Introduction

On November 21, 2007, Montgomery County Executive Isiah Leggett signed into law Bill No. 23-07, enacted by the Montgomery County Council, which prohibited discrimination based on "gender identity" under the County's anti-discrimination statutes. The Citizens Group opposed to the enactment of the "gender identity" bill initiated the process of obtaining the signatures of 5% of the registered voters in the County to petition the law to referendum.⁷ The petition stated:

We, the undersigned registered voters of Montgomery County, Maryland, do hereby petition for a referendum vote of the registered voters of the County for approval or rejection in the next general election on Bill 23-07, Non-Discrimination — Gender Identity, entitled: "An Act to prohibit discrimination in housing, employment, public accommodation, cable television service, and taxicab service on the basis of gender identity; and generally to amend County laws regarding discrimination", enacted on November 13, 2007 by the County Council for Montgomery County, Maryland.

The County Board's Director, Margaret Jurgensen, emailed Ruth M. Jacobs, President of the Citizens Group, on November 30, 2007 to inform her that the petition would require 25,001⁸ signatures of Montgomery County registered voters, with 50% due by February 4, 2008 and the other 50% due by February 19, 2008. Letters from the County Board's attorney approving the form of the petition as well as an internet version of the form, were sent to the Citizens Group on December 3, 2007, and December 7, 2007, respectively.

The Citizens Group submitted 15,146 petition signatures to the County Board on February 4, 2008. On February 19, 2008, the Citizens Group submitted 15,506 more signatures, and the next day, February 20, 2008, the Director of the County Board sent a letter to the President of the Citizens Group formally notifying her that of the 15,146 signatures submitted on February 4, 13,476 were "valid, accepted signatures." On March 6, 2008, the County Board sent a letter to the Montgomery County Executive and the President of the Montgomery County Council, among others, certifying the petition and stating that the "petition contained more than the requisite number of signatures necessary to place the question on the 2008 General Election ballot" and "that the petition appears to meet the necessary requirements" regarding content under Section 6-201.⁹

After the petition was certified by the County Board on March 6, 2008, eight days later, on March 14, 2008, twelve Montgomery County citizens, Jane Doe, et al., filed a complaint pursuant to Section 6-209, seeking judicial review and declaratory relief in the Circuit Court of Montgomery County. The complaint alleged, among other arguments, that the County Board "certified the Petition despite the Petition's failure to include, by the legal deadlines, the requisite number of valid signatures required for certification." The County Board answered and then moved for summary judgment, arguing that Jane Doe's complaint was time-barred because it was not filed within the 10-day period prescribed by Section 6-210, and that even if it was timely filed, Jane Doe did not present a legal basis for challenging the County Board's decision to certify the ballot. Jane Doe filed a cross-motion for summary judgment, contending that the petition should be decertified because thousands of purported signatures were invalid and because the petition itself was defective. During the hearing on the summary judgment motions, counsel for the County Board revealed, for the first time, that "inactive" voters were not included in the total number of registered county voters from which the Board derived the 5% figure, and based on this new information, Jane Doe moved for leave to amend the complaint. The Circuit Court granted the motion, stating in a later order that it believed that the "new theory [wa]s based upon the same core of operative facts originally pled by Plaintiffs"; an amended complaint was filed on July 8, 2008. The County Board did not file a motion to strike or a motion for reconsideration of the trial court's order granting leave to amend, and the case proceeded on the basis of the amended complaint.

After the completion of oral argument on the motions for summary judgment, the judge granted the County Board's motion for summary judgment, denied Jane Doe's cross-motion and in his Memorandum Decision and Declaratory Judgment Order, dismissed the amended complaint because he determined that the 6-209 cause of action for judicial review and declaratory relief accrued on February 20, when the County Board had sent the Citizens Group a letter stating that 13,476 signatures of the 15,146 purported signatures submitted on February 4 were "valid [and] accepted," so that the complaint was filed beyond the limitations period; the judge also explored the various bases for invalidating the petition and held that the challenged signatures were valid, but insufficient.

In addressing the sufficiency of the challenged signatures, the court determined that "inactive" voters should have been included as registered voters, having declined to accept the County Board's argument that doing so "would artificially inflate the number of signatures required to successfully petition for referendum." The court also considered whether the signatures on the referendum petition were required to comply with the provisions of Section 6-203.¹⁰ On this issue the parties stipulated that 5,141 signatures included in the February 4 submission and 5,735 signatures of the February 19 submission failed to mirror the voter's identity on the statewide voter registration list. The court determined that the signature provisions of Section 6-203 were merely suggestive as opposed to required and validated the 10,876 challenged signatures.¹¹

Jane Doe petitioned for certiorari as well as for expedited review, and the County Board cross-petitioned; we granted both petitions. Doe v. Board of Elections, 405 Md. 505, 954 A.2d 467 (2008). Oral argument was heard on September 8, 2008, and the next day, on September 9, 2008, we issued our Per Curiam Order reversing the judgment of the Circuit Court and remanding the case to that court with directions to enter judgment in favor of Jane Doe.¹² Doe v. Montgomery County Board of Elections, 406 Md. 110, 111, 956 A.2d 199, 200 (200...