Gisriel v. Ocean City Bd. of Sup'rs of Elections, No. 5

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before MURPHY; ELDRIDGE
• Citation: 345 Md. 477,693 A.2d 757
• Parties: Vincent dePaul GISRIEL, Jr. v. The OCEAN CITY BOARD OF SUPERVISORS OF ELECTIONS et al. ,
• Decision Date: 01 September 1995
• Docket Number: No. 5

Page 477

345 Md. 477 693 A.2d 757 Vincent dePaul GISRIEL, Jr.
v.
The OCEAN CITY BOARD OF SUPERVISORS OF ELECTIONS et al. No. 5, Sept. Term, 1995. Court of Appeals of Maryland. May 1, 1997.
Reconsideration Denied June 9, 1997.

[693 A.2d 758]

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Christopher F. Davis (Philip C. Smith, Hearne & Bailey, P.A., on brief), Salisbury, for Petitioner.

Guy R. Ayres, III (Ayres, Jenkins, Gordy & Almand, P.A., on brief), Ocean City, for Respondents.

Argued before MURPHY, C.J., ^* and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL, and RAKER, JJ.

ELDRIDGE, Judge.

This case arose because of the refusal by the City Council of Ocean City, Maryland, to authorize, pursuant to a referendum petition, a referendum on a recently enacted comprehensive rezoning ordinance. The issues concern the appealability of the circuit court decision, as well as the duties and responsibilities of Ocean City officials with regard to the City's registered voter list and the procedure[693 A.2d 759] for determining the validity of referendum petitions.

I.

The Mayor and City Council of Ocean City enacted a comprehensive rezoning ordinance on January 19, 1993. Shortly thereafter, a group of local citizens, led by the petitioner Vincent Gisriel, filed a petition pursuant to Maryland Code (1957, 1996 Repl.Vol.) Art. 23A, § 2(b)(30), and the Ocean City Charter, to bring the zoning ordinance to referendum. ¹ The Ocean City Solicitor approved the form of the

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referendum petition, and the petition was then forwarded to the Ocean City Board of Supervisors of Elections (the Board) for a determination of whether Gisriel had obtained a sufficient number of signatures to place the zoning ordinance before the electorate. Gisriel's petition contained 1,013 signatures.

Section C-411 of the Ocean City Charter sets forth the general procedures for petitioning an ordinance to referendum. ² The specific dispute in this case is over § C-411's requirement that a referendum petition contain the signatures of at least "20% of the qualified voters" of Ocean City. Upon learning that the Board's standard practice for determining whether referendum petitions met this requirement was to

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compare the names on a submitted petition with the City's list of registered voters as of the date the petition was filed, Gisriel notified the Board that, in his view, the list of registered voters contained the names of several unqualified voters.

After comparing the names on the petition with the registered voter list, and after checking the status of persons asserted by Gisriel to be unqualified voters, the Board recommended to the City Council that Gisriel's petition be denied because it did not contain the names of at least 20% of the City's qualified voters. ³ According to the Board, the number of registered voters in Ocean City was 4,903 as of February 16, 1993, the date that the referendum petition was filed. The Board struck 66 of the 1,013 signatures on the submitted petition because they were duplicative, were the names of non-registered voters, or were otherwise "rejected signatures." The remaining 947 signatures[693 A.2d 760] constituted only 19.31% of the 4,903 registered voters in Ocean City, a figure less than the 20% threshold requirement. ⁴ Following an initial decision by the City Council that the number of valid signatures was insufficient, Gisriel, pursuant to § C-505 of the Charter, requested an opportunity to be heard before the Council in order to present evidence contradicting the Board's findings.

At a regularly scheduled Council meeting, Gisriel explained to the Council that the Ocean City voter registration list used by the Board is based on two voter registration rolls, the Worcester County "Universal List" and the Ocean City "Municipal

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Only" or "Supplemental List." ⁵ Gisriel alleged, and produced evidence designed to support his allegation, that the voter registration list contained the names of 294 individuals who failed to meet the requirements for qualified voters under the provisions of the Charter. ⁶ Gisriel maintained that if the Board had removed the names of these allegedly unqualified voters from the list of registered voters, so that the list contained only the names of the City's registered and qualified voters, the number of signatures submitted on his referendum petition would have exceeded 20% of the City's qualified voters, requiring the City Council to place the ordinance on the ballot for consideration by the Ocean City electorate. ⁷

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Despite Gisriel's submission, the Council voted to reaffirm its initial decision upholding the recommendation of the Board.

Thereafter, Gisriel instituted the present action in the Circuit Court for Worcester County, naming the City, the Board and the Council as defendants. ⁸ After a hearing, the circuit court issued an opinion and order. As a preliminary matter, the court rejected the City's contention that a comprehensive rezoning ordinance was not subject to referendum under the state statute, Art. 23A, § 2(b)(30). Addressing the merits of Gisriel's suit, the circuit court noted that there was a difference between a "qualified voter" and a "registered voter" as those terms were used in the Ocean City Charter, and the court concluded that the Board's and Council's[693 A.2d 761] "refusal to strike the unqualified but registered voters from the voter roll as of the date the Petition was timely delivered ... [was] erroneous as a matter of law...." The circuit court ordered the Board to "cull [the City's registered] voter roll of unqualified ... voters" prior to determining the percentage of qualified voters who had signed the petition.

The defendants appealed to the Court of Special Appeals, which reversed. Ocean City Board v. Gisriel, 102 Md.App. 136, 648 A.2d 1091 (1994). After raising sua sponte the question of whether it had jurisdiction, the Court of Special Appeals concluded that it had jurisdiction to entertain the appeal. The intermediate appellate court held that, absent fraud or misconduct by election officials, the list of registered voters is presumed to be the list of all qualified voters at any given point in time, so long as there are appropriate remedies

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available periodically to purge the list of unqualified voters. The Court of Special Appeals further held that the procedures enumerated in Maryland Code (1957, 1997 Repl.Vol.), Art. 33, § 3-16, were applicable to municipal elections and provided the mechanism for correcting errors in voting registration lists.

Gisriel then filed in this Court a petition for a writ of certiorari, arguing that the Court of Special Appeals erred in holding that the defendants were entitled to use the list of registered voters for the purpose of checking the petition, and arguing that the circuit court's decision was correct. This Court granted the petition, and we directed the parties to address an additional issue, namely whether the Court of Special Appeals had jurisdiction to entertain the defendants' appeal. We shall first address this jurisdictional issue.

II.

A.

It is an often stated principle of Maryland law that appellate jurisdiction, except as constitutionally authorized, is determined entirely by statute, and that, therefore, a right of appeal must be legislatively granted. See, e.g., Maryland-Nat'l v. Smith, 333 Md. 3, 7, 633 A.2d 855, 857 (1993) (" 'The right to take an appeal is entirely statutory, and no person or agency may prosecute an appeal unless the right is given by statute,' " quoting Subsequent Injury Fund v. Pack, 250 Md. 306, 309, 242 A.2d 506 (1968)); Howard County v. JJM, Inc., 301 Md. 256, 261, 482 A.2d 908, 910 (1984); State v. Bailey, 289 Md. 143, 147, 422 A.2d 1021, 1024 (1980); Estep v. Estep, 285 Md. 416, 422, 404 A.2d 1040, 1043 (1979); Smith v. Taylor, 285 Md. 143, 146, 400 A.2d 1130, 1132, (1979); Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 500, 331 A.2d 55, 64 (1975). Consequently, resolution of the jurisdictional issue depends upon an examination of the relevant provisions of the Maryland Code and of Ocean City's legislative enactments.

Section C-505 of the Ocean City Charter grants a right to appeal actions or decisions of the Board to the City Council,

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and it provides for judicial review in the circuit court of the Council's decision. Section C-505, however, does not provide a right of appeal to the Court of Special Appeals. Furthermore, no other provision of the Ocean City Charter or the Ocean City ordinances authorize an appeal to the Court of Special Appeals under the circumstances here.

Maryland Code (1957, 1995 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article, which is the general statute authorizing appeals from the circuit courts, provides that "a party may appeal from a final judgment entered in a civil or criminal case by a circuit court." Section 12-301 goes on specifically to grant a right of appeal "from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law." ⁹

[693 A.2d 762] Section 12-302(a) of the Courts and Judicial Proceedings Article, however, limits § 12-301's broad grant of the right to appeal, providing as follows:

"(a) Unless a right of appeal is expressly granted by law, § 12-301 does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of the District Court, an administrative agency, or a local legislative body."

The Court of Special Appeals' decision concerning its jurisdiction in the present case was based on that Court's interpretation and application of § 12-302(a). Therefore, we shall briefly review the historical background of § 12-302(a)'s limitation on the right of appeal.

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B.

The first general appeals statute enacted by the General Assembly after the Revolution was...