Hanrahan v. Alterman

• Decision Date: 10 January 1979
• Docket Number: No. 269,269
• Citation: 396 A.2d 272,41 Md.App. 71
• Parties: William J. HANRAHAN v. Toby ALTERMAN et al.
• Court: Court of Special Appeals of Maryland

Page 71

41 Md.App. 71

396 A.2d 272

William J. HANRAHAN v. Toby ALTERMAN et al.

No. 269.

Court of Special Appeals of Maryland.

Jan. 10, 1979.

William J. Chen, Jr., Bethesda, for appellant.

Albert D. Brault, with whom were Brault, Graham, Scott & Brault, Rockville, on the brief, for appellees Alterman, Kenton, Lederer, Mrazek, Muller, Smith and Cartledge.

Edward L. Genn, Rockville, for other appellees.

Argued before GILBERT, C. J., and MOORE and LOWE, JJ.

MOORE, Judge.

Appellant, a defeated candidate, challenges the validity of the May 1977 Village Council election of Friendship Heights and The Hills, a special taxing district located in Montgomery County near the District of Columbia boundary line. The appellant's principal contention in his petition below was that the election was conducted in a manner which violated certain provisions of the Fair Election Practices Act. Md.Ann.Code art. 33, §§ 26-1 to -21 (1976 & Supp.1978). Pursuant to Section 26-18 of the Act, appellant sought an "inquiry" into the election as well as a declaration that it was null and void. In addition, the petition prayed that the respondents, the seven successful candidates, be declared ineligible for election or for appointment to any public office or employment as a consequence of their alleged violations, pursuant to the penal provisions of the statute. ¹ The lower court (Cahoon, J.) granted a motion for summary judgment filed by respondents and by both the Village Council and the Special Taxing District as intervenors. In an oral opinion, followed by a written order, it was held that Article 33 was neither applicable ² to the Friendship Heights election by statutory enactment nor incorporated by reference by either the Montgomery County Code or the Rules and Procedures of Friendship Heights. We affirm.

I

The villages of Friendship Heights and The Hills derive their status as a special taxing district from a public local law, Chapter 131 of the Laws of 1914. This law, as amended, is codified in Chapter 66 of the Montgomery County Code of 1972 (1978). The district's governing body is the Village Council, composed of seven members, who serve without compensation for two-year terms. Each member, as a "Village Councilman," must be a registered and qualified voter of Montgomery County, residing in Friendship Heights. Montgomery County Code § 66-4 (1978). The powers of the Council primarily involve the "opening, improving, widening, maintenance, repairing and lighting the streets, roads, lanes, alleys, sidewalks, parking, drainage, sewerage, sanitation, and other village improvements and for furnishing police and fire protection, clerical and other public service, including the removal of ashes, garbage and other refuse and the disposal thereof." Montgomery County Code §§ 66-2, 66-9 (1978). To finance the performance of these responsibilities, the local newsletter reflected that the Council proposed a budget for the fiscal year 1978 that provided for total revenues of $437,700 and total expenditures of $449,185.

The provisions of the public local law governing election to the Village Council are codified as Section 66-4 of Chapter 66 of the County Code.

"Sec. 66-4. Village council Election; oath of office; vacancies.

On the second Monday in May in the year 1923, and on the same date in every second year thereafter, an election shall be held in the villages for the election of seven members, each of whom shall be a registered and qualified voter of Montgomery County residing in the villages, to be and constitute the 'Friendship Heights Village Council' for the next succeeding two years, and until their successors duly qualify, each of whom shall qualify on or before the fourth Monday in May thereafter by taking an oath, before an officer of the law duly commissioned to administer same, to diligently and faithfully discharge the duties of the office. In case any such person so elected as village councilman fails to qualify within the time hereinbefore mentioned, or in case of any vacancy through death, resignation or otherwise, the County council shall fill the vacancy by the appointment of a registered and qualified voter of Montgomery County residing in the villages, who shall hold office for the term or unexpired term. The election of the village councilmen as herein provided, shall be held under and in accordance with the laws of the State of Maryland, but the returns thereof shall be made to the county council of Montgomery County. All registered and qualified voters of Montgomery County residing in the villages are eligible to vote at the elections; the election shall be conducted by at least four judges of election and at least four clerks, and whatever assistant judges and clerks as may be necessary, to be appointed by the village council, who shall serve with appropriate compensation. The polls of the election shall be open from seven A.M. to eight P.M., on the second Monday in May as hereinbefore provided. However, the foregoing hours may be modified by the county council by resolution, upon request of the Friendship Heights Village Council." ³ (Emphasis added.)

The subject of elections was covered also in Rules and Procedures adopted by the Friendship Heights Citizens Committee, the Council's predecessor, on March 11, 1974. According to the preamble, these rules were designed "as a guide for the administration of (the) villages. . . . (and were) not intended to be binding on future Committees." Article II thereof, entitled "Election," provided in Section I that the election of the Committee "shall be conducted under provisions of Chapter 66-Section 4 of the Montgomery County Code, Article 33 of the Code of Maryland and these Rules and Procedures." Subsequent sections of the election article related to: Notice (at least 90 days prior to the election); Nomination (by at least 10 registered and qualified voters, filed 30 days prior to the election, accompanied by the candidate's certificate of acceptance); Proof of qualification for voting (two weeks prior to the election, names of prospective voters must appear on a list of registered and qualified voters furnished by the Montgomery County Board of Election Supervisors); Method of voting (by machine or paper ballots); Place of voting; election officials (judges and clerks selected by the Committee); Poll watchers (appointed by candidates to observe voting and counting); Counting of ballots (by judges and clerks); Certifying and reporting of ballots (notification of certified election returns by incumbent chairman to the Montgomery County Council); Voting by ill and disabled persons (entitlement to vote as absentee voter); Voting by persons absent from the Washington Metropolitan area (following absentee voting procedures outlined in Section II of the Rules and Procedures and in Article 33 of the Code of Maryland); Emergency absentee ballots (procedure for absentee voting "(w)ithin a period of seven days prior to an election and up to and on the day of the election but prior to the time the polls close").

The 1977 election was held on May 9, 1977. Early notice of the election was given in the 1976 year-end report of the Chairman of the Council, Dr. Alfred Muller, to Friendship Heights residents. It was stated therein that the election would be held "under the provisions of Chapter 66, Section 4 of the Montgomery County Code, Article 33 of the Code of Maryland." However, the Board of Election Supervisors for Montgomery County the body designated by Article 33 to supervise all elections within its coverage did not deem the election within its jurisdiction. The League of Women Voters of Montgomery County agreed to supervise it. In a letter from the League to Dr. Muller dated March 22, 1977, the League stated its understanding that "(o)ur responsibilities (are) based on the provisions of Chapter 66, Section 4 of the Montgomery County Code, Article 33 of the Code of Maryland, and the Rules and Procedures of the Friendship Heights Citizens Committee." The specific undertakings of the League included: 1) the printing of 2200 ballots; 2) printing a form for absentee ballot requests, handling requests for absentee ballots, and confirming the eligibility of absentee voters; 3) establishing a voter list for residents of Friendship Heights, as of two weeks prior to the election; 4) supplying 8 election day workers, to be on the premises between 7 a. m. and 8 p. m.; 5) counting and certifying the ballots; and 6) helping to publicize the election.

Nine candidates filed for the seven seats. In the election, appellant and Margaret Ann Duruz Wessely, an incumbent member of the Council, were defeated. ⁴ The appellant received 101 votes, the lowest number cast for any candidate, while the defeated incumbent received 131 votes. The highest and lowest vote tally for the successful candidates were 398 and 251, respectively.

Within thirty days of the election, appellant instituted suit pursuant to Section 26-18 of Article 33, alleging irregularities in the conduct of the election by the seven successful candidates. The list of alleged infractions included: 1) the publication and distribution of a sample ballot without identification of an authorized agent; 2) the publication and distribution of a sample ballot which was intended to, and did, confuse voters; 3) failure to appoint a campaign treasurer; 4) failure to identify a campaign treasurer on literature distributed prior to and on the day of the election; 5) improper use of absentee ballots; and 6) failure to file certificates of acceptance of nomination. The appellant also contended that the election was conducted in violation of the Friendship Heights Village Council's Rules and Procedures.

The lower court, after sustaining appellant's demurrers without leave to amend, granted a summary judgment stating that:

"the rights of the parties are not governed by the provisions of Article 33 of the Annotated Code of Maryland,...