Howard County Citizens For Open Gov't v. Howard County Bd. of Elections.

• Decision Date: 27 October 2011
• Docket Number: 2010.,No. 503,Sept. Term,503
• Citation: 30 A.3d 245,201 Md.App. 605
• Parties: HOWARD COUNTY CITIZENS FOR OPEN GOVERNMENT, et al.v.HOWARD COUNTY BOARD OF ELECTIONS.
• Court: Court of Special Appeals of Maryland

201 Md.App. 605

30 A.3d 245

HOWARD COUNTY CITIZENS FOR OPEN GOVERNMENT, et al.

v.HOWARD COUNTY BOARD OF ELECTIONS.

No. 503

Sept. Term

2010.

Court of Special Appeals of Maryland.

Oct. 27, 2011.

Walter E. Carson, Woodbine, MD, for Appellant.Gerald M. Richman, Ellicott City, MD, for Appellee.Panel: MEREDITH, MATRICCIANI and KEHOE, JJ.KEHOE, J.

In their County Charter, the voters of Howard County have reserved to themselves the right to right to refer laws of their County Council to referendum. For a referendum question to secure a place on the ballot, petitions containing the signatures of at least 5,000 of the County's registered voters must be filed within sixty days of the passage of the ordinance in question. The filing deadline may be extended for an additional thirty days if the sponsor of the referendum effort submits petitions containing at least 50% of the required signatures within the initial deadline.

Howard County Citizens for Open Government (“HCCOG”) sought to take a newly-enacted ordinance of the Howard County Council to referendum. The Howard County Board of Elections (the “Board”) decided that HCCOG failed to submit petitions containing a sufficient number of valid signatures to extend the filing deadline. HCCOG, and others,¹ sought judicial review of the Board's decision. The Circuit Court for Howard County affirmed the Board. HCCOG has appealed the court's judgment and presents the following questions, which we have reworded slightly:

I. Whether the decision of the Board to invalidate previously approved registered voters on a referendum petition impermissibly burdened the citizens of Howard County in the exercise of rights secured by the Howard County Charter, State law and the Maryland Constitution?

II. Whether the Board's retroactive application of the Doe v. Montgomery County, 406 Md. 697 (2008), voter verification standards was unreasonable; or, in the alternative, whether the Doe standards themselves, as applied by the Board, and in light of Montgomery County Volunteer Fire–Rescue Assoc. v. Montgomery County Board of Elections, 418 Md. 463

[15 A.3d 798]

(2011), impermissibly burdened the citizens of Howard County in the exercise of rights guaranteed by the Maryland Constitution and the Howard County Charter? ²

III. Whether the decision of the Board to invalidate previously qualified registered voters on a referendum petition was unreasonable?

We affirm the judgment of the circuit court and, accordingly, the decision of the Board.

Background

On November 3, 2008, the Howard County Council passed Council Bill 58–2008, amending the Howard County Zoning Regulations to increase the maximum permitted size of a grocery store to be built in the Turf Valley community. HCCOG sponsored a petition drive to submit the bill to referendum, pursuant to Howard County, Md. Charter § 211 (2008).³ In light of the current number of registered voters in the County, § 211 requires a sponsor to submit petitions containing the valid signatures of at least 5,000 voters registered in Howard County within sixty days of the enactment date of the ordinance in question. Section 211 also provides that, if the sponsor obtains at least 2,500 valid signatures before the end of the sixty days, the sponsor will have an additional thirty days to obtain the remaining required signatures.

On November 17, 2008, and November 19, 2008, HCCOG filed a request with the Board seeking a determination that the form and content of its proposed referendum petition and signature sheet complied with State law. The Board responded in the affirmative on December 1, 2008. HCCOG then began the process of circulating copies of the petitions and obtaining signatures. While there were several exchanges of correspondence between the Board's staff and HCCOG about matters related to the referendum drive, the topic of the legal requirements for valid signatures does not appear to have been addressed before HCCOG submitted petitions bearing 3,301 signatures to the Board on December 30, 2008, five days before the end of the initial sixty-day petition submission period.

On the following day, Betty L. Nordaas, the Howard County Election Director ⁴ notified HCCOG that, because “more than one-half but less than the full number of signatures required” by the Charter had been filed within sixty days, HCCOG had an additional thirty days, or until February 4, 2009, to file the remaining signatures. How the Board staff came to this conclusion is unclear, but the Board now asserts that its staff failed to consider the provisions of EL § 6–203(a) ⁵ (which sets out the information that must accompany a petition signature) in this process. On January 22, 2009, Ms. Nordaas wrote to HCCOG informing it that the Board staff had completed the verification process ⁶ of the signatures contained in the initial submission and that 2,603 signatures were valid.

On January 26, 2009, Gerald M. Richman, Esquire, the Board's counsel in this appeal, was appointed as special counsel to the Board regarding the referendum effort. Mr. Richman alerted the Board's staff to Doe v. Montgomery County, 406 Md. 697, 962 A.2d 342 (2008), which had been filed on December 19, 2008. As we will discuss later in our analysis, the Court in Doe held that the provisions of EL § 6–203(a) were mandatory. The Board's staff then re-examined the signatures submitted by HCCOG to determine how many of them satisfied § 6–203(a)'s requirements.

While all of this was going on, HCCOG continued its efforts to obtain signatures to the petition. It submitted an additional 6,079 signatures on February 3, 2009. On March 11, 2009, the Board received advice from the Attorney General's office regarding the appropriate protocol for the verification and validation of petition signatures.

The Board held a meeting with representatives of HCCOG on March 12, 2009. In the meeting, Ann M. Balcerzak, the president of the Board, stated that the Board was reversing its previous decision that HCCOG had submitted at least one-half of the required signatures before the expiration of the initial, sixty-day deadline. She delivered to the representatives a letter of the same date from Ms. Nordaas, which constitutes the decision of the Board for this proceeding. It reads in pertinent part:

On December 30, 2008, the HCCOG submitted Local Referendum Petitions, modified in accordance with Howard County Law containing 3,301 signatures. On January 22, a determination was issued to HCCOG ... advising that 2,603 valid signatures were ... submitted and that it thereby became entitled to an additional period of 30 days or until February 4, 2009 to obtain the remainder of valid signatures necessary....

As I am certain you are now aware, the Court of Appeals of Maryland, on December 19, 2008 issued a published opinion titled: Doe v. Montgomery County Board of Elections, 406 Md. 697, 962 A.2d 342 (2008). Counsel to the Howard County Board of Elections studied this opinion and advised the Board of Elections that a reassessment of the initial submission was necessary and appropriate based upon the clear principles and guidelines as outlined by Judge Battaglia in the Doe Opinion. The Doe court spent considerable time in setting forth the rationale related to the process of signing a referendum petition and in thereafter validating signatures on each petition. Succinctly put, the Board of Elections found, after review of each signature on submitted local referendum petitions, that it did not validate each signature in accordance with the mandate set forth in Doe which requires an individual to sign his/her name as it appears on the statewide voter registration or place his/her surname of registration and at least one full given name and the initials of any other names. The Opinion goes on to state that the requirements of subsection (a) must be satisfied in order to validate the signature.

The Board of Elections has requested revised guidelines from the State Board of Elections, reference COMAR Title 33.06.05.02(A), in order to complete an additional detailed review of each signature on the Local Referendum Petitions. The State Board of Elections has contacted the Attorney General's office in order to ensure the guidelines will be in agreement with the December 19, 2008 [ Doe ] opinion and is in the process of preparing the revised guidelines for Local Boards to use.

Based upon March 11, 2009 advice from the Attorney General's office, the Board of Elections re-verified and validated the signatures on the petitions submitted on December 30, 2008. The Board found that the total number of valid signatures fell below the 2,500 signatures ⁷ necessary to permit an additional thirty day period in which HCCOG may obtain the remainder of signatures necessary to complete the petition requirements.

(Emphasis in original.)

On March 16, 2009, Mr. Richman wrote to HCCOG's representatives confirming that the March 12 letter was “the final determination of the Board of Elections that the validated signatures contained in the Petition ... are insufficient to satisfy all requirements established by law.”

HCCOG filed a petition for judicial review of the Board's decision.⁸ The parties submitted memoranda to the circuit court and the court held a hearing on the matter on November 13, 2009. The parties presented substantially the same arguments to the circuit court as they present to us, which we discuss later in our analysis. The circuit court entered an order affirming the Board's decision on April 27, 2010. In affirming the Board, the circuit court stated:

The State may constitutionally limit, in a non-discriminatory and content neutral manner, the ability to initiate legislation.... Section 6–203 of the Election Law Article imposes nondiscriminatory content neutral restrictions. Therefore [HCCOG] has failed to demonstrate a violation of the right to vote.

Because [the Board] properly applied the Doe standard in evaluating the...