Kelly v. Vote Know Coalition of Maryland, Inc.

• Court: Maryland Supreme Court
• Writing for the Court: Argued before MURPHY; ELDRIDGE
• Citation: Kelly v. Vote Know Coalition of Maryland, Inc., 626 A.2d 959, 331 Md. 164 (Md. 1992)
• Decision Date: 01 September 1992
• Docket Number: No. 54,54
• Parties: Winfield M. KELLY, Jr., Secretary of State et al. v. VOTE KNOW COALITION OF MARYLAND, INC. et al. ,

Page 164

331 Md. 164

626 A.2d 959

Winfield M. KELLY, Jr., Secretary of State et al. v. VOTE KNOW COALITION OF MARYLAND, INC. et al.

No. 54, Sept. Term, 1992.

Court of Appeals of Maryland.

Order Filed Aug. 19, 1992.

Decided June 28, 1993.

Ralph S. Tyler, Deputy Atty. Gen., Baltimore, for petitioners.

Joseph A. Schwartz, III, Baltimore, for respondents.

ORDER

Ch. 1 of the Acts of 1991, which was Senate Bill 162 of the 1991 legislative session, addressed the subject of abortion and revised statutory provisions relating to abortion. Ch. 1 was petitioned to referendum and is to be submitted to the voters of Maryland at the November 1992 general election, pursuant to Art. XVI of the Constitution of Maryland and Maryland Code (1957, 1990 Repl. Vol.), Art. 33, § 16-6.

The Circuit Court for Anne Arundel County, by order of August 12, 1992, declared that the ballot title language of Ch 1, certified by the Secretary of State of Maryland, was misleading because it did not provide "a concise, intelligible and understandable summary of the principal features of SB 162...." The circuit court's August 12, 1992, order also enjoined the defendants from using the certified ballot language at the November 1992 general election and directed the defendant Secretary of State of Maryland to certify new ballot language.

For reasons to be stated in an opinion later to be filed, it is this 19th day of August 1992,

ORDERED, by the Court of Appeals of Maryland, that the declaratory judgment and injunctive order of the Circuit Court for Anne Arundel County is reversed; and it is further

ORDERED by the Court of Appeals of Maryland, that the case is remanded to the Circuit Court for Anne Arundel County with directions to enter the following declaratory judgment:

"The ballot title of Ch. 1 of the Acts of 1991, certified by the Secretary of State, is not misleading and does not violate either Art. XVI, § 5, of the Constitution of Maryland or Code (1957, 1990 Repl.Vol.), Art. 33, § 16-6. The defendants are entitled to utilize the ballot title certified by the Secretary of State at the November 1992 general election."

And it is further

ORDERED, by the Court of Appeals of Maryland, that the Circuit Court for Anne Arundel County shall enter an order denying the plaintiffs' request for an injunction.

Costs to be paid by the plaintiffs. Mandate to issue forthwith.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

ELDRIDGE, Judge.

An enactment of the General Assembly, signed by the Governor as Ch. 1 of the Acts of 1991, was petitioned to referendum and scheduled to be submitted to the voters of the State in the November 1992 general election. The issue presented by this case is whether the ballot title language summarizing Ch. 1 of the Acts of 1991 was misleading. The Act addressed the subject of abortion and revised statutory provisions relating to abortion. Prior to the November 1992 general election, this Court issued an order which, inter alia, directed the Circuit Court for Anne Arundel County to enter the following declaratory judgment:

"The ballot title of Ch. 1 of the Acts of 1991, certified by the Secretary of State, is not misleading and does not violate either Art. XVI, § 5 of the Constitution of Maryland or Code (1957, 1990 Repl.Vol.), Art 33, § 16-6. The defendants are entitled to utilize the ballot title certified by the Secretary of State at the November 1992 general election."

This opinion sets forth our reasons for so ordering.

During the 1991 legislative session, the General Assembly passed and the Governor signed Senate Bill 162, which became Ch. 1 and which substantially revised Maryland statutes regarding abortion. The members of the Vote kNOw Coalition and others, pursuant to Art. XVI, § 1, of the Constitution of Maryland, exercised their right to petition Ch. 1 to referendum. ¹

Article XVI of the Maryland Constitution and Maryland Code (1957, 1990 Repl.Vol.), Art. 33, § 16-6, set forth the procedures governing the referendum. Section 5(b) of Art. XVI provides in part as follows "All laws referred under the provisions of this Article shall be submitted separately on the ballots to the voters of the people, but if containing more than two hundred words, the full text shall not be printed on the official ballots, but the Secretary of State shall prepare and submit a ballot title of each such measure in such form as to present the purpose of said measure concisely and intelligently. The ballot title may be distinct from the legislative title, but in any case the legislative title shall be sufficient."

The Election Code, Art. 33, § 16-6(a), provides:

"Condensed statement and descriptive title.--The ballots shall contain a condensed statement in understandable language of every constitutional amendment or other question to be submitted to the vote of the people at any election. It is sufficient in any case to print the legislative title, a brief summary of the contents or purpose of the proposed amendment or referendum unless the act proposing the constitutional amendment or other question specifically provides the title to be used. The Secretary of State shall prepare and certify the form in which a constitutional amendment or question shall appear.... In the event the title of the bill, ordinance or resolution, as the case may be, is one hundred words or less, the title shall be sufficient. In the event the title exceeds one hundred words, a summary of the title containing not in excess of one hundred words shall be prepared and certified to the boards."

The referred legislation exceeded 200 words, precluding the full text from being placed on the ballot. Art. XVI, § 5(b). In addition, the legislative title exceeded 100 words, precluding its use. Art. 33, § 16-6. Consequently, the Secretary of State was required to summarize the legislation in 100 words or less. Pursuant to his constitutional and statutory duty, the Secretary submitted the following 100 word ballot title:

"Abortion Law Revision

"Revises Maryland's abortion law to prohibit state interference with woman's abortion decision before fetus is viable, or, under certain conditions, at any time and to provide certain exceptions to the requirement that a physician notify an unmarried minor's parent or guardian prior to minor's abortion; repeals pre-abortion information requirements about abortion alternatives; repeals some, and clarifies other, provisions related to abortion referrals; requires that abortions be performed by licensed physicians; provides good faith immunity under certain conditions to physicians performing abortions; authorizes state to adopt abortion regulations; repeals certain penalty and disciplinary provisions related to the performance of abortions."

The plaintiffs in this case, the Vote kNOw Coalition and three women who signed the referendum petition, challenged this language in a complaint filed in the Circuit Court for Anne Arundel County on July 27, 1992. The plaintiffs named as defendants Winfield M. Kelly, Jr., the Secretary of State, and Gene M. Raynor, Administrator of the State Administrative Board of Election Laws. The plaintiffs charged that the language of the ballot title "miscasts and misrepresents the true nature and purpose of the referred law by reordering the elements of Senate Bill 162 in a manner which will have an undeniable psychological effect on the average voter and suggest a voting outcome from language which is neither neutral nor accurate ... [and that] it uses vague, ambiguous and obtuse generalizations such as 'certain conditions' and 'certain exceptions' to obscure the actual scope and effect of Senate Bill 162 and disguise crucial elements of the referred legislation...."

The plaintiffs sought a declaration that the proposed language violated the constitutional and statutory standards. They also sought an order enjoining the Administrator from placing the language on the ballot and directing the Secretary of State to reformulate the language to reflect the "order of the elements of the legislative title" and to make use of "objectively neutral and not politically charged language."

The plaintiffs and the defendants filed cross motions for summary judgment. The defendants argued that the certified language "fairly and accurately conveys to Maryland voters the purpose of the legislation upon which they will be voting." The defendants noted that it was irrelevant whether the plaintiffs or any other person could produce a "better" ballot summary, stating that

"a hundred persons, whether lawyers or nonlawyers or Secretaries of State, could perhaps draft a hundred different ballot summaries, all of which might be meaningful and nonmisleading. That possibility is, however, legally irrelevant for the constitutional responsibility for that task in this State rests with the Secretary of State."

Rather, according to the defendants, the trial court was required to determine whether the ballot language certified by the Secretary of State " 'set forth, in understandable language the contents and purpose of the proposed referendum with that clarity and objectivity required to permit an average voter, in a meaningful manner, to exercise an intelligent choice.' Anne Arundel County v. McDonough, 277 Md. 271, 300 (1976)." The defendants urged the trial court to uphold the ballot summary in this case because it complied with the constitutional and statutory standards and was "comprehensive, accurate and understandable."

The plaintiffs complained that the Secretary of State should not have rearranged the order of the elements of the legislation but should have tracked the order in which they appeared in the legislative title. The only deviation from the order of the legislative title was the decision to move the summary of the portion of the legislation which essentially codified the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct....