Kendall v. Balcerzak

Decision Date28 March 2011
Docket NumberNo. 09–2304.,09–2304.
Citation650 F.3d 515
PartiesPaul F. KENDALL, Plaintiff–Appellant,v.Ann M. BALCERZAK, President, Howard County Board of Elections; Betty L. Nordaas, Director, Howard County Board of Elections; Robert L. Walker, Chairman, Maryland State Board of Elections; Linda H. Lamone, State Administrator, Maryland State Board of Elections, Defendants–Appellees,andHoward County Board of Elections; Maryland State Board of Elections, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit


ARGUED: Susan Baker Gray, Highland, Maryland, for Appellant. Kathleen Evelyn Wherthey, Office of the Attorney General of Maryland, Baltimore, Maryland; Gerald M. Richman, Ellicott City, Maryland, for Appellees. ON BRIEF: Douglas F. Gansler, Attorney General of Maryland, Baltimore, Maryland, Sandra Benson Brantley, Assistant Attorney General, Office of the Attorney General of Maryland, Annapolis, Maryland, for Appellees Robert L. Walker and Linda H. Lamone.Before AGEE and WYNN, Circuit Judges, and PATRICK MICHAEL DUFFY, Senior United States District Judge for the District of South Carolina, sitting by designation.Affirmed by published opinion. Senior Judge DUFFY wrote the opinion, in which Judge AGEE and Judge WYNN joined.


DUFFY, Senior District Judge:

This appeal arises out of a petition drive to obtain a referendum on a zoning ordinance passed by the Howard County Council, of Howard County, Maryland, on November 3, 2008. Paul F. Kendall, who signed the petition, filed a complaint on March 16, 2009, and an amended complaint on March 30, 2009, in the United States District Court for the District of Maryland, pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights and demanding declaratory and injunctive relief. The named Defendants were: Howard County, Maryland (the County), President Ann M. Balcerzak and Director Betty L. Nordaas of the Howard County Board of Elections (the County Board Defendants), and Chairman Robert L. Walker and Administrator Linda H. Lamone of the Maryland State Board of Elections (the State Defendants).

Kendall's amended complaint asserted three counts against the Defendants. In the first count, Kendall asserted that all Defendants had denied his rights to freely associate, petition the government, and vote, in violation of the First and Fourteenth Amendments of the United States Constitution. The second count asserted that all the Defendants had denied him due process and equal protection in violation of the Fourteenth Amendment of the United States Constitution. The third count alleged that all Defendants had violated Kendall's constitutional rights that are protected under 42 U.S.C. § 1983.

The County and the County Board Defendants moved to dismiss Kendall's amended complaint, and the State Defendants filed an answer asserting that the complaint failed to state a claim against them upon which relief could be granted. The district court subsequently granted the motions of the County and the County Board Defendants and dismissed the case against all Defendants. J.A. 117–35.

Kendall noted an appeal on November 17, 2009. On December 23, 2009, all parties participated in court-ordered mediation, which led to Kendall's voluntary dismissal of his claims against the County effective January 15, 2010, but which otherwise failed to resolve the dispute. This appeal followed.

As explained below, we agree that the district court properly dismissed Kendall's complaint. We therefore affirm the district court's dismissal.


On November 3, 2008, the Howard County Council passed Council Bill 58, a bill that substantially increased the size of a grocery store to be built in the Turf Valley community. Concerned with the passage of this bill, Howard County Citizens for Open Government (“HCCOG”) sought to challenge this bill by way of referendum, as permitted by Howard County Charter Section 211. Specifically, Section 211 of the Howard County Charter provides, in relevant part:

(a) Scope of the referendum

The people of Howard County reserve to themselves the power known as “the Referendum,” by petition to have submitted to the registered voters of the County to approve or reject at the polls, any law or part of any law of the Council. The referendum petition ... shall be sufficient if signed by five per centum of the registered voters of the County, but in any case not less than 1,500 or more than 5,000 signatures shall be required. Such petition shall be filed with the Board of Supervisors of Election of Howard County within sixty days after the law is enacted.... [I]f more than one-half, but less than the full number of signatures required to complete any referendum petition against such law be filed within sixty days from the date it is enacted, the time for the law to take effect and the time for filing the remainder of signatures to complete the petition shall be extended for an additional thirty days.

Howard County, Md., Charter § 211 (2008).

In Howard County, the signatures of 5,000 registered voters are generally needed to refer a legislative act of the County Council to referendum; in this case, the deadline for gathering a minimum of 2,500 signatures in order to secure an extension of thirty days was January 3, 2009.

The Election Law Article of the Maryland Code sets forth the requirements for a valid referendum petition in Maryland, stating, in pertinent part:

(a) Generally—To sign a [referendum] petition, an individual shall:

(1) sign the individual's name as it appears on the statewide voter registration list or the individual's surname of registration and at least one full given name and the initials of any other names; and

(2) include the following information, printed or typed, in the spaces provided;

(i) the signer's name as it was signed;

(ii) the signer's address;

(iii) the date of signing; and

(iv) other information required by the regulations adopted by the State Board.

(b) Validation and counting—The signature of an individual shall be validated and counted if:

(1) the requirements of subsection (a) of this section have been satisfied....

Md.Code Ann., Election Law (“EL”) § 6–203 (West 2010).

On December 19, 2008, the Court of Appeals of Maryland issued a decision, Doe v. Montgomery Cnty. Bd. of Elections, 406 Md. 697, 962 A.2d 342 (2008), interpreting EL § 6–203. The court in Doe held:

The plain meaning of the words “shall” and “requirements” in Section 6–203 reflect that the statutory provisions require that the voter must sign his or her name “as it appears on the statewide voter registration lists or the individual's surname of registration and at least one full given name and the initials of any other names”; the provisions are mandatory, not suggestive.

Doe, 962 A.2d at 360 (quoting EL § 6–203).

On November 17 and 19, 2008, HCCOG filed requests with the Board of Elections seeking an advance determination regarding the sufficiency of the proposed referendum petition language and signature sheet. On December 1, 2008, the County Board determined that the proposed petition complied with the requirements of state law, regulations, and the Howard County Charter and Code. Once approved, HCCOG began to collect the necessary petition signatures on the approved petition forms.

On December 30, 2008, twelve days after the Maryland Court of Appeals decided Doe, HCCOG presented the County Board with 3,301 signatures, which exceeded the 2,500 signatures needed by January 3, 2009 in order to obtain the Charter-authorized thirty-day extension to secure the remaining signatures. See Howard County, Md. Charter § 211 (2008).

On January 22, 2009, the County Board validated and certified 2,603 of the signatures that HCCOG had submitted, and gave them an additional thirty days, until February 4, 2009, to finish collecting the required 5,000 signatures. On February 3, 2009, HCCOG presented the County Board with an additional 6,079 signatures.

On February 12, 2009, the County Board issued a letter stating that it had stopped reviewing the additional signatures due to a pending legal challenge, filed by a third party, on February 4, 2009, which was unrelated to the Board's signature validation methods. On March 11, 2009, counsel for the County Board sent an email to several persons involved in the referendum process requesting their presence at a meeting of the County Board the following evening.

At the March 12, 2009 meeting of the County Board, the Board's president, Ms. Balcerzak, announced that the Board was reversing its January 22, 2009 decision to certify the first 2,603 signatures on the petition based upon the decision of the Court of Appeals of Maryland in Doe. In reliance on Doe, the Board conducted a second review of a statistically valid sample of 1,216 signatures from the initial 3,301 submitted. After invalidating 1,052 signatures, a rejection rate of eighty-seven percent, the Board concluded that HCCOG failed to submit the requisite number of valid signatures, and would therefore be denied an extension of time to submit the 5,000 total signatures required to place the referendum on the ballot. As Nordaas explained in the final County Board determination letter to HCCOG's counsel dated March 12, 2009:

[T]he 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.

J.A. 45.

Nordaas stated that the Board's decision to re-verify the signatures in the HCCOG's petition was based on March 11, 2009 advice from the Maryland Attorney General's office. Id.

Four days after the March 12, 2009 County Board meeting, Kendall filed his initial complaint in this action, in the United States...

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