Ocean City Bd. of Sup'rs of Elections v. Gisriel
| Decision Date | 01 September 1994 |
| Docket Number | No. 21,21 |
| Citation | 102 Md.App. 136,648 A.2d 1091 |
| Parties | The OCEAN CITY BOARD OF SUPERVISORS OF ELECTIONS, et al. v. Vincent dePaul GISRIEL, Jr. , |
| Court | Court of Special Appeals of Maryland |
Guy R. Ayres, III (Ayres, Jenkins, Gordy & Almand, P.A., on the brief), Ocean City, for appellants.
Christopher F. Davis (Philip C. Smith and Hearne & Bailey, P.A., on the brief), Salisbury, for appellee.
Argued before WENNER and HARRELL, JJ., and ELLEN L. HOLLANDER, Judge, Specially Assigned.
Appellants, the Ocean City Board of Supervisors of Elections (Board), the Town of Ocean City, and the Mayor and City Council for the Town of Ocean City (City Council), appeal from a judgment of the Circuit Court for Worcester County. That judgment reversed and remanded a decision by the City Council that had affirmed the Board's rejection of a petition to referendum filed by appellee, Vincent dePaul Gisriel, Jr.
On 18 January 1993, the City Council, pursuant to the zoning powers conferred upon incorporated municipalities by Md.Ann.Code, Art. 66B (1988 Replacement Volume & 1993 Supp.), enacted zoning Ordinance 1993-1 as an element of the comprehensive rezoning of the entire City. On 28 January 1993, displeased by various aspects of the new zoning ordinance, appellee prepared and circulated a petition for referendum on certain portions of Ordinance 1993-1. While gathering signatures for the petition, appellee discovered numerous people on the Ocean City voter registration list 1 who he believed had moved away, were listed twice, or were deceased. Before appellee submitted his petition, he had proposed 525 names he believed should be purged from the city's voter registration list. 2 Of the twenty-seven names claimed by appellee to be duplicative, the Board determined twenty-four to be valid. The Board also concluded that appellee's information indicating that 183 other people on the registration list were deceased or relocated was inaccurate. The remaining 315 names were not yet checked by the date appellee filed his petition.
On 16 February 1993, appellee submitted his petition to referendum of Ordinance 1993-1 to the Board to determine whether it had been signed by twenty percent of the qualified voters as required by § C-411 of the Ocean City charter. 3 The Board found that the total number of petition signers was 1013, of which four were duplicate signatures, sixty-one were non-registered signers, and one was rejected for other cause, reducing the total number of valid signatures to 947. The Board then used the Ocean City voter registration list, as it existed on 16 February 1993, to determine the total number of qualified voters to be 4903. 4 Therefore, the Board concluded, appellee's total number of valid signatures represented only nineteen percent of the qualified voters of the Town of Ocean City, or thirty-four signatures short of the requisite twenty percent. The City Council accepted the Board's findings and denied appellee's petition to referendum.
The next day, appellee appealed the Board's findings to the City Council pursuant to § C-505 of the Ocean City charter. 5 As grounds for his appeal, appellee argued: 1) the Board presented an inaccurate report regarding the certification status of his petition; 2) the Board failed to maintain "an accurate, up-to-date list of eligible and qualified voters;" and, 3) the Board failed to strike from the voter registration list those names that appellee identified as deceased, moved away, or duplicative. Appellee also appealed the City Council's acceptance of the Board's findings and its subsequent denial of his petition.
The City Council held a hearing on 15 March 1993. Appellee's first exhibit was § C-411 of the Ocean City charter. Appellee argued that that section requires a petition to referendum contain signatures of not less that twenty percent of the qualified voters of the Town of Ocean City. Appellee's second exhibit was § C-504 of the Ocean City charter, which states that it is the Board's duty to strike from the registration list persons known to "be dead or who have become disqualified." Appellee then emphasized that neither section of the charter referred to a "qualified" voter as a "registered" voter. Therefore, appellee argued, the Board must determine the total number of "qualified" voters, not "registered" voters, before deciding whether his petition to referendum contained the proper number of signatures.
In support of this argument, appellee attempted to prove to the City Council that the Ocean City voter registration list contained names of unqualified but registered voters. 6 Appellee supplied a list of seventy-seven names, with accompanying documentation, that were removed from the County universal registration list but were not removed from the Ocean City voter registration list. Appellee also offered evidence of nineteen names that were included on the Ocean City voter registration list, but were on neither the universal list nor the supplemental list. In addition, appellee presented evidence of fifteen people whose names were on the Ocean City voter registration list, but who were living outside the Town of Ocean City. Appellee also introduced evidence of twenty-five people listed on the Ocean City voter registration list that are deceased. And finally, appellee indicated that there were eight names on the Ocean City list that were duplicative. Therefore, argued appellee, the total number of qualified voters in Ocean City was actually 4767. 7 Pursuant to § C- 411, appellee concluded that twenty percent of 4767 is 954, and that his petition contained 960 signatures, including the thirteen he contended were erroneously disqualified by the Board. Therefore, appellee stated that "any reasonable person upon review of this would agree that we more than met the provisions of the charter for a successful petition." 8
In response, Mary Adeline Bradford, chairperson of the Ocean City Board of Supervisors of Elections, explained that the Board has standard procedures for purging the Ocean City voter registration list, and pursuant to those procedures the Board determined the number of qualified voters in Ocean City to be 4903 on 16 February 1993, the date appellee's petition was submitted. Ms. Bradford also testified that the Board meets periodically to maintain an accurate and up-to-date voter registration list for the Town of Ocean City. 9 She explained that the process of culling the voter registration list is burdensome and must be undertaken with caution, as "you're dealing with someone's constitutional right to vote for which wars have been fought." Finally, Ms. Bradford discussed the importance and practicality of "freezing" the voter registration list as of a certain date.
Appellee agreed that the registration list should have been frozen on 16 February 1993, but that the Board in fact added five names to the list after that date. Therefore, appellee reasoned:
If you can add names that increase the total, then the same courtesy and fair play ought to work in reverse. You should be deleting names that are shown to be ineligible. The rolls were not frozen on ... 2-16. You in fact added names.
Ms. Bradford replied that the five people added to the Ocean City voter registration list had registered in Snow Hill prior to 16 February 1993, and that the paper work was delayed in getting to Ocean City. Therefore, she explained, "had everything been under one roof, we would have had those names anyhow."
In response to a question from one of the councilmen concerning whether one can go back and change the registration list after it has been frozen, City Solicitor Guy R. Ayres III, representing the Board, explained:
Well, it seems to me that it's in everybody's benefit to have a, a given date so that number one, the petition drivers know the percent--know the number of petitions they have to get. If it's, if it's left open, then the organizers of the petition drive would never know how many signatures they had to get. So there has to be a date. Whether it be the day that the ordinance was signed into law or whether it be February the 16th, I'm not sure there's--maybe that's six, one-half dozen or the other; but at least you have a finite date that they knew they had to have X number of signatures.
It seems to me that what's happened is they didn't get that number of signatures. So now they're coming back and trying to be some type of super-Board of Elections and say, Board, you didn't do your job right. We don't think these people should be qualified to vote; therefore, they should be, they should be deleted.
At the conclusion of the hearing, appellee requested that the City Council remand the matter to the Board for a determination, based upon the documents and testimony offered, of whether the number of signatures on appellee's petition represented twenty percent of the qualified voters as of 16 February 1993. Instead, the City Council voted six to one to affirm the Board's decision.
Appellee filed a timely appeal of the City Council's decision to the Circuit Court for Worcester County, pursuant to § C-505 10 of the Ocean City charter. Appellee argued that the Board did not properly purge the names of those people who were not qualified to vote as of 16 February 1993 from the Ocean City voter registration list. Appellee explained that the term "qualified" voter, as used in § C-411 of the charter, does not mean "registered" voter as interpreted by the Board and City Council. In reply, appellants questioned appellee's ability even to petition a comprehensive rezoning to referendum and, assuming such a petition was proper, the Board had no obligation to cull the voter registration list after the petition was submitted.
A hearing was held in the circuit court on 20 October 1993. In an Opinion and Order of Court, issued on 12 November 1993, the judge, as a threshold issue,...
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