Stop Slots MD 2008 v. State Bd. of Elections

• Decision Date: 06 January 2012
• Docket Number: Sept. Term,2008.,No. 87,87
• Citation: 424 Md. 163,34 A.3d 1164
• Parties: STOP SLOTS MD 2008, et al. v. STATE BOARD OF ELECTIONS, et al.
• Court: Maryland Court of Appeals

34 A.3d 1164
424 Md. 163

STOP SLOTS MD 2008, et al.
v.
STATE BOARD OF ELECTIONS, et al.

No. 87

Sept. Term

2008.

Court of Appeals of Maryland.

Jan. 6, 2012.

[34 A.3d 1166]

Irwin R. Kramer (Kramer & Connolly, Owings Mills, MD), on brief, for Appellants.

Austin C. Schlick, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Dan Friedman, William F. Brockman and Sandra Benson Brantley, Asst. Attys. Gen., Baltimore, MD), on brief, for Appellees.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ^* MURPHY, ADKINS and BARBERA, JJ.BELL, C.J.

[424 Md. 168] The Maryland House of Delegates, during a special session convened in 2007, enacted legislation, which proposed a constitutional

[34 A.3d 1167]

amendment that would legalize video slot machine gambling in Maryland. During that same session, the State Senate initiated companion legislation, Senate Bill 3, an appropriations bill, contingent on the proposed Constitutional Amendment being ratified by the electorate, pursuant to which the gambling revenue would be appropriated and distributed. That Bill also prescribed the purposes for which the gambling revenue would be used. Each piece of legislation was passed by both Houses of the General Assembly and signed into law by the Governor. 2007 Md. Laws Chapters 4–5. Stop Slots Maryland, Aaron Meisner, NOcasiNO Maryland, Barbara Knickelbein, and Delegate Michael D. Smigiel, [424 Md. 169] Sr., the petitioners, then mounted a two-pronged attack on both the contingent legislation and the constitutional amendment, in particular, the text of the ballot question proposed to the voters. As to the contingent legislation, they contended that it unconstitutionally delegated legislative power to the voters. The ballot question language was challenged as being misleading and deficient because of its assertion that the “primary purpose” for authorizing the State to issue the prescribed number of video lottery licenses was to fund education. We addressed the first of the petitioners' contentions in Smigiel v. Franchot, 410 Md. 302, 978 A.2d 687 (2009). In that case, we held that such contingent legislation, and more to the point, this specific legislation, was constitutional. Id., 410 Md. at 316, 978 A.2d at 696. We affirm our holding in Smigiel. Regarding the petitioners' second contention, we shall hold that the ballot question language was sufficient, as it accurately, although succinctly, conveys the effect of the proposed amendment. Moreover, it is neither misleading nor deficient, as the voters were provided with reasonable notice of, and access to, the full language of both pieces of legislation, thus, enabling the average voter reasonably to be well informed of the changes proposed by the amendment and the effect of the provisions of the contingent legislation.

I.

With Maryland facing an impending $1.7 billion deficit for the 2009 fiscal year, Governor Martin O'Malley, on October 15, 2007, issued Executive Order 01.01.2007.23, calling the General Assembly into Special Session. The Special Session was called so that the General Assembly could consider legislation proposing budget cuts and tax increases, including legislation favored, and sponsored, by Governor O'Malley that would legalize video slot machine gambling in Maryland and, thereby, raise revenue and correct the State's budgetary shortfall.

The General Assembly proposed to legalize video slot machine gambling and implement the Governor's proposed revenue raising program with a duo of bills, House Bill 4 and Senate Bill 3. House Bill 4 proposed an amendment to the Maryland Constitution that, if ratified by the voters, would [424 Md. 170] both legalize video lottery and restrict the quantity and location of the lottery terminals. The proposed amendment also provided that the “primary purpose” of the legalization of video lottery and the issuance of licenses for their operation was to raise revenue for public education, pre-k through 12, public school construction and capital projects at community colleges and higher education institutions. The House bill was passed by the General Assembly and signed by the Governor, with the result that the amendment was placed on the November 2008 General Election ballot for voter approval.

Senate Bill 3, its companion legislation, enacted “comprehensive legislation that would regulate the implementation and the

[34 A.3d 1168]

allocation of revenues originating from Video Lottery Terminals ... in Maryland.” Smigiel, 410 Md. at 305, 978 A.2d at 689. Because it delineated how, and in what percentage, the revenue from the video lottery program would be appropriated, its efficacy was made contingent on the passage of the constitutional amendment placed on the ballot pursuant to House Bill 4; the failure of the voters to ratify the constitutional amendment legalizing the video lottery would render the provisions of the Senate bill moot. Thus, Senate Bill 3 provided:

“SECTION 12. AND BE IT FURTHER ENACTED, That this Act shall be contingent on the passage of Chapter (S.B.4/H.B.4) of the Acts of the General Assembly of the Special Session of 2007, a constitutional amendment, and its ratification by the voters of the State.

“SECTION 13. AND BE IT FURTHER ENACTED, That, subject to the provisions of Sections 11 and 12 of this Act, this Act shall take effect on the proclamation of the Governor that the constitutional amendment, having received a majority of the votes cast at the general election, has been adopted by the people of Maryland.”

2007 Md. Laws Chapter 4. Senate Bill 3 was passed by the General Assembly and signed into law by Governor O'Malley in anticipation of the vote on the video gambling amendment.

One of the provisions of the proposed constitutional amendment was, as we have seen, that, if the video slot machine [424 Md. 171] gambling were to be legalized, its “primary purpose” would be to raise revenue for public school K–12 education, public school construction and capital improvements, and construction of capital projects at community colleges and public senior higher education institutions. Senate Bill 3 provided both the basis and support for that declaration. It identified the recipients of the proceeds from the video lottery, prescribed how a particular recipient's portion is to be computed and outlined how the portions are to be distributed. Specifically, Senate Bill 3 provided that a minimum of 87 cents of every dollar played in a terminal must be returned as winnings to players and that, from the remaining proceeds, 13 cents: a percentage, to be determined by competitive bidding, but not to exceed 33% of gross proceeds, must be paid to the slots operator to recover investment and operating expenses; a maximum of 2% of gross proceeds must be paid to the State Lottery Agency for its operating costs; a purse fund not to exceed 7% of the proceeds (up to $100 million annually) would be paid to the horse racing industry; for the first 8 years of the video lottery program, an amount not to exceed 2.5% of the proceeds (up to $40 million annually) would be dedicated facility renewal funds; 1.5% of the proceeds would go into an account benefiting small, minority, and women-owned businesses; 5.5% of the proceeds would go to local impact grants; and the remainder, a minimum of 48.5% of the gross total during the first 8 years, rising to a minimum of 51% in each subsequent year, would be placed in a newly established Education Trust Fund. This Fund, a dedicated account, Senate Bill 3 provides further, could only be accessed for the purpose of funding public education or the construction of public education facilities.

Md.Code (2003, 2008 Supp.), § 7–103 of the Election Law Article ¹ addresses the text of ballot questions. Subsection (b) prescribes the information each such question must contain:

[34 A.3d 1169]

[424 Md. 172] “(1) a question number ...;

“(2) a brief designation of the type or source of the question;

“(3) a brief descriptive title on [or in?] bold typeface;

“(4) a condensed statement of the purpose of the question; and

“(5) the voting choices that the voter has.”

In enacting House Bill 4, the General Assembly could have prescribed, see § 7–105(b)(3),² but did not do so, the language that would appear as a ballot question to explain the amendment to the electorate. Since it did not, under § 7–103(c)(1),³ the Secretary of State is tasked with preparing the ballot text. That text and the other required information must be certified to the State Board. Additionally, notice of the question is required to be given by a local board by mailing a specimen ballot at least a week before the general election or by “publication or dissemination by mass communication during the 3 weeks immediately preceding the general election.” § 7–105(a).⁴ When the question is a proposed constitutional [424 Md. 173] amendment, on the ballot pursuant to Article XIV, § 1 of the Constitution, § 7–105(b) ⁵ requires

[34 A.3d 1170]

that notice to include “a brief statement, prepared in clear and concise language, devoid of technical and legal terms to the extent practicable, summarizing the question.” Subsection (b)(1). The Department of Legislative Services is charged with preparing this “non-technical summary” of the proposed amendment, subsection (b)(2)(i), which the Attorney General must approve. Subsection (b)(2)(ii). That summary must also be submitted to the State Board. Subsection (b)(2)(iii). Moreover, the “complete text of a question” is required to be posted or made available for public inspection for thirty days prior to the general election and a copy of that question supplied, without charge, to any person, on request, in person or by mail. [424 Md. 174] Subsection (d).⁶

The ballot question summarizing the proposed amendment, as certified to the State Board, read: ⁷

“Question 2—Constitutional Amendment

(Chapter 5, Acts of 2007 Special Session)

“Authorizing Video Lottery Terminals (Slot Machines) to Fund Education

Authorizes...