Suessmann v. Lamone

• Citation: 383 Md. 697,862 A.2d 1
• Decision Date: 17 November 2004
• Docket Number: No. 140,140
• Parties: Michael B. SUESSMANN et al. v. Linda H. LAMONE et al.
• Court: Court of Appeals of Maryland

862 A.2d 1

383 Md. 697

Michael B. SUESSMANN et al. v. Linda H. LAMONE et al.

No. 140, September Term, 2003.

Court of Appeals of Maryland.

November 17, 2004.

David R. Rocah (Deborah A. Jeon and Richard D. Griffiths of American Civil Liberties Union Foundation of Maryland, Baltimore), on brief, for appellants.

Michael D. Berman, Deputy Chief of Litigation (J. Joseph Curran, Jr., Attorney General of Maryland, Judith A. Armold and Melissa S. Whipkey, Assistant Attorneys

General, Baltimore: Cynthia Panos, California; James C. Praley, Glen Burnie), on brief, for appellees.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, GREENE, and JOHN C. ELDRIDGE (retired, specially assigned), JJ.

RAKER, J.

This is an action seeking declaratory and injunctive relief from the allegedly unconstitutional exclusion of unaffiliated voters from the Democratic and Republican Parties' primary elections for circuit court judicial candidates. Appellants seek to enjoin certification of the results of the primary election for judicial offices held on March 2, 2004 and an order directing the St. Mary's and Anne Arundel County Boards of Elections to conduct new primary elections for judicial offices in which all registered voters in the respective counties may participate. In addition, appellants seek an injunction barring the State Board of Elections from prohibiting unaffiliated voters from participating in future primary elections for judicial candidates. This Court issued a per curiam Order on the 2nd day of April, 2004 that (1) affirmed the denial by the Circuit Court for St. Mary's County of the appellants' request for a preliminary injunction and the invalidation of the March 2, 2004 primary elections and (2) reserved judgment on the issue of the declaratory judgment until an opinion later to be filed. 380 Md. 232, 844 A.2d 428 (2004). We now give the reasons for our Order and address the reserved issues.

I.

The case involves a constitutional challenge to Maryland's procedure for electing circuit court judges. Under Maryland election law, a candidate for a circuit court judgeship may attain a spot on the general election ballot by winning the primary election of a "principal political party," i.e., either the Democratic or Republican Party. The two principal political parties in Maryland do not currently permit unaffiliated or nonparty members to vote in their primary elections, including elections for judicial candidates.¹

Appellants are two registered voters of St. Mary's and Anne Arundel Counties, respectively, and are not affiliated with either of the principal political parties. Appellant Michael B. Suessmann is an unaffiliated registered voter in St. Mary's County. Appellant Gregory Care is an unaffiliated registered voter in Anne Arundel County. They wish to vote in the parties' primary elections, which nominate candidates for circuit court judgeships. Appellants seek declaratory and injunctive relief against the State Administrator of Elections and the individual members of the State Board of Elections, the Anne Arundel County Board of Elections, and the St. Mary's County Board of Elections (collectively "the State"). Appellants allege that their rights under the Fourteenth Amendment to the United States Constitution and the Maryland Declaration of Rights have been violated because State election law permits the exclusion of unaffiliated voters like themselves from participating in judicial primary elections, which have been designated by the State as "nonpartisan."

The five contested judicial primary elections this year (in Anne Arundel, Baltimore, Frederick, Harford, and St. Mary's Counties) were held on March 2, 2004. Appellant Suessmann filed his initial complaint on February 23, 2004 in the Circuit Court for St. Mary's County. He added, in the first amended complaint, Appellant Care on March 2, 2004. The complaint was filed as a putative class action. Pursuant to Maryland Code (2003, 2003 Cum.Supp.) § 12-203 of the Election Law Article,² appellants requested and were granted a special three-judge panel to hear their claims.³ The panel chair advised the parties that testimony was unnecessary, and no one objected.⁴ Six days after a hearing before the three-judge panel on March 5, 2004 (in which virtually no factual findings were made), the Circuit Court issued its ruling denying all relief requested by appellants.⁵ Pursuant to § 12-203, appellants noted a timely appeal to this Court,⁶ requesting expedited review of the Circuit Court's decision in order that we might consider whether the judicial primary election procedures violated the State or Federal Constitutions.

II.

Of all the judges in the Maryland judiciary, only those on the circuit court face the prospect of a contested election. While a vacancy on one of the circuit courts is initially and temporarily filled by the governor, after his or her first full year from the date of the vacancy, a circuit court judge must win a general election to retain the judgeship for a term of fifteen years. Constitution of Maryland, Art. IV, §§ 3 and 5; see Hillman v. Boone, 190 Md. 606, 59 A.2d 506 (1948). Although judicial candidates appointed by the governor often run unopposed, they occasionally and increasingly have faced opposition from unappointed lawyers who wish to ascend to the bench. In these contested judicial elections, candidates for a circuit court judgeship, like candidates for almost every other elected office, must first obtain a place on the general election ballot and then a majority of the popular vote to be elected.⁷ The antecedent step toward becoming a popularly-elected circuit court judge, then, is earning a spot on the general election ballot. Maryland election law provides two routes for obtaining such a spot. The less common method is to be nominated by petition, which requires obtaining the signatures of a requisite number of registered voters, see § 5-703. The much more common method is to secure the nomination of a principal political party by winning the party's state primary election in the county where the court sits. See § 5-701. A principal political party — of which there are only two at one time, see § 1-101(kk), and which historically have consisted of the Republican and Democratic Parties — is required by statute to nominate its candidates for public office using a primary election system, see § 8-202, which in turn entitles its nominees to an automatic spot on the general election ballot. Overwhelmingly, winning a judicial primary is the preferred access route to the general election ballot, and the majority of circuit court judges obtain fifteen-year terms in this way.

Described as "an officially supervised party nominating procedure," State Admin. Bd. v. Calvert, 272 Md. 659, 676, 327 A.2d 290, 299 (1974), a political primary election is largely regulated by Maryland election law — which, for example, sets the date of the primary and prohibits the use of write-in votes, §§ 8-201 and 8-205. Nevertheless, primary elections are not wholly creatures of the State Government, for the State must share the governance of such elections with the political party from which the primaries are born. See California Democratic Party v. Jones, 530 U.S. 567, 572-573, 120 S.Ct. 2402, 2407, 147 L.Ed.2d 502 (2000)

; cf. Hennegan v. Geartner, 186 Md. 551, 556, 47 A.2d 393, 395 (1946) (noting that "the Legislature has power to create and regulate primary elections, subject only to such prohibition as may be found in the State Constitution, and subject as to Congressional elections to any prohibitions in the Federal Constitution"). Thus, while State law governs specific facets of primary elections, those which are left untouched by the State remain within the authority of the principal political parties to determine.

One such facet, central to our inquiry today, is the qualifications of eligible primary voters. The most basic and intuitive qualification for a voter in a party primary is the requirement that the voter be a member of that party. While such a requirement is not expressly mandated by the State — permitting the political party to authorize voting rights to those who are unaffiliated with it, cf. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986)

— historically, the two principal parties in Maryland have restricted voting rights in their respective primaries to their own registered members. See Calvert, 272 Md. at 677-78,

327 A.2d at 300 (quoting Hennegan, 186 Md. at 558, 47 A.2d at 396).

The Maryland Code is silent as to the question of who may vote in a primary election, thereby leaving that decision to the principal political parties. Neither the Republican nor Democratic Party in Maryland permits unaffiliated voters to participate in primary elections. The restriction on the primary vote to party members applies to all primary elections — including primary elections for circuit court judgeships. In this respect judicial primary elections are identical to primary elections for other public office. In three other respects, however, judicial elections differ, in accordance with State election law: First, judicial candidates in a principal party's primary election need not be affiliated with the principal party. § 5-203(b). For example, a judicial candidate officially registered as a member of the Republican Party may be a candidate in the Democratic Party's primary election. Second, judicial candidates may file as a candidate in the primary elections of both principal political parties at the same time. §§ 5-203(b) and 5-706. As a result, judicial candidates often "cross-file" in the two primary elections and could lose in one party's primary election yet attain access to the general election ballot by winning the other party's primary election. Third, unlike other nominees on the general election ballot, judicial candidates are not designated on the general election ballot as...