City of Seat Pleasant v. Jones

BELL, Chief Judge. This case presents the issue of the propriety of the issuance of a writ of mandamus by the Circuit Court for Prince George’s County. That court issued the writ based on its conclusion that the Seat Pleasant City Board of Supervisors of Elections, one of the appellants, 1 acted arbitrarily and capriciously when it admittedly denied a registered voter the right to vote in that city’s mayoral election, which was decided by a one vote margin, where the stipulation of the parties, in turn premised on the post-election declaration of that voter, was that she intended to vote for the candidate with the one vote deficit. We shall hold that the writ does not lie under the facts sub judice and, thus, reverse the judgment of the Circuit Court.

The election for the offices of Mayor and members of the City Council of the City of Seat Pleasant was conducted by the City Board of Supervisors of Elections on September 11, 2000, between the hours of 7:00 a.m. and 8:00 p.m. There were three candidates for the office of Mayor: Eugene F. Kennedy, the incumbent Mayor; Thurman D. Jones, Jr., the appellee; and Eugene Grant. Brenda Brown Smith came to the polling place to vote at around 5:00 p.m. Although, at all times relevant to this case, Ms. Smith was registered to vote with the Prince George’s ⁶⁶⁸ County Board of Elections (“PGC Board”) and resided in the City of Seat Pleasant, her name did not appear on the voter registration list or the voter authority cards that were provided to Seat Pleasant election officials by the PGC Board several days before the election.

This occurred because Ms. Smith sent in her change of address form after the deadline for registration. 2 In addition, no “extract” file was prepared for the Seat Pleasant 2000 election. 3 An extract file is automatically created when an event, like the change of address in this case, occurs that could cause a voter’s name to be omitted from the registered voter database. Yvonne Sumner, the Chairperson of the Seat Pleasant Board of Supervisors of Elections, (“City Board”), attempted, unsuccessfully, to contact the PGC Board by telephone to determine whether Ms. Smith was registered to vote. Because the call was made after hours 4 and, therefore, the PGC Board offices were closed for the day, she was unable to reach ⁶⁶⁹ anyone who could provide assistance. Ms. Sumner had not made advance arrangements with the PGC Board to have someone stay after hours on election day to respond to these kinds of inquiries. 5 When Ms. Sumner was unable to verify Ms. Smith’s voter registration, Ms. Smith was informed that she would not be allowed to vote.

Thereafter, Smith left the polling place without casting a ballot. The City Board’s tally of the ballots after the polls closed revealed, as to the election for the office of Mayor, that Kennedy received 247 votes, Jones received 246 votes, and Grant received 191 votes. Thereafter, it certified the results of the election to the Clerk of the City and Mr. Kennedy was declared Mayor. Dissatisfied, the appellee, on September 13, wrote to Ms. Sumner, requesting a recount of the ballots for Mayor “because one of my supporters, Brenda Brown Smith, ... was denied the right to vote.... ” He attached to the letter Ms. Smith’s affidavit, which averred that she had been denied the right to vote and that she would have voted for the appellee had she been allowed to vote.

Subsequently, on September 20, the appellee’s counsel wrote to the City Board. In that letter, the City Board was asked to hold a hearing, to make formal written findings as to the actual number of votes cast for the candidates for Mayor and that Ms. Smith was denied the right to vote for the appellee, as she stated was her intention, and to refuse to certify the result. Counsel also requested that the City Board “formally recommend to the City Counsel that a new election be held, in which event the [C]ity Council should either conduct a new election to fill the office of Mayor or seek a declaratory judgment from the Circuit Court for Prince George’s County upon the facts as found by the Board.” There is an allegation that the City ⁶⁷⁰ Board was to hold a hearing on September 25, the same evening as the Seat Pleasant City Council met, prompting a letter from the appellee’s counsel to the City Board, with a copy to the City Council, indicating his inability to attend and requesting that the hearing be put off until he and his client and all other interested parties and their counsel could attend. At the September 25 special meeting, where the City Board reported the results of the September 11 election and the appellee’s challenge to the voting tally for the mayoral election was considered, the Seat Pleasant City Council determined that the appellee would have to pursue his challenge through judicial action. 6 The appellee thereafter filed in the Circuit Court a two count Verified Petition for Declaratory Relief, Temporary Restraining Order, and Permanent Injunction. 7 In Count I, he sought a judgment declaring, consistent with the allegations, 8 that the City Board failed to allow Ms. Smith, a duly ⁶⁷¹ registered and qualified voter, to vote in the City’s September 11, 2000 election, resulting in a clear, significant irregularity in election procedure that would have changed the outcome of the election because there would have been a tie between Mr. Kennedy and the appellee for the highest number of votes.

The appellee requested alternative relief-a run-off election or a new special election and that, pursuant to the Seat Pleasant Charter, the City must hold a run-off election between Kennedy and Jones or, alternatively, conduct a new special election. In Count II, the appellee requested a temporary injunction precluding the City from swearing in Kennedy and, following a hearing on the merits, a permanent injunction requiring the City to conduct a run-off election between the appellee and Mr. Kennedy or, alternatively, to hold a new special election for Mayor. Following a hearing on the appellee’s request for a temporary restraining order, the court granted the request and immediately and temporarily enjoined the City from swearing in Mr. Kennedy as Mayor for a new term and further ordering that, as the incumbent, he remain as Mayor of Seat Pleasant pending the outcome of the proceedings. A hearing on the merits was subsequently held, at which evidence was taken and the parties presented their arguments.

The Circuit Court found that the City of Seat Pleasant “wrongfully infringed upon Ms. Smith’s fundamental right to vote.” Relying on Fowler v. Board of Supervisors of Elections for Prince George’s County, 259 Md. 615 , 270 A.2d 660 (1970), it was persuaded that the result of the collective errors of the City and County Boards, and their failure to act with more deliberation than usual on election day, was the wrongful deprivation of her right to vote. More specifically, it faulted the City Board’s failure to prevent the situation involving Ms. ⁶⁷² Smith, citing, in particular, Ms. Sumner’s statement at the court hearing that “she did not follow the proper procedure in order to guarantee that someone from the County Board would be available after hours to assist her with voter registration inquiries” and the fact that Ms. Sumner, in any event, made only one attempt to call the County Board. As to the County Board, the court noted that it supplied the City Board with an incomplete list of voters, “failing] the City Board” by not providing it with the “extract” file, which was a safeguard “to ensure that the polls would receive documentation for every registered voter.” Concluding further that the City and County “irregularities” affected the fairness of the election-the court found ample evidence that, if she had been permitted to do so, Ms. Smith’s vote would have resulted in a tie between the incumbent Mayor and the appellee and thus materially changed the election’s outcome — and that their conduct was arbitrary and capricious, the court issued a writ of mandamus ordering that the City allow Smith to vote and, if a tie ensued, that a run-off election be conducted in accordance with the City Charter. The appellants noted an appeal to the Court of Special Appeals.

Subsequently, before any proceedings in the intermediate appellate court, both sides filed petitions for writ of certiorari. We granted the appellants’ petition and denied the appellee’s. Before we granted certiorari, the Circuit Court, on the appellants’ motion, stayed enforcement of its Opinion and Order pending the completion and outcome of appellate proceedings, and also extended its earlier Order that Mr. Kennedy continue to serve as Mayor of Seat Pleasant pending the completion and outcome of appellate proceedings.

II

In George’s Creek Coal & Iron Co. v. Allegany County Comm’rs, 59 Md. 255, 259 (1883), this Court observed, with regard to the writ of mandamus: “Its office, as generally used, is to compel corporations, inferior tribunals, or public officers to perform their func ⁶⁷³ tions, or some particular duty imposed upon them, which in its nature is imperative, and to the performance of which the party applying for writ has a clear legal right. The process is extraordinary, and if the right be doubtful, or the duty discretionary, or of a nature to require the exercise of judgment, or if there be any ordinary adequate legal remedy to which the party applying could have recourse, this writ will not be granted. The application for the writ being made to the sound judicial discretion of the court, all the circumstances of the case must be considered in determining whether the writ should be allowed or not; and it will not be allowed unless the court is satisfied that it is necessary to secure the ends of justice, or to subserve some just or useful purpose.” Subsequently, we said in Lamb v. Hammond, 308 Md. 286, 292 , 518 A.2d 1057, 1060 (1987), quoting from Hammond v. Love, 187 Md. 138, 144 , 49 A.2d 75, 77 (1946): “In Hecht v. Crook, 184 Md. [271], [280-81], 40 A.2d [673], 677 [1945] this Court, by Judge Henderson, said: ‘Courts have the inherent power, through the writ of mandamus, by injunction, or otherwise, to correct abuses of discretion and arbitrary, illegal, capricious, or unreasonable acts; but in exercising that power care must be taken not to interfere with the legislative prerogative, or with the exercise of sound administrative discretion, where discretion is clearly conferred.’ ” Most recently, in Goodwich v. Nolan, 343 Md. 130, 144 , 680 A.2d 1040, 1047 (1996), this Court reviewed the history of the common law writ of mandamus. We stated: “ ‘Mandamus is an original action, as distinguished from an appeal.’ 2 Am.Jur.2d Mandamus § 4 (1970) (footnote omitted).

It is ‘not a substitute for appeal or writ of error.’ In re Petition for Prohibition, 312 Md. 280, 306 , 539 A.2d 664, 676 (1988). It is, however, ‘an extraordinary remedyt,]’ Ipes v. Board of Fire Commissioners of Baltimore, 224 Md. 180, 183 , 167 A.2d 337, 339 (1961), ‘that .. . will not lie if [there is] any other adequate and convenient remedy[.]’ A.S. Abell ⁶⁷⁴ Co. v. Sweeney, 274 Md. 715, 718 , 337 A.2d 77, 79 (1975) (quoting Applestein v. Baltimore, 156 Md. 40, 45 , 143 A. 666, 668 (1928)). Mandamus is generally used ‘to compel inferior tribunals, public officials or administrative agencies to perform their function or perform some particular duty imposed upon them which in its nature is imperative and to the performance of which duty the party ^applying for the writ has a clear legal right.’ Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 514 , 331 A.2d 55, 72 (1975); see also George’s Creek Coal & Iron Co. v. County Commissioners, 59 Md. 255, 259 (1883). The writ ordinarily does not lie where the action to be reviewed is discretionary or depends on personal judgment.

Board of Education of Prince George’s County v. Secretary of Personnel, 317 Md. 34, 46 , 562 A.2d 700, 706 (1989); In re Petition, supra, 312 Md. at 305-06 , 539 A.2d at 676 ; see also Tabler v. Medical Mutual Liability Insurance Society, 301 Md. 189 , 202 n. 7, 482 A.2d 873 , 880 n. 7 (1984); Bovey v. Executive Director, HCAO, 292 Md. 640, 646 , 441 A.2d 333, 337 (1982); Maryland Action for Foster Children v. State, 279 Md. 133, 138-39 , 367 A.2d 491, 494 (1977).” We further explained: “This Court has stated that judicial review is properly sought through a writ of mandamus ‘where there [is] no statutory provision for hearing or review and where public officials [are] alleged to have abused the discretionary powers reposed in them.’ State Department of Health v. Walker, 238 Md. 512, 522-23 , 209 A.2d 555, 561 (1965). See also State Department of Assessments and Taxation v. Clark, 281 Md. 385, 399 , 380 A.2d 28, 36-37 (1977); Gould,[ ], 273 Md. at 502 , 331 A.2d at 65 ; State Insurance Commissioner v. National Bureau of Casualty Underwriters, 248 Md. 292, 300 , 236 A.2d 282, 286 (1967); Heaps v. Cobb, 185 Md. 372, 380 , 45 A.2d 73, 76 (1945). Thus, prior to granting a writ of mandamus to review discretionary acts, there must be both a lack of an available procedure for obtaining review and an ⁶⁷⁵ allegation that the action complained of is illegal, arbitrary, capricious or unreasonable.” Id. at 146, 680 A.2d at 1048 . The writ of mandamus has been utilized in cases involving a variety of election challenges.

See, e.g., Gisriel v. Ocean City Board of Supervisors of Elections, 345 Md. 477 , 693 A.2d 757 (1997); Roberts v. Lakin, 340 Md. 147 , 665 A.2d 1024 (1995); Lamb v. Hammond, 308 Md. 286 , 518 A.2d 1057 (1987); Duffy v. Conaway, 295 Md. 242 , 455 A.2d 955 (1983); McNulty v. Board of Supervisors of Elections of Anne Arundel County, 245 Md. 1 , 224 A.2d 844 (1966); Mahoney v. Board of Supervisors of Elections of Queen Anne’s County, 205 Md. 325 , 108 A.2d 143 (1954); Moore v. Bay, 149 Md. 286 , 131 A. 459 (1925). 9 Moreover, in this State, the action of Election Supervisors, in counting or rejecting ballots, is not subject to review by mandamus in the absence of conduct that is fraudulent, arbitrary or in violation of law. See Mahoney, supra, 205 Md. at 336 , 108 A.2d at 147-48 ; McNulty, supra, 245 Md. at 8 , 224 A.2d at 848 ; Love, 187 Md. at 146 , 49 A.2d at 78 (1946); Roe v. Wier, 181 Md. 26 , 28 A.2d 471 (1942); Fitzgerald v. Quinn, 159 Md. 543 , 151 A. 660 (1930); White v. Laird, 127 Md. 120 , 96 A. 318 (1915). On the other hand, “where a Board of Election Supervisors has made an obvious mistake of law in counting or rejecting ballots, the court has the power to correct such mistake.” Mahoney, 205 Md. at 336 , 108 A.2d at 148 . Stated differently, “a clear mistake of law, however honest, is an ‘arbitrary’ action, reviewable on mandamus [and] illegal action is reviewable, as such, without characterizing it as ‘arbitrary.’ ” Hammond v. Love, 187 Md. at 145 , 49 A.2d at 78 .

In Mahoney , the petitioner alleged that ballots containing ambiguous marks were improperly counted in a primary elec ⁶⁷⁶ tion for the Democratic nomination for governor. Upholding the challenge, we held that “the provision for the rejection of any ballot on which there is any mark ‘other than the cross-mark in a square opposite the name of a candidate’ is mandatory.” 205 Md. at 337 , 108 A.2d at 148 . Similarly, in Hammond v. Love, we held that the writ should be issued where the Election Supervisors of Baltimore County, in direct contravention of a provision of the Election Law requiring judges of election to reject any ballot which is not signed or initialed by the judge who held the ballot, had admittedly counted a number of ballots which did not contain the signature or initials of a judge of election. 187 Md. at 146 , 49 A.2d at 78 . The Court explained the reason for that result, even when there was no finding or evidence of any fraud on the part of the election officials, either to disenfranchise the voters or for any other purpose, id. at 142 , 49 A.2d at 76 : “It is unfortunate that voters should lose their votes by oversight of election officials — and by their own failure to notice that they have not been given authenticated ballots.

But, as has often been said, it would be a greater evil for the courts to ignore the law itself by permitting election officials to ignore statutory requirements designed to safeguard the integrity of elections, i.e., the rights of all the voters. It is common knowledge, evident on the face of the election laws, that in Maryland, as elsewhere, for upwards of fifty years, the peremptory requirement of initialing ballots has been deemed by the Legislature an important safeguard in order to authenticate ballots by a definite rule which leaves little or no discretion to election officials. If this long-established safeguard has become unnecessary, it is not for this Court to change or abolish it.” Id. at 149 , 49 A.2d at 80 . A different result obtains when there is conduct by election officials that might amount to negligence and is certainly “administrative error,” so long as the conduct does not violate the law or amount to fraud or arbitrary conduct.

See McNulty, 245 Md. at 9 , 224 A.2d at 848 . There, one of the losing candidates in the democratic primary election for State Senate ⁶⁷⁷ from a district in Anne Arundel County sought, by mandamus, to have the County Election Board award to him 136 votes cast in the blank space below his name, arguing that they were cast on the “bottom line” for democratic voters and his campaign slogan was “vote the bottom line,” his being the last name on the democratic ballot. Id. at 7 , 224 A.2d at 847 . The voters were unable to cast votes on that line because election officials failed, on 39 of 49 machines, to cover, and thus lock, the blank spaces, which in turn was due to a shortage of covers, of which the Board was unaware until after the election.

Acknowledging “[t]hat the Board made an administrative error, in not seeing to it that there were sufficient metal covers to lock all of the levers over all blank spaces on the voting machines under their supervision”, id. at 9 , 224 A.2d at 848 , and regretting the position the Board’s negligence placed the petitioner in, id. at 13 , 224 A.2d at 851 , but noting the absence of “any hint of fraud or chicanery attributable to any of the parties,” the Court held that mandamus did not lie and, hence, the trial court did not err in refusing to issue the writ. To like effect is Fowler v. Board of Supervisors of Elections, 259 Md. 615 , 270 A.2d 660 (1970), in which the issue also was “whether or not eligible voters who sought to cast a ... vote were deprived of votes and whether or not, had they voted, this vote would have changed the outcome of the election.” Id. at 618-19 , 270 A.2d at 662 . There, the evidence established that: “(a) some voting machines had not been properly ‘zeroed’ before the first vote was cast; (b) some machines had not been correctly programmed so that Republican candidates in one sub-district were listed on machines placed in another sub-district (in the afternoon the errors were corrected and the polls in the affected places stayed open to Republican voters for an additional two hours, until 10:00 p.m., and this fact was frequently and widely announced on television and radio); (c) some machines had levers that were locked; (d) a number of service men from the headquarters of the voting machine company were flown to the County on the day of ⁶⁷⁸ the election to repair and adjust machines and this caused delay; (e) the official records and reports of these repairmen were informally made and not in strict conformity with the directives of the statutes; (f) unauthorized persons repaired and adjusted the machines; (g) levers were operative at some blank spaces; and (h) security was not as tight as it should have been at the warehouse where the machines were taken after the election.” Id. at 617 , 270 A.2d at 661 . The trial court found facts, with which this Court concurred, as follows: “[Tjhese irregularities occurred during the primary election and ... they had passed the point of being minor, and, although that is a relative term, you could very well say that some irregularities were extremely serious and of major proportions.” “There was no evidence whatever adduced or proffered in this case that there was any improper or illegal attempt either to add to or reduce the proper vote of any particular candidate — in other words, the kind of fraud which would result in some one or more people causing the candidate who should have been elected to be rejected and some other candidate elected instead.

That is not alleged here, nor is there any proof whatever of that. Further, there is no evidence of any specific individual who was not permitted to vote. There is some evidence that people who sought to vote were not able to, there is some evidence that some of those people did not return and there is evidence that some said they were not going to return but there is no evidence whether they did or did not return. But we have no evidence in the case of any person by name who sought to vote and was not permitted and did not vote that day.” Id. at 618 , 270 A.2d at 661 .

See Roe v. Wier, 181 Md. at 30 , 28 A.2d at 473 (mandamus does not lie to review decision of the ⁶⁷⁹ Supervisors of Elections 10 to count ballots that election judge initialed as required, but with an indelible pencil, rather than in ink as the statute provided); White v. Laird, 127 Md. at 125 , 96 A. at 320 (same, except the initial by indelible pencil, rather than black lead pencil); Fitzgerald v. Quinn, 159 Md. at 547 , 151 A. at 662 , (where, in a case of alleged improperly initialed ballots, fraud, or mere arbitrary action by the Board of Supervisors, is not shown on the face of the papers, and there is no failure of the Supervisors to function and to render the decision which the Statute calls for, the court has no right to review, and no power to issue a writ of mandamus). Lamb v. Hammond, 308 Md. 286 , 518 A.2d 1057 (1987), is also instructive. In that case, the issue concerned whether 12 absentee ballots should have been counted, as the Circuit Court had ordered. Id. at 289 , 518 A.2d at 1058 .

Nine of them were mailed from within the United States, and, so, were governed by Md.Code (1957, 1983 Repl.Vol., 1985 Cum. Supp.) Art. 33 § 27-9(c)(1), which regards as timely an absentee ballot that: “(i) ... has been received by the board prior to the closing of the polls on election day; or “(n) “1. ... was mailed before