Doe v. Maryland State Board of Elections

GREENE, J. The Act at issue in the present case is Senate Bill 167, Chapter 191 of the 2011 Laws of Maryland (the “Maryland ⁵⁹⁹ Dream Act” or “the Act”). The Act seeks to exempt certain students from paying out-of-state tuition rates at higher education institutions in Maryland. The Act was signed into law on May 10, 2011. Following the enactment, MDPetitions.com (“Appellee-Intervenor”) petitioned to refer the Maryland Dream Act to Maryland’s 2012 General Election ballot.

Pursuant to Article XVI of the Maryland Constitution, Maryland residents may “approve or reject at the polls, any Act, or part of any Act of the General Assembly,” by petitioning to place the enacted Bill on the general election ballot. Md. Const, art. XVI, § 1(a). The Maryland State Board of Elections (“Appellee,” or “Board”) is the agency empowered to certify petitions for referendum under Article XVI of the Maryland Constitution.

The Board certified the petition for referendum. In response to the Board’s certification, John Doe, et al, (“Appellants”), representing a group of individuals supporting the Maryland Dream Act, challenged its referability. Appellants filed a Complaint, and later an Amended Complaint, in the Circuit Court for Anne Arundel County, seeking to remove the Act from consideration on the November 2012 ballot. Appellants maintained that the Act is an “appropriation for maintaining the State Government” within the meaning of Section 2 of Article XVI, of the Maryland Constitution and is, therefore, not subject to referendum.

The Board filed, in the Circuit Court proceedings, its response, followed by the response of the Appellee-Intervenor, MDPetitions.com. After consideration of the various motions filed for summary judgment, the trial judge, the Honorable Ronald A. Silkworth, entered summary judgment in favor of Appellees and against Appellants. The court reasoned that the Maryland Dream Act, standing alone, failed to meet the standards adopted by this Court for determining that the law makes an appropriation for the maintenance of State Government. Therefore, according to Judge Silkworth, the Act is a proper subject for referendum.

Similarly, the court rejected Appellants’ arguments that the Act should be read in pan materia with the Cade Funding Formula, Md.Code (1978, 2008 RepLVoL), § 16-805 of the Education Article, and future budget bills to ⁶⁰⁰ find that the Act is an appropriation and thereby exempted from referendum. Following the judgment of the Circuit Court, Appellants noted an appeal to the Court of Special Appeals. Prior to any proceedings in that court, we granted Appellants’ petition for writ of certiorari to address the following question: Is the Maryland Dream Act, which directly mandates and requires an increase in future appropriations for community colleges and which regulates the amount of tuition revenue received by the University System of Maryland, a law “making any appropriation for maintaining the State Government” within the meaning of Article XVI, section 2 of the Maryland Constitution and thereby exempt from referendum? After oral argument on June 12, 2012, this Court issued its per curiam Order as follows: For reasons to be stated in an opinion later to be filed, it is this 13th day of June, 2012, ORDERED, by the Court of Appeals of Maryland, that the judgment of the Circuit Court for Anne Arundel County be, and it is hereby, affirmed.

Costs to be paid by the Appellants. Mandate to issue forthwith. We now set forth our reasons for that Order. FACTUAL AND PROCEDURAL BACKGROUND Article XVI of the Constitution of Maryland defines the referendum power reserved to the people of the State: Section 1.

Reservation of power of referendum in people; article self-executing; additional legislation (a) The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved ⁶⁰¹ by the Governor, or, if passed by the General Assembly over the veto of the Governor. Md. Const. art. XVI, § 1(a). 1 The referendum right is not applicable to all legislation enacted by the General Assembly, however. Section 2 of Article XVI limits the right of referendum, in pertinent part, as follows: No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.

Md. Const. art. XVI, § 2. 2 Senate Bill 167, commonly known as the Maryland Dream Act, was enacted by the Maryland General Assembly during its 2011 session and signed into law by the Governor on May 10, 2011. The Act establishes new categories of individuals who may be eligible for in-state tuition rates at community colleges and public four-year colleges and universities in Maryland. Military veterans are the first category of individuals.

Specifically, § 15-106.4 of the Education Article, as amended by the Maryland Dream Act, prolongs from one year to four years the duration after completion of military service in ⁶⁰² which certain honorably-discharged veterans of the United States armed forces can qualify for in-state tuition benefits. 3 The Act also adds § 15-106.8, which allows “undocumented immigrant individuaos]” who meet certain conditions to be eligible for the in-state tuition rate at community colleges in Maryland. A candidate for in-state tuition eligibility must prove that he or she attended a Maryland secondary school for at least three years. Additionally, he or she must provide documentation of Maryland income tax returns for the three years during attendance at secondary schools and the period before and during attendance at community colleges. Finally, the individual must show that he or she graduated from a Maryland secondary school or received an equivalent diploma in Maryland.

The Act also includes similar eligibility criteria to qualify for in-state tuition at a four-year public institution in Maryland upon graduation or receipt of 60 credits from a Maryland community college. Md.Code (1978, Supp.2011), § 15-106.8(a)-(c) of the Education Article. The Department of Legislative Services prepared a Fiscal and Policy Note concerning the Maryland Dream Act for the Members of the General Assembly. Md.Code (1984, 2009 Repl.Vol.), § 2-1505 of the State Government Article.

The Summary provided for the Act stated that under the State’s funding formula for determining State aid to community colleges, State expenditures would rise as a result of an increase in the enrollment of qualified in-state students at community colleges. It further stated that “[tjuition revenues at public institutions of higher education may be affected, with a potential significant loss of revenues for specific institutions beginning in FY 2013. This bill affects a mandated appropriation.” (emphasis in original). Dep’t of Legislative Servs., Revised Fiscal and Policy Note, S.B. 167 at 1 (2011).

The ⁶⁰³ Department of Legislative Services later explained, however, that “ttjhere is little information available on the number of additional students who might qualify for resident tuition, thus the general fund expenditure increase cannot be reliably estimated.” Dep’t of Legislative Servs., Revised Fiscal and Policy Note, S.B. 167 at 8 (2011). The Cade Funding Formula calculates the minimum amount of funding for community colleges in the State that the Governor must incorporate in the annual Budget Bill submitted to the General Assembly. § 16-305 of the Education Article. The formula was enacted by the General Assembly in 1996 to provide consistency in the amount of funding the State would provide its public colleges and universities. The formula works by first calculating “the State’s General Fund appropriation per full-time equivalent student” at four-year public institutions in Maryland. § 16—305(c)(1) of the Education Article.

Next, the formula takes into consideration the number of full-time equivalent students in community colleges receiving in-state tuition. § 16-305(c) of the Education Article. This number is based on “the fiscal year 2 years prior to the fiscal year for which the State share is calculated .... ” § 16-305(b)(7) of the Education Article. The formula requires that a percentage — set by the Maryland General Assembly — of the allocation afforded to four-year public institutions in Maryland be matched and provided to the State’s community colleges. The statute further mandates that the Governor include the amount of funding in the Budget Bill that he or she presents to the General Assembly each year.

The Legislature, however, is free to amend that amount and adjust the percentage allocated to community colleges at its discretion, but the Legislature may not increase it. The Budget Amendment to the Maryland Constitution was ratified in 1916 and provides an extensive executive budget system for the State. Md. Const. art. III, § 52.

The Budget Amendment requires that “[ejvery appropriation bill shall be either a Budget Bill, or a Supplementary Appropriation Bill.” Md. Const. art. III, § 52(2). The Governor is required to prepare the annual Budget Bill, and it must be balanced or ⁶⁰⁴ show a surplus, so that the total appropriation number does not exceed the total estimated revenue number. Md. Const. art.

III, § 52(5a). Once the Governor presents the Budget Bill to the General Assembly, the General Assembly may strike out or reduce items in the Bill, subject to certain exceptions. The General Assembly may not increase or add appropriations. Md. Const. art.

III, § 52(6). If the General Assembly passes the Budget Bill, it becomes law. The General Assembly may make additional appropriations through a Supplementary Appropriation Bill, which must be approved by the Governor. These bills “shall provide the revenue necessary to pay the appropriation thereby made.... ” Md. Const. art.

III, § 52(8). After enactment of the Maryland Dream Act, Appellee-Intervenor, MDPetitions.com, collected the requisite number of signatures in support of a petition to put the Act to referendum in the November 2012 General Election. The Board certified the petition for ballot pursuant to Article XVI of the Maryland Constitution. Appellants, which include two unnamed undocumented immigrants who allegedly would qualify for in-state tuition under the Act, six registered voters in support of the Act, and CASA de Maryland, commenced an action against the Secretary of State and the Board, challenging the certification of the petition and seeking Declaratory and Injunctive relief.

Appellants then filed an Amended Complaint, alleging that the Maryland Dream Act is not a law subject to referendum under Article XVI of the Maryland Constitution. After the Board filed an Answer to the Amended Complaint, MDPetitions.com moved to intervene and was granted permission to participate as a defendant. Intervenor filed its Answer to Appellants’ Amended Complaint. Thereafter, the parties voluntarily stipulated to the dismissal, with prejudice, of the parts of the Amended Complaint that challenged the adequacy of the signatures presented in the petition for referendum.

Additionally, the parties stipulated to the dismissal of the Declaratory Judgment and Injunction counts, to the extent they ⁶⁰⁵ pertained to the sufficiency of the number of signatures included in the referendum petition. Appellants next filed a Motion for Summary Judgment. The Board filed an Opposition to Appellants’ Motion, and included a Cross-Motion for Summary Judgment. On that same day, Appellee-Intervenor filed a Cross-Motion to Dismiss or a Motion for Summary Judgment.

Appellants submitted a Reply and Response in Opposition to the Board’s and Appellee-Intervenor’s Cross-Motions for Summary Judgment. Subsequently, the Board and Appellee-Intervenor filed their corresponding replies. On February 17, 2012, Judge Silkworth denied Appellants’ Motion, granted the Board’s Motion, and granted Appellee-Intervenor’s Motion as it applied to the referability of the Maryland Dream Act. Appellee-Intervenor had also challenged Appellants’ standing to contest the referendum.

That Motion was denied, with the court deciding that Appellants had met the standing requirements in Section 6-209 of the Election Law Article of the Maryland Code. With regard to the Maryland Dream Act, the court concluded that the Act did not fall under the appropriation exception in the Maryland Constitution, and could thus be subject to referendum. The court ordered the measure added to the November 2012 General Election ballot. Standard of Review In this appeal, we review a trial court’s grant of summary judgment.

This Court reviews the grant of summary judgment pursuant to Maryland Rule 2-501. “A trial court may grant summary judgment if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Piscatelli v. Van Smith, 424 Md. 294, 305 , 35 A.3d 1140, 1146 (2012) (citation omitted). Our determination of whether the trial court’s grant of summary judgment is proper “is a question of law, subject to a non-deferential review on appeal.” Tyler v. City of College Park, 415 Md. 475, 498 , 3 A.3d 421, 434 (2010) (citation omitted). This analysis “begins with the determination [of] ⁶⁰⁶ whether a genuine dispute of material fact exists; only in the absence of such a dispute will we review questions of law.” Appiah v. Hall, 416 Md. 533, 546 , 7 A.3d 536, 544 (2010) (citing O’Connor v. Balt. Cnty., 382 Md. 102, 110 , 854 A.2d 1191, 1196 (2004)). “We review the record in the light most favorable to the non-moving party and [we] construe any reasonable inferences that may be drawn from the well-pled facts against the moving party.” Muskin v. State Dep’t of Assessments & Taxation, 422 Md. 544, 554-55 , 30 A.3d 962, 968 (2011) (citation omitted).

A material fact is a fact, “the resolution of which will somehow affect the outcome of the case.” King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608, 614 (1985) (citing Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8 , 327 A.2d 502, 509 (1974)). If there is no material fact in dispute, we determine whether the trial court correctly granted summary judgment as a matter of law. Anderson v. Council of Unit Owners of the Gables on Tuckerman Condo., 404 Md. 560, 571 , 948 A.2d 11, 18 (2008). Based upon the factual stipulations presented to the trial judge by the parties, we conclude that there were no material facts in dispute.

Therefore, we examine whether the trial judge correctly granted summary judgment in favor of the Appellee as a matter of law. DISCUSSION The issues before us in this case are (1) whether the Maryland Dream Act is a law making an “appropriation” within the meaning of the Referendum Amendment; and (2) if it is such a law, whether the “appropriation” made by the Act is for “maintaining the State Government,” thus falling under the appropriations exception to the referendum amendment in Article XVI and making the Act exempt from referendum. 4 ⁶⁰⁷ We have concluded that the Maryland Dream Act is not an appropriation for the purposes of maintaining the State Government. This conclusion is reached based on our determination that the primary object of the bill is not to appropriate money by assigning public monies to a particular use. Furthermore, we determine that the Act is not an appropriation in pari materia with the Cade Funding Formula and future budget bills.

Rather, the Act is a general law defining eligibility requirements for classes of individuals. I. Appropriation of Funds The first question before us is whether the Maryland Dream Act appropriates funds so as to meet the first part of the appropriation exception to the Referendum Amendment. The Referendum Amendment to the Maryland Constitution was first proposed by the General Assembly in Chapter 673 of the Acts of 1914. The Amendment was ratified in 1915 and added to the Constitution during the wave of Populist and Progressive Movements sweeping the country at the time.

See Kelly v. Marylanders for Sports Sanity, 310 Md. 437, 450 , 530 A.2d 245, 251 (1987) (citation omitted). Section 1 defines the power ⁶⁰⁸ of the referendum and has been described as “the heart of the amendment.” Bayne v. Sec’y of State, 283 Md. 560, 565 , 392 A.2d 67, 70 (1978). Section 1. Reservation of power of referendum in people; article self-executing; additional legislation.

(a) The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor. Md. Const. art. XVI, § 1(a). The right of referendum is subject to several exceptions, however.

These limitations are defined in § 2, and § 6 of the Amendment, respectively. The exception at issue in this case is found in Section 2, and states: No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section. Md. Const. art. XVI, § 2.

Since its addition, this Court has said that the Referendum Amendment’s meaning and limitations should be determined “in the light of its origin, the purpose it was intended to serve, as well as the evils it was intended or supposed to remedy.” Kelly, 310 Md. at 451 , 530 A.2d at 251 (citing Beall v. State, 131 Md. 669, 676 , 103 A. 99, 102 (1917)). We have traced the history and purpose of the Referendum Amendment in a number of cases. We have discussed, for example, why the referendum provision was added as a supplement to the principle of representative government. See Ritchmount P’ship v. Board, 283 Md. 48 , 60-61 n. 9, 388 A.2d 523 , 531 n. 9 (1978) (noting that the people’s power to use the referendum was enacted “[i]n response to the public outcry over corruption in state government and alleged abuses of legislative power....”); Beall v. State, 131 Md. 669, 676-78 , 103 A. 99, ⁶⁰⁹ 102 (1917) (explaining that the Referendum Amendment was designed in the wake of the “great abuses ... grown out of the control by corrupt methods of legislation and administration by great corporations and a group of individuals in each [s]tate,” such that “the government, in all its departments, was prostituted to corrupt and selfish purposes ... as a modification of, or as a supplement to the principle of representation ... [to] prevent the reoccurrence of many of [these] abuses....”).

We have also discussed the origins and purpose of the appropriation exception to the Referendum Amendment. See Bickel v. Nice, 173 Md. 1, 10 , 192 A. 777, 781 (1937) (“It is undoubtedly true that the actuating purpose of the excepting clause was to prevent interruptions of government.”); Kelly, 310 Md. at 456 , 530 A.2d at 254 (quoting 12 Op. Md. Att’y Gen. 228, 235-36 (1927)) (“[T]he framers of Art. XVI ‘had in mind that if laws making appropriations for maintaining the State government were subject to referendum, it would be possible, through the exercise of this power by the people, to cause the State serious financial embarrassment in the performance of its various essential functions.’ ”). Over time we have reviewed the Amendment’s history to interpret when a law is, in fact, considered an “appropriation” within the meaning of the exception clause.

The Maryland Constitution provides that, “[e]very appropriation bill shall be either a Budget Bill, or a Supplementary Appropriation Bill, as hereinafter provided.” Md. Const. art. III, § 52(2). This Court has expanded the scope of this exception to cover, in addition to Budget Bills and Supplementary Appropriation Bills, “that class of money bills or spending measures contemplated by the exceptions to the referendum right under Art. XVI.” Kelly, 310 Md. at 455-56 , 530 A.2d at 254 (citing 12 Op. Md. Att’y Gen. 228 (1927)) (noting that the term “appropriation” has a more expansive meaning in Article XVI than it does in the Budget Amendment).

As the trial judge noted, and the parties do not contend otherwise, the Maryland Dream Act is neither a Budget Bill ⁶¹⁰ nor a Supplementary Appropriation Bill. Furthermore, Appellants conceded before the Circuit Court and this Court that the Maryland Dream Act is not a revenue-raising measure, and thus not a “money bill.” 5 Therefore, we need not and do not address these matters as they are not at issue before this Court. To be excepted from referendum under the appropriations exception in Article XVI of the Maryland Constitution, the Maryland Dream Act would need to constitute a spending measure appropriation. A spending measure appropriation is any “law[] assigning public monies to a particular use or purpose, regardless of whether such law is adequate or legally sufficient to authorize the payment or disbursement of the appropriated monies.” Kelly, 310 Md. at 456 , 530 A.2d at 254 (quoting 12 Op.

Md. Att’y Gen. 228, 235 (1927)). In Dorsey v. Petrott, this Court went further to explain that the appropriation must be “made by a constitutional mandate or a lawful legislative act whose primary object is to authorize the withdrawal from the state treasury of a certain sum of money for a specified public object or purpose to which such sum is to be applied.” Dorsey ⁶¹¹ v. Petrott, 178 Md. 230, 245 , 13 A.2d 630, 637-38 (1940). “[A]n Act of the General Assembly which relates primarily and specifically to a subject matter of general legislation cannot be converted into an appropriation bill merely because there may be an incidental provision for an appropriation of public funds.” 178 Md. at 251 , 13 A.2d at 640 . Therefore, to meet the appropriation exception in Article XVI, § 2, a law that includes merely assigning public monies to some incidental purpose is not enough; rather that law’s primary purpose must be to assign the monies for a specified purpose. See Kelly, 310 Md. at 459 , 530 A.2d at 256 (citing Dorsey, 178 Md. at 251 , 13 A.2d at 640 ).

For the purposes of this analysis, therefore, our focus is on whether the Maryland Dream Act’s primary object is to appropriate funds or assign public monies to a specified purpose. Next, we analyze whether the Act appropriates funds or assigns monies on its own, or in pari materia with the statutory Cade Funding Formula and future budget bills. If the answer to either of these questions is no, then the Act is not an appropriation for the purposes of the referendum exception in Article XVI of the Maryland Constitution. A. Maryland Dream Act’s Primary Purpose Consistent with Maryland’s Constitutional framework, to be an appropriation for the purposes of the referendum exception in Article XVI, the Maryland Dream Act’s primary object must be to assign public money for a specified public purpose. “[Although an act of the General Assembly may be passed for the purpose of maintaining the State government, the act is nevertheless subject to the Referendum, unless it be an act so appropriating public funds for that purpose.” Dorsey v. Petrott, 178 Md. at 245 , 13 A.2d at 638 .

Dorsey concerned the referability of a statute dealing with the conservation of fisheries in Tidewater Maryland, and the creation of a Commission of Fisheries. The statute defined how the Commissioners and their employees were to be chosen, their qualifications, powers, duties, salaries, and additional provisions relating to inspection fines. We determined ⁶¹² that the statute in question was “a general law,” and “not an appropriation” measure, as its main purpose was for effecting a change in policy of the State through “creat[ing] and abolishing] offices, and [by] changing] the