Gray v. Howard County Board of Elections

KRAUSER, C.J. This expedited appeal 1 requests that we review the refusal of appellee, 2 Guy C. Mickley, the Director of the Board of Elections of Howard County (hereinafter the “Election Director”) to certify for referendum, on the 2014 Ballot, certain provisions of Howard County Bill Number 32-2013, as demanded by appellants’ 3 petition for referendum. That bill approved and adopted the County’s 2013 Comprehensive Zoning Plan. In rejecting appellants’ certification request, the Election Director explained, in a letter, that, although their petition contained the necessary number of valid signatures, he was denying the certification because the petition failed to meet ⁶⁵⁷ “all of the legal requirements” set forth in section 6-201(c)(2)(i) of the Election Law Article of the Maryland Code. Specifically, it did not, he pointed out, provide a “fair and accurate summary” of the portions of the ordinance at issue, as required by law.

We agree and shall affirm. I. The Howard County Zoning Board periodically submits to the Howard County Council a comprehensive zoning plan for its review and approval. To enact that plan into law, the Howard County Council must pass an ordinance approving and adopting it, and the County Executive must sign the ordinance into law. If any of the citizens of Howard County wish to challenge the law, or any portion thereof, they must submit a referendum petition, signed by a specified percentage of the “qualified voters” 4 of Howard County, to the County’s Board of Elections that, among other things, “fairly and accurately” describes the aspects of the law that they are challenging.

Md.Code (2002, 2010 Repl.Vol.), §§ 6-201(a)(2), (c)(2) of the Election Law Article (“E.L.”). If the petition “satisfies all requirements established by law” the Election Director “shall certify that the petition process has been completed” and certify that the “question has qualified to be placed on the ballot.” E.L. § 6-209. Thereafter, “the law or part thereof to be referred [to referendum] shall not take effect until thirty days after its approval by a majority of the qualified voters of the County voting thereon at the next ensuing election held for members of the House of Representatives of the United States.” Howard County Charter, § 211(a). If the Election Director determines that the petition does not comply with all legal requirements and that, consequently, the substance of which shall not ⁶⁵⁸ be certified for referendum, the “sponsor” of the petition must be “immediately” notified of that determination.

E.L. § 6-209(a)(2).

II

On August 6, 2013, the Howard County Council enacted Ordinance 32-2013, which adopted the 2013 Comprehensive Zoning Plan of Howard County. Ten days later, appellant Citizens Working to Fix Howard County (whose officers included appellants Jane Gray and Lisa Markovitz) submitted a proposed referendum petition to the Election Director, who responded, in a letter, that he had determined that “the front page formatting of the petition” complied with the “technical” legal requirements but stressed that “a fair and accurate summary [was] required on the back of the petition that includes the substantive provisions of the law being referred” to referendum. He then concluded his letter by noting that his office was “making no judgment as to whether the information in the summary presented fully satisfies all legal requirements.” On October 4, 2013, appellants submitted 3,454 of the required 5,390 signatures to the Board of Elections for approval. Two weeks later, on October 21, 2013, the Election Director wrote to appellants, informing them that the signatures they had filed had been validated and that the amount of those signatures met the threshold for extending the deadline for submitting the rest of the signatures for the certification of their petition. 5 ⁶⁵⁹ After appellants had tendered the required number of signatures, within the prescribed time period, the Election Director, in a letter dated November 26, 2013, confirmed that appellants had met the signatory requirement for certification but apprised them that, “[a]fter a board meeting and on advice of legal counsel,” he had “determined” that their petition did “not meet all legal requirements as set forth in 6-201(c)(2)(i) of the election law, which states: ‘a fair and accurate summary of the substantive provisions of the proposal’ is required if the petition seeks to place a question on the ballot.” That being so, he informed appellants that he could not approve certification.

On December 5, 2013, appellants filed a petition for judicial review, 6 in the Circuit Court for Howard County, challenging the Election Director’s determination “that the referendum petition on parts of CB 32-2013 did not contain a ‘fair and accurate summary of the substantive provisions of the proposal’ ” and his refusal to certify their petition. The Board of Elections, on December 23, 2013, moved to consolidate that petition with two other petitions for judicial review that had been filed by several of the appellees, challenging the Board of Elections’ determination as to the numerical sufficiency of the signatures presented, 7 and with a declar ⁶⁶⁰ atory judgment action they had filed. 8 That motion was granted on January 16, 2014, and the now consolidated case was specially assigned to the Honorable John H. Tisdale. Among the motions filed in the circuit court, by the Board of Elections and its Director, was a motion for summary judgment, with an affidavit from the Election Director attached. In the affidavit, the Election Director explained why he found the summary of the specific parts of the ordinance challenged by appellees was not “fair and accurate,” as required by law: 7.

Prior to meeting with counsel and the Board of Election members, I reviewed the Petition to determine whether it met all legal requirements as set forth in Md.Code Ann., Election Law Art., § 6-201(c)(2)(i). As part of my due diligence, I compared the language contained in CB32-2013, 2013 Comprehensive Zoning Plan of Howard County, with the language contained in the summary on the reverse side of the Petition. I concluded that the language contained on the reverse side of the Petition signature page was not a fair and accurate summary of the Bill because the summary made reference to specific parcels of land which were not included in the Bill itself. Specifically, under the section labeled “other,” the summary provided as follows: Carry-over of existing zoning as of July 24, 2013 for Normandy Shopping Center (tax-map-18; grid-19, parcel-75, lots-A-C) and 12540 Clarksville Pike, Clarksville, into 2013 Comprehensive Zoning Plan. 8.

My research failed to reveal any reference to Normandy Shopping Center and 12540 Clarksville Pike. In my opinion, inclusion of those properties mislead potential signers of the ⁶⁶¹ Petition because Bill 32-2013 did not address those properties but the summary would lead a potential signer to believe it did. 9. Opponents of the Petition raised a variety of other issues. I did not address those issues because I already concluded that the summary was not accurate for the reasons stated above.

Before the circuit court heard argument on that and other pending motions, appellants filed four different interlocutory appeals in this Court and four separate petitions for wiit of certiorari in the Court of Appeals with respect to actions taken by the circuit court in dealing with their petitions. This Court eventually dismissed each of these appeals, and the Court of Appeals, in turn, denied two of appellants’ four certiorari petitions. The remaining two petitions were ultimately dismissed by that Court on the grounds that it lacked appellate jurisdiction in absence of a final judgment or appealable interlocutory judgment or collateral order. Gray v. Howard Cnty.

Bd. of Elections, 437 Md. 611 , 89 A.3d 153 (2014). Notwithstanding the numerous unwarranted delays engendered by these appellate court filings, Judge Tisdale was ultimately able to address the three consolidated petitions for review pending before him, in a memorandum opinion dated May 28, 2014, following a hearing. In that opinion, he pointed out a number of deficiencies in appellants’ summary of the contested portions of the ordinance, including the inaccuracies alleged by the Election Director in his affidavit attached to the Board of Elections’ motion for summary judgment. He characterized appellants’ petitionary description of certain provisions of the ordinance they were challenging as either “not accurate,” “misleading,” “lacking in precision” or “clarity,” and as “intended to create an emotional reaction” from potential signatories.

He therefore concluded that “[tjaken as a whole, the attempt to summarize the portions of the Ordinance for ⁶⁶² the referendum [fell] well short of the fair and accurate standard.” III. Before we address the question of which standard of review to apply here, we must first determine to what it should apply—the decision of the circuit court or that of the Election Director. But the answer to that question need not delay us, as it is well-settled law that we are to review the decision of the administrative agency that the circuit court considered. Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 523-24 , 846 A.2d 341 (2004).

We now turn to the question of which standard of review is applicable, a critical question here, as that determination may, as the parties are well aware, affect the outcome of this appeal. To determine that, we must decide if the administrative decision before us addressed a question of law or one of fact or a combination or both. If it is “a pure question of law,” as appellees contend, then we may be impelled to conclude that the Election Director, contrary to what appellants allege, did not err in failing to make any specific findings in rendering his decision other than the one he did—which was that the petition did not satisfy the legal requirement that it set forth a “fair and accurate” summary of the ordinance in dispute. To determine whether the summary provided by the petition was “fair and accurate,” the Election Director had to do no more than ascertain whether the petition fairly and accurately described and interpreted certain provisions of the county law.

Whether the Election Director correctly did so is plainly, in our view, a question of law, a question for which we may substitute our judgment for that of the Election Director. Id. at 529 , 846 A.2d 341 .

IV

Once the “verification and counting” of the signatures contained in the petition has concluded, the Election Director is ⁶⁶³ required to determine “whether the petition has satisfied all other requirements established by law.” E.L. § 6-208(a)(2). If the Election Director determines that the petition has not satisfied those legal requirements, he must “immediately notify the [petition’s] sponsor of that determination, including any specific deficiencies found.” Id. But how “specific” must these “deficiencies” be? Section 6—206(c)(1)—(6) of the Election Law Article lists six deficiencies, any of which, if found by the Election Director, would require him to decline certification.

It is the sixth deficiency listed in that section of the Election Law Article which the Election Director relied upon in declaring appellants’ petition deficient. That section states that a petition is deficient “if ... the petition has failed to satisfy some other requirement established by law.” E.L. § 6-206(c)(6). The “requirement established by law,” which the Election Director determined that petition failed to satisfy, can be found in E.L. § 6—201 (c)(2)(i), which requires that a referendum petition contain a “fair and accurate summary of the substantive provisions of the proposal.” If the petition does not contain a “fair and accurate summary of the proposal,” and thereby fails to satisfy the legal requirements for placing a matter on the ballot, the Election Director is required to notify the petitioner of that specific deficiency (which is exactly what Mr. Mickley did in this case). By identifying which “specific deficiency,” that is, the specific legal requirement that had not been met, the Election Director did, in fact, comply with the applicable statutory requirements.

Moreover, the Election Director did ultimately provide appellants with a more specific description of the deficiency in an affidavit he filed with the court below in support of a motion for summary judgment. In that affidavit, the Election Director stated that he concluded that appellants’ summary was not fair and accurate because “the summary made reference to specific parcels of land which were not included in the Bill itself.” “In my opinion,” continued the Election Director, ⁶⁶⁴ “inclusion of those properties mislead potential signers of the Petition because Bill 32-2018 did not address those properties but the summary would lead a potential signer to believe it did.” Thus, even if the Election Director should have been more specific as to the deficiency he found, as appellants maintain, the Election Director ultimately supplemented his conclusion and thereby rendered appellants’ claim nugatory. y. The Maryland Constitution “shows an intent that those seeking to exercise the right of referendum in this State must, as a condition precedent, strictly comply with the conditions prescribed.” Tyler v. Secretary of State, 229 Md. 397, 402 , 184 A.2d 101 (1962). And “where a group of the citizens of the county seek to challenge a decision made by the lawfully designated representatives of the entire body politic, they must strictly adhere to those provisions of the law which grants to them the concession of the referendum.” Gittings v. Bd. of Sup’rs of Elections for Baltimore Cnty., 38 Md.App. 674, 681 , 382 A.2d 349 (1978).

When they fail to do so, “the proposed referendum must fail.” Id. The signature page of a referendum petition must contain either “(i) a fair and accurate summary of the substantive provisions of the proposal; or (ii) the full text of the proposal.” E.L. § 6-201 (c). “A petition may consist of several papers, but each paper shall contain a fair summary of the Act or the part of the Act petitioned upon[.]” Howard County Charter § 211(b). As the full text of the ordinance in this case was too extensive to set out in full in the petition, appellants provided a purported summary of each