Kelly v. Vote Know Coalition of Maryland, Inc.

ELDRIDGE, Judge. An enactment of the General Assembly, signed by the Governor as Ch. 1 of the Acts of 1991, was petitioned to ¹⁶⁷ referendum and scheduled to be submitted to the voters of the State in the November 1992 general election. The issue presented by this case is whether the ballot title language summarizing Ch. 1 of the Acts of 1991 was misleading. The Act addressed the subject of abortion and revised statutory provisions relating to abortion.

Prior to the November 1992 general election, this Court issued an order which, inter alia, directed the Circuit Court for Anne Arundel County to enter the following declaratory judgment: “The ballot title of Ch. 1 of the Acts of 1991, certified by the Secretary of State, is not misleading and does not violate either Art. XVI, § 5 of the Constitution of Maryland or Code (1957, 1990 Repl.Vol.), Art 33, § 16-6. The defendants are entitled to utilize the ballot title certified by the Secretary of State at the November 1992 general election.” This opinion sets forth our reasons for so ordering. During the 1991 legislative session, the General Assembly passed and the Governor signed Senate Bill 162, which became Ch. 1 and which substantially revised Maryland statutes regarding abortion. The members of the Vote kNOw Coalition and others, pursuant to Art. XVI, § 1, of the Constitution of Maryland, exercised their right to petition Ch. 1 to referendum. 1 Article XVI of the Maryland Constitution and Maryland Code (1957, 1990 Repl.Vol.), Art. 33, § 16-6, set forth the procedures governing the referendum.

Section 5(b) of Art. XVI provides in part as follows: ¹⁶⁸ “All laws referred under the provisions of this Article shall be submitted separately on the ballots to the voters of the people, but if containing more than two hundred words, the full text shall not be printed on the official ballots, but the Secretary of State shall prepare and submit a ballot title of each such measure in such form as to present the purpose of said measure concisely and intelligently. The ballot title may be distinct from the legislative title, but in any case the legislative title shall be sufficient.” The Election Code, Art. 33, § 16—6(a), provides: “Condensed statement and descriptive title.—The ballots shall contain a condensed statement in understandable language of every constitutional amendment or other question to be submitted to the vote of the people at any election. It is sufficient in any case to print the legislative title, a brief summary of the contents or purpose of the proposed amendment or referendum unless the act proposing the constitutional amendment or other question specifically provides the title to be used. The Secretary of State shall prepare and certify the form in which a constitutional amendment or question shall appear....

In the event the title of the bill, ordinance or resolution, as the case may be, is one hundred words or less, the title shall be sufficient. In the event the title exceeds one hundred words, a summary of the title containing not in excess of one hundred words shall be prepared and certified to the boards.” The referred legislation exceeded 200 words, precluding the full text from being placed on the ballot. Art. XVI, § 5(b). In addition, the legislative title exceeded 100 words, precluding its use.

Art. 33, § 16-6. Consequently, the Secretary of State was required to summarize the legislation in 100 words or less. Pursuant to his constitutional and statutory duty, the Secretary submitted the following 100 word ballot title: “Abortion Law Revision “Revises Maryland’s abortion law to prohibit state interference with woman’s abortion decision before fetus is viable, or, under certain conditions, at any time and to provide ¹⁶⁹ certain exceptions to the requirement that a physician notify an unmarried minor’s parent or guardian prior to minor’s abortion; repeals pre-abortion information requirements about abortion alternatives; repeals some, and clarifies other, provisions related to abortion referrals; requires that abortions be performed by licensed physicians; provides good faith immunity under certain conditions to physicians performing abortions; authorizes state to adopt abortion regulations; repeals certain penalty and disciplinary provisions related to the performance of abortions.” The plaintiffs in this case, the Vote kNOw Coalition and three women who signed the referendum petition, challenged this language in a complaint filed in the Circuit Court for Anne Arundel County on July 27, 1992. The plaintiffs named as defendants Winfield M. Kelly, Jr., the Secretary of State, and Gene M. Raynor, Administrator of the State Administrative Board of Election Laws.

The plaintiffs charged that the language of the ballot title “miscasts and misrepresents the true nature and purpose of the referred law by reordering the elements of Senate Bill 162 in a manner which will have an undeniable psychological effect on the average voter and suggest a voting outcome from language which is neither neutral nor accurate ... [and that] it uses vague, ambiguous and obtuse generalizations such as ‘certain conditions’ and ‘certain exceptions’ to obscure the actual scope and effect of Senate Bill 162 and disguise crucial elements of the referred legislation. ...” The plaintiffs sought a declaration that the proposed language violated the constitutional and statutory standards. They also sought an order enjoining the Administrator from placing the language on the ballot and directing the Secretary of State to reformulate the language to reflect the “order of the elements of the legislative title” and to make use of “objectively neutral and not politically charged language.” The plaintiffs and the defendants filed cross motions for summary judgment. The defendants argued that the certified language “fairly and accurately conveys to Maryland voters ¹⁷⁰ the purpose of the legislation upon which they will be voting.” The defendants noted that it was irrelevant whether the plaintiffs or any other person could produce a “better” ballot summary, stating that “a hundred persons, whether lawyers or nonlawyers or Secretaries of State, could perhaps draft a hundred different ballot summaries, all of which might be meaningful and nonmisleading. That possibility is, however, legally irrelevant for the constitutional responsibility for that task in this State rests with the Secretary of State.” Rather, according to the defendants, the trial court was required to determine whether the ballot language certified by the Secretary of State “ ‘set forth, in understandable language the contents and purpose of the proposed referendum with that clarity and objectivity required to permit an average voter, in a meaningful manner, to exercise an intelligent choice.’ Anne Arundel County v. McDonough, 277 Md. 271, 300 [, 354 A.2d 788, 805 ] (1976).” The defendants urged the trial court to uphold the ballot summary in this case because it complied with the constitutional and statutory standards and was “comprehensive, accurate and understandable.” The plaintiffs complained that the Secretary of State should not have rearranged the order of the elements of the legislation but should have tracked the order in which they appeared in the legislative title.

The only deviation from the order of the legislative title was the decision to move the summary of the portion of the legislation which essentially codified the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), from the middle to the beginning of the ballot title. The plaintiffs also asserted that the “use of vague and ambiguous generalities ... make it literally impossible for the average voter to discern the true nature, scope and effect of the referred measure.” As examples of the latter, the plaintiffs pointed to the summary of the parental notification provision and objected to the fact that the specific exceptions to that provision were not articulated in the ballot title. The plaintiffs claimed that the description of the changes made to the law relating to abortion referrals was too ¹⁷¹ general. The plaintiffs argued that the ballot language fell short of the constitutional and statutory standards and was misleading.

On August 12,1992, the circuit court declared that the ballot title language certified by the Secretary of State was misleading because it did not provide “a concise, intelligible and understandable summary of the principal features of SB 162....” The circuit court’s order also enjoined the defendants from using the certified ballot language at the November 1992 general election and directed the defendant Secretary of State to certify new ballot language. In his statements from the bench, the circuit judge specified that the Secretary should follow the order in which the elements appeared in the legislative title and should articulate the exceptions to the parental notification provision. That day, the defendants noted an appeal to the Court of Special Appeals as well as an appeal to this Court. They also filed a petition for a writ of certiorari which we granted. 2 As indicated at the beginning of this opinion, in an order dated August 19, 1992, we reversed the declaratory judgment and injunctive orders of the Circuit Court for Anne Arundel County and directed the circuit court to enter a new declaratory judgment upholding the validity of the ballot title. 3 The standards to be applied to this case are clearly set forth in the Constitution and statutes.

The Secretary of State, ¹⁷² when drafting a ballot title which is “a condensed statement in understandable language” of the referred measure, Art. 33, § 16-6, is required “to present the purpose of said measure concisely and intelligently,” Art. XVI, § 5(b). This Court in several cases has reviewed the applicable standards. See Surratt v. Prince George’s County, 320 Md. 439 , 578 A.2d 745 (1990); Anne Arundel County v. McDonough, supra, 277 Md. 271 , 354 A.2d 788 ; Morris v. Governor, 263 Md. 20 , 281 A.2d 216 (1971); Lexington Park v. Robidoux, 218 Md. 195 , 146 A.2d 184 (1958); Carr v. Hyattsville, 115 Md. 545 , 81 A. 8 (1911). In Anne Arundel County v. McDonough, supra, 277 Md. at 296 , 354 A.2d at 802-803 , we stated: “Where ... the ballot question used is not the legislative title but a brief summary of the contents or purpose of the proposed act, the standard by which the question’s validity will be judged, as with a legislative title, is whether the question posed, accurately and in a non-misleading manner, apprises the voters of the true nature of the legislation upon which they are voting.” The Secretary of State must certify language with the “clarity and objectivity required to permit an average voter, in a meaningful manner, to exercise an intelligent choice.” McDonough, 277 Md. at 300 , 354 A.2d at 805 .

The plaintiffs rely on both Surratt v. Prince George’s County, supra, and Anne Arundel County v. McDonough, supra. In each case, this Court struck down ballot title language on the ground that it was misleading. Each case is readily distinguishable. In Surratt v. Prince George’s County, supra, the ballot question presented to the voters of Prince George’s County was whether they approved of a Charter amendment which would “provide that in all pending and future claims the County will only waive its immunity in those instances where its officers and employees are liable.” 320 Md. at 448 , 578 A.2d at 749 .

The Charter of Prince George’s County, however, already provided that the County had waived its immunity “in actions sounding in tort for which its officers, agents and ¹⁷³ employees may be liable.” Ibid. The real purpose of the charter amendment was “to effect a total repeal of the waiver of governmental immunity” in the event the Court of Appeals held invalid the County’s attempt to limit its waiver to cases in which a county officer