Maryland Green Party v. State Board of Elections

DEBORAH S. EYLER, J. In an action for declaratory and injunctive relief, the Circuit Court for Anne Arundel County granted summary judgment in favor of the State Board of Elections (“Board”), and against the Maryland Green Party (“Green Party”), ruling that certain statutes in the Maryland Election Code, Md.Code (2002), sections 1-101, 3-504, and 4-102 of the Election Law Article (“EL”), 1 and practices by the Board in implementing them were not unconstitutional under state or federal law. 2 The Green Party appealed the circuit court’s decision to this Court, but the Court of Appeals issued a writ of certiorari on by-pass. The Court of Appeals reversed the entry of summary judgment in favor of the Board, holding that certain of Maryland’s election law statutes, and the application of others by the Board, violated the Maryland Constitution and Declaration of Rights. The case was remanded to the circuit court for entry of a declaratory judgment consistent with the opinion of the Court of Appeals. Following entry of the new declaratory judgment, the Green Party filed a petition for attorney’s fees and costs under the federal Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988 .

The circuit court granted the Board’s motion to dismiss the petition, upon a finding that the Green Party was not a prevailing party under section 1988. The Green Party noted a timely appeal, presenting six questions for review, which we have combined and re ¹¹⁷ phrased: 3 I. Did the circuit court err in dismissing the Green Party’s petition for attorney’s fees and costs upon a finding that it was not a prevailing party under section 1988?

II

Did the circuit court err in failing to consider the petition as to the Green Party’s two related cases?

III

Did the circuit court err in granting the Board’s motion to enlarge time to respond to, and bifurcate resolution of, the Green Party’s petition? For the following reasons, we shall vacate the decision of the circuit court and remand for further proceedings consistent with this opinion. FACTS AND PROCEEDINGS The Green Party became qualified as a statutorily recognized political party in Maryland on August 16, 2000. In order to achieve that status, the Green Party was required to obtain at least 10,000 signatures of registered Maryland voters on party-forming petitions.

EL § 4-102. 4 It did so and submitted the petitions to the Board. ¹¹⁸ On June 20, 2000, the Green Party nominated one David Gross as its candidate for U.S. Representative from the First Congressional District. As required by EL section 5-703(e), the Gross campaign organized a second petition drive to obtain nominating petitions signed by 1% of registered voters in that congressional district, or 3,411 signatures. 5 The Gross campaign succeeded in obtaining 4,214 signatures and submitted the petitions to the Board. During its verification process, the Board determined that over 1,000 of the signatures were of residents on the “inactive voter” list. On that basis, it rejected those signatures, leaving the Gross campaign short of the 1% required to appear on the ballot.

As a result, Gross was declared ineligible to run as the Green Party’s candidate for U.S. Representative for the First Congressional District. On September 5, 2000, in the Circuit Court for Anne Arundel County, the Green Party filed a complaint against the Board for refusing to place Gross on the ballot. It sought declaratory and injunctive relief under the Civil Rights Act of 1871, 42 U.S.C. § 1983 , including a temporary restraining order, arguing that the burden imposed by the 10,000 voter party-forming petitioning requirement, in EL section 4-102, ¹¹⁹ and the 1% nominating petition requirement, in EL section 5-703(e), and the Board’s actions in rejecting the signatures of voters on the “inactive voting” list violated its rights under state and federal laws. It based its arguments, inter alia, on the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution; Article I, sections 1 and 2 of the Maryland Constitution; and Articles 7 and 24 of the Declaration of Rights.

It further argued that the petitioning requirements and Board practices violated international law and treaties of the United States. After a hearing on September 8, 2000, the circuit court denied the Green Party’s request for a temporary restraining order and injunction ordering that Gross’s name be placed on the ballot. The November 7, 2000 election went forward without Gross’s name on the ballot. The Board proceeded to file a motion to dismiss the Green Party’s complaint, or in the alternative, for summary judgment.

On February 28, 2001, the circuit court denied the Board’s motion to dismiss, but granted its motion for summary judgment. In its memorandum opinion, the circuit court ruled that the Green Party had not shown, as a matter of law, that Maryland’s election laws were unconstitutional pursuant to the U.S. Constitution, the Maryland Constitution or Declaration of Rights, and various international treaties. 6 The circuit court cited to Supreme Court precedent and noted that states are permitted to regulate elections so that order accompanies the democratic process. Administrative convenience is within the state’s regulatory interests, which also include limiting the number of candidates on a ballot and requiring a showing of public support. The court further recognized that those regulatory interests “have supported nominating petition requirements similar to or more stringent than Maryland’s 1% requirement” under EL section 5-703(e). ¹²⁰ The court concluded that, because the Supreme Court had upheld more stringent state law requirements, Maryland’s 1% nominating petition requirement was constitutional, as a matter of law.

The Green Party took an appeal to this Court, but before we considered the case, the Court of Appeals issued a vnit of certiorari on its own motion. In Green Party v. State Board of Elections, 377 Md. 127 , 832 A.2d 214 (2003), the Court of Appeals reversed the circuit court’s grant of summary judgment and remanded the case for entry of a new declaratory judgment consistent with its opinion. The decision was by a four-member majority, with three members concurring in part. The majority, noting that the Green Party had raised numerous issues under federal and state laws, expressly limited its decision to state law grounds under the Maryland Constitution and the Declaration of Rights.

It did not decide any of the issues raised under the federal Constitution or federal law. The majority first addressed the issue of the “inactive” voters whose signatures the Board rejected when verifying Gross’s 1% nominating petition. EL section 3-504 allowed for an “inactive voter” list and sanctioned removal for voters remaining on the list for a specified period of time. 7 Under EL section 1-101, these voters were excluded from categorization as “registered voters.” 8 Accordingly, their signatures ¹²¹ were not counted. 9 The majority held that those laws and regulations directly conflicted with Article I, sections 1 and 2 of the Maryland Constitution and Article 7 of the Declaration of Rights, which are the exclusive Maryland authority on “the qualifications for voters and provide for a single uniform voter registration list which is conclusive evidence of the right to vote.” Id. at 145 . Additionally, the statutory scheme “unconstitutionally infringe[d] on the right of suffrage guaranteed to all qualified voters by Article I of the Maryland Constitution and Article 7 of the Maryland Declaration of Rights.” Id. at 152 .

The majority then addressed the 1% nominating petition requirement for minor party candidates. It held that the 1% nominating petition requirement “discriminate^] against minor political parties in violation of the equal protection component of Article 24 of the Maryland Declaration of Rights.” Id. at 156-57 . It expressly limited its decision to state constitutional law grounds. It noted that, although it was not suggesting that the decision would be different under a federal equal protection analysis, “ ‘the federal and state guarantees of equal protection are obviously independent and capable of divergent application.’ ” Id. at 157 (citations and quotations omitted).

The concurring members agreed with the majority’s holding that the “inactive voters” list laws violated the Maryland Constitution. They disagreed with the majority’s holding that the 1% nominating petition requirement violated Article 24 of the Maryland Declaration of Rights. They noted' that “the equal protection guarantees found in the federal constitution and Maryland’s Declaration of Rights are considered ‘in pari materia,’ ” so that federal caselaw is “instructive here.” Id. at ¹²² 166 (citing Attorney Gen. v. Waldron, 289 Md. 683, 704 , 426 A.2d 929 (1981)). They further noted that, in application, the Court of Appeals has consistently interpreted Article 24 to apply in the same manner as the Fourteenth Amendment.

The concurring members cited to various federal cases that held petition requirements constitutional, because “the State has a legitimate interest in regulating the quantity and quality of the candidates who appear on its ballots.” Id. They distinguished the purpose behind the initial party-forming petition requirement for a minor political party from that behind the 1% nominating petition requirement for a minor political party candidate for office, commenting that the majority’s analysis based upon the combination of the two petitioning requirements was in error. For those reasons, the concurring members concluded that Maryland’s 1% nominating petition requirement for minor party candidates was supported by federal equal protection caselaw, and disagreed with the majority’s opinion that it violated Maryland’s state constitutional equal protection guarantee. On January 12, 2004, on remand, the circuit court entered a declaratory judgment in favor of the Green Party, in accordance with the opinion of the Court of Appeals.

The judgment declared unconstitutional the 1% nominating petition requirement, under Article 24 of the Maryland Declaration of Rights, and the deprivation of “inactive voters” of their right to vote, under Article I of the Maryland Constitution and Articles 7 and 24 of the Maryland Declaration of Rights. Subsequently, on June 15, 2004, the Green Party filed a petition for attorney’s fees and costs under 42 U.S.C. § 1988 . It sought fees and costs incurred in this case and in two related cases, Hufnagel v. State Board of Elections, 10 and ¹²³ Stysley v. Carroll County Board of Elections. 11 It sought $355,060 in attorney’s fees and $3,071.31 in costs. The Board filed a motion to enlarge time to oppose the Green Party’s petition and a motion to bifurcate resolution of the Green Party’s petition for separate determinations of whether attorney’s fees and costs should be granted, and if so, in what amount.

The Board asserted as its basis for the motion to enlarge time the complexity of the issues and the need for discovery and expert witnesses on the matter, particularly if the motion to bifurcate were denied. The circuit court granted both motions. The Board then filed a motion to dismiss the Green Party’s petition. The circuit court granted the motion on October 1, 2004.

In its memorandum opinion and order, the court articulated the general rule, under section 1988, that prevailing parties ordinarily are entitled to attorney’s fees and costs. The court found that, because the parties in Hufnagel, Stysley, and this case were different and the cases were not consolidated, the plaintiffs in Hufnagel and Stysley were not prevailing parties; therefore, the court refused to consider them in conjunction with the petition in the instant case. The court then turned to the issue of whether the Green Party was a prevailing party under section 1988. It recounted the procedural history of the case: that it had decided all of ¹²⁴ the Green Party’s claims, including the federal claims that could support a section 1988 award, adversely to it, on summary judgment; that the Court of Appeals had reversed that judgment, but only on state constitutional grounds, and had remanded the case for entry of a new declaratory judgment consistent with the Court’s opinion; and that, on remand, the Green Party filed its section 1988 petition.

The court concluded that, under those circumstances, its original decision on summary judgment that the Green Party had failed, as a matter of law, to make out a federal constitutional claim, was undisturbed. Accordingly, the Green Party was not a prevailing party on its federal constitutional claim and hence did not qualify for an award of fees and costs under section 1988. The Green Party filed a timely notice of appeal. We shall include additional facts as necessary to our discussion of the issues.

DISCUSSION I. Section 1988 provides in pertinent part: (b) Attorney’s fees In an action or proceeding to enforce a provision of sections 1981, 1981(a), 1982, 1983, 1985, and 1986 of [title 42 of the United States Code] ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.... The Supreme Court has interpreted this statute to require an award of attorney’s fees to a prevailing party in such an action or proceeding “unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 , 88 S.Ct. 964 , 19 L.Ed.2d 1263 (1968). The statute does not address whether a party is a prevailing party, and hence may recover attorney’s fees absent special circumstances, when, in an action alleging a federal constitutional violation and a state law violation, the party prevails only on his state law claim. ¹²⁵ . Our Court of Appeals addressed this issue in County Executive of Prince George’s County v. Doe, 300 Md. 445 , 479 A.2d 352 (1984).

The plaintiffs brought claims under section 1983 and state law, challenging an executive order promulgated by the defendants. The circuit court enjoined enforcement of the order on state law grounds. It did not decide the federal constitutional claim. On appeal, the Court of Appeals affirmed the decision of the circuit court and expressly declined to decide the federal claim.

The plaintiffs subsequently filed a motion in the circuit court seeking attorney’s fees under section 1988. The court granted the motion and awarded attorney’s fees to the plaintiffs. The defendants noted another appeal, asserting that the plaintiffs were not prevailing parties under section 1988 because they did not prevail on their federal claim. The Court of Appeals explained that federal law governs awards of attorney’s fees under section 1988.

After discussing federal caselaw on the issue, the Court rejected the defendants’ contention that attorney’s fees could not be awarded to the plaintiffs because they had not prevailed on their federal claim. The Court recognized that the federal courts have construed section 1988 to allow a plaintiff to recover attorney’s fees when he has asserted federal and state law claims for the same relief; has prevailed solely on the state claim, and the federal claim is undecided. Smith v. Robinson, 468 U.S. 992 , 1006-07 & n. 10, 104 S.Ct. 3457 , 82 L.Ed.2d 746 (1984); Maher v. Gagne,, 448 U.S. 122 , 130-32 & n. 15, 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980). The rationale behind this interpretation is that the prevailing party should be compensated for raising a substantial civil rights issue under section 1983; and it would be unjust to “ ‘penaliz[e] a litigant for the fact that courts are properly reluctant to resolve constitutional questions if a nonconstitutional claim is dispositive.’ ” Doe, supra, 300 Md. at 457 , 479 A.2d 352 (quoting Smith, supra, 468 U.S. at 1007 , 104 S.Ct. 3457 ).

The Doe Court further explained that, under Smith, supra, 468 U.S. at 1002 , 104 S.Ct. 3457 , in such an “undecided claim” ¹²⁶ situation, a three-part test applies in determining whether the plaintiff should be awarded attorney’s fees. “[A] fee award pursuant to § 1988 is appropriate where (1) the § 1983 claim is sufficiently ‘substantial’ to support invocation of federal jurisdiction; (2) it arises from the same nucleus of operative facts as the claim on which the plaintiff prevailed; and (3) it is ‘reasonably related to the plaintiffs ultimate success.’ ” Am. Auto. Mfrs. Ass’n v. Cahill (“AAMA"), 53 F.Supp.2d 174, 179-80 (N.D.N.Y.1999) (quoting Smith, supra, 468 U.S. at 1002, 1007 ).

The Court in Doe held that the plaintiffs’ section 1983 claim was undecided for purposes of section 1988. It then proceeded to apply the three-part test and concluded that the plaintiffs were not entitled to attorney’s fees because their federal claims were insubstantial. In Bangs v. Town of Wells, 834 A.2d 955 (Me.2003), the Supreme Judicial Court of Maine addressed a similar issue. The plaintiffs appealed an adverse zoning board decision to the trial court, under section 1983 and state law.

The trial court affirmed the decision, finding against the plaintiffs on the state and federal claims. On appeal, the Supreme Judicial Court reversed, finding in favor of the plaintiffs, solely on the state law ground. It did not address the section 1983 claim. On remand, the plaintiffs filed a petition for attorney’s fees under section 1988, which was denied.

The plaintiffs appealed that decision. The Supreme Judicial Court of Maine reversed. It noted that the three-part test articulated by the Supreme Court in Smith v. Robinson applies only when a party has prevailed on a non-federal claim and no judgment was entered on his section 1983 claim. Noting that it expressly avoided deciding the federal constitutional claim because it was unnecessary to do so, the court applied the three-part test, and decided that the plaintiffs were prevailing parties, entitled to attorney’s fees.

Implicitly, therefore, the Bangs court held that the plaintiffs’ section 1983 claim was undecided, for purposes of section 1988, when the trial court ruled against the plaintiffs on their federal claim ¹²⁷ but the plaintiffs prevailed on appeal on a state court ground, with the section 1983 claim unaddressed at the appellate level. Two trial court level cases are instructive. In In re 244.5 Acres of Land, 830 A.2d 845 (Del.Super.Ct.2003), the plaintiff filed suit seeking a declaratory judgment that it was not required to observe a setback or, alternatively, was entitled to compensation for an unconstitutional taking. A Delaware trial court granted summary judgment against the plaintiff on both federal and state grounds.

On appeal, the appellate court reversed only as to state grounds and did not decide the federal constitutional claim. On remand, the plaintiff filed a petition for attorney’s fees under section 1988. The trial court determined that the section 1983 claim fell into the “ ‘pleaded but undecided’” category. Id. at 847 (citations omitted).

Applying the three-part test, it determined that the plaintiff could recover attorney’s fees under section 1988. A different result was reached in AAMA, supra. There, the plaintiffs filed suit in the United States District Court for the Northern District of New York to enjoin enforcement of a New York emission vehicle sales mandate under state law and federal constitutional law. The district court granted the defendants’ motion to dismiss on all counts.

The Court of Appeals for the Second Circuit reversed solely on state law grounds, without addressing the federal issues. On remand, one of the plaintiffs filed a motion for attorney’s fees under section 1988. The district court ruled that the federal constitutional claim it had dismissed, and that was not addressed by the appellate court, was “decided” for purposes of section 1988. It reasoned that to rule otherwise would allow parties to circumvent the general rule prohibiting recovery of attorney’s fees by amending their state law claims to include meritless section 1983 claims; that the law of the case doctrine supported its position; and that any other result would place on the defendant the unfair burden of appealing an issue it had prevailed upon.

Ruling in the alternative, the court concluded that, even if the section 1983 claim was “undecided,” the plaintiff was not entitled to fees because, ¹²⁸ under the three-part test, that claim was not reasonably related to the plaintiffs success. (i) The threshold question in this case is whether the Green Party’s section 1983 claim was decided, for purposes of section 1988, when it was determined adversely by the circuit court on summary judgment but, on appeal, was not addressed in the appellate opinion that reversed only on a state law ground. If (as the Board contends) the federal claim remained “decided” after the appeal, the Green Party is not a prevailing party and could not recover attorney’s fees under section 1988. If (as the Green Party contends) the federal claim was “undecided” after the appeal, the Green Party could be a prevailing party entitled to recover attorney’s fees upon satisfying the three-part test set forth in Smith v. Robinson.

In denying the Green Party’s petition for attorney’s fees under section 1988, the circuit court determined that its ruling granting the Board’s motion for summary judgment on federal constitutional grounds was “decided” because it was left undisturbed by the Court of Appeals. The Green Party contends this ruling was legally incorrect. Specifically, it argues that, because the Court of Appeals reversed the circuit court’s grant of summary judgment by addressing only state law grounds, the federal claims were no longer decided upon the filing of its fee petition. The Board answers that the circuit court’s ruling was legally correct.

Specifically, it argues that the decision of the Court of Appeals to limit its reversal to state law grounds and to decline to address the federal law claims rendered the federal claims still decided. A determination of prevailing party status is a question of law, which we review de novo. Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir.2002).

We agree with the Green Party that the reversal by the Court of Appeals rendered the Green Party’s federal section 1983 claim “undecided” for purposes of section 1988. ¹²⁹ The case of Robles v. Prince George’s County, 302 F.3d 262 (4th Cir.2002), on which the circuit court relied in determining that the Green Party’s section 1983 claim was decided, is inapposite. There, the district court granted summary judgment adverse to the plaintiff on his federal claim. Following a jury verdict in favor of the plaintiff on his state law claim, the district court denied the plaintiff’s petition for attorney’s fees under section 1988. On appeal, the Fourth Circuit not only held that the plaintiffs federal constitutional rights had not been violated but also recognized that, at the moment the plaintiff filed his petition for attorney’s fees, he had lost the federal issue on summary judgment in favor of the defendants.

It is clear in Robles that the federal claim was decided. Likewise, County Executive of Prince George’s County v. Doe, supra, also relied upon by the circuit court, is significantly different procedurally from this case. In Doe , the circuit court did not rule at all on the plaintiffs federal claim. On appeal, the Court of Appeals affirmed the circuit court’s judgment, solely on state grounds, and declined to address the federal claim.

Clearly, then, when the section 1988 petition later was filed, the federal claim had never been decided by any court at any level, and therefore was undecided. See S.W. Bell Tel. Co. v. City of El Paso, 346 F.3d 541 (5th Cir.2003), and Williams v. Hanover Hous. Auth., 113 F.3d 1294 (1st Cir.1997) (holding that section 1983 claims were undecided for section 1988 purposes when they were not decided by the district courts initially or the appellate courts on review).

The case at bar is most similar to the Supreme Judicial Court of Maine’s decision in Bangs, supra, in which, after the trial court ruled against the plaintiffs on their federal and state claims, the appellate court reversed on state grounds only, without addressing the federal claims; and, ultimately, the appellate court held that the reversal of the trial court’s judgment rendered the federal claims “undecided.” It also is similar to In re 244.5 Acres, in which, after deciding state and federal claims adversely to the plaintiffs, and then having the appellate court reverse on the state claim only, without decid ¹³⁰ ing the federal claim, the trial court concluded that the federal claim was undecided for purposes of section 1988. The AAMA case bears some similarity to this case, but also is distinguishable. There, the district court’s adverse rulings on the federal claims were on non-substantive grounds that were unaffected, and could not be affected, by the appellate court’s reversal on a state ground. The district court’s adverse ruling on the federal due process claim was based on lack of standing, which other Second Circuit precedent had held eliminated the district court’s power to award fees.

Its adverse ruling on the federal commerce clause claim was based on res judicata, because the Second Circuit previously had decided the claim in another action. AAMA, supra, 58 F.Supp.2d at 181 n. 6. 12 In the instant case, the reasons for the grant of summary judgment by the lower court were quite different from the reasons the district court in AAMA resolved the federal claims adversely to the plaintiffs. The circuit court here granted summary judgment because it found that the caselaw did not support the Green Party’s claim under the state or federal constitutions. Such reasons are not in the same vein as those in AAMA, and therefore do not require us to decide this case in the same manner.

Additionally, we have found helpful, by analogy, cases that analyze, under the collateral ¹³¹ estoppel doctrine, whether an issue of fact was “decided” in prior litigation. A central concern in determining whether the doctrine of collateral estoppel will bar subsequent re-litigation of an issue is whether the issue was decided. See Migra v. Warren City Sch. Dist.

Bd. of Educ., 465 U.S. 75 , 77 n. 1, 104 S.Ct. 892 , 79 L.Ed.2d 56 (1984); Kent County Bd. of Educ. v. Bilhrough, 309 Md. 487, 489 , 525 A.2d 232 (1987). Federal caselaw makes clear the general proposition that, when a lower court decides a case on multiple issues, and an appellate court decides only one issue and disregards the others, collateral estoppel will not bar re-litigation of the unreviewed issues; the doctrine only will apply to bar re-litigation of those issues specifically passed upon by the appellate court. See Dow Chem. v. U.S. EPA, 832 F.2d 319 , 323 & n. 24 (5th Cir.1987) (noting, “ ‘The federal decisions agree that once an appellate court has affirmed on one ground and passed over another, preclusion does not attach to the ground omitted from its decision.’ ”) (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4421 (1981)); see also Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 754 (2d Cir.1996); Restatement (Second) of Judgments § 27 cmt. o (1980). Two rationales justify this policy.

First, as the Court of Appeals explained in Cook v. State, 281 Md. 665 , 381 A.2d 671 (1978): Considerations of fairness would seem to require that a prior determination of fact or mixed law and fact should not normally be treated as final, and hence binding, in a subsequent proceeding against a particular party, where the party against whom preclusion is sought was denied the opportunity, as a matter of law, to have the disputed issue decided by an appellate court on direct review. Id. at 675 , 381 A.2d 671 . Second, the Dow Court explained, “The rule responds to the fear that the appellate court’s choice of grounds may arbitrarily and unfairly preclude any review of ¹³² alternative grounds reached by the district court.” Dow, supra, 832 F.2d at 323 n. 25 (quoting Wright, Miller & Cooper, supra, at § 4421). Similarly, these cases justify our conclusion that the Green Party’s federal claims are undecided for purposes of section 1988, because the Court of Appeals “passed over” those claims.

It seems unfair to treat the circuit court’s determination on the federal issues as binding and decided, after the Green Party was denied the opportunity to have those claims decided by the Court of Appeals because of its decision to consider only the state law claims. The Court exercised the restraint generally taken by state courts in choosing not to decide federal issues when state issues are dispositive. That decision, however, unfairly precluded, to the prejudice of the Green Party, its opportunity to have that Court evaluate the decision of the circuit court on the federal claims. The cases and policies surrounding collateral estoppel lend analogous support to our position that the Green Party’s claims are undecided for purposes of section 1988.

Finally, the Board argues that the rationale behind section 1988, providing attorney’s fees in cases where the federal claims are undecided, only applies when the state claim on which the plaintiff has prevailed is statutory, not constitutional. We disagree. The justification for permitting an award of attorney’s fees in section 1988 cases when the plaintiff prevails