Ocean City Board of Supervisors of Elections v. Gisriel

HARRELL, Judge. Appellants, the Ocean City Board of Supervisors of Elections (Board), the Town of Ocean City, and the Mayor and City Council for the Town of Ocean City (City Council), appeal from a judgment of the Circuit Court for Worcester County. That judgment reversed and remanded a decision by the City Council that had affirmed the Board’s rejection of a petition to referendum filed by appellee, Vincent dePaul Gisriel, Jr. Facts On 18 January 1993, the City Council, pursuant to the zoning powers conferred upon incorporated municipalities by ¹⁴⁰ Md.Ann.Code, Art. 66B (1988 Replacement Volume & 1993 Supp.), enacted zoning Ordinance 1993-1 as an element of the comprehensive rezoning of the entire City. On 28 January 1993, displeased by various aspects of the new zoning ordinance, appellee prepared and circulated a petition for referendum on certain portions of Ordinance 1993-1.

While gathering signatures for the petition, appellee discovered numerous people on the Ocean City voter registration list 1 who he believed had moved away, were listed twice, or were deceased. Before appellee submitted his petition, he had proposed 525 names he believed should be purged from the city’s voter registration list. 2 Of the twenty-seven names claimed by appellee to be duplicative, the Board determined twenty-four to be valid. The Board also concluded that appellee’s information indicating that 183 other people on the registration list were deceased or relocated was inaccurate. The remaining 315 names were not yet checked by the date appellee filed his petition.

On 16 February 1993, appellee submitted his petition to referendum of Ordinance 1993-1 to the Board to determine whether it had been signed by twenty percent of the qualified ¹⁴¹ voters as required by § C-411 of the Ocean City charter. 3 The Board found that the total number of petition signers was 1013, of which four were duplicate signatures, sixty-one were non-registered signers, and one was rejected for other cause, reducing the total number of valid signatures to 947. The Board then used the Ocean City voter registration list, as it existed on 16 February 1993, to determine the total number of qualified voters to be 4903. 4 Therefore, the Board concluded, appellee’s total number of valid signatures represented only nineteen percent of the qualified voters of the Town of Ocean City, or thirty-four signatures short of the requisite twenty percent. The City Council accepted the Board’s findings and denied appellee’s petition to referendum. The next day, appellee appealed the Board’s findings to the City Council pursuant to § C-505 of the Ocean City charter. 5 As grounds for his appeal, appellee argued: 1) the Board presented an inaccurate report regarding the certification status of his petition; 2) the Board failed to maintain “an accurate, up-to-date list of eligible and qualified voters;” and, 3) the Board failed to strike from the voter registration list those names that appellee identified as deceased, moved away, or duplicative.

Appellee also appealed the City Council’s ¹⁴² acceptance of the Board’s findings and its subsequent denial of his petition. The City Council held a hearing on 15 March 1993. Appellee’s first exhibit was § C-411 of the Ocean City charter. Appellee argued that that section requires a petition to referendum contain signatures of not less that twenty percent of the qualified voters of the Town of Ocean City.

Appellee’s second exhibit was § C-504 of the Ocean City charter, which states that it is the Board’s duty to strike from the registration list persons known to “be dead or who have become disqualified.” Appellee then emphasized that neither section of the charter referred to a “qualified” voter as a “registered” voter. Therefore, appellee argued, the Board must determine the total number of “qualified” voters, not “registered” voters, before deciding whether his petition to referendum contained the proper number of signatures. In support of this argument, appellee attempted to prove to the City Council that the Ocean City voter registration fist contained names of unqualified but registered voters. 6 Appellee supplied a list of seventy-seven names, with accompanying documentation, that were removed from the County universal registration list but were not removed from the Ocean City voter registration list. Appellee also offered evidence of nineteen names that were included on the Ocean City voter registration list, but were on neither the universal list nor the supplemental list.

In addition, appellee presented evidence of fifteen people whose names were on the Ocean City voter registration list, but who were living outside the Town of Ocean City. Appellee also introduced evidence of twenty-five people listed on the Ocean City voter registration list that are deceased. And finally, appellee indicated that there were eight names on the Ocean City list that were duplicative. Therefore, argued appellee, the total number of qualified ¹⁴³ voters in Ocean City was actually 4767. 7 Pursuant to § C-411, appellee concluded that twenty percent of 4767 is 954, and that his petition contained 960 signatures, including the thirteen he contended were erroneously disqualified by the Board.

Therefore, appellee stated that “any reasonable person upon review of this would agree that we more than met the provisions of the charter for a successful petition.” 8 In response, Mary Adeline Bradford, chairperson of the Ocean City Board of Supervisors of Elections, explained that the Board has standard procedures for purging the Ocean City voter registration list, and pursuant to those procedures the Board determined the number of qualified voters in Ocean City to be 4903 on 16 February 1993, the date appellee’s petition was submitted. Ms. Bradford also testified that the Board meets periodically to maintain an accurate and up-to-date voter registration list for the Town of Ocean City. 9 She explained that the process of culling the voter registration list is burdensome and must be undertaken with caution, as “you’re dealing with someone’s constitutional right to vote for which wars have been fought.” Finally, Ms. Bradford discussed the importance and practicality of “freezing” the voter registration list as of a certain date. Appellee agreed that the registration list should have been frozen on 16 February 1993, but that the Board in fact added ¹⁴⁴ five names to the list after that date. Therefore, appellee reasoned: If you can add names that increase the total, then the same courtesy and fair play ought to work in reverse.

You should be deleting names that are shown to be ineligible. The rolls were not frozen on ... 2-16. You in fact added names. Ms. Bradford replied that the five people added to the Ocean City voter registration list had registered in Snow Hill prior to 16 February 1993, and that the paper work was delayed in getting to Ocean City.

Therefore, she explained, “had everything been under one roof, we would have had those names anyhow.” In response to a question from one of the councilmen concerning whether one can go back and change the registration list after it has been frozen, City Solicitor Guy R. Ayres III, representing the Board, explained: Well, it seems to me that it’s in everybody’s benefit to have a, a given date so that number one, the petition drivers know the percent—know the number of petitions they have to get. If it’s, if it’s left open, then the organizers of the petition drive would never know how many signatures they had to get. So there has to be a date. Whether it be the day that the ordinance was signed into law or whether it be February the 16th, I’m not sure there’s—maybe that’s six, one-half dozen or the other; but at least you have a finite date that they knew they had to have X number of signatures.

It seems to me that what’s happened is they didn’t get that number of signatures. So now they’re coming back and trying to be some type of super-Board of Elections and say, Board, you didn’t do your job right. We don’t think these people should be qualified to vote; therefore, they should be, they should be deleted. At the conclusion of the hearing, appellee requested that the City Council remand the matter to the Board for a determination, based upon the documents and testimony offered, of ¹⁴⁵ whether the number of signatures on appellee’s petition represented twenty percent of the qualified voters as of 16 February 1993.

Instead, the City Council voted six to one to affirm the Board’s decision. Appellee filed a timely appeal of the City Council’s decision to the Circuit Court for Worcester County, pursuant to § C-505 10 of the Ocean City charter. Appellee argued that the Board did not properly purge the names of those people who were not qualified to vote as of 16 February 1993 from the Ocean City voter registration list. Appellee explained that the term “qualified” voter, as used in § C-411 of the charter, does not mean “registered” voter as interpreted by the Board and City Council.

In reply, appellants questioned appellee’s ability even to petition a comprehensive rezoning to referendum and, assuming such a petition was proper, the Board had no obligation to cull the voter registration list after the petition was submitted. A hearing was held in the circuit court on 20 October 1993. In an Opinion and Order of Court, issued on 12 November 1993, the judge, as a threshold issue, decided that comprehensive rezoning is part of the zoning power granted to incorporated municipalities under Md.Ann.Code, Art. 23A (1990 Replacement Volume & 1993 Supp.), and therefore is expressly subject to referendum. On the issue of “qualified” versus “registered” voters, the judge referred to § C-403 and § C-504 of the Ocean City charter and stated: The Court must also agree with [appellee] on the issue of the Petition.

Clearly, if a voter is “registered”, he or she may still not be qualified to vote, while every qualified voter must, by definition, be registered. The referendum ordinance clearly requires a petition to referendum to be signed by twenty percent of the “qualified”, not the “registered”, voters. The Court finds Ocean City’s refusal to strike unqualified but registered voters from the voter roll as of ¹⁴⁶ [16 February 1993] to be erroneous as a matter of law, as well as arbitrary and capricious. Accordingly, he remanded the case to the City Council for further remand to the Board for further proceedings consistent with his opinion.

Appellants noted a timely appeal to this Court. Issues I. Must voter registration lists be purged if a referendum petitioner challenges voters on the list collaterally to challenging denial of the petition?

II

May misspelled and inaccurate or other unregistered signatures on a referendum petition be rejected? Discussion Jurisdiction As a threshold determination, we raised at oral argument the issue, sua sponte, of whether this Court has jurisdiction in this matter. This case was styled as an appeal from an administrative agency to the circuit court pursuant to § C-505 11 of the Ocean City charter. That section contemplates only an appeal from the City Council to the circuit court.

While the general jurisdiction statute, Md.Code Ann., Cts. & Jud.Proc. § 12-301, provides for an appeal to this Court of a final judgment entered in a civil case by a circuit court in the exercise of its original jurisdiction, § 12-302(a) expressly states that there is no appeal from a final judgment of a court made in the exercise of appellate jurisdiction in reviewing the decision of an administrative agency. We conclude, however, that the circuit court exercised original jurisdiction in reviewing the decision of the City Council, and that this case is properly before us. Section 12-301 provides in pertinent part: ¹⁴⁷ Except as provided in § 12-802 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.

Section 12-302(a), however, states that “[ujnless a right to appeal is expressly granted by law, § 12-301 does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of ... an administrative agency.” The issue, therefore, is whether the circuit court, in the case sub judice, exercised original or appellate jurisdiction when it reviewed the City Council’s decision to affirm the Board’s denial of appellee’s petition. In Shell Oil Co. v. Supervisor of Assessments, 276 Md. 36, 43 , 343 A.2d 521 (1975) (emphasis in original), the court held that “the exercise of appellate jurisdiction requires a prior action by some judicial authority, or the prior exercise of judicial power.” Moreover, Maryland courts have consistently held that, under Art. IV, § 1 of the Maryland Constitution, such judicial power may not be exercised by entities other than those courts enumerated in the Constitution. Shell, 276 Md. at 45 ; see also Solvuca v. Ryan & Reilly Co., 131 Md. 265, 282 , 101 A. 710 (1917). As explained in Dal Maso v. County Comm’rs., 182 Md. 200 , 205, 34 A.2d 464 (1943) (citations omitted): In this State, all judicial authority is only such as provided for by Article 4 of the Maryland Constitution, and it has been decided that only judicial functions can be exercised which find their authority in that Article, and that no court not coming within its provisions can be established in this State.

This forbids any power in the Legislature to clothe administrative boards with any judicial authority. There may be states in which it can be done, but Maryland is not one of them. ¹⁴⁸ See also County Council v. Investors Funding, 270 Md. 403, 426-36 , 312 A.2d 225 (1973); State Ins. Comm’r v. National Bureau of Casualty Underwriters, 248 Md. 292, 298-300 , 236 A.2d 282 (1967); Maryland Comm, for Fair Representation v. Tawes, 228 Md. 412, 425-26 , 180 A.2d 656 (1962); Heaps v. Cobb, 185 Md. 372, 379 , 45 A.2d 73 (1945). Maryland courts, however, have upheld the delegation to administrative agencies of certain “quasi-judicial” functions.

Indeed, the Shell Court acknowledged that “the problems of modern life have necessitated an ever increasing delegation of authority to administrative bodies, and that ‘the separation of powers concept may constitutionally encompass a sensible degree of elasticity.’ ” Shell, 276 Md. at 47 , 343 A.2d 521 (quoting Linchester, 274 Md. at 220, 334 A.2d 514 ). But, the Court concluded, “any attempt to authorize an administrative agency to perform what is deemed a purely judicial function or power, would violate the separation of powers principle.” Id. (emphasis in original). Consequently, the decision of an administrative agency is the result of the discharge of its executive duties, not the result of the exercise of judicial power.

See Solvuca, 131 Md. at 282 , 101 A. 710 ; . see e.g., Department of Natural Resources v. Linchester, 274 Md. 211, 218-27 , 334 A.2d 514 (1975); Cromwell v. Jackson, 188 Md. 8, 12-13 , 52 A.2d 79 (1947). Therefore, as the Shell Court held, “the review of the decision of an administrative agency [by a court] is an exercise of original jurisdiction and not of appellate jurisdiction.” Shell, 276 Md. at 47 , 343 A.2d 521 . The inquiry central to our jurisdictional analysis, therefore, is whether the Ocean City Council, sitting as an appeals board pursuant to § C-505 of the charter, is an administrative agency, thereby vesting original jurisdiction in the circuit court. Maryland Rule 7-201(b) broadly defines “administrative agency” as “any agency, board, department, district, commission, authority, commissioner, official, the Maryland Tax Court, or other unit of the State or of a political subdivision of the State.” Indeed, the Court of Appeals has held that a County Council, while sitting in an appellate capacity, was an ¹⁴⁹ administrative agency.

In County Council v. Carl M. Freeman Assocs., 281 Md. 70 , 376 A.2d 860 (1977), the Court, interpreting former Md.Rule Bl(b), 12 ruled that the Prince George’s County Council, sitting as the District Council in a zoning matter, was an administrative agency under the broad definition set forth in Rule Bl(b). Id. at 74 , 376 A.2d 860 . Pursuant to the similarly broad language used in Rule 7-201(b), adopted from former Rule Bl(b), the Ocean City Council, acting as a unit of a political subdivision of the State government and sitting as an appeals board pursuant to the Ocean City charter, is also an administrative agency. Therefore, as explained in Shell, supra, the circuit court’s review of the City Council’s decision was an exercise of original jurisdiction.

See Shell, 276 Md. at 43 , 343 A.2d 521 . Applying Md.Code Ann., Cts. & Jud.Proc. § 12-301, which provides for an appeal to the Court of Special Appeals from “a final judgment entered by a court in the exercise of original ... jurisdiction,” we hold that this matter is properly before this Court. I. Purging the Voter Registration List Appellants argue that the circuit court’s decision, which found a distinction between “qualified” voters and “registered” voters, “requires formal purging of registered voter lists whenever (i) a proponent of a referendum disputes the denial of a petition on the basis of insufficient support, or (ii) anyone ¹⁵⁰ who opposes a referendum desires to challenge the sufficiency of support for a petition.” Such a result, contend appellants, “is contrary to the longstanding procedure for determining whether a referendum petition has the degree of support required to warrant a plebiscite ... and violates the established principle that the registered voter lists, as they exist on a particular date, are in the absence of fraud, conclusive of the persons who are qualified to vote.” Specifically, appellants contend that the registration list, as it appears on the day the petition is submitted, is conclusive of the total number of qualified voters, as that term is used in § C-411 of the Ocean City charter. Appellee, on the other hand, argues that the number of qualified voters must be determined by an independent evaluation of each registered voter’s qualifications on the day the petition is submitted.

Appellee insists that it is the responsibility of the Board, pursuant to' § C-504 of the Ocean City charter, to determine whether each registered voter is, in fact, qualified to vote as of the date the petition is submitted. Thus, appellee suggests that a petitioner may submit challenges to the voter registration list at anytime after the petition is submitted, so long as such challenges indicate that the challenged voter was not qualified to vote as of the date the petition was submitted. While we agree with the circuit court judge, in theory, that a registered voter is not the same as a qualified voter as those terms are used in the Ocean City charter, we hold that the registration list, as of the day the referendum petition is submitted, is conclusive proof of the number of qualified voters in the Town of Ocean City, provided two conditions are satisfied: 1) there is no evidence of fraud or misconduct by the election officials in maintaining the list; and 2) there are statutory provisions available to challenge the registration list, but those provisions have not been utilized. Qualified vs. Registered The circuit court judge, in his Opinion and Order of 12 November 1993, found that there is an analytical difference ¹⁵¹ between “registered” voter and “qualified” voter, as those terms are defined and used in the Ocean City charter.

The Order directed the Board to “cull its voter roll of unqualified but registered voters before it can determine the percentage of voters who signed [appellee’s] petition,” and “the date the Town must use to purge its voters [sic] roll is February 16, 1993.” The practical effect of this decision, however, is that it allows or sanctions a petitioner, such as appellee in fact did here, to challenge the voter registration list at anytime after the referendum petition is submitted, ad infinitum, so long as the challenges submitted recite a factual premise that the challenged voter was not qualified to vote as of the date the petition was submitted. Notwithstanding the administrative nightmare this “rolling barrage” scenario would present for the Board, a petitioner also would be disadvantaged as he or she would be unable to ascertain prior to or during the petition signature drive, with any degree of certainty, the number of signatures needed to satisfy the twenty-percent requirement of § C-411. Moreover, while the Board struggles with this potential “rolling barrage” of challenges, the effectiveness of the petitioned law is suspended indefinitely. Therefore, while we appreciate the trial judge’s analytical distinction between a “qualified” voter and a “registered” voter, the pragmatics of administering and maintaining a voter registration list mandate a more practical approach.

Section C-403.A of the charter sets out the qualifications of a voter in Ocean City. It provides: The qualifications of voters in Town elections of Ocean City shall be as follows: A voter, whether a man or a woman, must be: (1) A citizen of the United States. (2) At least eighteen (18) years of age. (3) Registered in accordance with the provisions of this Charter.

(4) One who, for thirty (30) days next preceding the election, has been and is, at the time of the election ¹⁵² domiciled within the corporate limits of the Town of Ocean City. Section C-504 of the charter states the rules for voter registration. It provides in pertinent part: Registration shall be permanent, and no person shall be entitled to vote in town elections unless he is registered. It shall be the duty of the Board of Supervisors of Elections to keep the registration list up-to-date by striking from the list persons known to be dead or who have become disqualified.

If any person has not voted in two (2) consecutive general municipal elections, it shall be the duty of the Board of Supervisors of Elections to strike his or her name from the list of eligible voters. The Mayor and City Council of Ocean City are hereby authorized and directed, by ordinance, to adopt and enforce any provisions necessary to establish and maintain a system of permanent registration and to provide for a registration when necessary not inconsistent with the provisions of the charter. Section C-403.A states that to be a qualified voter in the Town of Ocean City, a person must be, among other things, registered to vote. On the other hand, § .C-504 states that only a qualified voter can be registered.

Such draftsmanship by the Ocean City Council presents a quandary of circular logic—to be qualified to vote, one must be registered, while to be registered, one must be qualified to vote. In order to understand more fully the meaning of these terms, § C-403.A and § C-504 must be read in pari materia. The basic canons of statutory construction were aptly summarized by the late Judge Orth in Wheeler v. State, 281 Md. 593, 596-97 , 380 A.2d 1052 (1977) (citations omitted): The cardinal rule of statutory construction is to ascertain and carry out the real legislative intention. A statute should be construed according to the ordinary and natural import of the language used without resorting to subtle or forced interpretations for the purpose of limiting or extending its operation.

That is, we must confine ourselves to the statute as written, and may not attempt, under guise of ¹⁵³ construction, to supply omissions or remedy possible defects in the statute. Thus, if there is no ambiguity or obscurity in the language of the statute, there is usually no need to look elsewhere to ascertain the intent of the Legislature. As we said in Purifoy v. Merc-Safe Dep. & Trust, 273 Md. 58, 66 , 327 A.2d 483 (1974), “where statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view toward making the statute express an intention which is different from its plain meaning.” All parts of a statute are to be read together to find the intention as to any one part, and all parts are to be reconciled and harmonized if possible. Reading § C-403.A and § C-504 together solves this semantical quagmire.

Section C-403.A explains that being registered to vote is only one of the requirements necessary to become qualified to vote in Ocean City. On the other hand, being qualified to vote is the only requirement necessary to become registered to vote. 13 It follows, therefore, that a registered voter may, in fact, not be qualified to vote, while a qualified voter must, pursuant to § C-403.A, be registered. A clear example is a person who met all of the requirements set forth in § C-403.A when he or she registered to vote, but subsequently is no longer domiciled within the corporate limits of the Town of Ocean City. Until that person is struck from the registration list pursuant to § C-504, he or she is registered to vote, but not qualified to vote.

Support for our conclusion is found in Board of Supervisors v. Smith, 111 U.S. 556 , 4 S.Ct. 539 , 28 L.Ed. 517 (1884). In that case, a provision of the Mississippi Constitution provided that the assent of two-thirds of the qualified voters of the county was required to pass upon a proposed issue of municipal bonds. Id. at 557 , 4 S.Ct. at 539-40 . The United States Supreme Court was asked to determine whether “qualified” ¹⁵⁴ voters meant those voters actually present and voting as determined by the official election return, or those voters qualified and entitled to vote as indicated by the voter registration list.

In holding that a “qualified” voter is not the same as a “registered” voter, the Court explained that “although [the Mississippi Constitution] does not recognize any voters as qualified, except such as are registered, [it] does not make all persons, registered as such, qualified.” Id. at 564 , 4 S.Ct. at 543 . Furthermore, the Court stated: And yet, if it is to be construed, in the clause in question, as referring to the registration as conclusive of the number of qualified voters, then no proof is competent to purge the list of those who never were qualified or have died, removed or become otherwise disqualified, thus obliterating the distinction between registered and qualified voters.... Id. at 564-65 , 4 S.Ct. at 543 . The reasoning of Smith is persuasive in our analysis of the Ocean City charter provisions.

The legislative intent of § C-504 was clearly to provide a mechanism to strike registered voters who become disqualified. To equate the two terms, as explained in Smith , would “obliterate] the distinction between registered and qualified voters.” Id. at 565 , 4 S.Ct. at 543 . The language of the Ocean City charter presents a similar predicament, and the case law supports a similar conclusion— a “qualified” voter is not synonymous with a “registered” voter. This conclusion, however, is not as dispositive of the issue in this case as the trial judge thought.

While it is true that, in theory, one can be a registered voter and not be qualified to vote, it is imperative that both a legal and a practical mechanism be determined for ascertaining the total number of qualified voters with regard to a referendum petition pursuant to § C-411 of the Ocean City charter. Section C-411 provides, in pertinent part: Following approval of any ordinance by the Mayor or passage of any ordinance over the Mayor’s veto, the petitioners shall have three (3) business days to prepare the ¹⁵⁵ petition and present the same to the city solicitor for approval. The city solicitor shall have five (5) business days to approve said petition. If the city solicitor fails to act upon the petition within said five (5) days, it shall