Swatek v. Board of Elections

HOTTEN, J. We have been asked to determine whether the Circuit Court for Howard County abused its discretion in dismissing a petition for judicial review. Appellant, Russell Swatek, challenged the decision of appellee, Board of Elections of Howard County, that appellant’s Public Local Law Referendum Petition was insufficient. Appellant subsequently filed a petition for judicial review. The petition was dismissed because appellant failed to submit a memorandum pursuant to Md. Rule 7-207(a). 1 Appellant noted an appeal, and in his own words, presents the following question: Did the Circuit Court for Howard County err by dismissing Appellant’s Petition on the basis of a technical violation ²⁷⁴ despite it being abundantly clear that Appellee was well aware of the issues raised by Appellant?

For the reasons that follow, we affirm the judgment of the circuit court. BACKGROUND On February 1, 2010, the Howard County Council passed CB-59-2009. 2 CB-59-2009 amended the Howard County Zoning Ordinance (“Zoning Ordinance”) in an effort to foster the redevelopment of downtown Columbia. Appellant, in conjunction with Taxpayers Against Giveaways, prepared a Public Local Law Referendum Petition (“Petition”) that sought to change portions of the Zoning Ordinance that were amended. Appellant submitted 3,491 signatures in support of the Petition.

Appellee concluded that the Petition was insufficient because 1,352 of the signatures were invalid. 3 Appellant subsequently filed a petition for judicial review. On May 27, 2010, appellee transmitted the record to the circuit court. A hearing was subsequently scheduled for ²⁷⁵ August 27, 2010. On August 26, 2010, appellee filed a “Motion to Dismiss,” arguing that the petition for judicial review should be dismissed because appellant failed to submit a memorandum in accordance with Md. Rule 7~207(a).

In the motion, appellee asserted that the failure to submit a memorandum caused substantial prejudice because: (1) the 2010 general election was sixty days away and the appeal process would not be completed by the required deadlines; (2) CB-59-2009 was delayed while the Petition was pending but was now “in effect;” (3) the public interest would be impaired if the Petition was upheld and delayed until the 2012 general election; and (4) further delay would cause the county to incur additional legal expenses. On August 27, 2010, the day of the scheduled hearing, the circuit court heard appellee’s motion to dismiss. Appellee ²⁷⁶ argued that appellant’s failure to file a timely memorandum was prejudicial because it did not know the factual and legal basis for the petition for judicial review. Appellant countered that there was no prejudice because appellee knew the issues.

Appellant further asserted that the issues were “so narrowly known” that appellee had to have been aware of them. Appel-lee responded that it did not know the “specific factual issues” and was not prepared to proceed without reviewing a memorandum. Appellee added that the purpose of the memorandum was to narrow the issues. At the conclusion of the hearing, the circuit court dismissed appellant’s petition for judicial review.

In dismissing it, the court stated: That memorandum should’ve been filed by, certainly no later than July the 1st of 2010, probably more like June the 26th.... ' The [appellant] is not asking—the [appellant] is asking to proceed today. The [appellant’s] position is that [appellee] knows what the issues are, knows what the law is, and should be prepared to proceed. I disagree with that.... I can—the value of the memorandum is to narrow the issues, to specify the issues and to—and to frame the issues. ....

The testing of the rule is whether the [appellee] is at— in this case, is at a disadvantage and I find that the [appellee] is at a disadvantage and is prejudiced by the lack of the filing of a memorandum. The [appellee]—it’s unreasonable to expect the [appellee] be prepared to respond to whatever the argument may be of opposing counsel. It’s unreasonable to expect the [appellee] to be prepared to produce the record necessary to counter whatever arguments might be made. And on top of that, it’s unreasonable ²⁷⁷ to expect the [appellee] to do it in a total vacuum of specific allegations.

I also find that continuing this matter would not be a suitable remedy in that today is August the 27th. The first votes in the general election are less than two months away. The—there’s no—there’s not enough time to perform under the rule and even if I was to truncate it and require a memorandum in, say, ten days and response in, say, ten days, that places an undue burden on the [appellee], in that there’s a primary election for the [appellee] to run and there would be no time. And most importantly, there is the fact of the sample ballots being issued.

And they will be—it was a proffer of mid-September. I’m not accepting that as a fact that it’s— that they would be issued in mid-September, but certainly, they’re issued in advance of the general election, in advance of October the 23rd, and the public would be prejudiced if the question was not on it. DISCUSSION Md. Rule 7-207(a) provides that “[w]ithin 30 days after the clerk sends notice of the filing of the record, a petitioner shall file a memorandum setting forth a concise statement of the questions presented for review, a statement of facts material to those questions, and argument on each question, including citations of authority and references to pages of the record and exhibits relied on.” “The purpose of [Md. Rule 7-207(a) ] is to inform the opposing parties and the trial court of the issues involved in the case ... in sufficient time for the opposition to respond in kind and for the court to make an informed decision.” Gaetano v. Calvert County, 310 Md. 121, 126 , 527 A.2d 46 (1987). At bottom, the rule is supposed “to promote the orderly and efficient administration of justice,” and is “meant to be obeyed.” People’s Counsel v. Public Service Comm’n, 52 Md.App. 715, 720 , 451 A.2d 945 (1982) (internal quotations omitted). ²⁷⁸ In People’s Counsel , we analyzed whether a court was required to dismiss a petition for judicial review when a memorandum was untimely.

Id. at 715 , 451 A.2d 945 . There, we noted that Md. Rule B12 4 was meant to be followed, but acknowledged that “the rule does not specify or mandate any particular sanction for its violation.” Id. at 720 , 451 A.2d 945 . Nevertheless, we concluded that dismissing an administrative appeal for failure to comply with Md. Rule B12 was permissible, and “perhaps even [] preferred,” however, it was not mandatory. Id.

Moreover, we noted that the Court of Appeals “chose not to specify dismissal as a required sanction ...” when it promulgated Md. Rule B12. Id. at 720-21 , 451 A.2d 945 . In Gaetano, 310 Md. at 121 , 527 A.2d 46 , the Court of Appeals established a standard for determining whether an administrative appeal should be dismissed when a memorandum was untimely. There, the Court of Appeals noted that it must “look to the purpose of [Md. Rule B12] ... in light of the circumstances of [the] violation to determine the appropriate sanction for a violation of its provisions.” Id. at 125-26 , 527 A.2d 46 (citations omitted).

Thereafter, the Court held that “Md. Rule l-201(a), which controls here, states that ‘[w]hen a rule, by the word ‘shall’ or otherwise, mandates or prohibits conduct, .... [and] no consequences are prescribed [for noncompliance therewith], the court may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule.’ ” Id. at 126 , 527 A.2d 46 . Ultimately, the ²⁷⁹ Court of Appeals concluded that not using this standard was an abuse of discretion. See id. Prior to Gaetano , there was no rule that provided the appropriate sanctions for the untimely submission of a memorandum.

After Gaetano , Md. Rule 7-207(d), which governs sanctions for untimely submission of a memorandum, was promulgated. See Reporter’s Note to Proposed Rule 7-207, Md. Reg., Vol. 19, Issue 26, Wednesday, December 23, 1992. The rule, in relevant, part provides: If a petitioner fails to file a memorandum within the time prescribed by [Md. Rule 7-207], the court may dismiss the action if it finds that the failure to file or the late filing caused prejudice to the moving party. Md. Rule 7-207(d).

Appellant filed a petition for judicial review on April 23, 2010. The administrative record was submitted on May 27, 2010. On August 26, 2010, the day before the hearing, no memorandum from appellant had been filed. Appellee, accordingly, submitted a “Motion to Dismiss,” arguing that it was prejudiced by the absence of a memorandum.

The circuit court dismissed appellant’s petition for judicial review on the grounds that appellee was prejudiced by the absence of a memorandum. Appellant argues that the circuit court abused its discretion because there was no prejudice. Specifically, appellant asserts that appellee was familiar with the decision being challenged and knew the relevant law. Appellant, moreover, asserts that any prejudice was “de minimus” because the memorandum would have merely reworded the issues appellee was aware of.

In People’s Counsel, 52 Md.App. at 716-17 , 451 A.2d 945 , an order from the Public Service Commission granting a taxicab rate increase was appealed to the Circuit Court for Baltimore City. On February 2, 1981, the Public Service Commission sent the record to “Mr. Elmer O. Harris, Clerk Circuit Court of Baltimore City[,] Room 425, Civil Court Building 111 N. Calvert Street Baltimore, Maryland 21202[.]” Id. at 717 , 451 ²⁸⁰ A.2d 945 (internal quotations omitted). However, Harris was the clerk of the Baltimore City Court. 5 Id. Harris, accordingly, “redocketed” the appeal in the Baltimore City Court.

Id. Harris then sent People’s Counsel a “Notice Sent In Accordance With Maryland Rule [B12],” dated February 3, 1981, indicating that the case was before the Baltimore City Court. Id. at 718, 451 A.2d 945 . Eventually, the appeal was transferred to the Circuit Court for Baltimore City.

Id. On April 3, 1981, the Public Service Commission moved to dismiss the appeal because People’s Counsel failed to file a memorandum within thirty days of the February 3, 1981 notice. Id. On April 10, 1981, People’s Counsel filed a memorandum. 6 Id.

The court subsequently denied the motion because the memorandum was filed more than thirty days before the hearing. Id. at 718-19 , 451 A.2d 945 . On appeal, we concluded that the lower court did not abuse its discretion in declining to dismiss the appeal because: (1) there was no evidence that the court or the administrative agency was “inconvenienced, much less prejudiced[;]” (2) the rate increase being challenged remained in effect during the appeal; (3) Md. Rule B12 was new; (4) there was limited publication of Md. Rule B12; and (5) the administrative agency was negligent in “in transmitting the record to the wrong court----” Id. at 721 , 451 A.2d 945 . ²⁸¹ In Gaetano, 310 Md. at 122 , 527 A.2d 46 , the Board of County Commissioners of Calvert County (“Board”) approved David Van Hoy’s (“Hoy”) application to establish a transfer zone of eighty-eight acres. Adjacent landowners and affected neighbors filed an “Order of Appeal” and a “Petition for Judicial Review.” Id. at 122-23 , 527 A.2d 46 .

The Board filed a timely answer and served the order and petition on Hoy. Id. at 123 , 527 A.2d 46 . Hoy neglected to file an answer and was no longer considered a party. Id.

After nineteen months of inaction, Hoy filed a “Motion to Intervene,” which was granted. Id. Hoy thereafter filed a motion to dismiss, asserting the adjacent landowners and affected neighbors did not file a memorandum within thirty days of the record being filed in accordance with Md. Rule B12. Id.

A memorandum was filed five days later. Id. The lower court dismissed the appeal, concluding Md. Rule B12 mandated dismissal, absent compelling circumstances, when a memorandum was not filed within thirty days Id. at 123-24 , 527 A.2d 46 . On appeal, we articulated: The record indicates that on April 3, 1986 a non-jury trial on the merits of the appeal was scheduled for July 22, 1986, some three months after the appellants filed their [Md.] Rule B12 memorandum (April 14,1986).

Clearly, the appel-lees were given adequate time to become informed of the issues and the appellants’