Town of Oxford v. Koste

⁵⁷⁹ ZARNOCH, J. Which comes first: a law’s enactment or a referendum drive? In this case, we consider the classic chicken/egg causality riddle in the legislative/political setting. 1 And, in the context of the petitioning to referendum of a municipal annexation resolution, we conclude that the Legislature has required enactment to precede petitioning. 2 We turn from the abstract to the concrete. On December 3, 2010, the Circuit Court for Talbot County granted summary judgment in favor of appellee Constantine Koste (“Koste”), a resident and registered voter of the Town of Oxford (“the Town”), appellant. In so doing, the circuit court ruled that signatures on a referendum petition may be collected before the public hearing and final enactment of an annexation resolution.

The Town appeals, and presents one question for our consideration, which we have re-phrased: In determining whether a petition for referendum of a municipal annexation referendum complies with Md.Code (1957, 2005 Repl.Vol.) Art. 23A § 19(g), may signatures obtained prior to the date of final enactment be properly counted? 3 For the reasons set forth below, we answer in the negative and reverse the ruling of the circuit court. FACTUAL AND LEGAL BACKGROUND The Town of Oxford is surrounded on three sides by the waters of the Tred Avon River and Town Creek. On July 14, ⁵⁸⁰ 2009, the President of the Commissioners of the Town of Oxford (“the Commissioners” or “the Town”) introduced an annexation resolution, Resolution No. 1001, intended to annex 142 acres of submerged lands under public waters adjacent to the current municipal boundary. The purpose of the annexation was to confirm the Town’s jurisdiction over adjacent lands and waters of the Tred Avon River in order to regulate, with the Maryland Department of the Environment, the placement of wharves, piers, mooring piles, mooring buoys, floating docks, and other structures within municipal waters.

As required by § 19(d) of Art. 23A, public notice of this resolution and the area to be annexed by the Town was published in The Star Democrat, a newspaper of general circulation in Oxford, for four consecutive weeks beginning on August 10,2009. The notice read, in part: Please take notice that the Commissioners of Oxford will conduct a public hearing on Tuesday, September 22, 2009, at 8:00 p.m. on Resolution Number 1001, entitled “A RESOLUTION OF THE COMMISSIONERS OF OXFORD TO ANNEX SUBMERGED LANDS LOCATED UNDER CERTAIN PUBLIC WATERS ADJACENT TO THE TOWN BOUNDARIES IN ORDER TO REGULATE PLACEMENT OF WHARVES, PIERS, MOORING PILES, MOORING BUOYS, FLOATING DOCKS AND ASSOCIATED OR RELATED STRUCTURES.” The notice additionally informed the public that “[t]he technical legal description of the land proposed for annexation, together with a plat depicting the area to be annexed, and the proposed new boundary of the Town of Oxford, may be inspected at the Town Office.” 4 On September 22, 2009, after the fourth and final publication of the notice, the Commissioners held a public hearing on ⁵⁸¹ the resolution as required by § 19(d) of Art. 23A. The minutes of that hearing reflect that it lasted several hours, with numerous citizens speaking for and against the resolution, taking issue with the resolution’s fiscal impact, necessity, and the purported lack of transparency surrounding the legislative process. Maps of the proposed annexation were displayed, and proponents discussed the safety issues underpinning the proposal.

After the hearing, the Commissioners held the record open to receive written comments for an additional 10 days. On November 10, 2009, the Commissioners unanimously voted to adopt Resolution No. 1001 without alteration, signed the resolution, and specified in a section titled “Effective Date”: This Resolution shall become effective 45 days after final enactment unless a petition for referendum has been filed prior thereto in accordance with Article 23A Section 19 of The Maryland Annotated Code. This resolution shall be deemed “finally enacted” on the date on which the Commissioners of Oxford indicate their approval of this Resolution by signing the same.[ 5 ] Forty-two days later, on December 22, 2009, Koste’s attorneys presented the Commissioners and Town Clerk with a petition for referendum (the “Petition”). The Petition, which consisted of 31 pages containing 195 signatures, demanded that the Town suspend the effectiveness of the resolution and hold a referendum election pursuant to Art. 23A § 19(g). 6 The Petition stated: ⁵⁸² We, the undersigned voters of the Town of Oxford, hereby petition to refer Resolution 1001 entitled “A RESOLUTION OF THE COMMISSIONERS OF OXFORD TO ANNEX SUBMERGED LANDS LOCATED UNDER CERTAIN PUBLIC WATERS ADJACENT TO THE TOWN BOUNDARIES IN ORDER TO REGULATE PLACEMENT OF WHARVES, PIERS, MOORING PILES, MOORING BUOYS, FLOATING DOCKS AND ASSOCIATED OR RELATED STRUCTURES” to a vote of the registered voters of the Town of Oxford for approval or rejection at an election to be held in accordance with Article 28A, Section 19 of the Annotated Code of Maryland.

If the full text of the bill/ordinance or part of the bill/ordinance referred (the “proposal”) does not appear on the back of this signature page or as an attachment, a fair and accurate summary of the substantive provisions of the proposal must appear on the back or be attached, and the full text of the proposal must be immediatély available from the petition circulator.[ 7 ] NOTICE TO SIGNERS: Sign and print your name (1) as it appears on the voter registration list; OR (2) your surname of registration and at least one full given name AND the initial of any other names. Please print or type all other information other than your signature. ⁵⁸³ In addition to providing space for the signer to print his or her full name, registration address, and signature, the Petition also contained an area for the signer to indicate the date of signing. 8 The next day, the Town Clerk submitted the Petition to the Oxford Board of Supervisors of Elections (the “Election Board”) for verification. By tally of the Election Board, there were 616 registered voters in Oxford as of December 25, 2009 and the Petition contained 177 verified and valid signatures. However, the Election Board analysis revealed that, of the 177 signatures, only 62 were obtained after the final enactment of Resolution No. 1001.

The remaining 115 signatures were acquired before the November 10, 2009 final enactment, and 83 of those signatures were obtained even before the September 22, 2009 public hearing. The Commissioners then requested a legal opinion from the Attorney General to determine whether the signatures obtained before the final enactment of the resolution could be counted toward the threshold necessary to petition for the referendum. Before such an opinion could be prepared, on May 1, 2010, Koste filed in the circuit court a Complaint for Declaratory Judgment and Writ of Mandamus as well as a Motion for Summary Judgment. Koste sought both a declaration that the 177 signatures were valid and represented at least 20 percent of the registered voters in the Town, and a mandamus requiring the Commissioners to suspend the effectiveness of the resolution, contingent upon the results of a referendum.

The Town filed an answer and opposition, requesting an order declaring that the Petition failed to meet ⁵⁸⁴ the applicable legal requirements and thus, Resolution No. 1001 became effective as a matter of law on or before December 26, 2009. A hearing on Koste’s motion for summary judgment was held on December 3, 2010. In granting the motion, the circuit judge delivered the following opinion: This is how I see it. First of all, in my view the statute is not ambiguous.

In my view the 45 day period in question is a, the primary import of that 45 day period is to limit the time within which a petition can be presented so there is some finality to this process. So that the municipality is not held up ad infinitum, by endless discussions and debate. I believe that the 45 day period is there for the time within which the petition must be presented and I don’t believe it has any bearing on when the signatures are obtained, or whether the signatures are obtained prior to that 45 days____ The plain language of the statute does not expressly require that signatures be obtained during that 45 day period. And I believe ... the primary purpose of the statute is to provide an exit point, and not a beginning point for the process____To me it would defy common sense and the basic democratic notion that we have adopted in our system of laws to say that you can’t start early, you can’t be more thorough, that you cannot start this petition process more than 45 days before it ends.

I mean where is the logic in that? If anything they’ve given people more time to think about it and not less. And you know the basic concept here is that we ought to give the people the opportunity to be heard. That’s the democratic process.

And so I think that the public policy is very important here that we not deny such a big constituency, such a big percentage, more than 20 percent the opportunity to present this matter for referendum. Accordingly, in an order dated December 3, 2010, the trial court declared that all 177 signatures on the Petition were valid and that the signatures represented at least 20 percent ⁵⁸⁵ of the qualified voters of the Town of Oxford. 9 The court ordered the Commissioners to suspend the effectiveness of Resolution No. 1001 contingent upon the results of a referendum election. Finally, the court ordered that within 60 days the Commissioners were to hold the referendum. 10 The Commissioners noted an appeal to this Court. For the reasons discussed below, we reverse the decision of the circuit court and remand for entry of a declaratory judgment consistent with this opinion.

DISCUSSION I. Standard of Review/Tenets of Statutory Construction We review the trial court’s determination of legal questions or conclusions of law de novo. Tribbitt v. State, 403 Md. 638, 644 , 943 A.2d 1260 (2008); see also Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006) (noting that when an issue “involves an interpretation and application of Maryland constitutional, statutory or case law, an appellate court must determine whether the trial court’s conclusions are legally correct’ under a de novo standard of review”). Summary judgment is proper “only where there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.” Id.; see also Md. Rule 2-501. Here, the facts are undisputed and this appeal presents a purely legal issue that we review de novo.

This case presents an issue of statutory construction, like many, resolvable on the basis of judicial consideration of three general factors: 1) text; 2) purpose; and 3) consequences. Text is the plain language of the relevant provision, typically given its ordinary meaning, Breslin v. Powell, 421 Md. 266, 286 , 26 A.3d 878 (2011), viewed in context, Kaczorowski v. City of Baltimore, 309 Md. 505, 514 , 525 A.2d 628 (1987), considered in light of the whole statute, In re Stephen K, 289 Md. ⁵⁸⁶ 294, 298, 424 A.2d 153 (1981), and generally evaluated for ambiguity. Kaczorowski, 309 Md. at 513 , 525 A.2d 628 . Legislative purpose, either apparent from the text or gathered from external sources, often informs, if not controls, our reading of the statute.

Kaczorowski, 309 Md. at 515 , 525 A.2d 628 . An examination of interpretive consequences, either as a comparison of the results of each proffered construction, Christian v. State, 62 Md.App. 296, 303 , 489 A.2d 64 (1985), or as a principle of avoidance of an absurd or unreasonable reading, Kaczorowski, 309 Md. at 513, 516 , 525 A.2d 628 , grounds the court’s interpretation in reality.

II

Text Our analysis must necessarily begin with a review of the statute in question. Article 23A § 19, governs the process by which a municipal corporation may annex adjacent land not within its boundaries. Both the circuit court and the parties in this case urge us to parse the language of § 19(g) of Art. 23A. Among other things, Koste directs our attention to the following language: At any time within the forty-five (45) day period following the final enactment of the resolution, a number of persons equal to not less than twenty per centum (20%) of the qualified voters of the municipal corporation may, in writing, petition the chief executive and administrative officer of the municipal corporation for a referendum on the resolution.

Upon the presentation of a petition to the officer, he shall cause to be made a verification of the signatures thereon and shall ascertain that the persons signing the petition represent at least twenty per centum (20%) of the qualified voters of the municipal corporation.... (Emphasis added). The Town’s argument emphasizes in part this reading: At any time within the forty-five (45) day period following the final enactment of the resolution, a number of persons equal to not less than twenty per centum (20%) of the qualified voters of the municipal corporation may, in writing, petition the chief executive and administrative officer of the ⁵⁸⁷ municipal corporation for a referendum on, the resolution. Upon the presentation of a petition to the officer, he shall cause to be made a verification of the signatures thereon and shall ascertain that the persons signing the petition represent at least twenty per centum (20%) of the qualified voters of the municipal corporation.

Upon verifying that the requirements of this subsection have been complied with, the officer shall be proclamation suspend the effectiveness of the resolution, contingent upon the results of the referendum. (Emphasis added). Obviously, the parties are contemplating different definitions of the word, “petition.” One general definition of “petition,” which Koste would likely embrace, is “a formal written request presented to a court or other official body.” Black’s Law Dictionary (8th Ed. 2004) at 1182. On the other hand, a definition more attuned to the referendum context and more supportive of the Town is found in Elec.

Art. § 6—101(i), which states in relevant part: “ ‘Petition’ means all of the associated pages necessary to fulfill the requirement of a process established by the law by which individuals affix their signatures as evidence of support for ... placing ... a question on the ballot at any election.” 11 Koste contends that the term, “presentation of a petition,” in the second sentence of § 19(g) of Article 23A equates with the act of “petitioning” Town officials in the first sentence. A contrary argument would emphasize that “presentation of a petition” suggests a difference between presentation and petition and that reference to the 45-day period appears only in the first sentence, which uses the term “petition for a referendum.” Thus, Koste reads the 45-day period only as a deadline for presenting to Town officials the necessary signatures, while the Town says that the 45-day window establishes a beginning period as well as an ending for the process of petitioning to ⁵⁸⁸ referendum. Another point in the Town’s favor is that § 19(g) uses the word “within” the 45-day period, more indicative of a beginning and an ending, rather than a fixed deadline, while Koste can point to the words, “[a]t anytime,” as suggesting an open-ended process. To the extent this clash of textual views creates an ambiguity, we consider the purpose of the 45-day