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N I I
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C) -... * IN THE
PPE CASINO RESORTS l\tIARYLAND, LLC, et al.
Petitioners * CIRCUIT COURT
v. * FOR
ANNE ARUNDEL COUNTY BOARD * ANNE ARUNDEL COUNTY OF SUPERVISORS OF ELECTIONS,
et al. *
Respondents * CASE NO.: 02-C-IO-149479
This matter came before the Court on May 24,25,26,27,28, June 2, and 3, 2010,
for a hearing on Petitioners' Petition for Judicial Review and Declaratory Judgment. The
Court held the matter sub curia. Upon consideration of the written and oral arguments,
and the agency record, the Court presents its conclusions below.
The petition for judicial review arises from the Anne Arundel County Board of
Supervisors of Elections ("County Board of Elections") certification of a petition for a
referendum to reject a bill signed into law by the Anne Arundel County Council ("County
Council"). During its 2007 Special Session, the Maryland General Assembly ("General
Assembly") approved the submission of a constitutional amendment authorizing the for
profit use of Video Lottery Terminals ("VL T") to the qualified and legal voters for
adoption or rejection. The amendment authorized up to five VL T locations in four
different counties, including Anne Arundel County, and Baltimore City. The primary
purpose of the amendment was to raise revenue for (1) public school education; (2)
public school construction and capital improvements; and (3) construction of capital projects at community colleges and public senior higher education institutions. In addition to geographical restrictions associated with each county and municipality, the amendment stated that a "video lottery facility shall comply with all applicable planning and zoning laws of the local jurisdiction."
The General Assembly also passed the Maryland Education Trust Fund Act. This legislation established (1) the duties of the State Lottery Commission and granted it authority to promulgate regulations; (2) created the VLT Location Commission; (3) identified the requirements to receive a VLT license; (4) allocated the distribution of revenue made from a VLT facility; and (5) made the legislation contingent upon the adoption of the constitutional amendment. On November 4, 2008, the Maryland voters amended the State Constitution, adding Article XIX - Video Lottery Terminals.
On February 2, 2009, PPE Casino Resorts Maryland, LLC, ("PPE") applied for a Video Lottery Operation License to own and operate a video lottery facility in Anne Arundel County. In addition to the application, PPE paid an initial license fee of $28.5 million dollars ($28,500,000.00). On December 7, 2009, the Video Lottery Facility Location Commission awarded PPE a license for 4,750 VLTs, to be located at Arundel Mills Mall. This award was contingent on the County Council's enactment of zoning legislation authorizing VLTs in Anne Arundel County.
On December 21, 2009, the County Council passed Bill 82-09, authorizing VLT facilities as a conditional use in WI Industrial Park zoning districts and regional
commercial complexes in Anne Arundel County that lie within two miles of Md. Route
295. The County Executive signed the bill into law on December 22,2009.
On February 4, 2010, Heather Ford and Citizens Against Slots at the Mall
("CASM"), who are Respondents in this matter, submitted to the County Board of
Elections a petition, with 23,702 signatures, to refer Bill 82-09 to a referendum at the
next general election. On its statement of contributions and expenditures form, CASM
disclosed that the Maryland Jockey Club paid over $280,000 to support the petition drive.
CASM in tum contracted FieldWorks, LLC, to help collect signatures.
On February 23, 2010,1 PPE and Spear Lancaster, a registered voter.' filed a
petition for judicial review' and declaratory relief with the Circuit Court for Anne
Arundel County, alleging that the petition was fraudulent. On March 5, 2010, CASM
submitted its final filing to the County Board of Elections, which included an additional
On April 1, 2010, the Court conducted a scheduling conference and, with the
agreement of all parties, entered a scheduling order, which included a discovery schedule
for any permissible discovery. The County Board of Elections indicated that it would
I The interested parties opposing the petition for judicial review argue that Petitioners' premature filing of their request divests them of jurisdiction to bring the matter because they were not an aggrieved party at the time of the filing. See Doe v. Bd. of Elections, 406 Md. 697 (2008). However, the Court of Appeals noted in Kim v. Comptroller of the Treasury, 350 Md. 527 (1998), that the filing of a petition before a final agency determination does not render one's pursuit of judicial review fatal if the petitioner files its memorandum in support within the appropriate time frame.
2 Petitioners' initial pleading listed Mr. Lancaster as a "tax payer." However, they cured this deficiency in their Third Amended Complaint to assert Mr. Lancaster's standing pursuant to § 6-209(b) of the Election Law Article.
3 While not stylized as a petition for judicial review, petitioner seeks relief pursuant to § 6-209 of the Election Law Article. Pursuant to Maryland Rule 7-202, the petition must request judicial review, identify the order of which review is sought, and, if not a party to the proceeding, state a basis for standing. Petitioners' Second Amended complaint meets these requirements.
certify the petition and PPE reserved the right to object to the County Board exercising
that authority. That day, the County Board of Elections certified the petition to refer Bill
82-09 to referendum at the next general election, stating that of the 40,408 signatures
submitted 22,967 were valid and 17,441 were invalid.
On April 15, 2010, the Court heard preliminary matters, including motions to
intervene, a motion to dismiss SLAPP suit, and request to clarify the scope of discovery.
In a memorandum opinion, entered on April 30, 2010, this Court held that Rule 7-200, et
seq., governed because this matter is a review ofan administrative agency determination.
Pursuant to Rule 7-204, this Court allowed the intervening parties to participate in the
review. Additionally, the Court denied CASM's motion to dismiss the case as a SLAPP
suit because the matter is the judicial review of an agency decision and not a suit against
a party exercising its right to petition. This Court also noted that Maryland Rule 7-208
governed the proceeding and discovery of new evidence outside of the agency record was
permissible only to the extent that it was allowed by law.
PPE filed a third amended complaint, challenging the County Board of Elections'
authority to certify the petition. Soon thereafter, all parties filed motions for summary
judgment or disposition, accompanied with memoranda of support." CASM also filed a
Rule 7-207 memorandum on May 14, 2010. The County Board of Elections delivered
the record, which consisted of the original petitions and the agency's determinations, on
May 18, 20 10. The Court reserved on all pending Motions for summary judgment.
4 The parties' memoranda of support set forth their legal arguments with respect to the boards of elections' determinations. For the purposes of the review hearing, this Court considered these memoranda to be the parties' Rule 7-207 hearing memoranda.
The Court heard arguments regarding the following issues:
1. whether PPE and Spear Lancaster have standing to seek judicial review;
2. whether CASM and standing to file the petition for referendum;
3. whether the Court's scope of review is on the record or de novo;
4. whether the Court may admit additional evidence, in addition to the County Board of Elections' record;
5. whether the County Board of Elections erred as a matter of law by certifying the petition when there was a pending action for judicial review;
6. whether the County Board of Elections erred as a matter of law when it concluded that Bill 82-09 was a matter subject to referendum;
7. whether the County Board of Elections erred as a matter of law when it approved the form of the Petition's circulator's affidavit and the form of the Petition's signature lines;
8. whether substantial evidence supports the County Board of Elections determination that there were sufficient signatures to place Bill 82-09 to referendum; and
9. whether the County Board of Elections erred as a matter of law by not investigating allegations of fraud.
I PPE and Mr. Lancaster's Standing
CASM argues that PPE lacks standing to seek judicial review. Pursuant to § 6-
209 of the Election Law article, a person aggrieved by a board of elections' advanced
determination, decision at time of filing, or final certification may seek judicial review in
the circuit court for the county in which the petition is filed. Md. Code Ann., Elec. Law § 6-209(A)( 1). While § 6-209 acknowledges the right to petition a board of elections decision at three different stages, a non-sponsoring party of the petition does not become aggrieved until after the board of election issues a final decision by certifying the petition. Doe v. Bd. of Elections, 406 Md. 697 (2009). In the instant case, the County Board of Elections certified the petition on April 1, 2010. Therefore, the ability of PPE as a non-sponsoring party of the petition to seek judicial review of the County Board of Elections' decisions accrued on April 1,2010.
CASM argues that PPE is not an aggrieved party because it does not have a license to operate VL Ts. This Court disagrees. At common law, a party is aggrieved if he or she has an interest that is "personally and specifically affected in a way different from ... the public generally." Id. at 716 (citing Sugarloaf Citizens' Assoc. v. Dept. of Env't, 344 Md. 271 (1996». Bill 82-09 is a zoning bill that amends the current conditional uses allowed on a W -1 Industrial Park zoning district and regional commercial complexes within two miles of Maryland Route 295. Given the scope of the conditional-use authorized under Bill 82-09, that PPE is an LLC seeking to implement that conditional use, and that the subsequent certification of the petition for referendum stayed the law from taking effect, PPE is an aggrieved party and has standing to seek judicial review of the County Board of Elections' decisions.
CASM also argues that Petitioner Spear Lancaster lacks standing to seek judicial review because, while he is a registered voter, he is not an aggrieved party. Generally, a party must bean aggrieved person to have standing to seek judicial review of an agency's
final decision. See Id. However, one may have special statutory standing if authorized by a legislative body. See, e.g., Handley v. Ocean Downs, 151 Md. App. 615 (2003) (statute conferred standing to a taxpayer to seek judicial review). Section 6-209(b) ofthe Election Law article, titled "Judicial Review," gives "any registered voter" standing to file a complaint for declaratory relief with respect to any petition. Md. Code Ann., Elec. Law § 6-209(b). Given the statutory standing conferred to registered voters by the General Assembly, Spear Lancaster has standing to bring this action before this Court.
II CASM's Standing to File the Petition for Referendum
PPE argues that the petition for referendum is deficient because the Maryland Jockey Club, not CASM, is the true sponsor. CASM argues that it was the one who coordinated the signature collection drive and had always disclosed the Maryland Jockey Club's financial support of the ballot initiative and expenditures related to its contributions.
The sponsor of a petition is "the person who coordinates the collection of signatures for a petition and who, if the petition is filed, is named on the petition page as required by § 6-201 of [the Election Law Article]." Md. Code Ann., Elec. Law § 6- 101 (j). When filing a petition, the sponsor must submit a certified statement listing: (1) the name and mailing address of any contributor to the expense of the petition and the amount of the contribution; and (2) the name and mailing address of each person to whom and for what service an expenditure was paid or promised on account of the petition or which is to be paid. Anne Arundel Co. Code § 3-2-106(a).
On March 5, 2010, CASM submitted its final filing to the County Board of Elections. Accompanied with that filing was its petition fund report. The petition fund report named CASM as the petition sponsor and Heather A. Ford as the principal officer. The schedule of receipts showed a total of $283,355.96 in contributions. Of that amount, the Maryland Jockey Club contributed $282,397.46. CASM also disclosed that it expended $277,355.96 of these contributions, of which CASM paid FieldWorks, LLC, a totalof$132,518.15.
There is no dispute that the Maryland Jockey Club provided significant financial support for the ballot initiative. However, § 6-101 (j) of the Election Law Article defines the petition sponsor as one who coordinates the petition, not as one who funds the petition. Additionally, it is obvious that the local legislature understood this distinction when it passed § 3-2-106(a) because the sponsor was required to disclose contributions and expenditures. This legislation shows that the petition sponsor need not necessarily be the same entity that provides financial support.
STANDARD OF REVIEW
Judicial review of an agency decision is an exercise of the circuit court's original jurisdiction. Kim v. Comptroller of the Treasury, 350 Md. 527, 536 (1998). Title 7 section 201, et seq., of the Maryland Rules governs the procedure for judicial review of administrative agency decisions in the circuit court. See Md. Rules 7-201, et seq. "A Court's role is limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." United Parcel
Serv., Inc. v. People's Counsel, 336 Md. 569, 576-7 (1994). Where the agency's error is one of law, the reviewing court may reverse or modify the decision of the agency for that reason alone. Shanty Town Assoc. v. Dep 't of Env 't, 92 Md. App. 103, 116 (1990).
If the final agency decision is not based solely on an error of law, a reviewing court shall apply the substantial evidence test, but it must not itself make independent findings of fact or substitute its judgment for that of the agency. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Dep't of Pub. Safety & Carr. Servs. v. PHP Healthcare Corp., 151 Md. App, 182, (2003). The scope of review is limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. Bait. Lutheran High School Ass 'n v. Employment Sec. Admin., 302 Md. 649,662 (1985).
II Record Review
PPE argues that the Court may review this matter de novo. The limited exception where a court may review an agency decision de novo exists where an agency's "basic function is so essentially judicial that it can be considered to be supplanting what might have been a court function." Dep 't of Nat. Res. v. Linchester Sand & Gravel Corp., 274 Md. 211 (1975). However, when it held unconstitutional an enabling statute authorizing de novo review of wetland permits, the Court of Appeals noted that Worker's Compensation Commission decisions are likely to be the singular example where judicial review is de novo because that particular type of case is a substitution for traditional common law rights and procedures while establishing a remedy otherwise subject to tort
action. Id. at 227. Judicial review of the County Board of Elections' decision to certify
the petition does not fall into this class of case.
The County Board of Elections has a team of reviewers verifying, validating, and
counting petition signatures. Each petition signature must satisfy eighteen different
criteria before being counted towards the total number of validated signatures. This
criterion is set forth pursuant to Title 6 of the Election Law Article and the promulgated
State Board of Elections' regulations. Each individual receives the scrutiny-of two
different reviewers to ensure accuracy. This is the type of case where the agency's fact
finding necessarily relies on its expertise and resources. Therefore, the Court may not
review the agency's decision de novo.
IV. No New Evidence
PPE also argues that even if the Court is limited to reviewing the record, it may
hear additional evidence not contained in the agency record because they also seek
declaratory relief, which allows discovery. Maryland Rule 7-208(c) states:
Additional evidence. Additional evidence in support or against the agency's decision is not allowed unless permitted by law.
The Court of Special Appeals explained the scope of discovery permitted during judicial
review of an agency decision:
Rule 2-504, which authorizes the issuance of a scheduling order, does not provide a right to discovery when the circuit court is reviewing the decision of an administrative agency. Rule 2-504 is set out in Title 2 of the Maryland Rules, entitled "Civil Procedure - Circuit Court," and within Chapter 500, "Trial." Consequently, Rule 2-504 sets forth the general rules for a scheduling order for civil actions filed in circuit court. The circuit court's review of the State Board's Opinion in this case is governed specifically by Title 7: "Appellate and Other Judicial Review in Circuit Court." Contained therein is Rule 7-208(c), which provides that
"[ajdditional evidence in support of or against the agency's decision is not allowed unless permitted by law."
Venter v. Bd. of Educ., 185 Md. App. 648, 687 (2009). Quoting the trial court's decision,
the Court of Special Appeals noted that one may combine a request for judicial review
and declaratory relief so long as the relief sought is not a new action separate from the
circuit court's judicial review function. Id. at 686. Therefore, even though Petitioners
seek declaratory relief, the scope of relief is within the Court's judicial review function. 5
The Court disagrees with PPE' s interpretation that the April 30, 2010,
memorandum opinion precluded the parties from participating in discovery. There are
two narrow exceptions to the "no new evidence" rule. Consumer Prot. Div. v. Consumer
Pub. Co., 304 Md. 731, 749 (1985). Under the first exception, if the court is satisfied that
the additional evidence is material and there is good reason it was not considered before
the agency, it may remand the matter, ordering that the agency hear the additional
evidence. Id. at 749. The second exception authorizes the court to hear evidence beyond
the administrative record" if it is testimony addressing an alleged procedural irregularity.
Id. at 750. With respect to these two narrow exceptions, the parties were free to
participate in discovery.
5 PPE argues that the declaratory relief available to a registered voter under § 6-209(b) of the Election Law article authorizes the discovery of additional evidence. In Doe v. Montgomery County Board of Elections, the Court of Appeals noted that pursuant to § 6-209( a) of the Election Law article, an aggrieved party may seek judicial review for injunctive, declaratory, or other type of relief. 406 Md. 697, 715 (2009). However, a registered voter seeking judicial review of an election board's decision may only seek declaratory relief. Jd. Considering the language in Doe, a petitioner's right to declaratory relief as a registered voter is within the context of seeking judicial review, not as an entirely independent cause of action.
6 In Consumer Protection Division v. Consumer Publishing Co., which was a false advertising case, the circuit court admitted testimony and exhibits about the company's market share and volume of business in Maryland, examples of similar advertising by competitors, the company's agreement with the U.S. Postal Service, and evidence of customer satisfaction. 304 Md. 731, 750 (1985). The Court of Appeals held that this evidence was inadmissible because it was not related to procedural irregularities. Jd.
During the hearing, CASM made numerous allegations of discovery violations on the part ofPPE. This Court held that PPE's expert witness and other proffered evidence outside of the agency record were not permissible by law and, therefore, did not fall within a recognized exception to the no-new-evidence rule. Since the evidence was ruled inadmissible for other legal reasons, CASM was not prejudiced by PPE's alleged conduct. Furthermore, PPE maintained that it could present its case solely relying on the agency record, which it did, providing additional support that CASM was not prejudiced by being denied access to PPE' s expert witness or any other discovery failure.
V. April 1, 2010 Petition Certification
PPE alleges that the County Board of Elections erred as a matter of law by certifying CASM's petition when there was a pending proceeding for judicial review. PPE cites § 6-210 of the Election Law Article, which states that if there is a pending judicial review, the local board is to certify a petition within two days after a final decision. Md. Code Ann., Elec. Law § 6-210(d). This procedural challenge neglects the fact that PPE did not become an aggrieved party until after the County Board of Elections' April 1, 2010, certification of the petition. Without certification, the Court has no final agency decision to review. See Doe, 406 Md. 697.
Adopting PPE's reasoning would have required the Court to dismiss the petition for judicial review and declaratory relief for lack of standing to allow the County Board of Elections to perform the certification. This not only contravenes established case law7
7 See Kim v. Comptroller a/the Treasury, 350 Md. 527 (1998).
but, the Court, having conferred with all parties to establish a scheduling order, found that proceeding as it did would ensure compliance with the statutory mandate that a court review the agency decision in an expedited manner. See Md. Code Ann., Elec. Law § 6-
VI Referability of Bill 82-09 A. Bill 82-09 is not an appropriation bill.
While the registered voters of Maryland reserve the power of referendum to approve or reject legislation passed by the General Assembly and Governor at the polls, "[ no] law making any appropriation for maintaining the State Government ... shall be subject to rejection or repeal under [Article XVI]." Md. Code. Ann., Const. art., § 2. Anne Arundel County residents' have a similar limitation to their power of referendum, where "[no] ordinance making any appropriation for current expense for maintaining the County government ... shall be subject to rejection or repeal under [Anne Arundel County Chart § 308]." Anne Arundel Co. Charter, § 308(a). Therefore, under both reserved powers of referendum, a law that is both an appropriation and for maintaining the government may not be subject to referendum.
"An appropriation of public funds is made by a constitutional mandate or a lawful legislative act whose primary object is to authorize the withdrawal from the State treasury of a certain sum of money for a specified public object or purpose to which such sum is to be applied." Dorsey v. Petro It, 178 Md. 230, 245 (1940). Bill 82-09 authorizes VL T facilities as a conditional use in the WI Industrial Park zoning district and in regional commercial complexes. It also defines certain terms related to VL T facilities, sets
parking space requirements for such facilities, and places restrictions on VL T facility
locations with respect to other permitted and conditional uses. According to the plain
language of Bill 82-09, it makes neither an appropriation nor does it serve to maintain the
State or County government. However, this Court's analysis must not end with this
B. Interdependent and Legally Inseparable Part of an Appropriations Package
PPE argues that Bill 82-09 is interdependent and legally inseparable from a larger
appropriations package for maintaining the State Government and, therefore, is not
subject to referendum. CASM argues that Bill 82-09 is merely a zoning law.
1. The Maryland Education Trust Fund act is an Appropriation
In determining whether Bill 82-09 is interdependent and inseparable from an
appropriation package, the Court must first address whether the Maryland Education
Fund act is an appropriation. In Dorsey v. Petrott, the Court of Appeals explained the
procedure related to the passage of the State budget. 178 Md. 230.8 It noted that the
budget bill does not provide a means of raising revenue for its appropriations. Id. at 243.
As a matter of public necessity, revenue measures that provide funds for budget bill
appropriations are an integral part of the appropriation. Id. at 243-44. Therefore, these
revenue measures are not subject to referendum even if disbursed through the provisions
of the budget without any express authorization for disbursement. Id. at 244. In a more
recent case, the Court of Appeals reiterated that statutes raising revenues for
8 The Governor submits a budget bill to the General Assembly with an itemized estimate of governmental and general appropriations, including appropriations "for the establishment and maintenance throughout the State of a thorough and efficient system of public schools." Dorsey, 178 Md. at 241. The General Assembly may not amend the budget bill to affect provisions made by the laws of the State for the establishment and maintenance of a system of public schools. Id. at 241-42.
constitutionally mandated purposes, like the school fund, are not subject to repeal through the referendum process. Bait. Co. Coalition Against Unfair Taxes v. Bait. Co., 321 Md. 184, 200 (1990).
The primary purpose for authorizing VL T facilities in Maryland is to raise revenue for public school education, public school construction and capital improvements, and construction of capital projects at community colleges and public senior higher education institutions. Md. Code Ann., Const. art. XIX, § 1 (c)( 1). Article XIX also limits the awarding of a video lottery operation license in Anne Arundel County to a video lottery facility located within two miles of Md. Route 295. Md. Code Ann., Const. art. XIX, § 1 (c)(3)(i). The facility itself must comply with all applicable local planning and zoning laws. Md. Code Ann., Const. art. XIX, § 1 (c)(5).
The General Assembly created the Maryland Education Trust Fund, which is to be funded by a significant percentage of revenue generated by VL T facilities. Md. Code Ann., State Gov't § 9-1A-30. This is a special non-lapsing fund in which unspent funds remain in the account, as opposed to being transferred to the general fund at the end of the fiscal year. Md. Code Ann., State Gov't § 9-1A-30. The money in the Maryland Education Trust Fund is to be used to fund public elementary and secondary school education and public school construction and improvement. Md. Code Ann., State Gov't § 9-1A-30(c). Any expenditure from the fund is to be made each fiscal year in accordance with the State budget. Md. Code Ann., State Gov't § 9-1A-30(d). While § 9- lA-30(d) of the State Government article only authorizes expenditures from the Maryland Education Trust Fund pursuant to the state budget, the law raises revenues for a
constitutionally mandated purpose, see Md. Code Ann., Const art. VIII, § 3 and Md. Code Ann., Const art. XIX, and, therefore, is an appropriation.
2. Bill 82-09 - Interdependent and Legally Inseparable
For Bill 82-09 to be non-referable, this Court must determine whether Bill 82-09 is part of an interdependent and legally inseparable State appropriation package. PPE directs the Court to Kelly v. Marylanders for Sports Sanity, Inc., 310 Md. 437 (1987).
Kelly dealt with voters' efforts to refer two pieces of legislation passed by the General Assembly authorizing the Maryland Stadium Authority ("Authority") to acquire Camden Yards for a stadium. The General Assembly created the Authority by passing Chapter 283 in 1986. Kelly, 310 Md. at 439. This legislation designated the Authority as a public corporation and an instrumentality of the State whose purpose was to determine the location of, construct, and maintain facilities to the extent it deemed necessary. Id. at 439. In December 1986, the Authority recommended Camden Yards as the location of a new stadium. However, it was not authorized to acquire the property without the General Assembly's permission. Id. at 441.
To facilitate the Authority's acquisition of Camden Yards, the General Assembly introduced and passed three bills. !d. Chapter 122 entitled, "Maryland Stadium Authority - Approval of Facility Site at Camden Yards," authorized the Authority to construct or enter into a contract for a facility on the Camden Yards site. Id. This bill was merely a site bill, making no appropriation for maintaining the State Government. [d. Chapter 123 entitled, "Maryland Stadium Authority - Powers and Duties," among several things, authorized the acquisition of the Camden site by ordinary or quick take
condemnation and was an appropriations bill. Id. The enactment of Chapter 123 was contingent upon the passage of Chapter 122. Id. at 442.
Chapter 124 entitled, "Maryland Stadium Authority - Financing," recited the General Assembly's intention that, to the maximum extent economically justifiable, the Authority "finance the construction of the facility with private, rather than public, investment" and solicit and evaluate proposals from private investors for financing such structures, thereby minimizing the risk to the State's revenue base and credit ratings. Id. "The bill also added new § 7-312 to the State Finance and Procurement Article for the purpose of creating a 'Maryland Stadium Facilities Fund' - a 'special, nonlapsing fund,' to be 'separately' held by the State Treasurer. It consisted of 'moneys that may be appropriated, transferred, credited, or paid to it from any source.'" Id. at 443. Any balance in the Facilities Fund that exceeds $24 million at the end of the fiscal year had to be transferred to the Dedicated Purpose Account of the State Reserved Fund. Id. at 443- 44. These three bills were enacted by the General Assembly and signed into law by the Governor, before taking effect on June 1, 1987. Id. at 446.
Opponents of the Camden Yards Stadium, acting through Marylanders for Sports Sanity (MASS), sought to petition chapters 122 and 124 to referendum under Article XVI of the Maryland Constitution. Id. The Greater Baltimore Committee (GBC) and the Secretary of State intervened and filed motions for summary judgment, arguing that Chapter 124 was nonreferable because it was a law making an appropriation for maintaining the State Government. Id. at 447. Additionally, they argued that chapters
122, 123, and 124 were a single legislative enactment, contending that Chapter 122 was also nonreferable because it was legally inseparable from chapters 123 and 124. Id.
MASS argued, and the circuit court agreed, that while Chapter 124 created a comprehensive financing scheme to raise funds, it did not, itself, disburse any of the funds. Id. at 448. At most, Chapter 124 was a revenue raising measure of indefinite sums, not an appropriations act. Id. The circuit court also found that Chapter 122 did not constitute an appropriation for maintaining state government because it neither raised revenue nor appropriated funds. It simply authorized the Authority to acquire the Camden Yards site for a sports facility. Id.
On appeal, one of the issues the Court of Appeals addressed was "whether Chapter 122, which concededly [made] no appropriation [was] nevertheless part of an interdependent and legally inseparable package of legislation with chapters 123 and 124 and thus [was] nonreferable under Article XVI." Id. at 450. In holding that Chapter 122 was nonreferable, the Court of Appeals noted that the three stadium bills were introduced as a single package to the General Assembly. Id. at 470. Since the bills were enacted during the same session and dealt with the same subject matter, the Court of Appeals stated that they must be read together to determine their proper construction. Id. at 472. Read in conjunction with the other two bills, the Court of Appeals noted that the Camden Yard site was the essential "building block" that the rest of the legislation relied upon. Id. at 474. If the stadium bills were independent pieces of legislation and Chapter 122 was subject to referendum, the referendum process would "thwart the legislative design" as well as "scuttle the entire project by fatally undermining its dominant purpose - to
finance the acquisition of a site upon which to construct sports stadiums." [d. Based upon these factors, the Court of Appeals held that Chapter 122 was not subject to a referendum vote because it was an interdependent and legally inseparable piece of an appropriations package. [d.
There are some obviously distinguishable facts between Kelly and the case at bar.
Kelly dealt with three pieces of legislation, introduced contemporaneously, before a single legislative body. Here, the laws span a two-year period of time and are a product of several jurisdictions - a ballot referendum and actions by the General Assembly and County Council. Kelly was an attempt to exercise the right to refer State laws that were interdependent with Sate appropriations pursuant to a State right of referendum. Here, CASM seeks to subject a county law to referendum that is not an appropriation on its face but is allegedly interdependent with a State appropriation. In Kelly, the law authorized a governmental body, the Stadium Authority, to acquire the subject property. In this case, Bill 82-09 amends zoning to create a conditional use for a private landowner. In Kelly, the financial and budgetary calculations associated with the appropriations packages were necessarily dependent upon the acquisition of the Camden Yards site. Here, there is no indication that the General Assembly'S budgetary calculations relating to the Maryland Education Trust Fund act necessarily relied on Arundel Mills being a VL T location. In Kelly, the entire legislative package depended on the Camden Yards site. Here, the State Constitution authorizes five sites throughout the State, one being in Anne Arundel County. Additionally, acquiring the Camden Yards site was the essential "building block" the other pieces of legislation relied upon in Kelly. Here, the zoning change is a
final step anticipated by the voters, General Assembly, and State Gaming Commissionas evidenced by the language in Article XIX of the State Constitution, the Maryland Education Trust Fund act, and the condition ofPPE's VLT license.
There are also some striking similarities. In Kelly, the Stadium Authority selected the Camden Yards site for the stadium but could not act without the General Assembly's authorization. Here, the Video Lottery Facility Location Commission awarded PPE a VL T license at Arundel Mills Mall but the final award was contingent on the County Council creating the necessary zoning. In Kelly, the different legislative bills referenced each other and if one bill failed the entire legislative purpose failed. Here, one of the conditional use requirements under Bill 82-09 requires the property to comply with Article XIX's location requirements. Additionally, while there are a total of five licenses authorized throughout the State, there may only be one per county and Baltimore City and there are only five authorized jurisdictions. Therefore, the Anne Arundel County VLT location and State's five-license-authorized-maximum is entirely dependent on the zoning measure. In Kelly, subjecting the Camden Yards site legislation to referendum would "thwart" and "fatally undermine" the dominant legislative purpose, as would be the case if Bill 82-09 was subject to referendum.
This Court finds Kelly instructive. While it agrees with all parties that Bill 82-09 is not an appropriation bill, it does find Bill 82-09 to be interdependent and legally inseparable from a larger appropriations package. The Maryland Education Trust Fund act generates revenue for a constitutionally mandated purpose and will maintain State and local government. To further its purpose, it establishes the process for collecting and
depositing revenue into a trust fund account. VL T facilities are a necessary element to
this revenue raising measure. The State Gaming Commission awarded a VL T license to
PPE, conditioned on the location receiving the proper zoning. Subsequent to the
preliminary award, the County Council passed Bill 82-09, specifically conditioning the
VL T use on a property being in compliance with the location requirements specified
under Article XIX. If Bill 82-09 was subject to referendum, the constitutional and
legislative purposes set forth under Article XIX and the Maryland Education Trust Fund
act would be delayed and thwarted, if not fatally undermined. Therefore, given Bill 82-
09's interdependent and legally inseparable nature from a constitutionally mandated
appropriation law to maintain public education, Bill 82-09 is not subject to referendum."
VII. Circulator's Affidavit and Form of Signature Line
Although this Court concludes that Bill 82-09 is not a matter subject to
referendum, given the nature of this litigation and breadth of issues presented by the
parties, as well as the need to expedite the process, the Court will address the parties'
PPE argues that the Court must decertify and invalidate the entire petition because
the form of the circulator's affidavit does not comply with § 308(b) of the Anne Arundel
County Charter and that the form of the signature line does not comply with § 3-2-1 04(b)
of the Anne Arundel County Code. Respondents argue that the County's Charter and
9 CASM argues that even if Bill 82-09 is an "appropriation," it is not one "for current expenses for maintaining County government" and is, therefore, subject to referendum. While this Court held that Bill 82-09 is not an appropriation, it did find that the Bill is interdependent and legally inseparable from a State revenue raising measure for a constitutionally mandated purpose. Applying the reasoning in Kelly, if a State bill of this nature is not subject to referendum because it would ultimately thwart and undermine the legislated purpose, a local ordinance that has the same effect and is interdependent is also not subject to referendum.
Code, with respect to the form of the circulator's affidavit and signers' signature lines,
are preempted by State Constitution and law. PPE argues that, absent a conflict, there
can be no preemption.
A. Preemption Generally
Article XI-A of the Maryland Constitution authorizes a county to adopt a charter
form of government. The General Assembly, by public general law, provides a grant of
express powers to the charter counties. Md. Const. Art. XI-A § 2; see Md. Code Ann.,
Article 25A. A charter county must have an elected local legislative body vested with
law-making power. Md. Code Ann., Const. XI-A § 3. After a county adopts a charter,
the General Assembly may not enact a public local Iaw'" on any subject covered by the
Express Powers Act and a charter county may only exercise its powers to the extent that
they are not provided for by Public General Law. See Md. Code Ann., Const. XI-A § 4;
Tyma v. Montgomery Co., 369 Md. 497, 506 (2002). A local law is rendered inoperative
if it is preempted by State or federal law, which may happen by conflict, express, or
implied preemption. See Allied Vending v. Bowie, 332 Md. 279, 299 (1993).
B. Form of Circulator's Affidavit Preempted by State Law
PPE argues that the County Board of Elections erred as a matter of law by
approving the form of the circulator's affidavit attached to each petition page because the
affidavit did not strictly comply with § 308's "personal knowledge" requirement.
Respondents State and County board of elections argue that § 308(b) of the Anne
10 A law that applies to multiple counties, including the City of Baltimore, is not deemed to be a local law. Md. Const. Art. XI-A § 4. A Public General Law pertains to two or more geographical subdivisions. Tyma, 369 Md. at 507.
Arundel County Charter is preempted by State Constitution, law, and regulation. Upon
reviewing the applicable statutes, regulations, and case law, this Court finds that the
"personal knowledge" requirement under § 308(b) is preempted by conflict and by
implication because the General Assembly has occupied the field of election law.
When determining whether a local law has been preempted by implication, the
primary factor the Court considers is the comprehensiveness with which the General
Assembly has legislated the field. Allied Vending, 332 Md. at 299. The secondary
factors the Court may consider are:
1. whether the local law existed prior to enactment of the State laws governing the subject matter;
2. whether the State laws provided for pervasive administrative regulation;
3. whether the local ordinance regulates an area in which some local control has traditionally been allowed;
4. whether the State law expressly provides concurrent legislative authority to local jurisdictions or requires compliance with local ordinances;
5. whether a state agency responsible for administering and enforcing the State law has recognized local authority to act in the field;
6. whether the particular aspect of the field sought to be regulated by the local government has been addressed by State legislation; and
7. whether a two-tiered regulatory process existing if local laws were not preempted would engender chaos and confusion.
Id. at 299-300.
The Court of Appeals applied this analysis in County Council v. Montgomery
Assoc., 274 Md. 52 (1975). Montgomery Association stemmed from a challenge to the
Montgomery County Council's enactment of campaign finance laws that were similar to
the General Assembly's campaign finance laws. Id. The Montgomery Association
argued that the General Assembly had occupied the area of law related to campaign finance, barring the local legislature from enacting laws related to that subject matter. Id.
In rendering its decision, the Court of Appeals recognized that the General Assembly had the constitutional duty to protect the electoral process. Id. at 60. In accordance with this duty, the General Assembly enacted a comprehensive State Election Code. Id. The Court of Appeals noted that Article 33, which later served as the basis for the current Election Law article, contained detailed provisions "covering every aspect of the electoral process" and provided for administrative supervision of elections on state and local levels. Id. at 61. The Court of Appeals stated that "[this] pervasive state administrative control of the election process, on both statewide and local levels, is a compelling indication that the General Assembly did not intend that local governments should enact election laws, but rather intended that the conduct and regulation of elections be strictly a state function." Id. at 62. In analyzing the extent of the General Assembly regulation of campaign finance and spending, the Court of Appeals noted that each county ordinance had a state legislation counterpart. Jd. It also noted that if it upheld the county ordinances, the dual system of regulating election finances existing in Montgomery County would cause chaos. Jd. "In view of the completeness of the State's campaign finance regulatory plan, [the Court of Appeals] cannot reasonably conclude that the Legislature intended to allow local legislation in the field of campaign finances which would inevitably lead to utter confusion." Id. at 64.
Prior to 1998, the State Election Code provided the following with respect to the petition process:
Petition - Form; filing. (a) Form. - The State Administrative Board of Elections Laws shall prescribe the form and adopt verification procedures for petitions filed under Article XI-A or Article XVI of the Constitution of Maryland.
(b) Filing. - Petitions filed under the provisions of Article XVI of the Constitution of Maryland shall be filed with the Secretary of State who shall forward each petition to the State Administrative Board of Elections.
Md. Ann. Code art 33, § 23-3 (1998). While Article 33 was silent with respect to the
form and procedure of local petitions, Article 25A § 6 of the Maryland Code, which
reserves the right of referendum to the registered voters of a chartered county, states that
"[in] implementing procedures relating to the power of referendum, the county charter or
local laws enacted in accordance with the legislative procedure of the county council
shall provide adequate details with respect to time, notice, and form." Md. Ann. Code
Art. 25A, § 8(b).
In setting forth the form of a petition, § 308(b) of the Anne Arundel County
Charter requires that a circulator's affidavit be based on "personal knowledge" that each
signature is genuine and bona fide and "best" knowledge that the signer is a registered
voter in Maryland and Anne Arundel County. Anne Arundel County Code § 3-2-104(b)
states that "[each] signature shall be followed by the residence of the signator, the
election district and precinct where the signator is registered as a voter, and, immediately
below the signature either printed or typed, the name of the signator." Anne Arundel
County Code § 3-2-104(b). These provisions are consistent with the authority provided
under Article 25A § 6.
However, in 1998, the legislature re-codified Article 33 into the Election Law
Article's present form. Ch. 585, 1998. While Article 33 §§ 4B-I, 7-1, 12-6(a)(2), and
23-3 served as the basis for Title 6 of the Election Law article, this re-codification
embodied a comprehensive overhaul of the former article. 11 See Md. Code Ann., Elec.
Law §§ 6-101, et seq. The new election law article defined a petition as "all of the
associated pages necessary to fulfill the requirements 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." Md. Code Ann., Elec. Law § 6-101(i). While
Article 33 § 23-3 (1998) limited the State Board of Elections' regulatory power to Article
XI-A and Article XVI petitions, the re-codified article imposed no such limitation. See
Md. Code Ann., Elec. Law § 6-103(a). Furthermore, local boards of elections are now
charged to act in accordance with the Election Law article and State Board of Election's
regulations. Md. Code Ann., Elec. Law § 2-202(b). Local boards of elections may adopt
regulations they feel are necessary to perform their duties so long as the local regulation
is filed with and approved by the State Board of Elections. Md. Code Ann., Elec. Law §
After the adoption of the Election Law Article, the State Board of Elections
promulgated the Maryland regulations with respect to the filing of petitions in 2000. See
Md. Code Regs. 33.06.01, et seq. These regulations not only govern the State Board of
Elections, but also direct that activities of local boards of elections. See, e.g., Md. Code
II Title 6 provides definitions related to petitions; the grant of authority to the State Board of Elections to promulgate regulations with respect tot he form and content of a petition, procedures for circulation, verification, and counting of petitions and signatures; the required contents of a petition; the scope of advance determinations; information signers are required to provide; requirements for the circulator's affidavit; determinations made at the time of a petition's filing; methods to verify signatures; the certification of petitions; means to seek judicial review; and the schedule of process for each step during the petition process. See Md. Code Ann., Elec. Law Art. §§ 6-101, et seq.
Title 6 of the Election Law Article is a comprehensive body of law with respect to the petition process. There is no dispute that § 308 of the Anne Arundel County Charter and § 3-2-1 04(b) existed before the General Assembly adopted the Election Law article in 1998. However, as evidenced by § 6-103 and COMAR 33.06.01, et seq., the General Assembly provided for pervasive administrative regulation. Article 25A § 6 provided local control over referendum petitions when the State law, Article 33 § 23-3, only applied to Article XI-A and Article XVI petitions. The re-codified Title 6 of the Election Law article "applies to any petition authorized by law to place . . . a question on the ballot." See Md. Code Ann., Elec. Law § 6-102. This change shows the General Assembly's intent to expand the regulation of petitions beyond Article XI and Article XVI petitions. The State Board of Elections recognizes local authority only where it is authorized by statute or COMAR. See, e.g., Md. Code Regs. 33.06.05.01 (Local election director verifies a petition filed with the local board). Additionally, the form of the circulator's affidavit and signature lines are addressed by State Constitution, legislation, and regulation. Finally, the case before the Court epitomizes how a two-tiered regulatory process existing if the county provision were not preempted engenders chaos and confusion.
With respect to § 308 of the Anne Arundel County Charter's requirement for a circulator's affidavit based upon personal knowledge, this Court finds that § 308 has been preempted by State law. Section § 6-204(b) of the Election Law article requires that the circulator's affidavit comply with requirements set forth by regulation. Md. Code Ann., Elec. Law § 6-204(b). COMAR 33.06.03.08 requires that the circulator's affidavit state
that the circulator's printed or typed name, residence address, and telephone number are
true and correct; the circulator is over 18 years of age; the circulator personal1y observed
each signer as he or she signed; and that it is to the best of the circulator's knowledge and
belief all signatures on the petition are genuine and signers are registered voters in the
State. Md. Code Regs. 33.06.03.08. Given the level of detail and thoroughness
established under Title 6 of the Election Law article and COMAR, the County Board of
Election did not err as a matter of law when it approved the form of CASM' s circulator's
Even if the Court assumes § 308 of the Anne Arundel County Charter was not
preempted by State law, the Court finds that the circulator's affidavit is sufficient. The
circulator's affidavit reads as follows:
Under penalties of perjury, I swear (or affirm) that: (a) I was at least 18 years old when each signature was obtained; (b) the information given to the left identifying me is true and correct; (c) I personally observed each signer as he or she signed this page; and (d) to the best of my personal knowledge, information and belief: (i) all signatures on this page are genuine and bona fide, and (ii) all signers are registered voters of Maryland and Anne Arundel County.
(emphasis added). The County Charter requires a circulator's affidavit based upon
personal knowledge that the signature is genuine and bona fide. PPE argues that this
establishes some sort of requirement that the signer present a form of identification.
However, there is no basis for this under State or County law. In fact, the circulator's
affidavit states that the circulator "personally observed each signer as he or she signed"
the petition. This Court finds that a circulator who, under the penalties of perjury, swears
that he or she "personally observed" one signing a petition is the functional equivalent of
having personal knowledge that a signature is genuine and bona fide. Therefore, even
absent preemption, the County Board of Elections did not err in its conclusion that the
circulator's affidavit was appropriate.
PPE argues that the form of the signature line creates a fatal defect that mandates
decertification of the petition. Citing Barnes, it argues that requiring "the name of the
signer to be printed or typed below his signature" is an appropriate method to "safeguard
the privilege [of referendum] which the Constitution grants." See Barnes v. State ex rei.
Pinkney, 236 Md. 564, 571-72 (1964). It is worth noting that at the time of Barnes,
Article XVI's affidavit and verification requirement read as follows:
there shall be attached to each such paper an affidavit of the person procuring the signatures thereon that of the said person's own personal knowledge every signature thereon is genuine and bona fide, and that the signers are registered voters of the State of Maryland, and the City of Baltimore, or County, as the case maybe, as set opposite their names, and no other verification shall be required.
Ch. 673 (1914). Given that the petition's validity solely relied on the veracity of the
circulator's affidavit and there was an express Constitutional limitation for additional
verification, strict compliance with the constitutional, provision was imperative. In 1976,
the people of Maryland amended Article XVI to read:
There shall be attached to each paper of signatures filed with petition an affidavit of the person procuring the signatures on such paper that of the person's best knowledge and belief every signature on it is genuine and bona fide, and that the signers are registered voters of the State of Maryland, and the City of Baltimore, or County, as the case may be, as set opposite their names. The General Assembly shall prescribe by law the form of the petition for referendum, the manner of verifying the authenticity of petitions, and other administrative procedures necessary and not in conflict with this article.
Ch. 548 (1976). The change removed the personal knowledge requirement and authorized a means to verify the authenticity of petitions. Subsequent legislation set forth the requirements for verifying and validating petition signatures, along with vesting the State Board of Elections with authority to promulgate rules to facilitate this process.
PPE's argument with respect to the form of the petition's signature lines is truly a matter of form over substance. Local boards of elections are required to act in accordance with the State Election Law article and regulations adopted by the State Board of Elections. See Md. Code Ann., Elec. Law § 2-202(b). CASM's petition complied with the State Board of Election's promulgated form for a local referendum. The subject matter contained in the petition satisfies both State and local requirements. Therefore, the County Board of elections did not err when it approved the form of the petition.
MIXED ISSUES OF LAW AND FACT
PPE presented two categories, or to adopt the parties' pejorative language, "buckets," consisting of eighteen different types of challenges to the petition pages and signatures. The first bucket challenged the County Board of Elections legal and factual determinations with respect to validating and counting signatures. The second bucket challenged signatures that PPE alleged to be "forged, fraudulent, or otherwise invalid."
In conducting its review, the Court applied the strict compliance standard when reviewing matters of law and there is no issue of preemption. With respect to the County Board of Elections' factual determinations, the Court determined whether the agency's decision was supported by substantial evidence. Additionally, while the Court did use
PPE's categorical challenges as a guide, it reviewed the entire agency record, including
evidence in support of and against the agency's decision.V The record consisted of 4,998
petition pages containing 40,408 signatures and the transmitted agency record.
VII Substantial Evidence and the Board of Elections' Decision
PPE presents several legal and factual grounds to challenge individual signatures.
As the Court already noted, it may strike signatures that are invalid as a matter of law,
giving little deference to the agency. However, if the County Board of Elections bases its
decision with respect to the validity of a signature upon a factual determination, the Court
is to determine whether substantial evidence supports the agency's decision.
A. Missing Signature or Date in Circulator's Affidavit
"Each signature on the page shall include an affidavit to be signed and dated by
the circulator." Md. Code Ann., Elec. Law § 6-204(a); Md. Code Regs. 33.06.04.08A. If
a petition page fails to either have a signature or date, the Court must invalidate the
signatures on that page, as a matter of law. If the signature and date are present and
substantial evidence supports the agency's determination, this Court will not disturb the
agency's finding of fact. Upon reviewing the entire agency record, the Court finds that
the County Board of Elections' determination with respect to valid and invalid petition
pages based upon the presence of a dated circulator's signature on the affidavit is
supported by substantial evidence.
12 The Court would like to 'note that the County Board of Elections' factual determinations to strike signatures were all supported by substantial evidence. Additionally, it affirms the agency's decision with respect to signatures stricken for legal deficiencies.
B. Missing Printed Name, Address, or Telephone Number
Each signature page must include the identification of the individual circulator.
Md. Code Regs. 33.06.03.07A. The identification includes the individual's printed name,
complete residential address, and telephone number. Md. Code Regs. 33.06.03.07B. If
an individual page is missing this information, as a matter of law, the Court must strike
all signatures from the page that the County Board of Elections found to be valid. Upon
reviewing the entire agency record, the Court strikes nine signatures 13 because the
circulator's affidavit failed to have the identification information required by regulation.
C. Date on Signature Line is Missing or Incomplete
When signing a petition, each signer shall provide the date of signing the petition.
Md. Code Ann., Elec. Law § 6-203(a)(2)(iii); Md. Code Regs. 30.06.03.06B(2)(a). PPE
argues that a petition signature that does not include a complete date is invalid.
Respondents argue that if the date is missing, the County Board of Elections may deduce
the date from other dates on the page. This Court finds that, as a matter of law, a missing
petition signer date renders the signature invalid. However, if the petition signer provides
a date and substantial evidence supports the agency's determination to keep or strike the
signature, the Court will not disturb the agency's decision. Upon reviewing the entire
agency record, the Court, as a matter of law, strikes five signatures'? for not including the
date of signing. The Court finds that the agency's decisions with respect to the other
signatures are supported by substantial evidence.
13 The Court strikes the following signatures: Page: 103, Lines 1,2,3, and 4; Page: 2378, Lines 1,2,3,4, and 6.
14 The Court strikes the following signatures: Page: 551, Line 9; Page 1382, Page: 8; Page: 1850, Line 10; Page: 2137, Line 9; Page: 2670, Line 3.
D. The Signature Post-Dates the Circulator's Affidavit
A signature must be removed from the petition if the signature date is later than
the date accompanying the circulator's affidavit. Md. Code Ann., Elec. Law § 6-
203(b)(5). The Court finds that a circulator affidavit's date that pre-dates all of the
signature-line dates on the page questions the veracity of the affiant. Therefore, it is
appropriate to strike all remaining validated signatures on the deficient page. Upon
reviewing the entire agency record, the Court finds, as a matter of law, that fifteen
signatures'S are invalid because the date of the circulator's affidavit pre-dates the petition
E. The Signature Significantly Pre-Dates the Affidavit
Petitioners argue that over 500 signatures "significantly predate" the circulator's
affidavit. However, there is no legal basis to justify having this Court strike signatures on
F. The Printed Name Does Not Exactly Match the Signed Name
"When signing a [petition), each signer shall print the signers name as it was
Md. Code Ann., Elec. Law § 6-203 (a)(2)(i); Md. Code Regs.
33.06.03.06(B)(2)(b). As a matter of law, the signer must provide this information.
However, once provided, the issue is whether substantial evidence supports the County
Board of Appeals decision to validate or invalidate the signature. Upon reviewing the
15 The Court strikes the following signatures: Page: 260, Lines 1,2,3,5, 7, and 9; Page: 527, Lines 1,3, and 8; Page: 1878, Line 2; Page: 2354, Lines 2, and 3; Page: 3150, Lines 1,2, and 6;
entire agency record, the Court strikes eleven signatures" because substantial evidence
does not support the County Board of Elections' conclusion that those signatures are
G. The Name on the Petition Does Not Match Typed Name on Voter Registration Files
"The purpose of signature verification is to ensure that the name of the individual
who signed the petition is a registered voter." Md. Code Ann., Elec. Law § 6-207(a)(2).
The signer provides certain information, pursuant to §§ 6-203(a) and 6-203(b) of the
Election Law Article, which facilitates the local board of elections determination that the
signer is a registered voter. If substantial evidence supports the County Board of
Elections' determination that the person signing the petition is a registered voter in Anne
Arundel County, the Court will not disturb the agency's finding. Upon reviewing the
entire agency record against the voter registration database, the Court strikes twenty-five
signatures'? because substantial evidence does not support the County Board of
Elections' conclusion that the signatures are valid.
H The Address is Missing or Incomplete
When signing the petition, each signer shall provide their current residence
address, including house number, street name, apartment number (if applicable), town,
and ZIP code. See Md. Code Ann., Elec. Law § 6-203(a)(2)(ii); Md. Code Regs.
16 The Court strikes the following signatures: Page: 105, Line 5; Page: 780, Line 3; Page: 1281, Line 3; Page: 1860, Line I; Page: 1865, Line 5; Page: 2513, Line 6; Page: 2697, Line 9; Page: 2881, Line 9; Page: 2919, Line I; Page: 4743, Line 2; Page: 4743, Line 3.
17 The Court strikes the following signatures: Page: 258, Line 7; Page: 492, Line 4; Page: 746, Line 4; Page: 784, Line 7; Page: 820, Line 6; Page: 1415, Line 6; Page: 1420, Line 7; Page: 1866, Line 6; Page: 3075, Line 3; Page: 3217, Line 5; Page: 3355, Line 3; Page: 3733, Line 4; Page: 3753, Line 3; Page: 3909, Line 7; Page: 4284, Line 2; Page: 4338, Line 9; Page: 4559, Line 4; Page: 4590, Line 8; Page: 4655, Line 3; Page: 4738, Line 2; Page: 4746, Line 3; Page: 4763, Line 9; Page: 4766, Line 2; Page: 4968, Line 5; Page: 4975, Line 5.
33.06.03.06(B)(2)(c). PPE argues that a signer who provides an abbreviation for his or
her address renders the signature invalid. The Court finds that if the signer complied with
the statutory and regulatory requirements and there is substantial evidence to support the
County Board of Elections' validation or invalidation of a signature based upon those
grounds, the agency's determination shall not be disturbed. Upon reviewing the entire agency record, the Court, as a matter of law, strikes twenty-nine signatures" from the
I. The Signer Provided a P. 0. Box Rather Than a Residential Address
When signing the petition, each signer shall provide their current residence
address, including house number, street name, apartment number (if applicable), town,
and ZIP code. See Md. Code Ann., Elec. Law § 6-203(a)(2)(ii); Md. Code Regs.
33.06.03.06(B)(2)(c). The Court agrees with PPE's contention that a signature is invalid
if it is accompanied by a P.O. Box and no residential address. However, it does not agree
with PPE's position that the inclusion ofa P.O. Box, in addition to the signer's residential
address, invalidates the signature. Upon reviewing the entire agency record, the Court
strikes two signatures I 9 because they provided a P.O. Box instead ofa residential address.
18 The Court strikes the following signatures: Page: 641, Line 2; Page: 641, Line 3; Page: 649, Line 2; Page: 689, Line 3; Page: 947, Line 10; Page: 1018, Line 3; Page: 1018, Line 8; Page: 1321, Line 3; Page: 1352, Line I; Page: 1544, Line 6; Page: 1575, Line I; Page: 1575, Line 3; Page: 1794, Line 5; Page: 1794, Line 6; Page: 1794, Line 7; Page: 1864, Line 9; Page: 2326, Line I; Page: 2326, Line 2; Page: 2478, Line 5; Page: 2478, Line 6; Page: 2478, Line 9; Page: 2478, Line 10; Page: 2744, Line I; Page: 2856, Line 7; Page: 2856, Line 9; Page: 2856, Line 10; Page: 2865, Line 8; Page: 2865, Line 9; Page: 3798, Line 6.
19 The Court strikes the following signatures: Page 1369, Line 2; Page 2006, Line I.
J The Signer Failed to Provide Both the Current and Previous Address, Along with the Date of the move
PPE argues that the County Board of Elections erred as a matter of law for failing
to strike signers' signatures that only provided a residence that was different from the
voter registration record.i" Respondents argue that this requirement has been preempted
by State law and regulation because local boards of elections are required to update voter
registration records when a signer uses a new address.
The local board is required to update a registered voter's address if the voter
provides signed written notice by mail or it is otherwise delivered to the local board. See
Md. Code Ann., Elec. Law §§ 3-304(a)(ii), 3-S02(b). "If a registered voter signs a
petition and provides an address different from the address on file at the local board
office, the election director shall treat the signed petition as a request for change of
address." Md. Code Regs. 33.0S.06.04A. If the address on the petition is within the
same county served by the local board office, the election director shall verify the
signature, update the voter database, and send a voter notification to the registered voter.
Md. Code Regs. 33.0S.06.04B. Given the mandate that the local board of election is to
update the voter registry if a verified signature on a petition has a different address from
the voter database, it is inappropriate for the County Board of Elections to strike
signatures for not complying with Anne Arundel County Code § 3-2-103(b).
20 Section 3-2-103(b) of the Anne Arundel County Code states that "[if] the signator's residence differs from the residence recorded in the voter registration records, the signator shall state both residence addresses together with the date on which the current residence was assumed." Anne Arundel Co. Code § 3-2-1 03(b).
K. The Election District or Precinct is Missing
Each signature page shall specify the particular district and precinct in which the
individuals signing that page reside. Anne Arundel Co. Code § 3-2-1 04(b); see also Md.
Code Regs. 33.06.03.03. The Court will not disturb the County Board of Elections'
decision if it is supported by substantial evidence. Upon reviewing the entire agency
record, the Court strikes eighty-seven signarures" from the petition.
L. The Circulator Signed a Petition Page that He/She Circulated
PPE argues that the Court must strike thirty signatures because the circulator
signed a petition page that he or she circulated. There is no legal support for striking
petition signatures on this ground. PPE cites an e-mail from the local board of elections
as authority for this position. However, the State Board of Elections, to whom the local
board reports, finds this practice to be appropriate. This Court will not disturb the
County Board of Elections determinations to find these signatures valid unless there is
statutory or regulatory support for striking signatures based upon these grounds.
21 The Court strikes the following signatures: Page: 14, Line 9; Page: 134, Line 10; Page: 200, Line 10; Page: 267, Line 10; Page: 320, Line 9; Page: 371, Line 3; Page: 409, Line 4; Page: 452, Line I; Page: 469, Line 1; Page: 510, Line 5; Page: 510, Line 7; Page: 522, Line 5; Page: 569, Line 6; Page: 643, Line 2; Page: 671, Line 3; Page: 741, Line 8; Page: 81 I, Line 5; Page: 1142, Line 3; Page: 1172, Line 10; Page: 1309, Line 3; Page: 1414, Line 2; Page: 1733, Line I; Page: 1733, Line 7; Page: 1734, Line 10; Page: 1738, Line 5; Page: 1862, Line 8; Page: 1868, Line 2; Page: 1868, Line 5; Page: 1927, Line 2; Page: 1932, Line 7; Page: 2021, Line 10; Page: 2134, Line 8; Page: 2210, Line I; Page: 2211, Line 4; Page: 2281, Line 7; Page: 2334, Line 5; Page: 2429, Line 6; Page: 2459, Line 3; Page: 2681, Line 6; Page: 2681, Line 8; Page: 2683, Line 7; Page: 2703, Line 3; Page: 2865, Line 4; Page: 2913, Line 7; Page: 2950, Line 10; Page: 3006, Line 1; Page: 3008, Line 9; Page: 3009, Line 4; Page: 3040, Line 8; Page: 3040, Line 10; Page: 3080, Line 5; Page: 3103, Line 3; Page: 3148, Line 3; Page: 3161, Line 8; Page: 3292, Line 10; Page: 3297, Line 2; Page: 3435, Line 9; Page: 3560, Line 6; Page: 3590, Line I; Page: 3602, Line 10; Page: 3658, Line I; Page: 3816, Line 9; Page: 3820, Line 2; Page: 3847, Line I; Page: 3907, Line 7; Page: 3908, Line 2; Page: 3918, Line 2; Page: 4026, Line 10; Page: 4049, Line 10; Page: 4055, Line I; Page: 4073, Line I; Page: 4073, Line 2; Page: 4073, Line 3; Page: 4337, Line I; Page: 4452, Line 5; Page: 4461, Line 2; Page: 4470, Line I; Page: 4474, Line 10; Page: 4559, Line 4; Page: 4567, Line 9; Page: 4655, Line 9; Page: 4739, Line 5; Page: 4802, Line I; Page: 4807, Line 7; Page: 4847, Line 5; Page: 4920, Line 10; Page: 4964, Line 6; Page: 4983, Line 4.
IX Board of Elections and Court's Duty to Investigate Fraud
A. Title 16 of the Election Law Article Offenses as a Groundfor Invalidation
PPE alleges that the State and County boards of elections were derelict in their
duties for not striking signatures and invalidating the entire petition because signatures
were "forged, fraudulent, or otherwise invalid." Specifically, PPE ties the petition
circulation misconduct to § 16-401 of the Election Law Article. PPE argues that if the
boards of elections have no duty to investigate fraud, the verification and validation
process is deficient, thereby entitling them to a thorough evidentiary investigation, with
expert handwriting analysis and witness testimony, to ensure the integrity of the election
process. In fact, the State and County boards of elections stated that they do not
investigate fraud.22 While PPE paints a stark picture of the petition circulation landscape,
after a careful review of the Election Law Article and relevant case law, this Court finds
that the agency review mandated under Title 6 of the Election Law Article cures all of the
alleged offenses related to the circulation of this petition.
There are two grounds for removing a signature from a petition page: (1) the
signer provides written notice to the election board before the petition signature is filed
requesting that the signature not be counted; and (2) the election board concludes that the
signature does not satisfy statutory requirements. Md. Code Ann., Elec. Law § 6-203(c).
The second ground for removal is relevant to this Court's analysis.
22 The Election Law Article establishes two duties for a local board of elections if there is a violation of § 16-401 of the Election Law Article: (1) aid in the prosecution of the offense; and (2) if there is probable cause to believe an offense has been committed, refer the matter to the appropriate prosecutorial authority."
Section 16-401 of the Election Law Article enumerates the offenses related to a
(a) In general. - A person may not willfully and knowingly:
(I) give, transfer, promise, or offer anything of value for the purpose of inducing another person to sign or not sign any petition;
(2) request, receive, or agree to receive, anything of value as an inducement to sign or not to sign any petition;
(3) misrepresent any fact for the purpose of inducing another person to
sign or not to sign any petition;
(4) sign the name of any other person to a petition;
(5) falsify any signature or purported signature to a petition;
(6) obtain, or attempt to obtain, any signature to a petition by fraud, duress, or force;
(7) circulate, cause to be circulated, or file with an election authority a
petition that contains any false, forged, or fictitious signatures; (8) sign a petition that the person is not legally qualified to sign; (9) sign a petition more than once; or
(10) alter any petition after it is filed with the election authority.
Md. Code Ann., Elec. Law § 16-401(a). Each violation is a separate offense and, if
convicted, one may be fined, imprisoned for up to six months, disqualified as an election
official or employee, or disqualified as a candidate. Md. Code Ann., Elec. Law §§ 16-
Some of the § 16-401 offenses are not before the Court. PPE has not alleged that
anyone has tried to buy or sell signatures. Nor has it alleged that the petition was altered
after being filed with the election authority.r' Additionally, it has not alleged that the
signatures were procured by duress or force. While PPE casually makes allegations of
"fraud" and "pervasive fraud," the matters it brought to the agency were with respect to
misrepresentations of fact made to petition signers, a wholly separate offense under § 16-
23 Petitioners did allege that there were "insertions, corrections, or modifications" made after signers or circulators affixed their signatures. However, Petitioners are not alleging that this occurred after the petition was filed, they merely state that "it is not evident" that the signer made the change. There is no legal support for striking signatures based upon these allegations.
40 I. Therefore, the offense of obtaining, or trying to obtain, a signature by fraud is not
before the Court.
Interestingly enough, the remaining offenses are cured by the validation and
verification process. Not only is it a misdemeanor to sign a petition more than once but
the election authority may not validate and count a duplicative signature. Md. Code
Ann., Elec. Law § 6-203(b)(3). The signature of a person who is not legally qualified to
sign the petition, meaning someone who is not a registered voter, will neither be validated
nor counted. Md. Code Ann., Elec. Law § 6-203(b).
The three offenses, signing the name of another, falsifying a signature, or
circulating or filing with the election authority a petition that contains a false, forged, or
fictitious signature, are also cured by the validation and verification process. A fictitious
signature would be removed for not being a registered voter. Signatures that are
obviously signed by one individual for another, in the present case it was often one
spouse or family member signing for another, brings in question the veracity of the
circulator's affidavit. Therefore, it is appropriate to strike all validated and counted
signatures on a petition page when it is obvious that there are false or forged signatures
because the circulator's affidavit is deficient. In the instant case, the Court found it
appropriate to strike 219 signatures'" for this reason.
The Court also finds that a petition that meets the requirements under the Election
Law Article cure any misrepresentation of fact made by a circulator for the purpose of
24 The Court struck previously validated signatures from pages 138, 139,273,347,366,466,5 I 0,557,558, 650,835,908,1042, 1145,1164,1190,1315,1515,1585,1611,1997,2115, 2122, 2607,2631,2730, 2794, 3087, 3249,4388, and 4861.
inducing another to sign the petition. Section 6-201 of the Election Law Article states the
mandatory contents of a petition." CASM's petition states that its purpose is to refer
"Bill No. 82-09 AN ORDINACE concerning: Zoning - Video Lottery Facilities." It
also displays the following notice:
**THE FULL TEXT OF THE ORDINANCE THAT IS THE SUBJECT OF THIS PETITION APPEARS ON THE REVERSE OF THIS PAGE. **
The petition presents the entire text of Bill 82-09 on the reverse side. Even if the Court
assumes that circulators misrepresented facts relating to the petition, the petition
2S Election Law Article. § 6-201. Content of petitions (a) In general. -- A petition shall contain:
(1) an information page; and
(2) signature pages containing not less than the total number of signatures required by law to be filed. (b) Information page. -- The information page shall contain:
(I) a description of the subject and purpose of the petition, conforming to the requirements of regulations;
(2) identification of the sponsor and, if the sponsor is an organization, of the individual designated to receive notices under this subtitle;
(3) the required information relating to the signatures contained in the petition;
(4) the required affidavit made and executed by the sponsor or, if the sponsor is an organization, by an individual responsible to and designated by the organization; and
(5) any other information required by regulation.
(c) Signature page. -- Each signature page shall contain:
(1) a description of the subject and purpose of the petition, conforming to the requirements of regulations;
(2) if the petition seeks to place a question on the ballot, either:
(i) a fair and accurate summary of the substantive provisions of the proposal; or (ii) the full text of the proposal;
(3) a statement, to which each signer subscribes, that:
(i) the signer supports the purpose of that petition process; and
(ii) based on the signer's information and belief, the signer is a registered voter in the county
specified on the page and is eligible to have his or her signature counted; (4) spaces for signatures and the required information relating to the signers;
(5) a space for the name of the county in which each of the signers of that page is a registered voter; (6) a space for the required affidavit made and executed by the circulator; and
(7) any other information required by regulation.
(d) Petition relating to questions. -- If the petition seeks to place a question on the ballot and the sponsor elects to print a summary of the proposal on each signature page as provided in subsection (c)(2)(i) of this
(I) the circulator shall have the full text of the proposal present at the time and place that each signature is affixed to the page; and
(2) the signature page shall state that the full text is available from the circulator.
unambiguously states the purpose of the petition, informs the signer that the complete
text of the ordinance is on the back of the sheet, and includes the entire text of Bill 82-09.
There is no Maryland case law on point with respect to the petition signer's
responsibility to understand the petition. While not binding, this Court finds the
conclusions of the Supreme Court of Michigan, with respect to the interactions between
circulator and signer, to be instructive:
(7) A necessary assumption of the petition process must be that the signer has undertaken to read and understand the petition. Otherwise, this process would be subject to perpetual collateral attack, and the judiciary would be required to undertake determinations for which there are no practical legal standards and which essentially concern matters of political dispute.
Mich. Civil Rights v. Ed. of State Canvassers, 475 Mich. 905, 905 (2006). Ultimately,
signers are agreeing that the matter should be placed on the ballot and the information
provided on the petition would cure any misrepresentation made by a circulator.
CASM submitted 40,408 signatures. Applying the standards set forth in Title 6 of
the Election Law Article and COMAR, the County Board of Elections invalidated 43% of
the submitted signatures. The verification and validation process, set forth by the
General Assembly and State Board of Elections, struck signatures of legally unqualified
voters, duplicative signatures, and fictitious signatures. The review process struck
signatures that were obviously false or forged along with other valid signatures on the
petition page because the veracity of the circulator's affidavit is brought into question.
The Court is not suggesting that this is a perfect process. The General Assembly
acknowledges this, as evidenced by the authorization of random sample verification to
establish acceptable thresholds to impute the number of valid signatures for a petition.
See Md. Code Ann., Elec. Law § 6-207(c). The County Council also recognizes this by not allowing the disqualification of a petition signer's signature to affect or impair other portions of the page. See Anne Arundel County Code § 3-2-107. The County Board of Elections followed the statutory and regulatory standards throughout the validation and counting process of each signature on the petition. This process resulted in 43% of the petition's signatures being invalidated and not counted. There is no dispute that this is a significant percentage invalidation of submitted signatures. However, the Court does not agree with PPE's position that the volume of invalidated signatures creates a presumption of fraud. When verifying, validating, and counting individual signatures, the petition proponents are required to secure a certain amount of legitimate signatures. The fact that the County Board of Elections culled 43% of the petition signatures because of statutory and regulatory deficiencies shows that the current legislative scheme provides precisely the types of safeguards meant to preserve the integrity of an election. Given the facts of this case, there is good reason PPE is unable to challenge the "fraud" associated with the circulation of this petition, the current process for verifying, validating, and counting petition signatures already ferrets out the types of misconduct PPE alleges.
B. Same Person Entered the Date, Printed Name, and/or Address for Multiple People
PPE argues that over 600 signatures should be invalidated because the information accompanying the signature was entered by someone other than the signer. PPE premises this argument on the fact that it is obvious that the same individual filled out information for multiple signers. The petition signer is required to include, printed or typed, his or her name as it was signed, residential address, date of signing, and other
information required by regulation, along with his or her signature. Md. Code Ann., Elec. Law § 6-203(a)(2). According to CO MAR, the petition signer is required to provide that information. Md. Code Regs. 33.06.03.06B. Nowhere in the Election Law Article or COMAR does it require a petition signer to actually be the person entering his or her information. In fact, the requirement is that one must sign his or her name and also provide the other information. Md. Code Regs. 33.06.03.06B. Additionally, § 6- 203(a)(2)'s plain language leads PPE's proffered challenge to an illogical result. The statute allows for a signer to provide the necessary information, printed or typed. PPE' s challenge arises from the fact that it is obvious that the same person handwrote petition signer information for multiple signers. If this information had been typed, it would be impossible to determine who actually entered the information. A plain-reading of the statute and regulation leads to a reasonable conclusion that the petition must "include" and the signer need only "provide" the required information. Therefore, the fact that another person entered the necessary information on behalf of a petition signer does not invalidate the petition signer's actual signature.
C. Handwriting Comparison between Petition and Voter Rolls
Petitioners argue that the County Board of Elections failed to strike signatures that did not match the signatures on the voter registration record. The State and County board of elections argue that they are not required to perform a handwriting comparison between the petition and voter registration record. Additionally, such a requirement would render the verification and counting of validated signatures impracticable given
the twenty-day statutory mandate to complete the process after filing of the petition. See
Md. Code Ann., Elec. Law § 6-210(c).
Petitioners' position arises from the requirement that "an individual shall sign the
individual's name as it appears on the statewide voter registration list." Md. Code Ann.,
Elec. Law § 6-203(a)(I). They argue that the word "appears" imposes a duty on the local
board of elections to compare signatures between the petition and the statewide voter
registration list. However, this is only part of the relevant statute. Section 6-203(a)(I) of
the Election Law Article, in its entirety, states:
(a) In general. - To sign a petition, an individual shall:
(1) sign the individual's name as it appears on the statewide voter registration list or the individual's surname of registration and at least one full given name and the initials of any other names;
Md. Code Ann., Elec. Law § 6-203(a)(1) (emphasis added). When looking at the
statewide voter registration list, there are at least two names, sometimes several names
and signatures, present for each voter on the list. This raises the question as to which
name applies. The Court finds the secondary clause instructive, where it requires the
surname of registration, at least one full given name, and initials of other names. The
plain language establishes two methods for a signer to provide an acceptable signature,
not a requirement for the local board of elections to conduct handwriting comparison.
Petitioners reading of the statute would create two different standards and duties
for the local board of elections. In one instance, an individual is to sign his or her name
as it appears on the voter registration list. In the other instance, an individual is to merely
sign his or her surname of registration and at least one full given name and the initials of
any other names. If the Court was to read § 6-203(a)(l) to impose a duty on the local
board of elections, it would mean the local board of elections would be required to
compare the signature of a petition signer who signs his or her full name against the
signature on the statewide voter registration list. However, if the signer uses the
truncated form of his or her name, the local board of election would have no duty to
compare the signatures because it need not "appear" as on the statewide voter registration
list. Reading the statute in this manner would reach an illogical conclusion.
As stated and for the reasons set forth herein, Bill 82-09 is not subject to
referendum. Had it been referable and having reviewed the entire agency record,
including evidence in favor of and against the local board's decision, the Court would
strike 399 signatures in addition to the County Board of Elections' invalidation of 17,441
signatures. CASM provided 22,568 signatures that have been validated and counted.
For the reasons set forth in this memorandum opinion, the Court shall enter the order
. ilkworth, Judge
~:>MTT for Anne Arundel County
0 -i PPE CASINO RESORTS MARYLAND, LLC, et al,
Petitioners * CIRCUIT COURT
v. * FOR
ANNE ARUNDEL COUNTY BOARD * ANNE ARUNDEL COUNTY OF SUPERVISORS OF ELECTIONS,
et al. *
Respondents * CASE NO.: 02-C-IO-149479
This matter came before the Court on May 24,25,26,27,28, June 2, and 3,2010,
for a hearing on Petitioners' Petition for Judicial Review and Declaratory Judgment.
Upon consideration of the parties written and oral arguments and responses, it is this ..2~ay of June 2010, by the Circuit Court for Anne Arundel County, hereby
ORDERED, that Bill 82-09 is an interdependent and legally inseparable piece of
an appropriation package for maintaining State and local government and, therefore, is
not subject to referendum; and it is further
ORDERED, that any and all other requests for relief are hereby DENIED.
ILKWORTH, Judge ourt for Anne Arundel County
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