IN THE COURT OF APPEALS OF MARYLAND September Term, 2011 No.

131

JOHN DOE, et al., Appellants,

v.
MARYLAND STATE BOARD OF ELECTIONS, et al., Appellees.

BRIEF OF APPELLEE-INTERVENER MDPETITIONS.COM

ON WRIT OF CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND Trial Court: Circuit Court of Anne Arundel County, Case No. 02-C-U-163050 The Honorable Ronald A. Silkworth

Paul J. Orfanedes Chris Fedeli JUDICIAL WATCH, INC. 425 Third Street, S.W., Ste. 800 Washington, DC 20024 Tel: (202) 646-5172 Fax: (202) 646-5199 Email: porfanedes@judicialwatch.org cfedeli@judicialwatch.org Attorneys for Appellee-Intervener MDPetitions.com

TABLE OF CONTENTS

STATEMENT OF THE CASE RESTATEMENT OF THE QUESTION PRESENTED COUNTERSTATEMENT STANDARD OF REVIEW OF THE FACTS

1
2

2 4

ARGU'ME:N1'
1. The People of Maryland Are Sovereign, and Their Longstanding Right of Referendum Was Properly Protected by the Circuit Court SB 167 Does Not Direct Spending for Maintaining State Government or Otherwise A. SB 167 Does Not Direct Spending in Conjunction With the Cade Funding Formula or Future Bills A "Mandated Appropriation" Is Not "Spending," So Whether SB 167 "Affects" A "Mandated Appropriation" Is Irrelevant SB 167 Does Not Cause Spending Under Maryland Law The Legislative History ofSB 167 Does Not Demonstrate That the Enactment Directs Future Spending SB 167 Was Not Enacted for the Purpose of Maintaining State Government

5

5

II.

10

10

B.

_.16

C.

18

D.

21

E.

23

III. IV.

SB 167 Does Not Regulate Tuition at Public Four-Year Institutions ......... 27 The Court Should Affirm the Judgment of the Circuit Court Without Reaching the Complex Constitutional Question Raised by Appellants

29

1

A. B. CONCLUSION

Appellants John Doe and Casa de Maryland Failed to Properly Plead or Substantiate Their Claims The "Registered Voters Appellants" Failed to Properly Plead or Substantiate their Claims

30 33 37

CERTIFICATE OF SERVICE

_

"

38

11

TABLE OF AUTHORITIES Cases Bickel v. Nice, 173 Md. 1 (1937) Board of Supervisors of Elections v. Smallwood, 327 Md. 220 (1992) Boyds Civic Ass 'n v. Montgomery Cnty. Council, 309 Md. 683 (1987) Colie v. State, 193 Md. 608, 612 (1949) Doe v. Montgomery County Board of Elections, 406 Md. 697 (2008) Dorseyv. Petrott, 178 Md. 230 (1940) Hatt v Anderson, 297 Md. 42 (1983) Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439 (2002) Kadderly v. Portland, 44 Ore. 118 (1903) Kelly v. Marylandersfor Sports Sanity, Inc., 310 Md. 347 (1987) 8

5

34 28, 29

4, 29, 31 1, 20, 21 34, 35,36

31 9

"

passim

Maryland State Bd. of Elec. v. Libertarian Party, 2012 Md. LEXIS 287 (May 21,2012 Md.) Michigan State Dental Society v. Secretary of State, 294 Mich. 503 (1940) Montgomery County v. Butler, 417 Md. 271 (2010) Ross v. State Board of Elections, 389 Md. 649 (2005) State ex reI. Marcolin v. Smith, 105 Ohio St. 570 (1922) Sugarloaf Citizens' Assoc. v. Dep't of Env 't, 344 Md. 271 (1996)
111

28, 30

8 .4 .4 9

,

31

United Parcel Servo V. People's Counsel, 336 Md. 569 (1994» Vanhookv. Merchants Mutual Ins. Co., 22 Md. App. 22 (1974) Winebrenner v. Salmon, 155 Md. 563 (1928)

29 29, 30 passim

Federal Statutes 8 U.S.C. § 1324a 50 U.S.C. § 453 50 U.S.C. § 454 ~ 8, 32 31 31

Maryland Constitutional Provisions, Statutes, Rules, and Regulations Md. Const. art. XVI, § 1 Md. Const. art. XVI, § 2 Md. Const. art. III, § 52(11) Md. Const. art. III, § 52(12) "' ~.~ '" 5 passim 4, 18 4 34 34 34 34 25 3, 25, 27 25 , 25

Md. Code Ann., Cts. & Jud. Proc. § 3-409(a) Md. Code Ann., Cts. & Jud. Proc. § 3-409(a)(l) Md. Code Ann., Cts. & Jud. Proc. § 3-409(a)(2) Md. Code Ann., Cts. & Jud. Proc. § 3-409(a)(3) Md. Code Ann., Educ. § 10-208 Md. Code Ann., Educ. § 10-208(6) Md. Code Ann., Educ. § 12-102(a)(3) Md. Code Ann., Educ. § 12-102(b)

IV

Md. Code Ann., Educ. § 12-104 Md. Code Ann., Educ. § 12-104(c)(3) Md. Code Ann., Educ. § 12-105(c) Md. Code Ann., Educ. § 12-109(e)(7) Md. Code Ann., Educ. § 14-101(a)(3) Md. Code Ann., Educ. § 14-102 Md. Code Ann., Educ. § 14-104 Md. Code Ann., Educ. § 14-104(a)(2) Md. Code Ann., Educ. § 14-1040)(1) Md. Code Ann., Educ. § 14-402 Md. Code Ann., Educ. § 14-404 Md. Code Ann., Educ. § 14-404(a) Md. Code Ann., Educ. § 14-404(b)(2) Md. Code Ann., Educ. § 14-405(d) Md. Code Ann., Educ. § 15-106.8(b)(1) Md. Code Ann., Educ. § 15-106.8(b)(5) Md. Code Ann., Educ. § 15-106.8(b)(6) Md. Code Ann., Educ. § 16-101 Md. Code Ann., Educ. § 16-103(c) Md. Code Ann., Educ. § 16-1030) Md. Code Ann., Educ. § 16-104(b)(4), Md. Code Ann., Educ. § 16-301
v

~

_

25 25 25 .3,27 25

,

25 25

-

25 3, 25, 27 25 25 3, 25, 27 25 _ 25 31 _ 31 31 _ 24 24 3, 28

~

24 24

Md. Code Ann., Educ. § 16-301(a) Md. Code Ann., Educ. § 16-301(e) Md. Code Ann., Educ. § 16-302(d) Md. Code Ann., Educ. § 16-304 Md. Code Ann., Educ. § 16-304(a) Md. Code Ann., Educ. § 16-305 Md. Code Ann., Educ. § 16-305(b)(4).~ Md. Code Ann., Educ. § 16-305(b)(7) Md. Code Ann., Educ. § 16-305(b)(12) Md. Code Ann., Educ. § 16-305(c)(1)(i) Md. Code Ann., Elec. Law § 6-202 Md. Code Ann., Elec. Law § 6-206 Md. Code Ann., Elec. Law § 6-208(a)(2) Md. Code Ann., Elec. Law § 6-209 Md. Code Ann., Elec. Law § 6-209(a) Md. Code Ann., Elec. Law § 6-209(b) Md. Code Ann., State Gov't § 2-1501(d) Md. Code Ann., State Gov't § 2-1505(e)(3) 2009 Laws of Maryland, ch. 487, § 1 2010 Laws of Maryland, ch. 484, § 3 2011 Laws of Maryland, ch. 497, § 1 " _ -

_

24 24 24 24 24 3, 12,24 3, 14,24 15 - 15 passim 32 32 .30, 32 29 passim 29, 33 4, 18 17 12 12 12

VI

Md. Rule 2-322(c) COMAR § 13B.07.02.03

29 15

Other Authorities Citizens in Charge Foundation, State Voting Rights, http://www.citizensincharge.org/states Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall, (Harvard University Press 1999) Jack Benoit Gohn, Interaction and Interpretation of the Budget and Referendum Amendments of the Maryland Constitution _ Bayne v. Secretary of State , 39 Md. L. Rev. 558 (1980) Irvin Mo1otsky, Gun Control Backers Say Maryland Victory Will Spread to Other States, New York Times (Nov. 13, 1988) http://www.nytimes.comlI988/1l/13/us/ gun-contro1-backerssay-maryland-victory-will-spread-to-other-states.html?page wanted=al1&src=pm 12 Op. Md. Att'y Gen. 228 (1927) Public Institutions of Higher Education - Tuition Rates- Exemptions: Debate on SB. 167, March 9, 2011, Session #1 (Md. 2011) http://mlis.state.md.us/mgaweb/pyaudio.aspx

6

6, 9

7, 8

9 23, 24

22

Sean R. Sedam, The ruling, the referendum, the controversy: Approaching the 35th anniversary of Roe v. Wade, Maryland remembers the 1992 vote that changed the argument here, Maryland Community Newspapers Online (Jan. 18, 2008) http://ww2.gazette.net/stories/Ol1808/polinew203954_32359.shtm1 ,..9 M. Dane Waters, The Initiative and Referendum Almanac, pp. 487-490 (Carolina Academic Press 2003) ,. .-.

6

Vll

STATEMENT

OF THE CASE

Appellants are asking this Court to drastically limit the Constitutional right of the people of Maryland to hold referenda on policy legislation. Since at least as early as

1940, the Court has held that a bill enacted by the General Assembly and signed by the Governor is an "appropriation" for purposes of an exception to the right of the referendum set forth in Article XVI, Section 2 only if the "primary object" of the legislation "is to authorize the withdrawal from the state treasury of a certain sum of money for a specified public objective or purpose to which such sum is to be applied." Kelly v. Marylanders for Sports Sanity, Inc., 310 Md. 437, 459 (1987), quoting Dorsey v. Petrott, 178 Md. 230, 245 (1940). Appellants ask this Court to redefme the people's right of referendum in Article XVI, Section 2 to exclude new and potentially enormous categories of legislation, thereby substantially diminishing the rights of self-governance of the citizens of Maryland. This Court should deny Appellants' request. Not only are Appellants wrong about the proper scope of the exception set forth in Article XVI, Section 2, but they also fundamentally misread the policy legislation that is the subject of the pending referendum, Senate Bill 167 ("SB 167"). Appellants' effort to prevent a referendum on SB 167 also suffers from several other fundamental flaws, including a complete lack of evidence substantiating Appellants' claims. Appellee State Board of Elections determined that Appellee-Intervener MDPetitions.com had satisfied all of the requirements for submitting SB 167 to referendum and certified the new policy legislation for placement on the November 2012 - 1-

ballot. The Circuit Court reviewed the State Board of Election's actions and properly found that those actions were correct. It is time for Maryland's voters to have their say. RESTATEMENT OF THE QUESTION PRESENTED

This Court need only answer "no" to anyone of the following four questions in order to affmn the judgment of the Circuit Court: 1. Is SB 167 an "appropriation" for purposes of the referendum exception set

forth in Article XVI, Section 2 of the Maryland Constitution? 2. Does SB 167 constitute "direct spending" when considered in pari materia

with the Cade Funding Formula and future Budget Bills? 3. Is having a potential, unknown impact on future state spending decisions

sufficient grounds to keep legislation from referendum under the Maryland Constitution? 4. Did Appellants plead and substantiate their claims sufficiently to withstand Motion for Summary Judgment and/or Dismissal? COUNTERSTATEMENT OF THE FACTS

Appellee-Intervener's

Appellants use their Statement of Facts to miscast what SB 167 does and how State support for community colleges in Maryland is determined. See Brief for Appellants ("Br.") at 6-9. Accordingly, a brief counterstatement of the facts is in order. SB 167 (referred to by Appellants as the "Maryland Dream Act") changes the policy of the State of Maryland to make certain unlawfully present aliens eligible to pay reduced rates of tuition at community colleges and public four-year colleges and universities in Maryland. Joint Record Extract ("JRE") at 24. SB 167 neither increases

the monies Maryland provides to community colleges nor alters the revenues received by - 2-

public four-year institutions. The General Assembly and Governor make decisions on State support for community colleges and four-year institutions each year, during the annual budget process. ld. Decisions on rates of tuition and tuition revenues are made by the Presidents and the Boards of Regents and Boards of Trustees of each Maryland institution. Md. Code Ann., Educ. §§ 10-208(6), 12-109(e)(7); 14-104U); 14-404(a); 16103U)· Maryland uses a formula to ensure that the State's support for community colleges remains proportional to the State's support for public four-year institutions. Md. Code Ann., Educ. § 16-305(c)(1)(i). This formula, known as the Cade Funding Formula,

requires the Governor's proposed State support for community colleges equal a certain percentage of the proposed State support for public four-year institutions. See generally Md. Code Ann., Educ. § 16-305. The Governor's proposed State support for four-year institutions is without restriction. After receiving the Governor's proposed budget, the

General Assembly can reduce the Governor's proposed State support for community colleges or it can increase the proposed amount through supplemental spending measures. Furthermore, the General Assembly and Governor routinely enact legislation revising the percentage on which the Governor's proposed level of State support for community colleges is based. After State support for community colleges is finalized in the budget reconciliation process, each community college receives a portion of that final amount based on the number of eligible students enrolled at the community college. Md. Code Ann., Educ. § 16-305(b)(4).

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A "mandated appropriation" is a term of art referring to an item that the General Assembly requires the Governor to include in the proposed budget submitted to the General Assembly each year. Md. Const., art. III, §§ 52(11) and (12); Md. Code Ann., State Gov't § 2-1501(d). There is no requirement that a mandated appropriation be

included in the final budget bill enacted by the General Assembly or that the General Assembly adopt the amount of spending proposed by the Governor for a mandated appropriation. Id. The General Assembly can reduce the Governor's proposed spending

on a mandated appropriation or it can increase the amount proposed by the Governor through a supplemental spending measure. The Cade Funding Formula is a "mandated appropriation" because it requires the Governor to propose a certain level of State support for community colleges in an initial budget bill. Md. Code Ann., Educ. § 16-305(c)(1)(i). The General Assembly retains the discretion to reduce that amount or increase it through a supplemental appropriation as it deems fit. STANDARD OF REVIEW The Court of Appeals reviews an order granting summary judgment de novo, Ross v. State Board of Elections, 389 Md. 649, 658 (2005), and must determine whether the Circuit Court ruled correctly on matters of law. Doe v. Montgomery County Board of Elections, 406 Md. 697, 711 (2008). In questions of mixed law and fact, such as what SB 167 does, how the Maryland budget process works, and how the Cade Funding Formula works, the Court conducts a "substantial evidence review" only and does not substitute its judgment for that of the fact fmder (in this case, the Circuit Court). Montgomery County v. Butler, 417 Md. 271, 285 (2010).
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ARGUMENT I. The People of Maryland Are Sovereign, and Their Longstanding of Referendum Was Properly Protected by the Circuit Court. Right

Appellants argue that, under the Maryland Constitution and the decisions of this Court, the people of Maryland retain only a very limited right of referendum, and they ask this Court to limit that right even further. Br. at 10-12. Appellants' attack on the constitutional rights of the people of Maryland is misplaced. Control over government by

the people is one of the founding principles of American democracy and has been recognized by Maryland courts as a right of paramount importance: Limitations imposed by the people on their government are fundamental elements ofa constitution. See, e.g., Marbury v. Madison, 1 Cranch 137, 176-177,2 L.Ed. 60, 73 (1803); The Federalist, Nos. 78, 81, 84 (1788) (Alexander Hamilton). The Maryland Declaration of Rights and the Bill of Rights to the United States Constitution largely represent limitations on governmental power. In fact, the desire of the people to limit the government's ability to tax was a major cause of the American Revolution. "There was no colony of English America, in which the claim of the inhabitants, to exemption from all taxation not sanctioned by their assent, was more familiar than in Maryland." The Constitution of the United States, the Constitution of Maryland, and the charters of Anne Arundel and Baltimore counties, are replete with provisions limiting the power of governments to raise and appropriate revenue. Thus, a limitation on the power of a legislative body to raise revenue is at the heart of the form and structure of our government and thus is proper charter material. Board a/Supervisors of Elections v. Smallwood, 327 Md. 220, 237-238 (1992) (footnotes

omitted). So it is that Article XVI of the Maryland Constitution preserves for the citizens of Maryland the right to approve or reject at the polls laws passed by the General Assembly and signed by the Governor: "The people reserve to themselves power known as The Referendum." Md. Const. art. XVI, § 1.

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Maryland is not an exception in this regard. Br. at 10. It is one of twenty-six States in which citizens have taken varying amounts of direct legislative rights for themselves, including in Massachusetts, California, Maine, Oregon, Illinois, Florida, Ohio, and Washington.' In three of those states, citizens have only reserved for

themselves the right to propose Constitutional amendments, not the right to propose legislative initiatives or take legislation to referendum as the people of Maryland do. The citizens of the twenty-four other states have not reserved any direct legislative rights for themselves at all. The level of direct citizen participation in Maryland is almost exactly in the middle of this spectrum. Nor does the fact that the General Assembly intended to craft a tuition policy to benefit some students weigh in favor of denying all Marylanders of their right to referendum. Br. at 11-12. Matters of statewide education policy have been subject to

referendum and initiative in the states routinely since the early 1900s, on issues as varied as funding for charter schools, banning religious uniforms in public schools, and allocating state lottery revenue to school construction? Even earlier, Maryland's first

foray into direct citizen legislation concerned education. An 1826 law gave Maryland county residents the power to vote up or down on whether to establish elementary schools in their districts.i Each of those cases allowed citizens to directly decide policy questions

See Citizens in Charge Foundation, State Voting Rights, http://www.citizensin charge.org/states (visited May 17,2012). 2 M. Dane Waters, The Initiative and Referendum Almanac, pp. 487-490 (Carolina Academic Press 2003). 3 Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall, p. 42 (Harvard University Press 1999) ("Cronin").
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of how various educational needs and advantages should be awarded. The present case is no different. Contrary to Appellants' claims, the decision of Maryland citizens to put SB 167 to a popular vote does not constitute an "interruption of government" as contemplated by the Maryland constitution or this Court's rulings. Br. at 12. First, the intent of the referendum provision written in the Constitution indicates that the interruptions contemplated would have to be serious ones. Maryland's Constitutional amendment recognizing the people's right to referendum was passed against the backdrop of the populist progressive movement of the time, which aimed to increase the accountability of legislative bodies to the best interests of their constituents: The period during which the [Maryland] referendum amendment was being formulated and ratified, 1914 to 1915, was the heyday of the Progressive movement. One of the principal programs of the Progressives was socalled direct legislation, lawmaking by the electorate. The theory - and indeed the reality in those times - was that laws passed by legislatures were likely to reflect the will of political bosses rather than that of the electorate. The vehicles of direct legislation, the initiative and the referendum, were designed to wrest control of the processes of legislation from the distrusted legislatures .... Only the referendum was adopted in Maryland. 4 Forged by progressives, the intent of the limited exception in Maryland's referendum provision was therefore merely to prevent the people from using their power to stop the State from functioning entirely, or to otherwise attempt to gradually bring about its demise:

Jack Benoit Gohn, Interaction and Interpretation of the Budget and Referendum Amendments of the Maryland Constitution - Bayne v. Secretary of State, 39 Md. 1. Rev. 558, 572 (1980).
-7-

4

It was arguably necessary to check the referendum power by providing that
it not be used to revoke appropriations absolutely necessary to the survival of government, and this rationale would completely explain the "maintaining the State Government" exception. But it would hardly be consonant with the goal of popular check upon the legislative will that every appropriation to a government agency, for whatever purpose, no matter how unnecessary to the subsistence or even the convenience of government, should be excepted as well. This reading would exclude direct popular input from the budgeting process, a far wider exclusion than necessary to protect the state government from devastation by referendum. 5 Appellants, however, do read the referendum exception in a way that would "exclude direct popular input from the budgeting process," as well as, apparently, from most other legislative processes. Br. at 11-12. Appellants mistakenly claim that this Court's decisions in Kelly and Bickel v. Nice, 173 Md. 1 (1937) support their argument for limiting the right of referendum. Br. at 11. They don't. In Bickel, the Court exempted from referendum the State's decision to raise and spend $1 million to construct an office building in Annapolis to house state officers and employees. In Kelly, the Court found that the General Assembly'S decision to raise and spend $420 million on a sports complex also was exempt from referendum. Kelly, 310 Md. at 442. Neither of these

cases suggests that legislation like SB 167, which raises nothing and spends nothing, should also be exempt from the right of referendum. Appellants also err in claiming that referenda in Maryland are a "concession to an organized minority," thus rendering them somehow disfavored or less legitimate. Br. at 10, quoting Michigan State Dental Society v. Secretary of State, 294 Mich. 503, 511 (1940). To the contrary, the right to referendum is the right of all Marylanders to check
5

Id. - 8-

the broad powers of an organized, temporary minority _ their elected representatives. By retaining the right of referendum, Marylanders have chosen to reserve to themselves a "larger share of legislative power" in a republican form of government. Kadderly v. Portland, 44 Ore. 118, 145 (1903). By invoking their right of referendum, the people of Maryland function as a "third house" of the legislature with the power to reject or approve controversial legislation," Over the past 15 years, the people of Maryland have used this power to give their "third house" approval to the General Assembly's expansion of abortion rights 7 and imposition of strict gun control measures." Referenda on these measures increased the measures' democratic legitimacy in a State with an "organized" and politically conservative minority. This Court should decline Appellants' invitation to

6

Cronin at 34-35; see also State ex rel. Marcolin v. Smith, 105 Ohio St. 570, 581582 (1922) ("The policy of stopping the enactment of a proposed law upon the ground of conflict with the constitution never occurred to the versatility and resourcefulness of [the legal profession], so long as the general assembly had the sole power of lawmaking. It was too absurd a proposition to urge in any respectable court; but after the people became the third house, and declared and safeguarded in the constitution their right of referendum upon those laws, the ingenuity of counsel suggested that in some way or other an injunction should issue to prevent the sovereign people from exercising their sovereign right in the constitution to adopt or reject a proposed law, upon the ground that such law, when adopted, would be in conflict with the constitution, state or federal. That is, nobody ever thought of enjoining the servants. That was preposterous, but it is now ~erfect1y legal to enjoin their masters, the sovereign people."). Sean R. Sedam, The ruling, the referendum, the controversy: Approaching the 35th anniversary of Roe v. Wade, Maryland remembers the 1992 vote that changed the argument here, Maryland Community Newspapers Online (Jan. 18, 2008) available at http://ww2.gazette.net/stories/011808/polinew203954_32359.shtml. 8 Irvin Molotsky, Gun Control Backers Say Maryland Victory Will Spread to Other States, New York Times (Nov. 13, 1988) available at http://www.nytimes.comlI988 111113/us/gun-control-backers-say-maryland-victory-will-spread-to-otherstates.html ?pagewanted=all&src=pm. -9-

use the present case to limit Maryland citizens' right to approve or reject controversial legislation by expanding the exception to referrability of legislation to referenda.

II.

SB 167Does Not Direct Spending for Maintaining State Government or Otherwise.
Appellants devote the overwhelming majority of their brief to advancing several

theories as to why SB 167 directs spending and therefore constitutes an "appropriation" for purposes of the referendum exception. Br. at 12-22,24-25. However, as

demonstrated below, each of these attempts fails when examined closely. A. SB 167 Does Not Direct Spending in Conjunction with the Cade Funding Formula or Future Bills.

In order to claim that SB 167 is a spending measure, Appellants paint a distorted picture of Maryland law and the legislative processes by which it provides support to higher education. Appellants' argument rests heavily on the assertion that SB 167 mandates State spending because of previously enacted legislation known as the Cade Funding Formula. These claims include: • "The Maryland DREAM Act thus increases the number of student credit hours that count for purposes of determining the number of "full time equivalent students" under the Cade Funding Formula. Thus, as long as some number of individuals qualifies for the reduced tuition, the law directly requires and mandates an increase in the amounts appropriated for the community colleges, under the Cade Funding Formula, in future fiscal years." Br. at 7. "As noted, the Fiscal Note prepared by the Department explains that, with respect to State expenditure, the DREAM Act would, operating through and in tandem with the Cade Funding Formula for state aid to community colleges, directly require an increase in future appropriations .... " Br. at 15.

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"In this case, the change in tuition eligibility requirements will directly require increased spending for aid to community colleges, under the Cade Formula beginning in Fiscal Year 2014, even though the precise amount is unknown." Br. at 16. "The Maryland DREAM Act literally, directly and specifically "assign] s] public monies to a particular use or purpose," Kelly, 310 Md. at 456, by mandating specific increases in the appropriations for community colleges under the Cade Funding Formula." Br. at 16 "Thus, the Maryland DREAM Act was understood, by the General Assembly, to be a measure that would directly result in increases in future appropriations, in future Budget Bills, by changing the value of certain variables used in calculating aid to community colleges under the Cade Funding Formula." Br. at 19. "For these reasons, the Maryland DREAM Act must be considered together, and construed effectively as one measure, with the Cade Funding Formula and the future Budget Bills that will implement the increases in spending mandated by the DREAM Act as explained in the Fiscal Note considered by the General Assembly when the measure was passed." Br. at 20.

None of these claims is accurate. State support for higher education in Maryland is determined on a year-to-year basis by the Governor and General Assembly through the annual budgetary process. Contrary to Appellants' attempt to portray it otherwise, State support for community colleges is not mandated in such a way as to convert a general policy on tuition eligibility into a fixed spending measure. Appellants' argument rests on a misreading of the Cade Funding Formula. The formula seeks to ensure that community colleges are not forgotten during the annual budget process and that the support they receive from the State is proportional to the support received by public four-year institutions. As a first step, the Cade Formula requires that annual budget bill presented by the Governor to the General Assembly
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include State support for community colleges based upon a percentage of the State support included for public four-year institutions." Md. Code Ann., Educ. § 16305(c)(1)(i) (hereinafter, "Cade Step 1"). Cade Step 1 represents only the "first draft" of the State's annual budget. Importantly, Cade Step 1 does not require the Governor to propose any specific dollar amount for community college spending. Rather, the proposed amount of spending for community colleges - even in the first draft of the budget bill - is tied to the proposed amount of spending for public four-year institutions. The proposed amount of spending for four-year institutions is left to the Governor's discretion." As an example,

if the Governor initially proposes $1 million for four-year institutions, the Cade Formula would require the Governor to propose $240,000 for community colleges in the initial budget bill, assuming the Cade Formula was set at 24% for that particular year. If the
9

The Cade Step 1 percentages can be elastic from year to year. For example, before 2009, the Cade Step 1 community college guideline percentage for 2013 was 30%. Md. Code Ann., Educ. § 16-305 note (Effect of Amendments); see also 2009 Laws of Maryland, ch. 487, § 1. In 2009, the General Assembly reduced this figure to 27%. Id. In 2010, it was reduced again to 21 %, and in 2011, it was further reduced to 19%. Id.; see also 2010 Laws of Maryland, ch. 484, § 3; 2011 Laws of Maryland, ch. 497, § 1. Not only do the Cade Step 1 percentages change substantially even after they have been set, but the legislature can eliminate them entirely in any given year. For example, in enacting the Budget Reconciliation and Financing Act of2010, the Governor and the General Assembly abandoned a percentage formula altogether and instead set state funding for community colleges at a flat amount for both Fiscal Year 2011 and Fiscal Year 2012. 2010 Laws of Maryland, ch. 484, § 3. 10 See State of Maryland's Cross-Motion for Summary Judgment, filed December 22,2011, p. 23, fn. 5 ("For example, the Cade Funding Formula allocates funding for community colleges on a full-time equivalent student basis as a fraction of the amount of funding allocated for students at four-year institutions. Md. Code Ann., Educ. § 16-305. Thus, any appropriation is necessarily dependent on a hypothetical increase in the amount of the General Fund appropriation the Governor decides to appropriate to request for those institutions under the executive budget system."). - 12-

Governor wishes, the Governor can increase this proposed support for community colleges by increasing proposed support for four-year institutions to $2 million (in which case, State support for community colleges would double). Similarly, the Governor can decrease the proposed amount of State support for community colleges by decreasing the proposed amount of State support for four-year institutions to $500,000 (in which case, State support for the community college would be halved). So, even at Cade Step 1, the Governor retains substantial discretion to determine how much State support to propose for community colleges in any given year. Rather than mandating actual spending, the Cade Funding Formula merely acts as a means of ensuring that some level of support for community colleges is proposed at this stage of the budget process and that the proposed level is proportionate to the proposed level of support for public four-year institutions. The General Assembly'S consideration of the Governor's budget proposal, which for the sake of convenience can be called "Cade Step 2," demonstrates how untethered actual State support for community colleges is from the support proposed by the Governor under the Cade Formula. The General Assembly has any number of options at Cade Step 2. Among its various options, the General Assembly can accept both the Governor's proposal for State support for four-year institutions and the Cade Formula percentage for State support for community colleges. It also can accept the Governor's proposal for State support for four-year institutions, but reduce the Cade Formula percentage, thereby reducing the Governor's proposed level of State support for community colleges. It can reduce the Governor's proposal for State support for fouryear institutions and accept the Cade Formula percentage, thereby also reducing the
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Governor's proposed level of State support for community colleges. It can completely disregard the entire formula and independently set the level of State support for community colleges so long as that level does not exceed the Governor's proposal for community college support. It also can enact a supplemental spending measure that provides greater support for community colleges than proposed by the Governor so long as the supplemental measure includes an equivalent revenue raising measure. The Governor and the General Assembly engage in this decision-making process for State support for higher education every single year. In short, Cade Step 2 demonstrates how nothing in the Cade Formula actually fixes the amount of support the State ultimately provides to community colleges in any given year.'! Finally, after all aspects of Maryland's total higher education spending for a given year have been debated, deliberated upon, revised, negotiated, passed into law, and then reconciled with expected revenue, the Cade Formula once again plays a minor role in the disbursement of funds to most of the community colleges in Maryland under what can be called "Cade Step 3". 12 At this stage, the amount of State support for community colleges ultimately settled upon by the General Assembly in Cade Step 2 is divided up among 15 of the 16 community colleges in Maryland (Baltimore City Community Appellants' counsel acknowledged this fact when he stated at oral argument that the Governor's annual Budget Bill "can be subject to later adjustment by the -- downward by the General Assembly." Transcript of Proceedings, January 27,2012, at 20:12-13. Counsel continued, " ... obviously, the budget bill can be adjusted by the General Assembly, the -- that's exactly what they did with the Cade funding formula last year and I believe the year before." Id. at 20:24-21:2. 12 At this third stage, the Cade Formula does not affect funding for four-year institutions in any way. Nor does it affect funding for Baltimore City Community College. Md. Code Ann., Educ. § 16-305(b)(4).
11

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College is given separate consideration).

Cade Step 3 dictates that State support for these

15 community colleges be distributed in proportion to each community college's number of "full time equivalent students," which is calculated based upon the number of "student credit hours" each community college produced in the preceding two year period. Md. Code Ann., Educ. §§ 16-305(b)(7), 16-305(b)(12). "Student credit hours," in tum, means

college credits awarded to in-state students. Md. Code Ann., Educ. § 16-305(b)(12); COMAR § 13B.07.02.03. Although it not entirely clear from their brief, Appellants appear to assert that it is at Cade Step 3 where SB 167 is transformed into a spending bill. As demonstrated above, however, SB 167, working in conjunction with Cade Step 3, would not direct or require the State of Maryland to spend a single dime more on community colleges than it does today. This is because Cade Step 3 occurs after the Governor and General Assembly have already decided how much money to appropriate for community colleges in any given year. The impact of Cade Step 3 on spending is even less than the impact of Cade Step 1 or Cade Step 2. Put another way, based on the above-described processes, if SB 167 causes an additional 10, 100, or 1,000 qualified, unlawfully present alien students to enroll at a community college in Maryland tomorrow, the Governor and General Assembly will continue to have the exact same discretion that they have always had in deciding how much State support to provide to community in any given year. Ifmore full-time students seek to attend community college in future years and the State wishes to keep its support for community colleges at the same level as in prior years, the Governor and the
- 15 -

General Assembly retain the discretion to maintain that same level of support regardless of the policy change made in SB 167. Or, if the State wishes to reduce its support for community colleges in future years, it could do so as well regardless of the Cade Formula or SB 167. With or without SB 167, the Governor retains discretion to propose State support for community colleges at whatever amount he or she believes is appropriate based on his or her power to propose State support for public four-year institutions, and the General Assembly retains the discretion to adopt or reduce the Governor's proposals. SB 167 does not directly or indirectly require any particular level of state support for community colleges. Indeed, the Circuit Court correctly found that, regardless of the enactment of SB 167, State support for community colleges remains dependent on a number of variables, including the discretion of the Governor and the General Assembly: Assuming, arguendo, that the Court does in fact need to consider [Senate Bil1167 and the Cade Formula] together, a future appropriation would be dependent on a number of variables, including there being an increase in eligible students, the Cade Formula remaining unaltered by the General Assembly or Governor, and any alteration of the appropriation by the General Assembly before the Budget Bill is passed.
JRE at 24 (emphasis added).

B.

A "Mandated Appropriation" Is Not "Spending," So Whether SB 167 "Affects" A "Mandated Appropriation" Is Irrelevant.

In their brief, Appellants repeatedly use the words "mandated appropriation" to describe SB 167, equating this label with actual spending. However, the term "mandated appropriation" does not mean what Appellants assert it means. If an item is a "mandated appropriation," it means that the Governor must propose funding for the item in the first
- 16 -

draft of the annual budget presented to the General Assembly - not that the Governor or the General Assembly have no discretion to determine the actual level of spending for the item in any given year. The idea that SB 167 affects a "mandated appropriation" and therefore causes spending is a key element of Appellants' argument. They state: • "The Fiscal Note for the bill, prepared by the Department of Legislative Services, concludes that 'This bill affects a mandated appropriation.' (E 32 (emphasis in original)). For these reasons, the Maryland DREAM Act is a law 'making any appropriation for maintaining the State Government' ... " Br. at 2. "The Fiscal Note prepared by the Department of Legislative Services for the Maryland DREAM Act (E 32) concludes that 'This bill affects a mandated appropriation' (E 32) (emphasis in original)), thereby indicating that, under Md. Code Ann., State Gov't § 2-1505(e)(3), the bill 'requires a mandated appropriation.'" Br. at 7. "In the case now before the Court, the Department of Legislative Services found that the Maryland DREAM Act 'affects a mandated appropriation' (E 32) - specific language indicating that a law 'requires a mandated appropriation.' Md. Code Ann., State Gov't § 2-1505(e)(3)." Br. at 15. "Before the members of the General Assembly, during their consideration of SB 167, was the Fiscal Note for the bill, highlighting that this "bill affects a mandated appropriation." (E 32)." Br. at 17. But the phrase "mandated appropriation" is actually a term of art in Maryland legislative procedure. "Mandated appropriation" merely changes the dynamic between

the Governor's and the General Assembly on a particular item during the budget process. It does not actually "mandate" any spending; it just means the first changes to the amount budgeted for the item must be made by the General Assembly instead of the Governor. The text of the relevant statute reads: - 17 -

"Mandated appropriation" means a requirement in a bill that the Governor provide a certain level of funding in the annual budget bill for a specific program in the State. Md. Code Ann., State Gov't § 2-1501(d). The Maryland Constitution explains that mandated appropriations are merely amounts that have to be included in the initial budget bill the Governor submits to the General Assembly. Md. Const. art. III, § 52(11), (12). As Appellants' counsel admitted to the trial court below, once the Governor proposes an amount in the budget bill, the General Assembly can then revise it. Transcript of Proceedings, January 27,2012, 20:24-25 (" ... obviously, the budget bill can be adjusted by the General Assembly ... "). C. SB 167 Does Not Cause Spending under Maryland Law.

Appellants are wrong to liken SB 167 to the legislation at issue in Kelly and Winebrenner v. Salmon, 155 Md. 563 (1928). Br. at 13-15, 17. The legislation in those cases was quite distinct, and those holdings support affirmance of the Circuit Court's ruling, not its reversal. At issue in Winebrenner was the imposition of a new gasoline tax, the proceeds of which were to be used to build public roads in the State. Appellants quote dicta from Winebrenner speculating on whether the enactment at issue was self-effectuating (Br. at 14), but the spending in Winebrenner was assured: "[the bill] fulfills in itself all the requirements of a supplemental appropriation act authorized by the budget amendment." Winebrenner, 155 Md. at 567. More importantly, Appellants ignore the facts that (1) the enactment also included a tax that unquestionably was a revenue raising measure, and (2) the petitioners had asked that the entire bill be subject to referendum, including all taxing - 18 -

and spending portions. Id. at 571. The Court noted that if the petitioners in that case had sought to take only the policy portions of the bill to referendum, those portions could have been subject to referendum. Id. Winebrenner confirms that SB 167 is not an appropriation. Appellants' discussion of Kelly (Br. at 14-15) is inapplicable to the present case. Kelly held that spending and revenue bills are "appropriations" within the meaning of the referendum exception. But unlike the present case, the Kelly court actually had a spending and revenue bill before it. At issue in Kelly was an "intricate financing mechanism" that permitted the State to "receive and expend public monies" to obtain a site and construct Oriole Park at Camden Yards and M & T Bank Stadium. The key provision of the enactment at issue in Kelly, Chapter 124, authorized the Maryland Stadium Authority ("the Authority"), a State instrumentality, to raise and expend specific amounts of money: $85 million for site acquisition, $70 million for construction of a baseball stadium, $70 million for construction of a football stadium, and $195 million for construction of a multi-use stadium. Kelly, 310 Md. at 442. This same provision also gave the Authority the power to issue bonds for financing the project, created new sports lotteries to raise funds for the project, and required an annual payment from the City of Baltimore, among other fund raising measures. Id. at 442-44. In concluding that Chapter 124 constituted an "appropriation," the Court found: It authorizes the borrowing of funds through the issuance of bonds, the disbursement of those funds through the Authority's Financing Fund, and the payment of the Authority'S bonded indebtedness through monies directed to be paid by the State to the Authority through annual

- 19-

appropriations in the Budget Bill, by the City of Baltimore, and through the Authority's own revenues included in its Financing Fund. Kelly, 310 Md. at 460-61. Unlike Chapter 124, SB 167 does not authorize the expenditure or receipt of any public monies, much less any specific quantity of public monies. Nor does it create any "intricate financing mechanism." It contains no

borrowing, funding, or fmancing mechanism at all. SB 167 is nothing more than a policy choice that extends eligibility to pay reduced, in-state or in-county tuition to a new category of persons. It is not

an appropriation

under Kelly.

Importantly, the legislation in both Winebrenner and Kelly raised and spent money on their own terms, independent of future budget decisions of the General Assembly. It bears repeating that the Court in Kelly was considering legislation to raise $420 million through bond issuances to spend on construction of a sports stadium, without regard to any future actions by the General Assembly. It is not difficult to see why the legislation at issue in Kelly was not subject to referendum. The Circuit Court correctly concluded

that SB 167 does not remotely resemble a bill raising $420 million for a sports complex, and that SB 167 does not affect spending or direct future spending, whether considered on its own or in conjunction with future legislation. If SB 167 has any effect on spending

at all, it is both extremely tenuous and impossible to predict. See JRE at 24 ("Any future impact on the state's budget that could result from the Maryland Dream Act is merely an incidental result of a law aiming to change policy."). SB 167 is most analogous to the enactment at issue in Dorsey. In that case, the General Assembly enacted legislation creating a new "Commission of Fisheries" to

- 20-

regulate the tidewater fisheries of the State. The new legislation gave the new commission certain duties and powers, including the power to hire employees whose salaries were appropriated in the State's annual Budget Bill, and the power to charge inspection fees and impose monetary fmes, both of which were to be paid to the Comptroller of the State Treasury. The Court of Appeals rejected the argument that these "incidental" revenue raising and spending measures transformed a general law into an "appropriation" for purposes of Article XVI, Section 2: All the features of an appropriation are thus negatived, and it cannot be maintained that [the provision] regulates the manner in which public funds are to be annually supplied and applied to the conservation of the tidewater fisheries of the state. On the contrary, the statute is of the kind clearly indicated by the Referendum Amendment as being within its purview. Dorsey, 178 Md. at 248. SB 167 does not even contain the "incidental" spending or revenue raising provisions contained in the statute at issue in Dorsey. Again, SB 167 contains no provisions for spending or raising public funds at all. Like the statute at issue in Dorsey, SB 167 does not "regulate[] the manner in which public funds are to be annually supplied and applied" to post-secondary public education in Maryland. Instead, it is a mere policy choice that makes a new category of persons eligible to pay reduced in-state and in-county tuition. D. The Legislative History of SB 167 Does Not Demonstrate That the Enactment Directs Future Spending.

Appellants also incorrectly argue that the General Assembly either believed or intended that SB 167 would direct future spending. Br. at 18. First, they misread the Fiscal Note from the Department of Legislative Services as indicating SB 167 was a

- 21 -

"significant spending measure." Id. They then argue that the Senate debate on whether to send the bill to the Senate Budget & Taxation Committee ("Budget Committee") is probative of that claim. Id. at 18-19. Neither assertion withstands scrutiny. During the recorded debate on whether to refer SB 167 to the Budget Committee," the following points: • Between 50% and 80% of all bills have Fiscal Notes attached and usually do not get sent to the Budget Committee. If the legislature were to start doing so each time, it would "radically change" the way they conduct business. Session at 8:17 to 9:08.
It was specifically decided not to send SB 167 to the Budget Committee

Senators made

because there were "so many variables involved that referring it to [the Budget Committee] wouldn't do any good in terms of getting any hard numbers." Session at 9:39 to 10:12. • There is no rule requiring that bills with Fiscal Notes must be referred to the Budget Committee in any case. Session at 10:50 to 11:00. Also, as Delegate Neil Parrott testified by affidavit, the Appropriations Committee of the House of Delegates did not consider SB 167 either, and that Committee would consider bills that make actual appropriations. JRE at 98. No lawmaker submitted a

sworn statement of any kind contradicting this evidence to the Circuit Court. Appellants' citations to the Fiscal Note of the Department of Legislative Services (Br. at 17) tell a similarly incomplete story. Here is what the Department of Legislative Services said about whether SB 167 would have an impact on college funding or revenues:

Public Institutions of Higher Education - Tuition Rates- Exemptions: Debate on S.B. 167, March 9, 2011, Session #1 (Md. 2011) available at http://mlis.state.md.us/ mgaweb/pyaudio.aspx ("Session") (at 4:45 to 19:52). - 22-

13

"Therefore, despite the differences in tuition levels for in-state and out-ofstate students, tuition revenues at most institutions will not be materially affected." JRE at 38. "At most USM institutions, out-of-state students make up no more than 10% of undergraduates so the impact of the bill will not be significant." JRE at 39. "However, to the extent undocumented students would not have otherwise enrolled because they could not afford to pay out-of-state tuition, or the institutions increase undergraduate enrollment overall, the impact may be minimal." JRE at 39. "There is little information available on the number of additional students who might qualify for resident tuition, thus the general fund expenditure increase cannot be reliably estimated." JRE at 39. "Overall, it is assumed that the bill has a negligible net impact on total community college tuition revenues." JRE at 41. In sum, the legislative history ofSB 167 does not demonstrate that the General

Assembly believed the measure is an appropriation that directs future spending. If anything, the opposite is the case. E. SB 167 Was Not Enacted for the Purpose of Maintaining State Government.

In addition to not being an "appropriation" for purposes of Article XVI, Section 2, SB 167 was not enacted for the purpose of "maintaining State government." On its face,

Article XVI, Section 2 differentiates between "State government" and "public institutions." In Kelly, the Court of Appeals declared that public institutions "do not

necessarily perform government functions and are largely supported by private capital. Moreover, public institutions are not controlled by the State, although the State may be given a voice in their management."

Kelly, 310 Md. at 475 (quoting 12 Op. Md. Att'y
- 23 -

Gen. 228, 237 (1927)). It has long been recognized that the term "public institution" referenced in Article XVI, Section 2 relates to "educational and eleemosynary institutions, sometimes designated as State-aided institutions." Id. Maryland community colleges and "public senior higher education institutions" are the very picture of the "public institutions" described in Kelly. They are much more a part of "County government" then they are a part of "State government." See, e.g., Md. Code Ann., Educ. §§ 16-101, 16-301, 16-304, and 16-305. They are created by the county or counties that they serve. Specifically, the governing body of the county served by a community college appropriates money to "pay the cost of establishing and operating a community college or regional community college." Id. at § 16-304(a); see also id. at § 16-305. The community colleges themselves are governed by boards of trustees that "exercise general control over the community college" and appoint a president who is "responsible for the conduct of the community college and for the administration and supervision of its departments." Id. at §§ 16-103(c) and 16-104(b)(4).

Each year, community colleges prepare and submit budgets to the counties they serve, not to the General Assembly, and it is the counties, not the General Assembly, that approve the community colleges' budgets. Id. at §§ 16-301(a) and (e). Community colleges may borrow money, but any such borrowing does not "create or constitute a debt or obligation of the State" and does not "constitute a debt or obligation of the General Assembly or pledge the full faith and credit of the State." Id. at § 16-302(d). Rather than being "State government," community colleges are at most "public institutions" or "State-aided institutions." - 24-

Maryland's "public senior higher education institutions," are "independent units" of State government. Id. at § 12-102(a)(3) (University System of Maryland) and § 14101(a)(3) (Morgan State University). Each is governed by its own Board of Regents or

Board of Trustees. Id. at §§ 10-208, 12-102(b) and 12-104 (University System of Maryland); 14-102 and 14-104 (Morgan State University); and 14-402 and 14-404 (St. Mary's College of Maryland). By law, the Board of Regents of the University System of

Maryland "may not be superseded in its authority by any other State agency or office in managing the affairs of the University System of Maryland or of any constituent institutions and centers under the Board's jurisdiction." Id. at § 12-104(c)(3). Likewise,

the Board of Regents of Morgan State University "may not be superseded in its authority by any other State agency or office in managing the affairs of the University." Id. at § 14-104(a)(2). A similar provision applies to the Board of Trustees of St. Mary's College of Maryland. Id. at § 14-404(b)(2). Each institution sets its own tuition and fees. Id. at §

10-208(6) (University System of Maryland); § 14-104G)(1) (Morgan State University); and § 14-404(a) (granting the Board of Trustees ofSt. Mary's College "all the powers, rights, and privileges" for governance and management of the College). Like community colleges, both the University System of Maryland and St. Mary's College of Maryland have authority to borrow money, but such borrowing does not create or constitute a debt or obligation of the State or a debt or obligation contracted by the General Assembly. Id. at § 12-105(c) (University System of Maryland) and § 14-405(d) (St. Mary's College of Maryland). Nor does it pledge the full faith and credit of the State. Id.

- 25-

Nor are these public institutions of postsecondary education "performing government functions." Postsecondary education in Maryland also includes the great many private colleges and universities in the State. Obviously, these private institutions are not "performing government functions." Unlike primary and secondary education,

which is a more traditional, but not exclusive, "government function," postsecondary education is not compulsory, It is purely voluntary and therefore further removed from a

typical "government function." Public community colleges and four-year institutions also receive substantial quantities of "private capital" - the tuition and fees paid by the students who attend them. Kelly, 310 Md. at 475. Moreover, the provision of postsecondary education is nothing at all like the "government functions" at issue in the other cases applying Article XVI, Section 2. SB 167 is exactly the type of policy change unrelated to the maintenance of State government that falls well within the people's right of referendum. Because SB 167 concerns "public institutions," not "State Government," the limitation on the people's right to referendum contained in Article XVI, Section 2 is even narrower. The people retain the right to vote for themselves on enactments of the

General Assembly that increase State aid to public institutions: The framers intended that the people should have a check upon the amount of money expended by the legislature for the maintenance or aid of public institutions, not owned or controlled by the State ... It is, therefore, not improper, when providing a check upon legislative power, to reserve to the people the right to control any extensions or increases of State aid to such institutions. The reference of such increases should not impair the State government in the exercise of its normal functions, whereas appropriations for the executive, legislative and judicial branches of the Government must

- 26-

be provided, in accordance with the financial needs of these departments, without hindrance or delay.

Kelly, 310 Md. at 475. "That this is now the law of Maryland is beyond all question." Id.
Because Appellants expressly and specifically contend that SB 167 increases the amount of State support for community colleges (Br. at 7 and 16), it would not be subject to the limitation on the right of referendum contained in Article XVI, Section 2 even ifSB 167 were found to be an "appropriation." Consequently, SB 167 is subject to referendum as a

matter of law for this additional reason as well. III. SB 167 Does Not Regulate Tuition at Public Four-Year Institutions. Appellants also are wrong when they argue that SB 167 "directly regulates the amount of tuition revenue" collected by four-year institutions. Br. at 22-23. In fact, SB 167 has no bearing on the level at which four-year institutions set the rates they charge students for in-state and out-of-state tuition. Rather, SB 167 only affects students' eligibility for these different rates. Four-year institutions may also raise their tuition in response to their enrollments and costs. Md. Code Ann., Educ. § 12-109(e)(7). Nothing about SB 167 limits these institutions' discretion to adjust tuition rates to whatever level they deem necessary to raise the revenue they require. See Md. Code Ann., Educ. §§ 10-208(6), 14-104U)(1), and § 14-404(a). Furthermore, four-year institutions can also decide how many in-state and out-of-state students to admit, maintaining a balance in revenues. JRE at 38. If an institution determines that it needs to increase overall tuition rates to accommodate any students who qualify for in-state tuition rates under the new policy, nothing in SB 167 prevents the institution from doing so. SB

- 27-

167 does not directly or indirectly regulate the amount of tuition collected by any fouryear institution.14 But all of this is academic. Appellants have already waived any argument that SB 167 is a revenue bill. At oral argument on the parties' cross-motions for summary judgment, Appellants' counsel conceded that Senate Bi11167 was not a revenue provision: [By Mr. Sandler] The issue is whether -- this is -- nobody is arguing this has anything to do with raising revenue, the question here is what type of spending bill is non-referable under Article 16. Transcript of Proceedings, January 27, 2012, at 15:16-19. The Circuit Court expressly noted this concession in its ruling, "Plaintiffs conceded that [Senate Bi11167] does not raise revenue ... The Court will therefore focus its analysis on whether [Senate Bi11167] is a spending measure within the meaning of the Appropriation Exception." JRE at 21. Accordingly, this Court does not need to decide whether SB 167 is exempt from referendum as a revenue measure because the lower court did not have the opportunity to consider it. Maryland State Bd. ofElec. v. Libertarian Party, 2012 Md. LEXIS 287, *4748 (May 21,2012 Md.) ("Pursuant to Maryland Rule 8-131 (a), an appellate court ordinarily will not consider any point or question unless it plainly appears by the record to have been raised in or decided by the trial court.") (internal quotations omitted); see

SB 167 does not change the revenue received by Maryland community colleges either. If more students eligible for reduced, in-state or in-county tuition enroll, community colleges may simply raise tuition or obtain more support from the county or counties they serve. Md. Code Ann., Educ. § 16-103U). - 28-

14

also Colie v. State, 193 Md. 608, 612 (1949) ("[W]ithout an opportunity for the trial court to pass upon the question, there is nothing for this Court to review."). IV. The Court Should Affirm the Judgment of the Circuit Court Without Reaching the Complex Constitutional Question Raised by Appellants. This Court may affirm the Circuit Court's judgment on any grounds supported by the record. United Parcel Servo V. People's Counsel, 336 Md. 569, 585 (1994) ("It is true that when an appellate court reviews the judgment of a trial court on direct appeal, the appellate court ordinarily will affirm the judgment on any ground adequately shown by the record even though the trial court may not have ruled upon such ground"). Under Md. Code Ann., Elec. Law § 6-209, two types of judicial review are permitted for challenging State Board of Elections decisions certifying legislation for popular referendum. Under Section 6-209(a), "a person aggrieved by a determination [of the Board of Elections] ... may seek judicial review ... " and the reviewing court is authorized to grant relief "as it considers appropriate." Doe
V.

Montgomery County

Board of Elections, 406 Md. 697, 715 (2008); Under Section 6-209(b), by contrast, a reviewing court is authorized to grant only declaratory relief "upon the complaint of any registered voter." Doe, 406 Md. at 715; Md. Code Ann., Elec. Law § 6-209(b). Appellants neither pled their claims sufficiently to avoid dismissal under Rule 2322( c) nor supported their factual contentions with any evidence. It is a fundamental rule of trial practice that parties facing summary judgment must support their factual contentions with evidence that would be admissible at trial. Vanhook
V.

Merchants

Mutual Ins. Co., 22 Md. App. 22, 27 (1974). It also is fundamental that "facts alleged in

- 29-

pleadings are not, by that means alone, before the court as facts for summary judgment purposes." Id. at 27. Appellants had ample opportunity to substantiate their claims with

evidence that would be admissible at trial, but they failed to do so. They did not present a single declaration or affidavit or any other evidence demonstrating who they were or how they were entitled to any relief. Appellee-Intervener plainly raised these issues below. JRE at 14-20; Transcript of The Circuit Court could have dismissed

Proceedings, January 27,2012, at 28:16-32-17.

Appellants' claims or entered summary judgment against Appellants without considering whether SB 167 is an "appropriation" Maryland Constitution. Given these failings, there is no reason for this Court to consider the drastic and unprecedented limitation on the people's constitutional right of referendum advocated by Appellants. See Maryland State Bd. ofElec., 2012 Md. LEXIS 287, *51 n.12 (May 21, for purposes of Article XVI, Section 2 of the

2012 Md.) ("Thus, if a decision on a constitutional question is not necessary for proper disposition of the case, we will not reach it.")(intemal quotations omitted). The "concept of constitutional avoidance" counsels otherwise. Id. A. Appellants John Doe and Casa de Maryland Failed to Properly Plead or Substantiate Their Claims.

Appellants John Doe and Casa de Maryland invoked the "aggrieved" persons provision of Section 6-209(a) and alleged that they were aggrieved by a determination made by the State Board of Education pursuant to Section 6-208(a). JRE at 49,50,52, 57, and 66. Appellant John Doe never pled facts nor offered any evidence to substantiate

- 30-

a claim that he qualified for in-state or in-county tuition under SB 167. Specifically, Appellant John Doe failed to plead or substantiate any claim that he attended a public or non-public secondary school in Maryland for at least three years, as required by SB 167. See Md. Code Ann., Educ. § 15-106.8(b)(1). Appellant John Doe also failed to plead or

substantiate any claim that he would or could provide the affidavit required by SB 167 as a condition of receiving reduced in-state or in-county tuition. See Md. Code Ann., Educ. § 15-106.8(b)(5). Third, Appellant John Doe also failed to plead or substantiate any

claim that he had complied with his selective service registration obligation, as required by SB 167.15 See Md. Code Ann., Educ. § 15-106.8(b)(6). Thus, Appellant John Doe's

claims suffered from a fatal lack of both pleading and proof with respect to establishing his eligibility for reduced tuition under SB 167, and summary judgment was properly entered against him. In addition, in order to be "aggrieved" for purposes of Section 6-209(a), a plaintiff s interests must be personally and specifically affected in an way different from the public generally. Doe, 406 Md. at 716 (quoting Sugarloaf Citizens' Assoc. v. Dep 't of

Env't, 344 Md. 271 (1996)). An "aggrieved" person must suffer some "special damage"
differing in character and kind from that suffered by a member of the general public. Id. at 716-717 (quoting Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439, 433 (2002)). Moreover, that "special damage" must be caused by a determination made

15

See 50 U.S.C. §§ 453 and 454 (2011). - 31 -

by the State Board of Elections under one of the three specific provisions listed in Section 6-209(a). Md. Code Ann., Elec. Law § 6-209(a). Appellant John Doe's claim of "special damage" - harm to his plans to attend community college - was too remote, too speculative, and too far removed from any determination by the State Board of Elections. He did not even attempt to associate his alleged injury to one of the three provisions specifically listed in Section 6-209(a), much less substantiate any such claim with actual evidence. In addition, Appellant John Doe did not plead or substantiate any claim that he attends community college in Maryland or that he has concrete, specific plans to do so in the near future, much less before the November 2012 election. Nor did he plead or substantiate any claim that he had to change or delay specific, present plans he may have had to attend community college in Maryland. He merely alleged that he had a vague wish to attend community college at some indefinite time in the future ifhe could save enough money from his part-time job.
JRE at 49-50. This itself is a legally dubious prospect, given that, under federal law, u.S.

employers must check to make sure that all employees are authorized to work in the United States and it is illegal to knowingly employ an unlawfully present alien. 8 U.S.C. § 1324a. Thus, Appellant John Doe could not claim and did not prove that he was personally and specifically harmed by a determination made by the State Board of Elections under Section 6-202,6-206, or 6-208(a)(2) in a way that is different from any

other members of the general public. He did not claim or prove that he had any "special damage," and therefore that he had no standing to bring suit. Doe, 406 Md. at 716. Because Appellant John Doe also failed to submit an affidavit or any other evidence - 32-

substantiating any such allegations of special damage, summary judgment was properly entered against him for this reason as well. Appellant Casa de Maryland also failed to plead or substantiate any claim to be an "aggrieved" person under Section 6-209(a). Appellant Casa de Maryland alleged that it would have to raise and expend additional funds because unlawfully present aliens would be unable to attend college without in-state tuition and therefore would earn less money, resulting in greater demand for its services. JRE at 52-53. That claim was too generalized, too remote, too speculative, and too far removed from any determination made by the State Board of Elections to constitute the type of "special damage" that would have entitle Appellant Casa de Maryland to any relief even if it had submitted any actual evidence in support of its factual contentions. Doe, 406 Md. at 716. The fact that Appellant Casa de Maryland failed to submit any evidence whatsoever provides yet another reason why summary judgment was properly entered against it. B. The "Registered Voter Appellants" Failed to Properly Plead or Substantiate Their Claims.

Appellants Jesus Alberto Martinez, Abby Hendrix, Katherine Ross-Keller, Kim Samele, Camden Douglas Lee, and Catherine Brennan (''the Registered Voter Appellants") invoked the "registered voter" provision of Section 6-209(b) and sought declaratory relief only. JRE at 51,52,57, and 69. The claims of the Registered Voter

Appellants also suffered from a fundamental failure of both pleading and proof. Section 6-209(b) authorizes a reviewing court to "grant declaratory relief as to any petition with respect to the provision of this title or other provisions of law" "[p]ursuant

- 33 -

to the Maryland Uniform Declaratory Judgments ACt and upon the complaint of any registered voter." Md. Code Ann., Elec. Law § 6-209(b). The existence of a justiciable controversy is an absolute prerequisite to a declaratory judgment action under the Maryland Uniform Declaratory Judgment Act ("UDJA"). Boyds Civic Ass 'n v. Montgomery Cnty. Council, 309 Md. 683, 689 (1987); Hatt v Anderson, 297 Md. 42, 45 (1983); Md. Code Ann., Cts. & Jud. Proc. § 3-409(a). A controversy is justiciable when interested parties assert adverse claims upon a state of facts that must have accrued and on which a legal decision is sought or demanded. Hatt, 297 Md. at 45-46. The issue to be decided must present more than a mere difference of opinion between the parties. Hatt, 297 Md. at 45. Moreover, the existence of a justiciable issue "is an especially important principle in cases seeking to adjudicate constitutional rights; in such instances we ordinarily require concrete and specific issues to be raised in actual cases, rather than theoretical or abstract propositions." Hatt, 297 Md. at 46.

The Registered Voter Appellants fell far short of pleading or substantiating any claim about the existence of a justiciable controversy between themselves and Appellees. They neither alleged nor substantiated any facts demonstrating the existence of an "actual controversy" or the presence of "antagonistic claims" between the parties. Md. Code Ann., Cts. & Jud. Proc. §§ 3-409(a)(1) and (2). Nor did the Registered Voter Appellants plead or substantiate any facts about a "legal relation, status, right, or privilege" that was being "challenged or denied" by Appellees. Id. at § 3-409(a)(3). Because the Registered Voter Appellants' claims involve the Constitutional right of Maryland citizens to vote on legislation in a referendum, it was even more important - 34-

that a "concrete and specific issue]'] be raised in [an] actual case[]." Hatt, 297 Md. at 46. The Registered Voter Appellants clearly did not satisfy this exacting standard. The three paragraphs in the Amended Complaint that identified Appellants Martinez, Lee, and Brennan did not even mention SB 167. Appellant Martinez alleged that he was an "undocumented immigrant" when he entered the United States and became a successful ophthalmic surgeon. JRE at 51. Appellant Lee alleged that he was a University of Maryland - College Park student who believes that policies that promote affordable access to college for all students would have enhanced his university experience. JRE at 52. Appellant Brennan alleged it was her belief that, if immigrant students and veterans were able to attend college at Maryland's public institutions, it would enhance her young children's K-12 and college experiences. JRE at 52. The three paragraphs in the

Amended Complaint that identify Appellants Hendrix, Ross-Keller, and Samele contain only the vaguest of references to their beliefs about SB 167. Appellant Hendrix alleged that she believes every student should have the opportunity to attend college and that SB 167 would promote college attendance. JRE at 51. Appellant Ross-Keller alleged that she believes the statute would benefit the "citizens of Maryland" by providing for a more educated population. JRE at 51. Appellant Samele alleged that she believes SB 167

would benefit public school teachers by providing hope for students. JRE at 51. None of the above assertions demonstrated how any of the Registered Voter Appellants are being harmed by any actions of Appellees or by the referral of SB 167 to referendum. Any dispute the Registered Voter Appellants might have regarding SB 167

- and, again, no justiciable dispute was evident below - is not a dispute with Appellees. - 35 -

Rather, it is a dispute with persons who do not share the Registered Voter Appellants' opinions about the statute. A difference of opinion does not constitute a justiciable controversy, however. Hatt, 297 Md. at 45. Because the Registered Voter Appellants failed to allege the existence of a justiciable controversy, they were not entitled to relief under the UDJA and judgment was properly entered against them. Because the Registered Voter Appellants also failed to submit any evidence substantiating the existence of a justiciable controversy between themselves and Appellees, summary judgment was properly entered against them for this additional reason, and the Court need not address the constitutional question of whether SB 167 is an "appropriation" for purposes of Article XVI, Section 2.

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CONCLUSION F or all the foregoing reasons, the decision of the Circuit Court should be AFFIRMED. Dated: May 30,2012 Respectfully Submitted, Paul 1. Orfanedes Md. Bar No. 9112190026 Chris Fedeli Md. Bar No. 0012120179 JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, DC 20024 Tel: (202) 646-5172 Fax: (202) 646-5199 Email: porfanedes@judicialwatch.org cfedeli@judicialwatch.org Attorneys for Appellee-Intervener MDPetitions.com Font: Times New Roman, 13 point

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CERTIFICATE

OF SERVICE

I hereby certify that on this 30th day of May, 2012, I caused a true and correct copy of the foregoing BRIEF OF APPELLEE-INTERVENER MDPETITIONS.COM to be served, via email and first-class U.S. mail, postage prepaid, on the following: Joseph E. Sandler Elizabeth F. Getman SANDLER, REIFF, YOUNG & LAMB, P.C. 1025 Vermont Avenue, N.W., Suite 300 Washington, DC 20005 Brett Marston Michael Harris Laura Cofer Taylor ARNOLD & PORTER 555 Twelfth Street, N.W. Washington, DC 20004 Matthew Fader Jeffrey L. Darsie Assistant Attorney Generals Beatrice Nunez-Bellamy Attorney OFFICE OF THE ATTORNEY GENERAL 200 St. Paul Place, 20th Floor Baltimore, MD 21202-2021
~~

Chris Fedeli 7

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CITATION AND VERBATIM TEXT OF PERTINENT CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES, AND REGULATIONS Md. Const. art. XVI, § 1 (2012) Section 1. Reservation of power of referendum in people; article self-executing; additional legislation (a) The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor; (b) The provisions of this Article shall be self-executing; provided that additional legislation in furtherance thereof and not in conflict therewith may be enacted. Md. Courts and Judicial Proceedings Code Ann. § 3-409 (2012) § 3-409. Discretionary relief

(a) In general. -- Except as provided in subsection (d) of this section, a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if: (1) An actual controversy exists between contending parties; (2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or (3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it. (b) Special form of remedy provided by statute. -- If a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle. (c) Concurrent remedies not bar for declaratory relief. -- A party may obtain a declaratory judgment or decree notwithstanding a concurrent common-law, equitable, or extraordinary legal remedy, whether or not recognized or regulated by statute. (d) Exception as to divorce or annulment of marriage. -- Proceeding by declaratory judgment is not permitted in any case in which divorce or annulment of marriage is sought. (e) Speedy hearing. -- A court may order a speedy hearing of an action of a declaratory judgment and may advance it on the calendar.

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Md. Education Code Ann. § 12-109 (2012)

§ 12-109. Presidents of constituent institutions; boards of visitors
(a) Presidents -- Appointment. -- In consultation with the Chancellor and after a thorough search, the Board of Regents shall appoint a qualified person as president of each constituent institution. (b) Presidents -- Compensation. -- The president of each constituent institution is entitled to the compensation established by the Board of Regents. (c) Presidents -- Term. -- The president of each constituent institution serves at the pleasure of the Board of Regents. (d) Presidents -- Responsibilities generally. -- The president of each constituent institution shall:

(1) Serve as the chief executive officer of the institution; (2) Be responsible and accountable to the Board for the discipline and successful conduct of the institution and supervision of each of its departments; and (3) Take every initiative in: (i) Implementing the policies of the Board and the constituent institution; and (ii) Promoting the institution's development and efficiency. (e) Presidents -- Powers and duties. -- Subject to the authority and applicable regulations and policies of the Board of Regents, each president shall: (1) Develop a plan of institutional mission in accordance with Title 11, Subtitle 3 of this article; (2) Have the authority to develop new academic programs and curtail or eliminate existing programs in accordance with the procedures set forth in §§ 11-206 and 11-206.1 of this article; (3) Formulate operating and capital budget requests designed to further the mission of the institution; (4) Appoint, promote, fix salaries, grant tenure, assign duties, and terminate personnel; (5) Subject to the provisions of subsection (g) of this section, have authority to create any position within existing funds available to the University, to the extent the cost of the position, including the cost of any fringe benefits, is funded from existing funds; (6) Establish admissions standards; (7) Set tuition and fees;

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(8) Administer financial aid; (9) Enter into contracts and cooperative agreements; (10) Have the authority to accept gifts and grants and maintain and manage endowment income; (11) Have the authority to recommend change in the name or status of the institution; (12) Regulate and administer athletic and student activities; (13) In compliance with State, federal, and Board mandates and policies, oversee affirmative action and equal employment opportunities; (14) Establish organizations for the administration of campus alumni affairs; (15) Be responsible for all academic matters; (16) Have the authority to establish and appoint an institutional board to: (i) Provide advice to the president; (ii) Assist in community relations; (iii) Assist in institutional development; or (iv) Provide any other assistance requested by the president; (17) Establish traffic regulations for the campus; (18) Designate one or more representatives to participate as a party in collective bargaining on behalf of the institution in accordance with Title 3 of the State Personnel and Pensions Article; and (19) Perform any other duties assigned by the Board. (t) Boards of visitors. -(1) The institutional boards established under subsection (e)(I6) of this section shall be known as boards of visitors. Each board shall submit a report by October 1 of each year to: (i) The Governor; (ii) The Chairman of the Board of Regents of the University System of Maryland; (iii) The Secretary of the Maryland Higher Education Commission; and - 41 -

(iv) The presiding officers of the Maryland General Assembly. (2) Except as provided in paragraph (3) of this subsection, each report submitted under paragraph (1) of this subsection shall include the comments of the appropriate board on the institution's progress toward meeting its goals consistent with its mission. (3) The report of the University of Maryland, College Park Board of Visitors shall include: (i) The Board of Visitors' evaluation of the status of the effort by the University System of Maryland and the State in meeting the requirements of the Maryland Charter for Higher Education set forth in § 10-209 of this article which require the University System of Maryland to: 1. Provide the College Park campus with the level of operating funding and facilities necessary to place it among the upper echelon of its peer institutions; 2. Maintain and enhance the College Park campus as the State's flagship campus with programs and faculty nationally and internationally recognized for excellence in research and the advancement of knowledge; 3. Admit as freshmen to the College Park campus highly qualified students who have academic profiles that suggest exceptional ability; and 4. Provide access to the upper division undergraduate level of the College Park campus for students who have excelled in completing lower division study; (ii) A status report on the University's effort to achieve national eminence; (iii) A status report on success in attaining federal research grants, private gifts, and other sources of nonstate revenue; and (iv) Other matters in support of institutional priorities as determined by the Board of Visitors. (4) The institutional boards of visitors are encouraged to meet periodically with the Chancellor and Board of Regents to develop close working relationships. (g) Construction of subsection (e)( 5). -- Subsection (e)( 5) of this section may not be construed to require any additional State General Fund support. Md. Education Code Ann. § 15-106.8 (2012)

§ 15-106.8. Exemption from nonresident tuition for qualified children of undocumented immigrants [Contingent on referendum].
(a) "Individual" defined. -- In this section, "individual": - 42-

(1) Includes an undocumented immigrant individual; and (2) Does not include a nonimmigrant alien within the meaning of S U.S.C. § 1101(a)(15). (b) Community college tuition. -- Notwithstanding any other provision of this article, an individual shall be exempt from paying the out-of-state tuition rate at a community college in the State, if the individual: (1) Beginning with the 2005-2006 school year, attended a public or nonpublic secondary school in the State for at least 3 years; (2) Beginning with the 2007-2008 school year, graduated from a public or nonpublic secondary school in the State or received the equivalent of a high school diploma in the State; (3) Registers as an entering student in a community college in the State not earlier than the 2011 fall semester; (4) Provides to the community college documentation that the individual or the individual's parent or legal guardian has filed a Maryland income tax return: (i) Annually for the 3 years while the individual attended a public or nonpublic secondary school in the State in accordance with item (1) of this subsection; (ii) Annually during the period, if any, between graduation from a public or nonpublic secondary school in the State and registration at a community college in the State; and (iii) Annually during the period of attendance at the community college; (5) In the case of an individual who is not a permanent resident, provides to the community college an affidavit stating that the individual will file an application to become a permanent resident within 30 days after the individual becomes eligible to do so; (6) In the case of an individual who is required to register with the Selective Service System, provides to the community college documentation that the individual has complied with the registration requirement; and (7) Registers in a community college in the State not later than 4 years after graduating from a public or nonpublic secondary school in the State or receiving the equivalent of a high school diploma in the State. (c) Public senior higher education institution tuition. -- Notwithstanding any other provision of this article and subject to subsection (h) of this section, an individual shall be eligible to pay a rate that is equivalent to the resident tuition rate at a public senior higher education institution, if the individual:

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(1) Attended a community college not earlier than the 2010 fall semester and met the requirements of subsection (b) of this section, except for the requirement set forth in subsection (b)(3) of this section; (2) Was awarded an associate's degree by or achieved 60 credits at a community college in the State; (3) Provides the public senior higher education institution a copy of the affidavit submitted under subsection (b)( 5) of this section; (4) Provides to the public senior higher education institution documentation that the individual or the individual's parent or legal guardian has filed a Maryland income tax return: (i) Annually while the individual attended a community college in the State; (ii) Annually during the period, if any, between graduation from or achieving 60 credits at a community college in the State and registration at a public senior higher education institution in the State; and (iii) Annually during the period of attendance at the public senior higher education institution; and (5) Registers at a public senior higher education institution in the State not later than 4 years after graduating from or achieving 60 credits at a community college in the State. (d) Qualification to pay in-county tuition rate at community college. -- Notwithstanding any other provision of this article, an individual shall be eligible to pay a rate that is equivalent to the in-county tuition rate at a community college in the State if the individual: (1) Meets the requirements of subsection (b) of this section; and (2) Attends a community college supported by the county in which: (i) The secondary school from which the individual graduated is located; or (ii) In the case of an individual who received the equivalent of a high school diploma in the State, the secondary school most recently attended by the individual is located. (e) Confidentiality of information. -- Information collected under this section as part of a student's registration shall remain confidential. (f) Records and reports. -(1) A community college or public senior higher education institution that admits an individual who qualifies for the tuition rate under this section shall:

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(i) Keep a record of the number of individuals who pay the tuition rate in accordance with the requirements under subsection (b), (c), or (d) of this section; and (ii) Report the information required in item (i) of this paragraph to the Commission each year. (2) The Commission shall submit to the General Assembly, in accordance with § 2-1246 of the State Government Article, an annual report consisting of a compilation of the reports submitted to the Commission under paragraph (1) of this subsection. (g) Adoption of policies to implement section by institutions. -- The governing board of each public institution of higher education shall adopt appropriate policies to implement the provisions of this section. (h) Students receiving tuition rate in (c) not counted as in-State students. -- The students that are receiving the tuition rate in subsection (c) of this section may not be counted as in-State students for the purposes of determining the number of Maryland undergraduate students enrolled at a public senior higher education institution. Md. Education Code Ann. § 16-103 (2012)

§ 16-103. Powers of board of trustees
(a) In general. -- In addition to the other powers granted and duties imposed by this title, and subject to the authority of the Maryland Higher Education Commission, each board of community college trustees has the powers and duties set forth in this section. (b) Establishment and operation. -- With the approval of the Maryland Higher Education Commission, each board of trustees may establish and operate one or more community colleges. (c) General control; rules and regulations. -- Each board of trustees shall exercise general control over the community college, keep separate records and minutes, and adopt reasonable rules, regulations, or bylaws to carry out the provisions of this subtitle. (d) Salaries and tenure. -- Each board of trustees may fix the salaries and tenure of the president, faculty, and other employees of the community college. (e) Acquisition of property. -- Each board of trustees may purchase, lease, condemn, or otherwise acquire any property it considers necessary for the operation of the community college. (f) Disposition of property. -(1) Each board of trustees may sell, lease, or otherwise dispose of community college assets or property.

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(2) Except as provided in § 16-105 (h) of this subtitle, the president of the community college and the chairman of the board of trustees may execute a conveyance or other legal document under an appropriate resolution of the board. (g) Cooperative use of facilities with board of education. -- Each board of trustees may: (1) With the approval of the Commission, permit the county board of education to use the lands, buildings, or other facilities of the community college; and (2) With the approval of the county board of education, use any land, buildings, assets, or other facilities of the county board of education. (h) Gifts and grants. -- Each board of trustees may apply for and accept any gift or grant from the federal government or any other person. (i) Entrance requirements; curriculum. -- Subject to the minimum standards of the Commission, each board of trustees may determine entrance requirements and approve offerings that consist of: (1) Transfer programs offering the equivalent of the first 2 years of a bachelor's degree program; (2) Career programs offering technical, vocational, and semiprofessional education; and (3) Continuing education programs. G) Student fees. -- Each board of trustees may charge students reasonable tuition and fees set by it with a view to making college education available to all qualified individuals at low cost. (k) Suits. -- Each board of trustees may sue and be sued. (1) Agreements. -- Each board of trustees may make agreements with the federal government or any other person, including agreements between counties to support a regional community college, if the board considers the agreement advisable for the establishment or operation of the community college. (m) Name. -- Except as provided in § 16-105 (i) of this subtitle, each board of trustees shall be styled "the board of trustees of community (or junior) college". (n) Seal. -- Each board of trustees may adopt a corporate seal. Md. Education Code Ann. § 16-301 (2012)

§ 16-301. Budget
(a) Preparation. -- Each year, the board of trustees and the president of each community college - 46-

shall prepare and submit to the county governing body or, in the case of a regional community college, the county governing body of each county that supports the regional community college: (1) An operating budget; (2) A capital budget; and (3) If required by local law, charter, or regulation, a long-term capital improvement program. (b) Contents of operating budget. -- The operating budget shall show: (1) All revenues estimated for the next fiscal year classified by funds and sources of income, including: (i) Any funds from federal, State, and local sources; and (ii) Any surpluses; , (2) All expenditures requested, including the major functions listed under § 16-304 (b); and (3) Any other information or supporting data required by the county governing body. (c) Contents of capital budget. -- The capital budget and any long-term capital improvement program shall contain a statement of all capital revenues and expenditures. (d) Consideration of budgets. -- The capital and operating budgets shall be prepared and considered in accordance with county fiscal procedures not inconsistent with State law. (e) Action by county governing body -- Community colleges. -- The county governing body shall review and approve the budget of the community college and may reduce it. (f) Action by county governing body -- Regional community college. -(1) The county governing bodies of the counties that support a regional community college jointly shall review the budget of the regional community college and may reduce it. (2) Approval of the budget by a majority of the counties that support a regional community college constitutes approval of the budget and binds all the counties. (g) Submissions to Commission. -(1) The budget of each community college, as approved by the county governing body under this section shall be submitted to the Commission for informational purposes. (2) Proposals for capital projects shall be submitted to the Department of Budget and Management through the Commission.

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Md. Election Law Code Ann. § 6-202 (2012) § 6-202. Advance determinations (a) In general. -- The format of the petition prepared by a sponsor may be submitted to the chief election official of the appropriate election authority, in advance of filing the petition, for a determination of its sufficiency. (b) Advice of legal authority. -- In making the determination, the chief election official may seek the advice of the legal authority. Md. Election Law Code Ann. § 6-206 (2012) § 6-206. Determinations at time of filing

(a) Review by chief election official. -- Promptly upon the filing of a petition with an election authority, the chief election official of the election authority shall review the petition. (b) Determinations. -- Unless a determination of deficiency is made under subsection (c) of this section, the chief election official shall: (1) make a determination that the petition, as to matters other than the validity of signatures, is sufficient; or (2) defer a determination of sufficiency pending further review. (c) Declaration of deficiency. -- The chief election official shall declare that the petition is deficient if the chief election official determines that: (1) the petition was not timely filed; (2) after providing the sponsor an opportunity to correct any clerical errors, the information provided by the sponsor indicates that the petition does not satisfy any requirements of law for the number or geographic distribution of signatures; (3) an examination of unverified signatures indicates that the petition does not satisfy any requirements of law for the number or geographic distribution of signatures; (4) the requirements relating to the form of the petition have not been satisfied; (5) based on the advice of the legal authority: (i) the use of a petition for the subject matter of the petition is not authorized by law; or (ii) the petition seeks:

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1. the enactment of a law that would be unconstitutional or the election or nomination of an individual to an office for which that individual is not legally qualified to be a candidate; or 2. a result that is otherwise prohibited by law; or (6) the petition has failed to satisfy some other requirement established by law. (d) Consistency with advance determination. -- A determination under this section may not be inconsistent with an advance determination made under § 6-202 of this subtitle. (e) Notice. -- Notice of a determination under this section shall be provided in accordance with § 6-210 of this subtitle. Md. Election Law Code Ann. § 6-208 (2012) § 6-208. Certification (a) In general. -- At the conclusion of the verification and counting processes, the chief election official of the election authority shall: (1) determine whether the validated signatures contained in the petition are sufficient to satisfy all requirements established by law relating to the number and geographical distribution of signatures; and (2) if it has not done so previously, determine whether the petition has satisfied all other requirements established by law for that petition and immediately notify the sponsor of that determination, including any specific deficiencies found. (b) Certification. -- If the chief election official determines that a petition has satisfied all requirements established by law relating to that petition, the chief election official shall certify that the petition process has been completed and shall: (1) with respect to a petition seeking to place the name of an individual or a question on the ballot, certify that the name or question has qualified to be placed on the ballot; (2) with respect to a petition seeking to create a new political party, certify the sufficiency ofthe petition to the chairman of the governing body of the partisan organization; and (3) with respect to the creation of a charter board under Article XI-A, § lA of the Maryland Constitution, certify that the petition is sufficient. (c) Notice. -- Notice ofa determination under this section shall be provided in accordance with § 6-210 of this subtitle.

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Md. Election Law Code Ann. § 6-209 (2012)

§ 6-209. Judicial review
(a) In general. -(1) A person aggrieved by a determination made under § 6-202, § 6-206, or § 6-208(a)(2) ofthis subtitle may seek judicial review: (i) in the case of a statewide petition, a petition to refer an enactment of the General Assembly pursuant to Article XVI ofthe Maryland Constitution, or a petition for a congressional or General Assembly candidacy, in the Circuit Court for Anne Arundel County; or (ii) as to any other petition, in the circuit court for the county in which the petition is filed. (2) The court may grant relief as it considers appropriate to assure the integrity of the electoral process. (3) Judicial review shall be expedited by each court that hears the cause to the extent necessary in consideration of the deadlines established by law. (b) Declaration relief. -- Pursuant to the Maryland Uniform Declaratory Judgments Act and upon the complaint of any registered voter, the circuit court of the county in which a petition has been or will be filed may grant declaratory relief as to any petition with respect to the provisions of this title or other provisions of law. Md. State Government Code Ann. § 2-1501 (2012)

§ 2-1501. Definitions
(a) In general. -- In this Part I of this subtitle the following words have the meanings indicated. (b) Bill. -- "Bill" includes a joint resolution. (c) Mandate. -- "Mandate" means a directive in a bill requiring a local government unit to perform a task or assume a responsibility that has a discernible fiscal impact on the local government unit. (d) Mandated appropriation. -- "Mandated appropriation" means a requirement in a bill that the Governor provide a certain level of funding in the annual budget bill for a specific program in the State.

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