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Brian Charles Vaeth 8225 Poplar Mill Road Nottingham, Maryland 21236 (410) 931-4423 IN THE CIRCUIT COURT OF ANNE ARUNDEL COUNTY Brian Charles Vaeth, Plaintiff, vs. Linda H. Lamone, Defendant ) Case No.: ) ) ) ) PLAINTIFFS MOTION FOR A ) PRELIMINARY INJUNCTION AND DEMAND ) FOR THE ) ) ISSUANCE OF A TEMPORARY ) RESTRAINING ORDER

PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION AND DEMAND FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER INTRODUCTION

This Court is presented with the Common Law question of the applicability of Maryland Code (2002), Sections 9-2091 and 12-2022 of

Section 9-209 of the Election Law Article provides: (a) Timing. Within 3 days after the content and arrangement of the ballot are placed on public display under 9-207 of this subtitle, a registered voter may seek judicial review of the content and arrangement, or to correct any other error, by filing a sworn petition with the circuit court for the county. (b) Relief that may be granted. The circuit court may require the local board to: (1) correct an error; (2) show cause why an error should not be corrected; or (3) take any other action required to provide appropriate relief. (c) Errors discovered after printing. If an error is discovered after the ballots have been printed, and the local board fails to correct the error, a registered voter may seek judicial review not later than the second Monday preceding the election.
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Section 12-202 of the Election Law Article provides:

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the Election Law Article, which provides for judicial challenges to aspects of the election process. THE PARTIES

Plaintiff, Brian Charles Vaeth, is a lawful person and an inhabitant of the State of Maryland. Plaintiff is also a candidate seeking the Republican nomination for Governor of Maryland in 2014.

Defendant, Linda H. Lamone is the Administrator for the Maryland State Board of Elections.

QUESTIONS PRESENTED

Plaintiff respectfully moves this court to rule on the constitutionality of Article 2, 5 of the Maryland Constitution, as relating to Article 1 of the Maryland Declaration of Rights. That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole; and they have, at all times, the inalienable right to alter, reform or abolish their Form of (a) In general. If no other timely and adequate remedy is provided by this article, a registered voter may seek judicial relief from any act or omission relating to an election, whether or not the elections has been held, on the grounds of an act or omission: (1) is inconsistent with this article or other law applicable to the elections process; and (2) may change or has changed the outcome of the election. (b) Place and time of filing. A registered voter may seek judicial relief under this section in the appropriate circuit court within the earlier of: (1) 10 days after the act or omission or the date the act or omission became known to the petitioner; or (2) 7 days after the election results are certified, unless the election was a gubernatorial primary or special primary election, in which case 3 days after the election results are certified.

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Government in such manner as they may deem expedient. STATEMENT OF THE CASE

On May 1, 2013, Plaintiff, Brian Charles Vaeth, a lawful person and an inhabitant of the State of Maryland and Duane Gerald Davis Sr., filed the required forms to register their candidacies for Governor and Lieutenant Governor of Maryland respectively. This registration was completed and filed in person at the State Board of Elections Main Office, 151 West Street, Annapolis, MD 21401. The forms consisted of a Statement of Organization for Campaign Finance Entities, Candidate Information Sheet, and a Certificate of Candidacy. On March 18, 2014, approximately 10 months later, plaintiff was informed by Mr. Jared Demarinis, of the State Board of Elections that both his name and that of the candidate for Lt. Governor, Mr. Duane Gerald Davis were being disqualified and removed from the ballot for a voter registration violation associated with Article II, 5 of the Maryland Constitution. A person to be eligible for the office of Governor or Lieutenant Governor must have attained the age of thirty years, and must have been a resident and registered voter of the State for five years next immediately preceding his election. (amended by Chapter 532, Acts of 1970, ratified Nov. 3, 1970).

After performing an appropriate amount of due diligence, wherein plaintiff utilized the Maryland State Board of Elections guidelines for qualified candidates, as published on that agencys website and the Maryland Annotated Code regarding the State Election Law Article, plaintiff had a reasonable right to expect that he and the candidate for Lt. Governor were qualified to file their Certificate of Candidacy for Governor and Lt. Governor for Maryland. Maryland Election Law

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Title 9, 2073 provides guidance in relation to the certification, display and printing of ballots. Under this section, the statute provides that the Maryland State Board of Elections shall certify the content and arrangement of each ballot for a primary election, no more than 11 days after the filing date provided in 5-3034.
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Under that

9-207. Ballots -- Certification; display; printing (a) Time of certification. -- The State Board shall certify the content and arrangement of each ballot: (1) for a primary election, no more than 11 days after the filing date provided in 5-303 of this article; (2) for a general election, at least 55 days before the election; (3) for a special primary election, at least 18 days before the election; and (4) for a special general election, not later than a date specified in the Governor's proclamation. (b) Exception -- Later date set by Court of Appeals. -- The Court of Appeals, on petition of the State Board, may establish a later date in extraordinary circumstances. (c) Delivery to local boards. -- Within 24 hours after certification, the State Board shall publicly display the content and arrangement of each certified ballot on its Web site. (d) Preparation of ballot; public display. -- Except pursuant to a court order under 9-209 of this subtitle, or as provided in 9-208 of this subtitle, the content and arrangement of the ballot may not be modified after the second day of the public display. (e) Printing of ballots. -- Unless a delay is required by court order, the State Board may begin to print the ballots after 2 days of public display and correct any noted errors.
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5-303. When filed (a) In general. -- Except as provided in subsections (b) and (c) of this section: (1) in the year in which the Governor is elected, a certificate of candidacy shall be filed not later than 9 p.m. on the last Tuesday in February in the year in which the primary election will be held; and (2) for any other regularly scheduled election, a certificate of candidacy shall be filed not later than 9 p.m. on the Wednesday that is 83 days before the day on which the primary election will be held. (b) Special election. -- A certificate of candidacy for an office to be filled by a special election under this article shall be received and filed in the office of the appropriate board not later than 5 p.m. on the Monday that is 3 weeks or 21 days prior to the date for the special primary election specified by the Governor in the proclamation for the special primary election.
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section, the Law provides that the Certificate of Candidacy shall be filed in the year which the Governor is elected, not later than 9 p.m. on the last Tuesday in February in the year in which the primary election will be held. In order for one to run for the office of Governor, one must be qualified to do so. Article II, 5 of the Maryland Constitution prescribes those qualifications. In addition, under the current Election Law Article, see Maryland Code (2003, 2006 Cum. Supp.), 1101, et seq.,5 a candidate wishing to hold the office of the Governor must register his or her candidacy by filing, with the State Board, pursuant to 5-301(a),6 a certificate of candidacy, under oath.

On May 1, 2013, Plaintiff filed his certificate of candidacy, in which he certified that he is a registered voter and a citizen of

(c) Write-in candidate. -- The certificate of candidacy for the election of a write-in candidate shall be filed by the earlier of: (1) 7 days after a total expenditure of at least $ 51 is made to promote the candidacy by a campaign finance entity of the candidate; or (2) 5 p.m. on the Wednesday preceding the day of the election for which the certificate is filed.
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5-101. In general (a) Applicability. -- This subtitle governs the process by which an individual becomes a candidate for a public or party office in an election governed by this article. (b) Compliance required. -- An individual's name may not be placed on the ballot and submitted to the voters at an election unless the individual complies with the requirements of this title.
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5-301. In general (a) In general. -- An individual may become a candidate for a public or party office only if: (1) the individual files a certificate of candidacy in accordance with this subtitle; and (2) the individual does not file a certificate of withdrawal under Subtitle 5 of this title.

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Maryland and meets all other requirements for the...office of Governor for Maryland. The State Board accepted plaintiffs certificate, pursuant to 5-601(1)7 of the Election Law Article, and placed his name on the ballot for the 2014 Gubernatorial Primary. The Election Law Article also provides that any registered voter may seek judicial relief if he or she alleges that an act or omission relating to an election, whether or not the election has been held, is inconsistent with the Election Law Article or other law applicable to the elections process and may change or has changed the outcome of the election, provided that the action is filed within the earlier of 10 days after the act or omission or the date the act or omission became known to the petitioner or 7 days after the election results are certified, unless the election was a gubernatorial primary or

5-601. Candidates qualifying The name of a candidate shall remain on the ballot and be submitted to the voters at a primary election if: (1) the candidate has filed a certificate of candidacy in accordance with the requirements of 5-301 of this title and has satisfied any other requirements of this article relating to the office for which the individual is a candidate, provided the candidate: (i) has not withdrawn the candidacy in accordance with Subtitle 5 of this title; (ii) has not died or become disqualified, and that fact is known to the applicable board by the deadline prescribed in 5-504(b) of this title; (iii)does not seek nomination by petition pursuant to the provisions of 5-703 of this title; or (iv) is not a write-in candidate; or (2) the candidate has qualified to have the candidate's name submitted to the voters in a presidential primary election under Title 8, Subtitle 5 of this article.
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special primary election, in which case 3 days after the election results are certified.8

CONCLUSION

For the reasons presented in this motion and accompanying memorandum of law, plaintiff demands that this Court to rule that the provision found in Article II, 5 of the Maryland Constitution is unconstitutional under Article I of the Maryland Declaration of Rights and order the defendant to place his name on the ballot, as directed by law.

Dated this 24th of March 2014,

Brian Charles Vaeth 8225 Poplar Mill Road Nottingham, Maryland 21236

9-209. Judicial review (a) Timing. -- Within 2 days after the content and arrangement of the ballot are certified under 9-207 of this subtitle, a registered voter may seek judicial review of the content and arrangement, or to correct any other error, by filing a sworn petition with the circuit court for Anne Arundel County. (b) Relief that may be granted. -- The circuit court may require the State Board to: (1) correct an error; (2) show cause why an error should not be corrected; or (3) take any other action required to provide appropriate relief. (c) Errors discovered after printing. -- If an error is discovered after the ballots have been printed, and the State Board fails to correct the error, a registered voter may seek judicial review not later than the second Monday preceding the election.
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Brian Charles Vaeth 8225 Poplar Mill Road Nottingham, Maryland 21236 (410) 931-4423 IN THE CIRCUIT COURT OF ANNE ARUNDEL COUNTY Brian Charles Vaeth, Plaintiff, vs. Linda H. Lamone, Defendant ) Case No.: ) ) ) ) PLAINTIFFS MEMORANDUM OF LAW IN ) SUPPORT FOR A PRELIMINARY ) INJUNCTION AND DEMAND FOR THE ) ) ISSUANCE OF A TEMPORARY ) RESTRAINING ORDER

PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT FOR A PRELIMINARY INJUNCTION AND DEMAND FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER This Court has ruled, relating to numerous issues under the federal and state Constitutions, that certain provisions in the Maryland Election Code and practices by the Board are invalid and based entirely upon Article I of the Maryland Constitution and Articles 7 and 24 of the Maryland Declaration of Rights. See Dua v. Comcast Cable, 370 Md. 604, 618 n.6, 805 A.2d 1061, 1069-1070 n.6 (2002).

It has been firmly settled by the Court's many opinions on the subject that the Constitution of Maryland prohibits legislation which retroactively abrogates vested rights. No matter how rational under particular circumstances, the State is constitutionally precluded from abolishing a vested property right or taking one person's property and giving it to someone else. The state constitutional standard for determining the validity of retroactive civil legislation is whether

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vested rights are impaired and not whether the statute has a rational basis. Thus, when the General Assembly 150 years ago changed the elements of adverse possession so as to make it easier for the adverse possessor to divest the paper title holder of his property, the Court invalidated the retroactive portion of the statute. Thistle v. The

Frostburg Coal Co., 10 Md. 129 (1856). In language which has often been repeated since, the Court in Thistle stated (id. at 144-145): It is clearly not within the scope of the legislative power, to give to a law the effect of taking from one man his property and giving it to another, by any new rule of tenure, retroactive in its character. The court reasoned that, it was not in the power of the legislature to change this rule of law, so far as to give it a retroactive operation, because it would virtually be taking the land of one man, held by a good legal title, and giving it to another, who the law has said had none. With regard to whether the rational basis test is the appropriate standard for determining the validity of retroactive legislation, the Court has held that the General Assembly's view of right or justice will not validate retroactive abrogations of vested rights. In holding unconstitutional a retroactive statute having the effect of validating a void deed and thereby abrogating a widow's vested dower right, Judge Alvey for the Court in Grove v. Todd, 41 Md. 633, 641-642 (1875), emphasized: She has a right to insist, according to the Declaration of Rights, Art. 23 [now Art. 24], that she shall not be disseized of her
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freehold, liberties, or privileges, or deprived of her property, otherwise than by the judgment of her peers, or by the law of the land; or, as these latter terms are defined, by due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights. 2 Kent's Com., 13;

The Regents v. Williams, 9 Gill & John., 412; Wright v. Wright, 2 Md., 452; Westervelt v. Gregg, 12 N.Y., 209; Reese v. City of Watertown, 19 Wall., 122. The deed being utterly void and without effect as to her

estate, if she is now divested of her right of dower, it is by force of the statute and not of the deed; the statute operating through the form of the otherwise void deed to transfer the estate. To concede to the Legislature the power, by retroactive legislation, adopted without the consent of the party to be affected, to accomplish such a result, is at once to concede to it the power to divest the rights of property and transfer them without the forms of law, upon any notion of right or justice that the Legislature may think proper to adopt: a concession that can never be made in a government where the rights of property do not depend upon the mere will of the Legislature, and which professes to maintain a regular system of laws for the protection of the rights of property of its citizens. added). The court has observed that the above-quoted opinions are not simply historical relics. Instead, the principles of Maryland constitutional law there set forth were reiterated very recently in Langston v. Riffe, 359 Md. 396, 418, 754 A.2d 389, 400 (2000), and (Emphasis

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Rawlings v. Rawlings, 362 Md. 535, 559, 766 A.2d 98, 111 (2001), where Judges Cathell and Harrell for the Court emphasized that even a remedial or procedural statute may not be applied retroactively if it will interfere with vested or substantive rights.

From the earliest cases to the present, the Court has consistently taken the position that retroactive legislation, depriving persons or private entities of vested rights, violates the Maryland Constitution, regardless of the reasonableness or rational basis underlying the legislation. In addition to the above-cited cases, see, e.g., Berrett v. Oliver, 7 G. & J. 191, 206 (1835) (With regard to legislation which, inter alia, retroactively annulled deeds, the Court stated: Can the Legislature exercise such a power? Unquestionably not); University v. Williams, 9 G. & J. 365, 412-413 (1838) (Transferring the property of a private university to another body, without the former's consent, violated what is now Article 24 of the Declaration of Rights); Baugher, et al. v. Nelson, 9 Gill 299, 309 (1850) ([A]n act which divests a right through the instrumentality of the remedy and under the pretense of regulating it, is as objectionable as if the shaft was leveled directly at the right itself); Wilderman v. Mayor & City Council of Baltimore, 8 Md. 551, 556 (1855) (When the testator died in 1838, the rights of the residuary devisees thereby became immediately vested, and it was not in the power of the Legislature by giving the act of 1842, chap. 86, such a retrospective operation, so as to divest the vested rights acquired under the will); State, use of Isaac v. Jones, 21 Md. 432,
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437 (1864) (The abrogation or suspension of a remedy, necessary to enforce the obligation of an existing contract, is void); Trustees of M.E. Church v. Warren, 28 Md. 338, 355 (1868) (the General Assembly's enactment of retroactive legislation transcended its constitutional powers); Bramble v. State, use of Twilley, 41 Md. 435, 442 (1875) (A person's right to a sum of money, under a statute, could not have been affected by a subsequent repealing Act); Williar v. Loan Ass'n, 45 Md. 546, 558 (1877) (It has been repeatedly held by this Court that the Legislature cannot by a retroactive law, take away vested rights); Rock Hill College v. Jones, 47 Md. 1, 17-18 (1877) ( A law can be repealed by the law-giver; but the rights which have been acquired under it while it was in force, do not thereby cease. [W]here rights have become vested, such rights are considered as being beyond the power of the Legislature to divest them); Remington v. Metropolitan Savings Bank, 76 Md. 546, 548, 25 A. 666, 667 (1893) (Distributees' rights became vested upon the testator's death, and could not be divested by any subsequent legislation, because it would divest vested rights); Garrison v. Hill, 81 Md. 551, 556, 32 A. 191, 192 (1895) (The appellant was entitled to obtain certain property, and the Legislature had no power to take from her this vested right); Manning v. Carruthers, 83 Md. 1, 7-8, 34 A. 254, 255 (1896) (Legislation which would entirely destroy the right of action which was vested cannot be given retroactive effect because giving it such effect would render it unconstitutional, as being an attempt to destroy vested rights of action); Baumeister v. Silver, 98 Md. 418,

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427, 56 A. 825, 828 (1904) (Parties had a vested right to sue when the Act of 1894 was passed, and the Legislature could not take away that right); Harris v. Whiteley, 98 Md. 430, 442, 56 A. 823, 824 (1904) ([I]t was beyond [the Legislature's] power to divest or impair any vested rights of property acquired under previously existing laws); Md. Jockey Club v. State, 106 Md. 413, 419, 67 A. 239, 241 (1907) (The effect of such [subsequent] legislation [was] not only to impair vested rights, but to take the property of the contributors under the [earlier] Act of 1870, and give it to others, in clear violation of the 23rd Article [now Article 24] of our Bill of Rights); Anne Arundel County v. United Rys. Co., 109 Md. 377, 391, 72 A. 542, 547 (1909) (The Legislature could not under the guise of an amendment to the charter of the company divest without compensation its vested property right acquired in the legitimate exercise of the powers conferred by its charter while that instrument remained in force); Ireland v. Shipley, 165 Md. 90, 98, 166 A. 593, 596 (1933) (The State has not the power to destroy vested rights without compensation); Allen v. Dovell, 193 Md. 359, 363-364, 66 A.2d 795, 797 (1949) (The Legislature cannot cut off all remedy and deprive a party of his [accrued] cause of action); Comptroller v. Glenn L. Martin Co., 216 Md. 235, 258, 140 A.2d 288, 300, cert. denied, 358 U.S. 820, 79 S.Ct. 34, 3 L.Ed.2d 62 (1958) (A tax statute sought to reach transactions completed long before its enactment, and the Court held that the retroactive application of [the Act] would be in conflict with Article 23 [now Article 24] of the Maryland Declaration of Rights); Smith v. Westinghouse Electric, 266 Md. 52, 57, 291 A.2d
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452, 455 (1972) (A statute, which retroactively created a cause of action, resulting in reviving a cause of action that was otherwise barred, was held to deprive the defendant of property rights in violation of Article 24 of the Declaration of Rights); Dryfoos v. Hostetter, 268 Md. 396, 408, 302 A.2d 28, 34 (1973) (A retroactive statute was held to be invalid, because [t]o reach any other result would be tantamount to saying that the Legislature could take a property interest from one person and vest it in another, which cannot be done by statute); Washington Nat'l Arena v. Prince George's Co., 287 Md. 38, 45 n. 3, 410 A.2d 1060, 1064 n. 3, cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.Ed.2d 40 (1980) (The application of a 1976 retrospective tax statute to voluntary transactions fully completed as long ago as 1968 could not be upheld under the state constitutional provisions protecting property rights); Vytar Associates v. City of Annapolis, 301 Md. 558, 574, 483 A.2d 1263, 1271 (1984) (Retroactive application of statutes to authorize imposition of rental dwellings license fees is invalid as impairing property rights in violation of Article 24 of the Maryland Declaration of Rights); WSSC v. Riverdale Fire Co., 308 Md. 556, 564, 520 A.2d 1319, 1323 (1987) (A statute, even if intended to apply retrospectively, will not be given that effect if it would take vested rights); Waters v. Montgomery County, 337 Md. 15, 29, 650 A.2d 712, 718 (1994) (In the final part of a retroactivity analysis, a court must determine whether the retroactive application of the statute or ordinance would interfere with vested rights). The specific Maryland constitutional provision which is most often cited in the above-mentioned cases, for the principle that
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retroactive legislation impairing vested rights is invalid, is Article 24 of the Declaration of Rights, which is often referred to as the Maryland Constitution's due process clause, and which, in language based on the Magna Carta, forbids, inter alia, deprivations of property not in accordance with the law of the land. See, e.g.,

Vytar Associates v. City of Annapolis, supra, 301 Md. at 574, 483 A.2d at 1271; Cooper v. Wicomico County, supra, 284 Md. at 584, 398 A.2d at 1241; Dryfoos v. Hostetter, supra, 268 Md. at 408, 302 A.2d at 34; Smith v. Westinghouse Electric, supra, 266 Md. at 57, 291 A.2d at 455; Comptroller v. Glenn L. Martin Co., supra, 216 Md. at 258, 140 A.2d at 300; Allen v. Dovell, supra, 193 Md. at 364, 66 A.2d at 797; Md. Jockey Club v. State, supra, 106 Md. at 419, 67 A. at 241; Grove v. Todd, supra, 41 Md. at 641; University v. Williams, supra, 9 G. & J. at 412. Other cases, referring to retroactive legislation which unconstitutionally take[s] vested rights (WSSC v. Riverdale Fire Co., supra, 308 Md. at 564, 520 A.2d at 1323), or destroy[s] vested rights without compensation (Ireland v. Shipley, supra, 165 Md. at 98, 166 A. at 596), or divest[s] without compensation [a corporation's] vested property right (Anne Arundel County v. United Rys. Co., supra, 109 Md. at 391, 72 A. at 547), seem to invoke Article III, 40, of the Maryland Constitution, which prohibits the taking of private property without just compensation. Some opinions appear

to invoke both Article 24 of the Declaration of Rights and Article III, 40, indicating that retroactive civil statutes are invalid if they take vested rights, [or] deny due process (WSSC v. Riverdale Fire Co., supra, 308 Md. at 564, 520 A.2d at 1323) or that they are
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invalid because they violate Maryland constitutional provisions protecting property rights (Washington Nat'l Arena v. Prince George's Co., supra, 287 Md. at 45 n. 3, 410 A.2d at 1064, n. 3; Vytar Associates v. City of Annapolis, supra, 301 Md. at 572, 483 A.2d at 1270). See also Granahan v. Prince George's County, 326 Md. 346, 357, 605 A.2d 91, 97 (1992). Several opinions by this Court simply take the position that retrospective statutes impairing vested rights violate the Maryland Constitution, without citing a specific constitutional provision and without using descriptive language indicating which constitutional provision or provisions are involved. See, e.g., Safe Deposit Co. v. Marburg, 110 Md. 410, 415, 72 A. 839, 841 (1909); Harris v. Whiteley, supra, 98 Md. at 442-444, 56 A. at 824-825; Baumeister v. Silver, supra, 98 Md. at 427-428, 56 A. at 828-829; Manning v. Carruthers, supra, 83 Md. at 7-8, 34 A. at 255-256; Garrison v. Hill, supra, 81 Md. at 556-557, 32 A. at 192-193; Remington v. Metropolitan Savings Bank, supra, 76 Md. at 548-549, 25 A. at 667; Rock Hill College v. Jones, supra, 47 Md. at 17-18; Bramble v. State, use of Twilley, supra, 41 Md. at 442; Trustees of M.E. Church v. Warren, supra, 28 Md. at 355; Thistle v. Frostburg Coal Co., supra, 10 Md. at 144-145; Wilderman v. Mayor & City Council of Baltimore, supra, 8 Md. at 556. In light of the Court's opinions, it is clear that retrospective statutes abrogating vested property rights (including contractual rights) violate the Maryland Constitution. To reiterate, the central issue, in cases like the present ones, is whether vested rights are violated and not whether the retroactive

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statutes are rational.

The Court's opinions indicate that the

particular provisions of the Constitution which are violated by such acts are Article 24 of the Declaration of Rights and Article III, 40, of the Constitution. Furthermore, these constitutional provisions literally cover the matter. A statute having the effect of

abrogating a vested property right, and not providing for compensation, does authoriz[e] private property, to be taken, without just compensation (Article III, 40). Concomitantly, such a statute results in a person or entity being deprived of his property contrary to the law of the land (Article 24).9 Plaintiffs sole interest in the action is to ensure an orderly administration of the election process, the results of which would be jeopardized if the action were not adjudicated expeditiously.

Dated this 24th of March 2014,

Brian Charles Vaeth 8225 Poplar Mill Road Nottingham, Maryland 21236

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