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E-FILED Cecil Circuit Court 8/18/2020 3:53 PM System System

E-FILED; Cecil Circuit Court


Docket: 8/18/2020 3:53 PM; Submission: 8/18/2020 3:53 PM

CIRCUIT COURT FOR CECIL COUNTY

ALAN McCARTHY :

v. : CASE NO.: C-07-CV-20-000261

DANIELLE M. HORNBERGER, et al. :

MEMORANDUM OPINION AND ORDER


DENYING INJUNCTIVE RELIEF

A. Background

The Republican Primary election for County Executive for Cecil County was held
on June 2, 2020. The plaintiff, Alan McCarthy (“McCarthy”), the current elected County
Executive, and one of the defendants, Danielle M. Hornberger (“Hornberger”), were two of the
candidates on the Republican primary ballot. Hornberger won the primary, garnering more than
60% of the vote. McCarthy finished a distant second among the other contenders. He received
less than 25% of the more than 12,000 votes cast. The primary election was certified by the State
of Maryland Board of Elections (“SBOE”) on June 12, 2020. Hornberger is the Republican
nominee and is scheduled to be on the ballot for the general election on November 3, 2020 as the
Republican candidate for County Executive.

Hornberger filed her candidacy and paid the filing fee on November 5, 2019 when
she met with the Cecil County Board of Elections’ (“CBOE”) representative, Lora Walters
(“Walters”), then the Deputy Director of the CBOE. Walters, on behalf of CBOE, certified the
candidacy within the State’s election system with the designation that Hornberger had filed a
Financial Disclosure Form (“FDF”).

McCarthy learned of the issues related to the primary election and the
investigation within CBOE on or about July 15, 2020. He contacted counsel, and a complaint
against Hornberger and CBOE was filed on July 25, 2020 seeking a declaratory judgment and
injunctive relief.1 The complaint, in pertinent part, seeks a declaration that the candidacy filed by
Hornberger and certified by CBOE/Walters was void ab initio as Hornberger had not, prior to
certification, met two prerequisites: 1) filed an FDF; and 2) filed a Statement of Organization for
Campaign Finance Entities properly signed by the treasurer. To the extent that the latter was
filed, it purportedly contained the forged signature of the proposed treasurer, George Allan
Parker.

1
Thereafter, on August 12, 2020, McCarthy filed a first amended complaint, which, inter alia, added SBOE and
Walters as parties. The first amended complaint states 5 counts, 3 of which are against all defendants, namely
declaratory judgment, writ of mandamus, and temporary, preliminary, and permanent injunction, and two of
which - declaratory judgment for election law violation and intentional misrepresentation – name only Walters,
CBOE and SBOE. A second amended complaint was filed on August 15, 2020.
Show cause orders were signed by the Court, and a hearing was held on August 13,
2
2020. The hearing was scheduled on McCarthy’s “request for preliminary and final injunctive
relief,” the requested relief set out in the complaint(s) including a temporary restraining order,
preliminary and permanent injunction. Following the testimony of several witnesses, the receipt
of substantial documentary evidence, and the arguments of counsel, the matter was held sub
curia for the issuance of this decision.

B. Show Cause Hearing

McCarthy testified that he is a Doctor of Veterinary Medicine. He was elected County


Executive for Cecil County in 2016 and currently holds that office. He agreed that he was the
second highest “vote getter” in the June 2, 2020 Republican primary for his current position. He
began hearing “scuttlebutt” and “rumors” regarding irregularities within the CBOE office on or
about July 15, 2020. As a result of information that he received in public information requests,
he initiated the complaint in the Circuit Court for Cecil County on July 25, 2020. He advised that
certain information was not known to him until recent depositions on August 11, 2020, one result
of which was the filing of the first amended complaint on August 12, 2020.

Hornberger testified that she followed the directions of Walters in filing her certificate
for candidacy on November 5, 2019.3 Apparently, that involved signing certain forms prepared
by Walters. Although she believed that she had filed the form previously, Hornberger agreed in
her testimony that she had apparently not filed an FDF until July 7, 2020, the day after being
contacted by Walters. After completing the form online, she sent it to Walters as an attachment
to an email, describing it as a “replacement form.” The date on the signature is “7/7/20.”4
Walters filed two copies of the FDF with “HR,” the depository for the Cecil County Ethics
Commission, each with “11/5/2019” on the signature line.5 Both were filed on 7/7/20 but the
second form was “back-dated” with a CBOE stamp to 11/5/19, the day Hornberger filed her
candidacy.6 While Walters advised Hornberger of the “back-dating,” to which Hornberger
responded “okay, great,” Hornberger testified that she was not aware of the term’s meaning or its
significance. Hornberger advised the Court that she was a first-time candidate and relied upon
Walters to process her candidacy documentation properly.

After filing her certificate of candidacy on November 5, 2019, Hornberger believed she
was “compliant” with all filing requirements without any deficiencies. At the end of December
or first week of January 2020, she filed [with SBOE] as a candidate for Republican National
Convention (“RNC”) delegate. While she had no campaign finance committee for RNC, an
SBOE Candidate Committee Statement of Organization form for one was filled out, dated
September 4, 2019, designating Hornberger as Chairperson and George Allan Parker as

2
The first show cause order scheduled a hearing on August 31, 2020, the day the State is scheduled to certify the
ballots. The second show cause order advanced the hearing to August 13, 2020. The additional defendants,
Walters and SBOE, were present for the proceedings on August 13, Walters pro se and SBOE through counsel.
3
Hornberger arrived at the CBOE office just after 10:00 a.m. Pl. Ex. 14, 19.
4
Pl. Ex. 2, 5.
5
The form that was used had been approved by the Cecil County Ethics Commission for use beginning in
December 2019. According to McCarthy, this fact ultimately led to the underlying investigation.
6
Pl. Ex. 3, 4.
Treasurer. While this is an SBOE form, there is nothing on the form that indicates that it applies
to the RNC candidacy. In fact, McCarthy agrees that the campaign finance form was for the
county executive campaign.7 This document is part of the CBOE candidate certification record
(Pl. Ex. 9), Hornberger sent to Walters at 5:55 p.m. on November 5, 2019,8 and Hornberger then
believed, based upon Walters’ response via subsequent email,9 that her submission was all that
was necessary to establish the campaign entity. Hornberger had planned to have Parker report to
CBOE the next day but she understood from the emails that was no longer necessary. Walters
thereafter certified Hornberger’s candidacy.

Hornberger received a January 31, 2020 “blast email” from the State of Maryland
Ethics Commission regarding candidates with unfiled FDFs. The email does not identify
Hornberger as having this deficiency; however, while she assumed that she was compliant,
Hornberger called the SBOE – not the State Ethics Commission - to inquire. She testified that
she was informed that their office was “not owed anything.” In fact, through the primary
election, and up until July 6, 2020, Hornberger asserted in her testimony the she was never
advised of, or knew, that there was any deficiency with her candidacy or the requisite filings as a
candidate.

George Allan Parker testified that he has been the treasurer for the Hornberger
campaign finance committee for County Executive, but that he did not hold that position for
Hornberger’s candidacy as RNC delegate. He testified that he went to “Annapolis” and not to
CBOE, and that he did not believe that the November 5, 2019 signature on the Hornberger
candidacy/finance entity document was his signature. Despite the subpoena he received, he did
not produce any other documents containing his signature. His driver’s license, with an
electronic signature, was entered in to evidence (Pl. Ex. 20), as was a voter registration form
(CBOE Ex. 1). The latter signature and that on the Appointment of Treasurer are very similar.

Ruie Lavoie (“Lavoie”), the Director of Elections, testified that she was out of the
office at a meeting in Ocean City the week of July 6, 2020. The Deputy Director of Elections,
Walters, was directly responsible for campaign filings. In this regard, her duties included
supplying and reviewing campaign documents, voter registration, campaign finance compliance,
as well as notarizing documents. As the local board of elections, Lavoie’s office certifies local
candidates for public office. On July 6, 2020, she received an inquiry asking her to “double-
check” the certificate of candidacy, specifically the FDF. As to the FDF(s), a search of CBOE,
SBOE, and state and local ethics commissions determined that no Hornberger FDF was a part of
any of their records.

On July 6, 2020, Lavoie asked Walters to respond to the inquiry by checking CBOE’s
files. Walters was not in the office on July 6 but returned to the office on July 7, 2020. Walters
advised on July 7, 2020 that she checked the files and found the completed FDF(s) filed by
Hornberger. She took two copies of it to HR. The first was stamped by HR on 7/7/20. The
second had the added file-stamp of CBOE on November 5, 2019. In the meantime, on July 6,
Lavoie had the supervisor in her office, Karen Perry, make a copy of the Hornberger file for her

7
Plaintiff’s Suppl. Memo., p. 4, f.n. 1, filed 8/16/20.
8
Hornberger sent the receipt and Approval and Appointment of Officer in Campaign Finance Entity.
9
Pl. Ex. 11, 12.
and SBOE. The file was placed in Lavoie’s locked office. It was not until July 9, 2020 that
Lavoie confirmed the deficiencies with Hornberger’s documents that were prerequisites to
CBOE’s issuance of the certificate of candidacy on November 5, 2019. Walters was
subsequently discharged from her employment, and Karen Perry is now in the position of Deputy
Director of CBOE.

When Walters was called as a witness, the Court informed her that the allegations
raised against her may be criminal in nature, and, consequently, she was entitled to exercise her
Constitutional right under the Fifth Amendment against compelled self-incrimination and not
testify at the hearing. She was also informed of her right to counsel. Plaintiff’s counsel advised
her and the Court that the State Prosecutor’s Office had opened an investigation into her conduct.
Despite these admonitions, Walters chose to waive her rights and testify as a witness.

Until her discharge from employment, Walters had served in the CBOE for 18 years
and been an employee of Cecil County for 25 years. On July 6, 2020 she contacted Hornberger
about the missing document(s) and asking Hornberger for the FDF receipt.10 While Hornberger
advised Walters that she was sure she had already filed the FDF, Hornberger sent Walters a
completed form on the morning of July 7, 2020, via email attachment,11 as a “replacement.”
Walters emailed a copy of the Hornberger attachment to the State Ethics Commission and Lavoie
on July 7.12

When asked by plaintiff’s counsel who would “frame” her, Walters indicated that
Lavoie would likely do so as retaliation for a bullying complaint Walters filed against her in
August/September 2019, as well as a claim Walters made that Lavoie’s boyfriend had filed false
County vouchers. As to Pl. Ex. 9, Walters advised that she filled campaign candidacy forms out
for Hornberger’s signature. She did not recall if the treasurer was there, stating that the
treasurer’s presence is not required. She denied signing Parker’s signature to the statement of
organization. She testified that Hornberger filed an FDF on November 5, 2019, and that she
would not have certified Hornberger’s candidacy without having received all of the proper
forms. She asserted that she did not know Hornberger or have any personal relationship with her.

Karen Nusic is employed by Cecil County in the HR office’s risk management


administration. She advised that she received and time stamped a form(s) received from Walters
on July 7. 30-50 minutes later, Walters brought her another form(s) for filing which Nusic
received and time-stamped. Walters asked for the first form(s) back, but Nusic refused on the
stated grounds that she had no authority to do so. Consequently, both submissions were placed in
a locked cabinet for the Cecil County Ethics Commission.

C. Issues and Analysis

In addition to the complaint(s) of McCarthy, he filed a memorandum and supplemental


memorandum in support of the requested injunctive relief.13 McCarthy seeks to void

10
Pl. Ex. 5.
11
The attachment is the Prior Year Financial Disclosure Statement, dated 7/7/20. Pl. Ex. 2.
12
Pl. Ex. 1.
13
The Court has reviewed these submissions.
Hornberger’s candidacy, nunc pro tunc to November 5, 2019, and for a declaration that her
certificate of candidacy is void ab initio. In vacating and disqualifying Hornberger’s candidacy,
McCarthy seeks this Court declare him the Republican candidate in the general election as
having received the second highest number of votes or declare a “vacancy” and refer the matter
to the Cecil County Republican Central Committee for the designation of a legal qualified
candidate [not including Hornberger].

McCarthy claims that Hornberger did not legally qualify to run as a candidate for
County Executive and should be removed from the ballot. His list of negating factors includes:
Hornberger’s failure to file an FDF at the time she filed her Certificate of Candidacy and her
failure to file a timely updated FDF for 2019; Hornberger’s failure to file a valid Appointment
and Acceptance of Treasurer. He contends that the latter contains a forgery, and that the
submitted FDFs have been “whited out” and the date of 11/5/19 inserted and one of the
documents has been further “back-dated” with a CBOE stamp to 11/5/19. He argues properly
that the propriety of these documents is the legal obligation of Hornberger. Hornberger’s
candidacy should not have been accepted and certified by CBOE and later the SBOE without the
requisite completed financial disclosure and campaign finance entity forms. Election Law
Article, Section 5-304(d)(e). Such forms are required under State and County law. The candidacy
should have been rejected by CBOE [and SBOE] until Hornberger produced the proper forms
with the proper signatures.

The standard of proof to sustain a challenge under Section 12-202 requires McCarthy
to have “…prove[n], by clear and convincing evidence, a substantial probability that the outcome
would have been different but for the illegality.” Cabrera v. Penate, 439 Md. 99, 112 (2014).
Additionally, Section 12-202(b) has time requirements for bringing a judicial challenge. The
party seeking judicial relief in a circuit court must do so “…within the earlier of: 1) 10 days after
the act or omission or the date the act or omission became known to petitioner; or 2) 7 days after
the election results are certified…” The primary election results from the June 2 election were
certified on June 12, 2020. No challenge was made by McCarthy until the filing of the complaint
on July 25, 2020, purportedly 10 days after he learned on the irregularities in the Hornberger
certificate of candidacy.

Hornberger notes in her memorandum in opposition to the relief sought by McCarthy


that the granting of injunctive relief requires McCarthy to meet all four the required factors: 1)
likelihood of success on the merits; 2) the “balance of convenience,” i.e. whether greater injury
would be done to the defendant by granting the injunction than would result from its refusal; 3)
whether plaintiff will suffer irreparable injury unless the injunction is granted; and 4) the public
interest. Further, she asserts that the complaint is untimely and barred by Section 12-202(b) and
the Doctrine of Laches. Hornberger argues in her memorandum that McCarthy’s likelihood of
success on the merits is “zero;” that the balance of convenience leans in her favor as she – rather
than McCarthy – will suffer “irreparable harm;” and the public interest would be undermined by
the undoing of valid ballot results. She places reliance on Ross v. Board of Elections, 387 Md.
649 (2005).

In Ross, the Court of Appeals applied the Doctrine of Laches and the strict timelines of
Section 12-202(b), concluding that the petitioner there – also a candidate who did not prevail in
the election – failed to file a court action within 10 days of learning that the winning candidate
had not filed several campaign finance reports.

Hornberger contends that her candidacy documents are public records to which
McCarthy had access. McCarthy had notice that the election results would be certified on June
12, 2020. Consequently, under Section 12-202(b)(2), McCarthy had until June 19, 2020 to seek
judicial relief. His failure to do so serves to bar his challenge to the results of the June 2, 2020
primary election. Consequently, she seeks denial of the requested injunctive relief and dismissal.

Hornberger filed and FDF with the CBOE on July 7, 2020, the day after being
contacted by Walters. She notes that Section 39-23(D) of the Cecil County Code provides for
written notice to correct omissions. McCarthy argues, correctly in the Court’s view, that the
provision was meant to apply to updated FDFs.

The Court has reviewed all pleadings, testimony, and exhibits. The underlying facts of
this case are troubling. Obviously, there were and are a number of irregularities in the
Hornberger candidacy, particularly regarding the required timely submission of documents and
the certification of her candidacy. At best, Hornberger “put her head in the sand” and failed to
exercise the due diligence that is expected of a candidate for public office. On the other hand, her
candidacy was, in fact, certified and accepted by the CBOE and SBOE; consequently, she was on
the primary ballot and prevailed. She relied on local elections officials, particularly Walters,
whom she believed to be following proper protocols and procedures in handling the completed
documents required for her candidacy, and she had no way of knowing otherwise. It is not
McCarthy’s position that Hornberger and Walters knew one another or engaged in a conspiracy
to undermine election laws. The actions or inactions of Walters on behalf of CBOE were her
own as were her motivations. Parker has in fact served as Hornberger’s treasurer. Neither Parker
nor Hornberger had knowledge of a purported forgery. Hornberger’s testimony was credible in
all respects.

The FDF(s) and Statement of Organization are required submissions for candidacy and
a failure to submit them is not a “technicality.” The Court agrees with McCarthy on that point.
The documents are required public records. To date, Hornberger has only partially filed the
required documentation. There is nothing to support or suggest that Hornberger undertook to
commit election fraud at the time of the filing of the certificate of her candidacy. She did not
undertake to secrete information by not filing the required documents. It is clear that Hornberger
neither participated nor had knowledge of any nefarious actions on the part of Walters. It did not
benefit Hornberger that Walters certified her candidacy without the requisite documents.

At this point, we are not speaking of a challenge to a candidate who might change the
outcome of an election by winning. Hornberger already won the primary election. What is being
asked of the Court is the nullification of all votes cast in the Republican primary election. Such
would be the case even if the Court ruled that the Republican nominee for County Executive is
now vacant and directing the designation of a Republican candidate in the general election to the
Republican Central Committee.
In ruling on the injunctive relief requests by motion and complaint, the Court
concludes that McCarthy has not met the burden of proof for granting such extraordinary relief.
As noted, Hornberger was not complicit in the actions or inactions of the Deputy Director of the
Cecil County Board of Elections. The Court concludes that McCarthy is not likely to succeed on
the merits of the underlying action. On this factor alone, the motion may be denied. He did not
file the complaint with the court until well past the 7 days prescribed by Election Law Article,
Section 12-202(b). The primary election results were certified on June 12, 2020; McCarthy filed
the complaint on July 25, 2020. The Court further concludes that Hornberger’s contentions in her
opposition to the granting of injunctive relief support the Court’s conclusion that McCarthy has
not established by sufficient evidence the other factors – balance of convenience, irreparable
harm, or public interest – required to grant injunctive relief. Consequently, the requests will be
denied.

D. Conclusion

Plaintiff’s requests for temporary restraining order, preliminary and permanent


injunctions, will be denied.
CIRCUIT COURT FOR CECIL COUNTY

ALAN McCARTHY :

v. : CASE NO.: C-07-CV-20-000261

DANIELLE M. HORNBERGER, et al. :

ORDER DENYING INJUNCTIVE RELIEF

For the reasons set out in the foregoing memorandum opinion, it is this _____ day
of August, 2020, by the Circuit Court for Cecil County,

ORDERED, that the requests of plaintiff, Alan McCarthy, for temporary


restraining order, preliminary and permanent injunctions, be, and they are hereby, DENIED.

___________________________________
Thomas G. Ross, Sr. Judge