Doe v. Montgomery County Board of Elections

A.2d 342 DOE, al. Jane et BOARD OF ELECTIONS. COUNTY MONTGOMERY Sept.Term, 61No. Maryland. Appeals

Court 19, 2008. Dec. (Jonathan P.C., Shurberg, S. Shurberg

Jonathan S. Silver MD; Porter, L.L.P., of Arnold & Spring, Joseph S. Kakesh DC; Chinof, L. Natalie M. Washington, Susan Sommer and Fund, Inc, Legal Lamda Defense Education New York brief, City), Appellants/Cross-Appellees. all on Center, Brief De Maryland of Public Justice Casa Maryland Disability Appel- Law Center as Amici Curiae for Care, P. Francis D. Murna- lants/Cross-Appellees: Gregory Fellow, Baltimore, Jr., MD. ghan, Appellate Advocacy (Victoria Karpinski, Kevin M. Shearer of Colaresi Karpinski P.A., Baltimore, MD), brief, Karp, for Appellee/Cross- & Appellant. Curiae, Responsi-

Brief for a of Amicus Citizens Corp., Appellee/Cross-Appellant: Government Supporting ble Rockville, Bull, Garza, Benjamin Brian R. MD W. W. John Raum, Smith, Nimocks, Amy Austin R. Alliance Defense Scottsdale, Fund, AZ. BATTAGLIA, BELL, HARRELL, C.J.,

Argued before GREENE, MURPHY, BARBERA, ADKINS and JJ.

BATTAGLIA, Judge.

The presents issue that itself in this case whether concerns Board”) the Montgomery County Board of Elections (“County for properly petition certified a proffered by referendum the (“Citizens Maryland Responsible Citizens for Government Group”) sought who to process1 use the referendum to over- Bill turn No. by enacted the Montgomery County Executive, signed by Council and which would add “gender identity” as a protected characteristic under County’s laws.2 anti-discrimination After the petition was Generally, ability of a to provided by citizen seek referendum is Constitution, Maryland Section 1 of Article 16 of the which states: (a) people power The reserve to themselves known as The Referen- dum, by petition registered to have submitted to the voters of the State, Act, reject approve polls, to or any part any at the or of Act of Governor, or, Assembly, approved by passed the General if by if Governor; Assembly the General (b) over the veto of the provisions of self-executing; provided this Article shall be legislation that additional in furtherance thereof and not conflict may therewith be enacted. 8(a) (1957, Repl. of Article 25A of the Code Vol.), may states that citizens of chartered counties to reserve them- ability selves the for referendum of local laws: county right The citizens aof chartered have the to reserve to power they by by may, petition, themselves the of referendum which law, county any portion submit to the of voters local or law, any legislative procedure of local enacted in accordance with the reserved, county of the right council. If this shall be set forth in the county specify types charter of the which shall of local laws which may petitioned be portions may to referendum and whether laws petitioned be to referendum. Charter, turn, Montgomery County Section 114 of the provides legislation Montgomery County referendum of enacted Coun- cil: Any legislation enacted the Council shall be submitted upon percent regis- referendum of the voters of five (1) except legislation tered voters appropriating money taxes, (2) imposing prescribing districts, or Councilmanic autho- rizing obligations issuance bonds or other financial for a term months, (4) authorizing less obligations public than twelve sites, construction, remodeling, public buildings, school or school obligations whenever the total amount of such authorized be issued year one does percent exceed one-fourth one County. assessable base "gender identity” 2. The Bill defined as "an actual individual's perceived gender, including person's gender-related appearance, ex- ballot, twelve Mont- 2008 election the November certified for Doe”) (“Jane al., chal- citizens, et Jane Doe gomery filing, in the Circuit validity by the lenged petition the of Re- County, Complaint for Judicial Montgomery for a Court of 6-209 the Declaratory Judgment3 and under Section view (2003, Article, Maryland Supp.).4 Code Election Law summary filed for parties subsequently cross-motions Both summary judgment be- the entered judgment, judge and that, Board,5 the number holding although of half the behavior, gender- image, identity, whether or not those pression, or customarily the characteristics asso- related differ from characteristics birth,” the to person's assigned sex at and added term ciated with the Code, including Montgomery County Section of various Sections the 8A-15, 27-5, 1, 27-12, 27-16, 27-19, 27-1, 27-6, 27-22 53- 27-1 collectively '‘prohibiting] in are aimed at discrimination which accommodations, service, housing, employment, public cable television gender identity.” service on the basis of taxicab seq. They declaratory pursuant et sought relief to Sections 3^-01 3. Article, Maryland Proceedings Maryland Judicial Code the Courts and 6-209(b) (1974, by of the Repl.Vol.), authorized Section Elec as Article, (2003, Supp.). Maryland Code tion Law Article, throughout the Law Statutory references are to Election (2003, Supp.), Maryland otherwise noted. Code unless 6-209, provides review of of Elections 4. Section decisions: (a) by general. (1) person aggrieved a determination made A— 6-206, 6-208(a)(2) may § § § or of this subtitle seek under judicial review: (1) petition, petition an a to refer enactment the case of statewide Maryland Assembly pursuant to Article XVI of the of the General Constitution, petition congressional Assembly or a for a or General County; or candidacy, (ii) Arundel in the Circuit Court Anne county the any petition, as other in the circuit court for to petition is filed. which the (2) may grant appropriate to assure court relief it considers process. integrity of the electoral expedited by be each court hears Judicial review shall necessary cause in consideration the deadlines estab- to the extent lished law. (b) to the Uniform Declarato- Declaration relief.—Pursuant voter, upon registered ry Judgments complaint Act and county petition be in which a has been will circuit court respect grant declaratory any petition with may filed relief as to provisions provisions of of this title or other law. appeal judgment subsequently Jane Doe filed notice from 5. on the requisite did amount voters, 5% of Jane complaint Doe’s to remove the from referendum the ballot failed properly raise the issue time-barred, because it was having been filed the 10-day after 6-210(e).6 period limitations contained granted We cross-petitions for certiorari to answer the following questions, presented by first two Jane Doe and the third Board: ruling Did Circuit Court err in a voter chal- of a

lenge to certification referendum that failed to carry signatures, number of challenge which filed within days certification, ten is nonetheless partially time-barred?

2. the Did Circuit Court err in ruling, contrary to the compliance strict standard dictated in by this Court an decisions, specific unbroken line of signature require- that prescribed ments under the election laws for referenda met, petitions need not be with the result that a referendum petition carrying an insufficient number of signatures valid was certified for the ballot? the in Circuit Court that the holding [Did] Board err[ ]

is required to include inactive in calculating voters the total of registered and, number voters in Montgomery County thus, in calculating 5% of that number to determine the of signatures required number on the petition referen- dum[?] County

the Circuit Court and filed cross-appeal. the a notice of 6-210(e) parties requires instituting 6. Section a cause action under complaint days following 6-209 to file their within 10 the determination to the suit which relates. (e) (1) (2) Except provided paragraph Judicial as in of this Review.— subsection, determination, any judicial provided review of a in subtitle, § sought by day following 6-209 of this shall be the 10th determination to it relates. which (2) petition place If the seeks to the name of an individual or a election, question sought on the ballot at review shall be by day specified paragraph of this or subsection the 63rd election, day preceding day whichever is earlier.

I. Introduction County Executive Montgomery On November 23-07, enacted into law Bill No. signed Leggett Isiah Council, County prohibited which discrimination Montgomery County’s anti-discrimi- identity” under the “gender on based to the enact- Group opposed Citizens nation statutes. The identity” process initiated the “gender ment of bill registered of 5% of the voters obtaining petition The law to referendum.7 County stated:

We, registered Montgomery voters of undersigned for a hereby petition referendum vote Maryland, do County, County approval of the voters on Bill Non- rejection in the election general next to pro- “An Act Identity, Discrimination—Gender entitled: accom- housing, employment, public hibit discrimination on modation, service, and cable television taxicab service identity; amend gender generally basis of discrimination”, on laws enacted November regarding County, for Montgomery Mary- Council land. Director, Margaret Jurgensen, emailed County Board’s Jacobs, Group,

Ruth Novem- M. President Citizens require her would ber inform voters, 25,0018 County Montgomery registered of signatures Code, Montgomery County 1 of at 7. Under Section of Article the signatures days be required least of the must filed within 50% legislation remaining following date law and the the that the becomes later, days required signatures days must or 90 be filed 50% of the legislation law. following date becomes the that the 500,012 corresponds 8. This to of the "active” voters in number 5% voters, 52,269 County. Montgomery the "inactive” or those Were notice, respond to voters who had failed to a confirmation of address voters, 3-503(a), 27,615 registered signatures as see included of During registered required. been the course this voters would have County stipulated litigation, there Jane Doe the Board were and 30, 52,269 2007, County Montgomery on November "inactive” voters 500,012 figure the to date the voter date nearest the 4, by February with 50% due and the 50% due by other 19, February Letters from County attorney the Board’s the approving petition form the as well an internet form, of the were the version sent to Citizens on Group 3, 2007, respectively. December and December 15,146 Group petition signatures The Citizens submitted to County the Board February February on 2008. On 15,506 Group the Citizens signatures, submitted more 20, 2008, next day, February and the the of the Director sent a letter to the President of the Citizens 15,146 Group formally notifying signatures her that the 4, 13,476 February “valid, accepted submitted were signa- On tures.” March the Board sent a letter to Montgomery County the and the Executive President of the Council, others, Montgomery County among certifying the petition and the stating “petition contained more than the number requisite signatures necessary place question on the 2008 Election General ballot” and “that necessary to meet appears requirements” regarding con- tent under Section 6-201.9

provided Group figures to the Citizens for which were available State database. provides: 9. Section 6-201 (a) In General.—A shall contain: (1) page; an information and (2) signature pages containing not less than the number total signatures required by law to be filed. (b) page. page information shall contain: Information —The (1) description subject purpose petition, conform- ing requirements regulations; (2) and, sponsor sponsor organiza- identification of the if the an is tion, designated of the individual to receive notices this under subti- tle; (3) required relating information contained in petition; or, sponsor made and affidavit executed if the sponsor organization, by responsible is an an individual to and designated by organization; (5) any required regulation. by other information (c) Signature signature page. page shall contain: —Each

After petition the by certified the Board on 6, 2008, later, March eight days on March twelve citizens, Doe, Montgomery County al., Jane et filed a com- plaint pursuant 6-209, seeking review and declaratory relief the Circuit of Montgomery Court County. The complaint alleged, among other arguments, that the County Board “certified the despite Petition the Petition’s include, failure to deadlines, the legal the requisite number signatures valid required for certification.” The County Board answered and then moved for summary judgment, arguing that Jane complaint Doe’s was time-barred because it was not filed 10-day period within the prescribed by Section filed, and even if timely it was Jane Doe did not present a legal basis for challenging Board’s (1) description subject purpose petition, a of the and conform- ing requirements regulations; to the (2) ballot, petition place if question seeks to a on the either: (i) summary a fair provisions and accurate of the substantive proposal; or (ii) proposal; the full text (3) statement, subscribes, signer a to which each that: (i) signer supports purpose process; of that and (ii) belief, signer’s based on the signer information and is a registered county specified page eligible voter in the on the and is counted; signature have his or her (4) spaces required relating and the information to the signers; (5) space county a for the name of the signers which each of the voter; page is a (6) space a for the affidavit made and executed circulator; and (7) any required by regulation. other information (d) questions. relating Petition place seeks to —If question sponsor on the print ballot and the summary elects to proposal signature page provided on each in subsection (c)(2)(i) of this section: (1) the circulator shall have proposal present the full text of the at the place signature time and page; that each is affixed to the signature page shall state that the full text is available from the circulator. (e) Signature page requirements to meet signature at all times.—A

page satisfy (c) requirements (d)(2) shall of subsections of this any signature section before is affixed to it and at all relevant times thereafter. the Jane Doe filed a cross-motion certify

decision to ballot. summary judgment, contending petition for that the should be signatures were purported decertified because thousands petition During and because the itself was defective. invalid motions, summary judgment the for hearing the on counsel revealed, time, that the for the first “inactive” County of registered not included in the total number voters were from the the county figure, voters which Board derived 5% information, and on this new Doe moved for leave based Jane complaint. granted the The Circuit Court the amend motion, in a order that it believed that the “new stating later facts theory upon operative based the same core [wa]s Plaintiffs”; an filed originally pled complaint amended County on not file a motion to July 2008. The Board did strike a motion for reconsideration of the trial court’s order amend, proceeded leave to and the case on the basis granting complaint. of the amended the completion argument

After the of oral motions for judge granted the Board’s summary judgment, the summary motion Doe’s judgment, for denied Jane cross-mo- Declaratory Judg- tion in his Memorandum Decision and and Order, ment the he complaint dismissed amended because that the cause of review determined 6-209 action declaratory February relief accrued on when the Group stating had the a letter County Board sent Citizens 15,146 13,476 that signatures purported signatures February accepted,” submitted on were “valid so [and] period; limitations the complaint beyond was filed judge explored invalidating also the various bases valid, challenged signatures and held that the were but insufficient. addressing sufficiency challenged signatures, determined that “inactive” voters should have been court voters, declined to having accept

included as argument artificially so “would doing Board’s signatures required successfully peti- inflate number of tion for referendum.” The court also considered whether signatures required on the referendum were to com- ply provisions with the of Section 6-203.10 On this issue the 5,141 parties stipulated that in the signatures included Febru- 5,735 ary 4 February submission and submission failed to mirror the voter’s the state- identity on wide voter court registration list. The determined that signature provisions merely suggestive Section 6-203 were 10,876 as opposed challenged and validated the pertains provided signers Section. 6-203 to information states, pertinent part: (a) general. sign petition, In a an individual shall: —To (1) sign appears the individual's name on as it the statewide voter registration registration or the surname list individual’s of and at names; given least one full name and the initials of other and (2) information, following printed spaces typed, include the in the provided: (i) signer's signed; the name as it was (ii) address; signer’s the (iii) signing; the of date and (iv) regulations required by by adopted other information the State Board. (b) counting. signature Validation and of an shall be individual —The validated and counted if: (1) (a) requirements the of of this subsection section have been satisfied; (2) registered assigned county speci- the is a individual voter to the and, signature page applicable, geo- fied particular on the if in a graphic county; area the of (3) signed previously petition; the has individual not the same (4) signature appearing page is attested an affidavit on the on signature appears; which the (5) accompanying signature the date is not later than the date of page; affidavit on applicable, signature requisite period if was affixed within the time, specified by of as law. defects, addressing signature the issue of the court classified general categories, signatures defects into challenged six with the most category signatures provisions in the conforming of those with the set categories forth in Section 6-203. The five other of defects dis- alleged upon cussed the court include violations based the circulator executing signature, an affidavit for his or own her the circulator’s predating signature, affidavit the voter's as well as violations for affix- ing signatures petition page, signatures affixing to a non-standard pages signs possible irregularities by where there are fraud or other signer problems. only or circulator and miscellaneous We shall allegation comply discuss the 6-203, that the failed to with Section signature category challenged. because this is the sole defects

710

signatures.11 petitioned expedited Doe for certiorari as well as

Jane review, cross-petitioned; we granted and the Elections, Md. v. Board petitions. both Doe argument September was heard A.2d 467 Oral on 9, 2008, we our day, September and the issued next judgment Per Circuit reversing Curiam Order to that court with directions to remanding Court and case Doe.12 judgment Montgomery in favor Jane Doe enter Elections, Md. County Board (2008). We now forth our reasons for that Order. set shall

II. Discussion are two judice, In the case sub we asked consider complaint questions: timely whether Jane Doe filed declaratory contesting review relief Board’s of the referendum for the November certification time-barred, then, ballot; and if the suit is not whether valid signatures referendum contained sufficient number of voters, Montgomery to reach 5% of 114 required by Montgomery County Charter. time-barred, complaint we shall that the was not Because hold the referendum challenge. we shall address the merits of signature signature voter who such was the of a identified One only accepted The and the Court herself as "Katie.” Board Circuit complied signature, a "Katie finding that it with Section because registration voter records at the same address. M. Toth” in the 12. The Order stated: filed, opinion it reasons to stated in an later to be is this 9th For be 2008, September, day of ORDERED, majority Appeals Maryland, of of a the Court concurring, judgment that the Circuit Court for Mont- Court be, reversed, County gomery hereby, is and it and the matter remand- judgment ed to the Circuit Court with directions enter in favor paid by Appellee. Appellants. to be Mandate to issue Costs forthwith. 110, 111, Elections, Montgomery Board 406 Md. 956

Doe v. 199, 200 A.2d

711 parties The before us had filed cross-motions for summary trial judgment. judge granted summary judg ment favor and denied Jane Doe’s Judgment.13 considering Cross-Motion for Summary trial grant court’s summary judgment, of motion for this Court light reviews the record most favorable the non- moving party. Inc., Bednar Maryland, v. Provident Bank of 532, 542, 210, (2007); Md. 402 937 A.2d 215 Rhoads v. Som (2007) mer, 131, 148, (“We 508, 401 A.2d Md. 931 518 review light record in non-moving most favorable to the party any may and construe reasonable inferences that be drawn moving from the facts against party.”); County v. Harford Co., 73, 82, 1, Ave. Saks Distribution 399 Md. 923 A.2d 6 Fifth (In (2007) reviewing a trial court’s decision on a motion for summary judgment, “we seek to determine whether mate and, are, rial are in if dispute they facts we resolve them in of the non-moving party.”); favor v. County, Serio Baltimore 373, 388-89, 952, (2004); 384 Md. 863 A.2d 961 Lovelace v. Anderson, 695, 690, (In 726, 366 Md. 785 A.2d 728 reviewing a grant the defendants’ motions for summary facts, “we must judgment, review the and all inferences there from, in the most If light plaintiffs.”). favorable to the no placed genuine dispute, material facts are this Court must determine correctly whether Circuit Court entered sum mary judgment as a matter of law. See Rule 2- 501(f);14 Bednar, 532, Saks, 402 216; Md. at 937 A.2d at 6; Prop. Md. at 923 A.2d at Corp. and Cas. Ins. Guar. v. Yanni, 474, 480, (2007); 397 Md. 919 A.2d Standard Fire Berrett, Ins. Co.

(2006); Elections, Ross v. Bd. State Md.

13. We need not address the Circuit Court's denial of Jane Doe’s Cross- Summary Judgment. Motion 501(f) part: Rule judg- states The court shall enter 2— against moving party response in favor ment of or the if the motion and genuine dispute show that there nois as to material fact and that party judgment favor judgment whose is entered is entitled to a matter of law.

712 us, (2005). no 692, In there are the case before A.2d 698 in dispute. material facts of

Here, interpretation we also faced with the are Article, 3-503, 6- Sections of the Election Law four sections statutory our 203, interpretation, pri and 6-210. 6-209 always purpose, goal legislative is “to discern mary aby or the to be remedied accomplished, to evils ends be statutory, part it or of be constitutional provision, particular 172, 699, 157, A.2d Pope, Rules.” Barbre v. 402 Md. 935 341, 352, Corp. Seay, Motors v. Md. 879 Gen. (2007); 388 708 (2005). Health & Mental Dep’t See also 1049, 1055 A.2d of 419-20, 470, Kelly, 397 Md. 399, 918 A.2d 482 Hygiene v. normal, (2007). looking to the begin analysis by first We our statute, language reading meaning plain “ word, clause, sentence whole ensure that ‘no statute as a meaningless or surplusage, superfluous, is rendered phrase or ” Barbre, 708; Kelly, 172, at A.2d at 402 Md. 935 nugatory.’ also Kane v. Bd. 918 A.2d at 482. See 420, Md. 397 at County, Prince 145, 167, 887 A.2d George’s 390 Md. Appeals of (2005). clear and 1060, If the of the statute is language 1073 beyond provisions we not look the statute’s unambiguous, need Barbre, 173, at 402 Md. at 935 A.2d analysis our ends. 419, 482; City 708-09; at 918 A.2d at Kelly, 397 Md. Pickett, 228, A.2d 237 Frederick v. 392 Md. 897 Slater, 599, 78, v. (2006); 604-05, A.2d Davis 383 861 81 Md. (2004). however, is than one If, language subject more ambiguous, it and we endeavor resolve interpretation, is history, looking legislative to the statute’s that ambiguity law, well as the structure of statutory purpose, as case Barbre, 709; Kelly, 173, at 935 A.2d at 397 402 Md. statute. Dep’t Health & Smack 482; at 918 A.2d at Md. 305, 1175, Mental Hygiene, scheme, statutory it is larger of a part the statute is When interpreted is language provision that the axiomatic isolation; rather, statutory scheme as whole analyze we aim, enacting body,” “purpose, policy considering County, A.2d v. Baltimore Md. at Serio Corp., Guar. Md. Mortgage Drew v. First (2004);

713 327, 1, (2003), 6 attempt 842 A.2d provisions harmonize dealing subject with the same so that be may given each 587, 613-14, v. City Annapolis, effect. Bowen 402 Md. 937 242, (2007); Md., 548, Magnetti A.2d 258 v. Univ. 565, 219, (2007); Clipper Windpower, A.2d Inc. v. 539, 554, 1160, Md. Sprenger, 399

A. Accrual of the 6-209 Cause of Action The question first before us is whether Jane Doe’s March complaint, seeking judicial review of and 6, declaratory County relief from the Board’s March certify determination to the referendum for ballot under Sec tion 6-20915 is time-barred under the dictates of Section 6- 210(e), which “any judicial states that review of a determina tion, §in provided subtitle, 6-209 of this sought shall be day 10th following the determination to which it relates.” assume, We having 10-day without to decide period that applies, “determination,” we because shall hold that the which caused Jane Doe to aggrieved become and thereby triggered 6, judicial review, Doe’s cause of action for accrued March 2008, when determination, Board County made a final certifying the in a letter to County Executive and the President of the Montgomery County stating Council “the petition requisite contained more than the number of signatures necessary question place on the 2008 General Election ballot” and “that the petition appears meet the necessary requirements.” County Board argues that the cause action accrued 6,

prior to March each County because Board’s letters to the Citizens group constituted “determinations” and, therefore, under Section 6-209 Doe’s cause action 30, accrued on November County when the Board emailed the Citizens Group informing them that of regis- 5% complaint specifically 15. The asks for review under Section 6- 209(a) 6-209(b). declaratory judgment and for under Section 25,001; in December Montgomery voters tered group informed the Citizens when sufficiency determination of had made an advance that it when the February or on petition; of the form 13,476 of Group informed Citizens County Board accepted,” 4 were “valid February [and] signatures submitted 6 ability challenge her March Doe waived so that determi- challenge previous these by failing determination Court, County Board’s granting nations. Circuit 20, February that Judgment, agreed Summary Motion for valid, was the accepted were as half of the when 6-210(e), the Section 10- trigger “determination” relevant limitation day period. hand, 10-day that the argues, on the other

Jane Doe and, it applied, not even if period apply, limitations does period complaint because with the limitations complied she 6, 10-days which was -within March was filed on March all of made a final determination that when the and certified the necessary signatures gathered had been 2008 ballot. Jane Doe referendum for November question 6 before the March argues “aggrieved” that she was therefore, Board, and that she determination review that date.16 sought judicial not have before could 6-210(e) a within which an 10-day period Section establishes review of a determination person judicial must seek aggrieved under 6-209: Section

(e) (1) Except provided paragraph Judicial review.— determination, subsection, any judicial review of a of this on March we that the cause of action accrued 16. Because hold party’s arguments concerning when the we not address either need application nor must we discuss cause of action was discovered Finally, regularly Court has ad- ”[t]his the laches doctrine. because principle when that we will not reach constitutional issue hered to disposed ground,” we properly be of on a case can non-constitutional arguments. See the constitutional shall not address Professional Corp., 695 v. Health 346 Md. A.2d Nurses Ass'n Dimensions Staff Lancaster, (1997); A.2d n. State 13n. § as provided subtitle, 6-209 of this sought by shall be day following the 10th the determination to which it relates. For the purposes assume, of this we analysis, without decid- ing, 10-day this period applies and interpret must Section 6-209 to when analyze the cause of action judicial review accrued. 6-209(a), entitled “In general,” governs when a

plaintiff may seek review of an election board determi nation provides court, relief to be afforded “as it considers appropriate”:

§ 6-209. Judicial review. (a) In general. (1) A person aggrieved by a determination — 6-202, 6-208(a)(2) § made § § under of this subti- may tle seek judicial review:

(1) in the case of a petition, statewide a petition to refer an enactment of the Assembly General pursuant to Article XVI Constitution, of the Maryland or a congres- for a sional 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 in county which the petition is filed.

(2) The court may grant relief as it considers appropriate 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 law.

Although, then, one who is aggrieved may any seek type of appropriate relief, such injunctive, declaratory or another type, under 6-209(b), subsection a voter judicial who seeks review is limited to declaratory relief:

(b) Declaration to the Maryland Uniform relief.—Pursuant Declaratory Judgments Act and upon the complaint of 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 provisions of this title or other provisions of law.

716 therefore, scheme, may bring a voter Under the review, a judicial plaintiff, i.e. become a when action in aggrievement. is made that results determination “aggrieved” had to define We have numerous occasions of an administrative agency the context review v. Sugarloaf Depart Citizens’ Association determination. Environment, 271, 605, ment 288, 344 A.2d 614 Md. 686 Court, (1996), for the Judge Eldridge, speaking John C. he jurisprudence our when stated: upon reflected in the “aggrieved” the term is not defined Adminis While Act, statutory have held that trative Procedure we “ mirrors party ‘aggrieved’ general that a be requirement judicial review standing principles applicable common law [Associates, decisions.” Medical Waste administrative [Coalition, Inc.], Maryland supra, v. Waste 327 Md. Inc.] ^[596] at 611 n. 9, 612 A.2d ^[241] at 248-249 n. 9; Bryniarski Co., 137, 143-146, 289, Montgomery v. 247 230 Md. A.2d Accordingly, “aggrieved” 294-295 order to be judicial review, have person ordinarily a must purposes “ personally specifically an interest that he is ‘such ” ... public generally.’ different from way affected Waste, supra, Medical Waste v. Md. n. at 611 v. quoting Bryniarski Mont 9, 9, n. 612 A.2d at 248-249 Co., 294. See at gomery supra, Md. at Smith, v. & Com’n Maryland-Nat’l Capital Planning Park supra, 333 Md. ^[3] at A.2d ^[855] at 859; Abramson County, v. A.2d Montgomery 328 Md. Crane, (1992); 185, 213 DuBay A.2d (1965) (“the only must 489-490 decision [administrative] protestant in which the has a specific affect matter right or his interest therein must be property interest but way he affected in a personally specially such that is from public generally”). different ... Jordan Inc. v. Hebb Towing, See also original).

(Ellipses Inc., 439, 442, 768, Repair, ville Auto 369 A.2d 770 Md. 800 (2002) (“A if standing there is party aggrieved party is damage ... in character and ‘special differing suffers some ”) kind from that general public.’ (ellipsis suffered original).

Moreover, Judge Eldridge, State v. State 446, 457, 504, Board Contract Appeals, Md. 773 A.2d (2001), explained 510-11 that an administrative determination judicial must be final before review is invoked: Where an agency primary administrative has or exclusive jurisdiction over a controversy, parties to the controver- sy must ordinarily await a final administrative decision resorting before to the courts for resolution of the contro- versy. Wine, License Commissioners v. Corridor 418, supra, 924, 361 Md. at 761 A.2d at and cases there South, cited. See also Furnitureland Inc. v. Comptroller, 126, 364 Md. 771 A.2d Furthermore, in Driggs Aviation, Corp. 389, 406-408, v. Md. 348 Md. 704 A.2d (1998), 442-443 we held that the Board of Contract Appeals has either primary jurisdiction exclusive over govern- ment § contract matters encompassed by 15-211 of the State Finance and that, Procurement Article and conse- quently, any judicial matter, resolution of the before a final decision by the Board of Contract Appeals, would be prema- ture.

(Footnote omitted). See also Board License Comm’rs Anne Wine, Arundel County Inc., v. Corridor 361 Md. (“It 761 A.2d a general is principle of Maryland Administrative law that an action for judicial review of an administrative order will only lie if the administrative final.”) (Internal omitted). order is quotations Judge Glenn Harrell, T. speaking on behalf of this in Heery Court Interna tional, Inc. v. Montgomery County, (2004), also rule, iterated the general requiring a final determination before aggrieved an party, potential plaintiff, can seek review of an agency decision: “[wjhere We have long held that an agency administrative has primary jurisdiction or exclusive over a controversy, the parties to the final controversy ordinarily must await a administrative decision before resorting courts resolution of the controversy.”

718 case, Judge

In the upon the Circuit Court relied present Lamone, 27, (2006), Roskelly 912 A.2d 658 to decide of judicial that Jane should have initiated a review action Doe signa- determination that half the February the 20 Board valid, necessary though tures were even another half was still ballot, for that certify stating the the November petition “Roskelly petitioners that where referendum are mandates rejection of at the of the aggrieved by signatures step first they judicial are signature-gathering process, to seek disagree. review of the determination.” days within We sponsor petition the did not file Roskelly Board of judicial review of a June determination the Elections, deficient, that Roskelly’s petition which stated was Clearly, challenge days so his later was time-barred. Roskelly, sponsor, “aggrieved” was on June 8 as the made. denying when a final determination certification was Here, Doe was not “aggrieved” Jane actions in letters on November December 3 County Board sent February and nor were these “final.” On actions 30, 2007, County merely Board informed the November number of valid Group necessary Citizens the referendum on the ballot. On December 3 and place to the Group, Board sent a letter Citizens County and internet forms of the Citizens stating paper that 20, 2008, Group’s February were valid. On the Coun- Group submitted ty Board determined the Citizens had 11,534 be signatures, over 50% the but needed more to successfully the referendum could be certi- submitted before Rather, until placed fied November ballot. 6, 2008, County Board certified that March when statutory requirements put met the Group Citizens had ballot, on the Jane referendum November question a final “aggrieved” by Doe “determination” of seeking review 6- capable judicial Board and under Section triggering March was the date for Accordingly, accrued, when Jane Doe’s cause action review timely. filed on 14 was complaint March Complaint Amended effect that the amended pleading We next address the argues original complaint. had on the regarding the challenge Doe failed to the determination Jane 6, 2008, within ten days number of voters March 8, 2008, July filed which more complaint, because amended voters, of “inactive” “added a specifically addressed the issue and, thus, not relate back theory new or cause of action does filing complaint.” Doe counters that original 51 on that the paragraph original complaint, pled which BOARD OF ELECTIONS certified the Petition “[defendant include, deadlines, despite by legal Petition’s failure number of valid for certifica requisite tion,” the cause adequately stated the factual basis for relief, action for review and and that the declaratory complaint merely greater specificity later amended added complaint granted, this assertion. Leave to amend the nevertheless, judge because the trial that the “new determined theory upon original is based the same core of facts operative Plaintiffs, ly and that amendment pled facilitate a [would] litigations determination based on the true issues of injustice an reasons of a procedural [would avoid] technical Board, furthermore, ity.” filed no motion chal lenging the trial court’s of leave grant to amend because the complaint from originated operative amended the same core of facts, and summary judgment process proceeded on the basis of the amended complaint. Williams, 497, 506, 1040,

In Morrell v. 279 Md. 366 A.2d (1976), 1044 we explained principle, iterating the relation-back that “an amended filed after the of a [complaint] expiration barred, statute of limitations will be if states new cause [it] theory liability.” of action or a new Air See also Eastern Lines, Ass’n, 195, 201, Inc. v. Phoenix & Loan 239 Md. Sav. 515, (1965); 210 A.2d 518 Cline v. Fountain Rock Lime & Co., 251, 258, 304, (1957); 214 Brick Md. 134 A.2d 308 Schuck Bramble, 411, 413, (1914); 122 v. Md. 89 A. 720 Paul Archibald, Mark K. Pleading Sandler & James Causes of (4th 2008). held, Action 38-39 ed. also have We occasions, when the on numerous other amendment does theory liability, not state a new cause of action or it will See, e.g., Crowe v. filing original. relate back to the Houseworth, 481, 489-90, 272 Md. 325 A.2d (amendment, joint which added other tenants as relat parties, man, Pretty action); Doughty ed back to original trespass (1959) (amendments 83, 93, A.2d related 219 Md. they operational back because stated same facts and did not theory liability merely spelled introduce a new but out in State ex rel. Cava alleged liability); detail the basis of the naugh Corp., v. Arundel Park 484, 489, 218 Md. 147 A.2d (1959) (amendments 429-30 out in detail “spell[ed] liability” was a different statement of the alleged basis negligence same cause of action based on and thus related Childress, Brooks v. back);

(1951) (amendment related back where declaration original negligence father’s for the predicated upon responsibility was agency principals of his son based on and the amendment in imputed negligence by to the father virtue of his consent license); Western for a driver’s signing application his son’s Nelson, rel. 293, 306, Union Tel. Co. v. State ex 33 A. 82 Md. (1896) (amendment 763, 764 name of corrected the one of corporate equivalent two defendants was of a new suit). concept

The framework of the relation-back was conceptual State ex rel by Judge McSherry articulated Chief James Co., 35, 40-41, 56 Chesapeake Railway Zier v. Beach 98 Md. (1903) (hereinafter “Zier”): A. running

The institution of a suit arrests the of the Statute of Limitations, that, rule general period and the is where before the suit elapsed brought, of limitations has not when the cause declaration, of the mere amendment same, action remains filing will not warrant of a limitations, though statutory period even has plea the time when the of action intervened between cause making accrued and the date of the amendment. of the bringing stops reason for this rule is that suit long of the so as the suit running consequently, statute action, statute for the same cause bar proceeds however, amendment, When, the cause attach. cannot when the amendment begun a new suit is changed, action is made, that cause of action accruing and if between the is amendment, which time the date of the first action, the of limitations has period invokes that cause of interposed be to that new plea may then the supervened, suit. Cavanaugh, also State ex rel.

(Emphasis original). See (“The supplying at 430 amendment Md. at A.2d of a new or different cause of allegation was not the statement action, action, but the statement of the same cause of with an spell alleged amendment out detail the basis 689, 697, liability.”); Lichtenberg Joyce, (1944) (“The period prior of limitation must elapse suit, cause of action is filing the date of the unless the changed.”). Zier, Zier, wrongful the wife of Charles initiated a death terminally he was against employer

action her husband’s when injured by July a train collision. Zier died on and the 3, 1901, with an amend- brought January wife’s suit was one-year filed on limitation April past ment for a The lower period wrongful death action. court dismissed the entire that it was the one- Complaint, holding barred year Complaint, statute of limitations. We reinstated the holding employer’s that the addition of the in the negligence wrongful- amendment did not recite a new cause of action for the original: death therefore related-back to different, The statement of the cause of action was but the in Injury resulting cause action itself was identical. of the suit. statement imperfect death is what occasioned of the case did not cause the correct statement to be a action, of of Being different cause action. same cause accurate of it in declaration did statement the amended suit; not convert the into original suit a new and different and therefore warrant the other filing plea did not

the Statute of Limitations than such have been as could interposed to the original____ Zier, 98 Md. at 56 A. at 387-88 in (emphasis original). case,

In the instant in specifically Jane Doe averred Para- 51 of her graph Complaint Board “certified the despite include, Petition the Petition’s failure to legal deadlines, requisite number of valid signatures certification,” for support her cause of action for review. The Complaint was then amended in July allege, based upon recently proffered by revealed information Board, attorney that “inactive” voters had not voters, been in the registered included total number of so that the requisite number of valid had not been includ- Zier, statement of the cause of action ed. Clearly, as “[t]he but the cause different, action itself was identical,” was Doe’s amended complaint original did not “convert suit into a new and different suit” (emphasis original).

B. Because we hold that Jane Doe’s we complaint timely, now turn to the percentage whether voters only included “active” voters or the combined total of “active” plus 3-503(a),17 According “inactive” voters. to Section an “inactive” voter is one who been placed has on “inactive” failing status for to a respond confirmation of address notice;18 Jane Doe asserts that “inactive” voters should have 3-503(a) provides: 17. Section (a) general, respond a voter fails to to a confirmation notice —If subtitle, 3-502(c) placed §

under the voter's this name shall be into registration inactive status on the statewide voter list. 18. The “inactive list” is used to remove those who have moved out of registration the State or are deceased from the statewide voter list. 3-503(c), Under Sections "[a]n inactive voter who fails to vote in an period ending general election in the with the second election shall be registration removed from the statewide voter list.” A voter is restored status, 3-503(b), completing to "active” under the dictates of "after signing any following election documents:” registration application; a voter “active” to consti- of voters combined with the number been voters which the 5% number registered upon tute the total of Essentially, of would be based. signatures number requisite of or the equation, that the denominator the Jane Doe asserts voters, of means registered of a combination total number voters, of the while the numerator and “inactive” “active” number of voters equation represent registered would Board, conversely, 5% of the constituting total. in the not be included that “inactive” voters should argues denominator, artificially would inflate doing because so on the the referendum signatures required place to number determining purposes that for the ballot and also referendum, “inactive” voter supporting a an people number of on a by affixing signature “active” a merely becomes an one included petition. referendum Had “inactive” voters been total, not have signatures number of would requisite been sufficient. only refers Montgomery 114 of Charter

Section “Any enacted registered legislation to the universe of voters: to a shall be submitted referendum the Council five voters upon petition percent voters added). County. recently ...” We had (emphasis the term voter” interpret “registered whether opportunity Maryland Party Mary “inactive” Green included voters Elections, land A.2d Board of case, certify Elections Board of declined to a nominating petition Congressional a for a candidate due signatures petition; among of verifiable on the the rea lack rejection signatures cited for the of over a thousand sons from voters. At many were “inactive” 1-101(mm) the time of of the Election Party, Green (2) 6; petition governed by Title (3) candidacy; certificate (4) application; ballot an absentee or completed day election a written affirmation of residence precinct entitle voter to vote at the election either district residence, previous voter’s the voter's current residence or the by the State Board. determined “ Law Article stated that ‘registered voter’ does not include an individual whose name is voters,” on a list of inactive 3-504(f)(4) provided that “[[Individuals whose names have been placed on the inactive list may not be counted as part of the registry.” We declared provisions these unconsti- tutional, Maryland Constitution, because the of speaking voters, registered did not distinguish an “inactive” voter from one; registered a both are registered voters: 2 of I [Section Article of the Maryland Constitution19] a contemplates single registry area, for a particular contain- ing voters, the names of all qualified leaving the General Assembly no discretion to may decide who may or not be therein, listed no discretion to create a second registry for “ voters, inactive” authority no to decree that an “inactive” voter not “registered is a voter” with all the rights of a registered Furthermore, voter. 2§ provides that, registered, once the registration shall be “conclusive” right evidence of the words, vote. other Maryland Constitution does not require anything more from the voter on election day. 142-43,

Id. at 832 A.2d at 223. We held that “any statutory provision or administrative regulation which treats ‘inactive’ differently voters from ‘active’ voters is invalid” and remon- against strated maintaining separate registry of “inactive” voters. Id. at 832 A.2d at 229. See also Gisriel v. City Elections, Ocean Supervisors 345 Md. of of (1997) (“[T]he 128 residents of Ocean Maryland 19. Section 2 of Article I of the Constitution states: Assembly provide by The General Registration shall law for a uniform State, of possess qualifica- names all the voters in this who Article, prescribed Registration tions in this which shall be conclusive Judges evidence right every person, of Election of the thus registered, State; any to vote at election thereafter held in this but no vote, election, person State, shall at Federal or hereafter to be State, any municipal held in this at City election in the Baltimore, voters; appears unless his name in the list of persons the names of all qualified shall be added to the list of voters Registration, qualifications the officers of prescribed who have the Article, in the first disqualified section of this and who are not under provisions of the second and third sections thereof. general preceding municipal in the two City who had not voted elections, the voter registration names remained on but whose their list, not voters. In no event should unqualified were list.”); State registration be from the voter names removed Election v. Board Sup’rs Administrative Bd. Laws A.2d City, Election Baltimore is not frequently past qualifi- voted in the (“[Hjaving and, Constitution, under the could voting cation for The voters who remained qualification. not be a ‘inactive’ meet and who continued to the constitu- registration rolls City, voting Baltimore were qualifications tional voters.”). ‘ineligible’ Party Green Legislature responded our decision l-101(mm) and 3-504.20 See

by amending former Sections Laws, which Maryland Chapter Section status, on “inactive” currently governs placement voters status, to “active” states: well as the restoration (a) fails to a confirmation general. respond a voter —If 3-502(c)[21] subtitle, the § under of this voter’s name notice voter placed be into inactive status on the statewide shall registration list. (f)

20. Subsection of Section 3-504 was also renumbered as Section 3- by Chapter Act also Laws of 2005. same "petition signature purposes list of eliminated verification” from the status, registrants, placed may who are into “inactive” not be which purposes, counted. Because the two other official administrative estab statistics, lishing preserved precincts reporting were in the official Statute, signature "petition while verification” was removed from the list, argument petition signature we find Board’s verification purpose unper should still be considered as an official administrative suasive. 3-502(c) provides: 21. (c) Change appears outside it from information residence State.—If 3-504(b) §

provided by agency specified in postal service or an this subtitle a voter has moved a different address outside State, recently county voter the election official in where the most resided in State shall send voter a notice confirmation informing potential status the voter of his her inactive as described §in 3-503 of subtitle. this

(b) Restoration to active status. —A voter shall be restored to active status on the registration statewide voter list after completing signing any of the following election docu- ments:

(1) a voter registration application; 6; a petition governed by Title (3) a certificate of candidacy; (4) an absentee ballot application; or (5) a written affirmation of residence completed on election day entitle the voter to vote either at the election district or precinct for the voter’s current residence or the voter’s previous residence, as determined the State Board. (c) Removal.—An inactive voter who fails to vote in an election in period ending with the second general elec- tion shall be removed from the statewide voter registration list.

(d) Counting administrative purposes. Regis- for official — trants placed into inactive may status not be counted for official administrative purposes including establishing pre- cincts and reporting official statistics.

To the statute, however, extent that this permits the maintenance of two lists to determine an individual’s registra tion status order to exclude “inactive” voters from the list of registered voters, it is unconstitutional for the reasons stated in our in decision Green Party. We emphasize that there is room,

no after our decision Green Party, for the mainte nance of an “inactive” list registration status, to define be cause both “active” and “inactive” registered voters are voters. Legislature The has “no authority to decree that an ‘inactive’ voter is not ‘registered a voter’ with all the rights of a voter,” registered Green Party, 377 Md. at 832 A.2d at 223, including ability the to petition for referendum under statutory and constitutional provisions.

In present the 52,269 case Montgomery County’s “inactive” voters were excluded from the total number of registered voters, thus greatly diminishing the number requisite to achieve the 5% necessary voters 552,281 registered County Board used all Had the voters. voters, voters, “active” and “inactive” which includes both voters, 500,012 it would have the “active” opposed only 25,001, 27,615 petition signatures, not were determined we to agree 5% Even were the benchmark. needed achieve valid, 26,81322 are only signatures the Circuit with Court that not, fail petition requisite would to meet which we do 27,615 requirement. meet signatures necessary to the 5% case, however, also deter judge present 10,876 comport did with the signatures that mined that valid, the dic identification were because voter’s registration required. than suggestive 6-203 were rather tates Section disagree. We process signing governs which signatures and on a referen- validating

referendum states, in pertinent part: dum (a) an shall: sign individual general. petition, —To (1) it on the sign appears individual’s name as statewide of regis- voter list or the individual’s surname registration given tration at least one full name and initials and names; other information, typed, following printed include the spaces provided: (i) signed; name as was signer’s it (ii) address; the signer’s

(in) signing; the date of (iv) adopted by regulations other information the State Board. 26,813 signatures found were after

22. The Circuit Court that there valid February disqualifying signatures from the submission predating signature affidavit various defects such as circulator's affixing pages signature, signatures signs are voter's where there possible irregularities by signer or circulator and fraud or other problems. Court miscellaneous It should be noted that the did not disqualify February from the 2008 submission 59 other invalid, yet were that the court found time-barred. (b) Validation counting. signature of an individu- —The al shall be validated and counted if: (1) requirements (a) of subsection of this section have satisfied; been

(2) the individual is a registered voter assigned to the county specified on the signature and, page if applicable, particular geographic area of the county; (3) the individual has not previously signed the same peti- tion;

(4) the signature is attested an affidavit appearing on on which page signature appears; (5) the date accompanying the signature is not later than the date of the affidavit on the page; and (6) if applicable, the signature was affixed within the requi- time, site period of specified by as law. added).

(Emphasis The plain meaning the words “shall” “requirements” in Section 6-203 reflect that the statutory require provisions that the voter sign must his or her name “as it appears on the statewide voter registration lists or the individual’s surname of registration and at least one full given name and names”; the initials of other the provisions are mandatory, not suggestive. See Barbre v. Pope, 402 Md. 708-09 (stating that begin “[w]e our analysis by first looking normal, to the plain meaning of statute,” the language of the reading the statute as a whole to “ word, clause, ensure that ‘no sentence or phrase is rendered ” surplusage, superfluous, meaningless or nugatory,’ and “if language the statute is clear and unambiguous, we need beyond look provisions statute’s and our analysis ends”). to; “Shall” is defined as duty “[h]as a broadly, more to,” (8th is Black’s Law Dictionary 2004), ed. while “require” means “to demand necessary or essential.” (11th 2005). Merriam-Webster’s Collegiate Dictionary 1058 ed. We have heretofore interpreted the word “shall” to be manda- tory other cases in which we considered whether specifications are required suggestive. In City Takoma Government, Park v. Citizens Decent 439, 442-44, 301 Md. (1984), asked whether 348, we were to consider 351 certify to a County declined Montgomery properly the prohibiting piece legislation of a for referendum petition housing accommoda- employment, public and discrimination orientation,23 it did not on of sexual because tions the basis under form” Section legal requirements with the “comply Code, which stated: Montgomery 16-5 of Article thereof, part or any legislation, A referendum on petition for under the subject council referendum by enacted the sheets, charter, or each in composed of one more shall be form: substantially following the REFERENDUM PETITION “We, Montgomery voters of undersigned registered the referendum vote hereby petition do for a County, Maryland, briefly) of] them the Act (identifying provisions [the on title],’ enacted [inserting entitled ‘An Act County, at its Maryland, [month Montgomery Council for year] legislative session.” added). Bill, protesting the howev- (Emphasis Those citizens following Bill er, and the statement: provided only number for a referendum hereby petitioned “Those provisions certain terms, or are definition within the bill vote mention orientation, heterosexuality, or homosexuality, bisexu- ‘sexual ” 443, 483 Id. ality.’ at A.2d at 350. We concluded that insufficient, met having required statutory petition was it to set forth the provisions of Section because failed question and did not inform voters of title the act sponsors of the act the “precisely portions what for deletion.” Id. at 449, 483 A.2d at proposed had consider whether signa- We also have occasion to requirements ture set forth Article formerly (1957, precursor Supp.), pres- 1964 Code in Barnes v. 6-203, are suggestive, ent Section against prohibited housing legislation 23. The also discrimination fami- City Decent lies with children. ment, Takoma Park Govern- Citizens (1984). 483 Md. A.2d 348 Pinkney, State ex rel. Md. A.2d Barnes, restaurant owner contended that he did not violate Act Public Accommodations when he refused to serve a race, because, customer he argued, implementa- based tion of law suspended for referendum Act, which challenging Secretary of State had improp- erly signature refused at certify. requirements issue provided that: petition (including

“In an every associated or related set of petitions) under the of Article XVI of the provisions State Constitution, there appended signature shall be to the residence, precinct each his the or signer district wherein he voter, registered is as a and immediately signa- below the any signer, ture of such there shall printed be either or typed, the name of such signer.” (1957, 33, Code Maryland Supp.), 1964 Article Section 169. added). (emphasis We of the approved Secretary’s rejection of a of petition signatures number to with failing comply the signatures requirement, which left the with an inadequate signatures, amount of valid and concluded that signature requirements to “designed provide additional means by fraudulent which or otherwise improper signatures upon a petition may required referendum be detected” were op- posed merely suggestive, noting that signature require- petitions ments “facilitate checking per- interested only qualified sons to ensure that have persons signed.” Barnes, 571-72, Md. at 204 A.2d at 793.24 See County argues signature provi- 24. The Board our that conclusion that Pinkney, sions are 564, as set forth Barnes v. State ex rel. 236 Md. (1964), 204 A.2d 787 been has overruled the additions of Sections 6-203 and 6-207 to Elections Laws. Recent amendments Sections, however, to the reflect otherwise. 6-203 and Sections 6-207 recently frequently; Legislature have been amended both and had Bames, they overrule we intended to the standard articulated in could by removing any have done so word "shall” in numerous Laws, 572; Maryland Chapter revisions to Section 6-203. See 2005 Laws, 4; Laws, Chapter Maryland Section Chapter Legislature keep Section 2. Instead the chose intact the (a) sign petition, Section a mandate of 6-203: “To an individual shall: sign appears registra- the individual’s name as it on the voter statewide State, Secretary Ferguson also of comply with to fail when it did (finding petition person procuring “mandatory requirement” that personal to their attesting an affidavit attach voters are of the State knowledge signers registered that “the names”). their county opposite as set City of Baltimore and nevertheless, plain argues, that validation, disposi- is not governing of language Section ambiguous by the entire Section is rendered tive because the 6-207,25dealing with verification. of it interaction with in essence regard, arguing this Board is which, this purposes for the signatures, the validation of case, entry election official to confirm each requires an it signature of the name as appears includes the individual’s name, at least one first registration voter list or the statewide surname, other names and a must be any the initials which light provisions, verification liberally construed that the name of the require election authorities “ensure listed as signed individual who is voter.”26 registration at list or the surname of and least one full

tion individual’s signature given "[t]he name the initials other names” requirements individual be validated and if ... an shall counted (a) of subsection this section have been satisfied.” pertinent provides, part: Section 6-207 (a)(1) filing general. Upon petition, a and it has been of unless — subtitle, § 6-206 declared deficient under of this the staff of the proceed signatures authority verify election shall to count the and petition. validated contained in the (2) (1) purpose signature paragraph The of verification under of this signed is that the subsection to ensure name of the individual who registered petition is a listed as voter. process State Board to establish (b) Board, process. by regulation, State Board to establish State —The process be shall establish the to followed all election authorities verifying counting signatures petitions. for and on County argues 26. The also we should show to the that deference administers, interpretation citing Christopher Board’s of State the law it Services, Montgomery County Dept. Human 381 Md. v. Health and case, however, although we 849 A.2d 46 In that noted that ordinarily give weight agency’s interpretation we to an of a statute that

We disagree that the verification provision renders provision “validation” ambiguous; validation is a distinct step process that must occur before a signature can be verified.27 purpose validation, relating to whether signature sufficient, is is to “provide additional means which fraudulent or otherwise improper signatures upon a detected,” referendum petition may Barnes, be see 236 Md. at 571-72, 204 A.2d at while the purpose signature verification, relating to the existence of registration count, voter and the signature is to “ensure that the name of the individual signed who the petition is listed as a voter.” Section 6-207. Because the provisions two are dis tinct, persuaded we are not that “shall” means anything other than mandatory.28 Finding none of the County argu- Board’s administers, ‘‘[djetermining

it agency's whether an 'conclusions of law' review, always, are correct is prerogative.” the court's Id. at 849 A.2d at 52. 27. COMAR 33.06.05.02 as well as the "guidelines State Board's process” provide guidelines verification proce- additional verification, validation, opposed dures for the signatures. to Because we conclude that verification and validation are two distinct steps process case, and the verification present is not at issue in the we need not argument address Board's that COMAR 33.06.05.02, "guidelines the State Board’s pro- verification legislative 6-207, history cess” or the only Section which involves verification, validation, render governing Section ambiguous. The Board’s Mayor reliance on City v. Council Kaczorowski Baltimore, 505, 513, 309 Md. inapposite 632-33 is for the same reason. Lamone, Roskelly 28. The Board's reliance on 396 Md. (2006), proposition A.2d 658 mandatory for the compliance with signature requirements in Section 6-203 would lead to absurd by omitting signatures results comply that do not with Section 6-203 Tawes, (1961), and on Dutton v. 171 A.2d 688 for the proposition mandatory compliance signature requirements with ability would inhibit the to seek unconvincing. referendum is As it applies petitions, mandatory signature referendum requirements 6-203(a)(l) burdensome, unduly are not requiring signer surname, provide name, only given one full the initials of other names, signer’s signing. address Additionally, and date of County Board’s reliance on Nader President 2004 v. State Elections, 681, (2007), 399 Md. inapposite. 926 A.2d 199 is petition, Nader did not deal a with referendum but rather a statewide past to reverse our the invitation we decline persuasive, ments signature with the comply is holding signer that a Such for referendum. petitions governing requirements requirements signature view that in accord with our holding is fraudulent or otherwise by which additional means “provide de- may be a referendum upon improper Barnes, 204 A.2d at 793. at 236 Md. tected.” review action was Doe’s we hold that Jane Because in- should have been “inactive” voters time-barred, not finally that voters and registered total number of cluded invalid as a matter 10,876 were challenged signatures entered on behalf law, summary judgment the reversal summary judgment on behalf entry Board and 9, September this Court on Doe was mandated of Jane ADKINS, J., in which HARRELL opinion dissents with JJ., MURPHY, join. ADKINS, J., HARRELL and which

Dissenting Opinion MURPHY, join. JJ. is that we shall statutory interpretation

A cardinal rule of See, e.g., or delete words of the statute. Wheeler not insert 1052, (1977), State, cert. 281 Md. 380 A.2d (1978)(“We denied, 997, 1650, 56 L.Ed.2d 86 435 U.S. 98 S.Ct. by inserting about a different result liberty bring are not at an intention not omitting express or words to make statute form.”). Another rule is that we original evidenced its meaningless, “find word ... superfluous, should not con we have some clear indication nugatory, unless 445, 342 Md. trary.” Hopkins Hosp., DeBusk v. Johns context, nominating petition In this we for a Presidential candidate. requirement necessary "county was not for vali- held that a match” "specific county in a voter was purposes, because the which dation signing petition applica- purposes of was irrelevant” for the every county at A.2d at 213. in the State. Id. ble to citizens irrelevant, serving process as an Obviously, the of validation is Pinkney, safeguard against important fraud. See Barnes v. State ex rel. 571-72, 574, majority’s Because the analysis and rule, conclusion disregards both these I respectfully dissent. (2003, 6-209(a)(1) § Code 2008 Supp.), of the (EL) Election Law Article “person states that a aggrieved by § determination made under ... judi 6-206 ... seek may 6-206(c)(3) cial Article, Section review[.]” Election Law subtitled “Determinations at time of filing,” directs that chief election official of the election authority review a petition at the time of filing and determine whether the petition satisfies the “requirements of law for the number ... signatures!)]” February

On 15,146 Citizens Group submitted signatures with the petition for referendum. On February County Board sent a letter to the Citizens Group stating 13,476 “valid, signatures these were accepted signa- tures,” thus allowing the Citizens Group proceed with its petition because it met the Montgomery County Code require- ment that a petitioner signatures file with its equal “fifty percent of the required signatures” within seventy-five See days legislation becoming law.1 Montgomery Coun- (The ty § Charter 115. other fifty percent must be filed later.) fifteen days I code,

As read Maryland’s election the right of Jane Doe to challenge this determination is established EL section 6- provides: 209. That section “A person aggrieved by a deter- 6-202, § mination 6-208(a)(2) § made under §or review!)]” may judicial 6-209(a)(l). this subtitle seek §EL Section 6-209 to the applies Board’s determination that 2.5% signed voters had the petition, because this determination relates the “number of signatures,” as called in EL section 6-206. Montgomery County Section 115 of the provides: Charter

Any petition legislation to refer to the voters of the shall be Supervisors filed with the Board of ninety days of Elections within law, legislation after the date on which the provided shall become fifty percent required signatures accompanying peti- seventy-five days tion are filed within after the date when the legislation added.) (Emphasis becomes law. person for when a period the time 6-210 establishes law, “any this Under review. file a must determination, §in 6-209 of provided of a judicial review day following 10th subtitle, by the sought shall be this 6-210(e). §EL to which it relates.” determination challenge to the Court that Doe’s agree I with the Circuit that the Citizens February Board’s determination time, required at the 2.5% of the Group had filed days it not filed within ten too late because was was filed in 20, court its explained 2008. As the circuit February opinion: the denominator too judicially challenged ...

Plaintiffs of the denom- judicial challenge fixing a to the late.... [A] 20, February been filed on or before inator should have Plaintiffs had con- 2008, Certainly, earlier. perhaps day, later than that notice of the denominator no structive by the first set of was verified and counted signatures when Defendant. July made at the rejects suggestion

The court Plaintiffs’ petition county the date the was certified hearing that measuring seeking judicial date for review. executive is § the signa- under 6-208 occurs at end of Certification § 6-209 ture-gathering process. pro- While it is true that certification, it judicial give for review of the does not vides apple Plaintiffs a second bite at the on the denominator issue. (2006)] Lamone, 27,

Roskelly [v. petitioners aggrieved that where referendum are mandates step signa- at the first rejection required are to seek ture-gathering process, they days review within 10 of the determination. judicial review was filed on March request

Because their for 14, any remedy. limitations bars chair, Roskelly Thomas Roskelly, group a citizens and its for referendum on a

(collectively, “Roskelly”), petition filed a The new early voting law in the 2006 elections. allowing new passed law was but then vetoed Governor. During the next legislative session the legislature overrode the veto. Roskelly petition did not file its override, 31, 2006, referendum until after the May and he 20,221 signatures submitted in support thereof.

By letter from chief election official Linda Lamone dated 8, 2006, Maryland June rejected State Board Elections Roskelly’s petition untimely grounds on the that Roskelly waited until 2006 to file a petition, filing rather than it in the year the legislation originally passed. According to Lamone’s letter, Maryland Constitution required year referendum be filed the same as passage of the bill.2 Roskelly any appeal did not take from the Board’s June 2006 determination.

On June the Board informed Roskelly that another, reason, i.e., was deficient for independent Roskelly under the Constitution file one-third of the total required signatures before June 2006.3 Roskelly failed to file a sufficient number of valid signatures Lamone, by June counting after the signatures, notified that, reason, him on June for such additional his petition Roskelly was deficient. filed a days review within ten of this letter. explained

The Court how these by two determinations Election Board interrelated: "

2. Lamone immediately advised that 'a referendum effort must occur regular legislation initially passed. after the at which session is Thus, required signatures should have been filed no later than June ” Lamone, Roskelly 2005.’ 661-62 Constitution, XVI, 3(b) provides, pertinent Art. in part: one-third, signatures If more than but less than the full number of complete any petition against any passed to referendum law by Assembly, Secretaiy the General be filed with the of State before June, day filing the first the time for the law to take effect and for signatures complete the remainder of shall be extended month, day to the thirtieth of the same with like effect. found, the June If, maintains and the trial court as Lamone Lamone, that deter- a determination 8 letter contained and mailed to the timely mination made properly was review late and sought judicial too appellants, appellants action, the trial court’s dismissal of their we must affirm with respect the timeliness of the action notwithstanding signature count and validation. added). 669-70 It then (emphasis

Id. at 912 A.2d at Roskelly’s argument appeal: summarized argument they in this appellants The renew Court Court, in determination the Circuit that the advanced premature in was Administrator the June 8 letter State submission, May complete, their because it was not since required signa- did not contain the full number of the i.e. was not the contemplated subsequent filing, tures and they further Proceeding premise, argue from that petition. signature process premature- that the validation also was maintain, filed, is neither a complete petition they until the sufficiency deficiency determination as to the incomplete petition sufficiency nor the of the number of appropriate. it contains is (footnote omitted). The Id. at 912 A.2d at 670 Court judgment dismissing appeal. affirmed the lower court’s majority’s holding comparable this case is to Roskel- ly’s argument that the election administrator’s June 8 notifica- no need be Roskelly interlocutory appeal tion Roskelly rejected Roskelly’s from it. The Court taken no until appealable notion that there could be determination here, necessary signatures 100% of the were filed. But that the Board’s majority concept holding embraces that 13,476 signatures complied determination that the validated “fifty percent days” requirement with the within of Mont- 115, was not under gomery County appealable Charter Section in a two only step EL section 6-209 because it was the first signature step gathering process. contention, rejection its Roskelly holding Court’s this

that the State Administrator could make more than one determination, “two-step pro- and that it was a appealable cess,” me we persuades reject comparable that should Doe’s Bell, in contention this case. the words of Chief Judge speaking Roskelly: for the Court whether To refer a law to the vote of the people requires, step two, filing, done one or before the constitution- signa- of a minimum deadline, number of ally prescribed tures with the Secretary State. Section of Article XVI filed, “petition.” states what is to be That is explicitly To be true whether the is to be a one filing single or two. successful, requirements-the filing petition both of the requisite signatures and the number of before June 1- two-step must met. in the be case of the Although process, thirty days, an additional is afforded for the gath- time additional is and of the ering filing signatures, only filing petition, obtainable when the threshold containing specified signatures, timely number of has proceed step, Entitlement occurred. to to the second words, dependent upon sufficiency other is compliance step____ in the first [Bjecause appellants what the filed was a referendum peti tion, did, to, Administrator required State was as she eye determining with an toward it, 6-205(a), §EL review sufficiency deficiency making required its determinations. sure, § EL 6-206. To Ad be State appellants ministrator advised the of her conclusion that the was deficient and was not required she to do more. ... proceeded verify Nevertheless she signatures § count the validated ones. EL 6-210. In addition to the stated, done, necessary, reasons this was and was precisely right appellants’ to file additional because the they dependent whether had filled the prior number to the deadline. Whether a referendum 3(b) pursuant § filed is valid is determined contained, filed, it reference whether when the required number of valid than num signatures-more one-third complete petition.[4] ber needed to explained 4. The Court it would not decide the other issue on appeal: added). Id. at 912 A.2d at (emphasis 672-73 This Roskelly Court held that failed to meet the ten day window for filing petition judicial his review of the Election Board’s June 8 determination that the petition required was to be filed in 2005. Doe is in a similar I position here. would apply that here, holding 13,476 that reasoning when the Board accepted of the Group’s Citizens first batch of on signatures February 20, 2006, determining they that constituted one-half of the signatures required, step the first in this two-step process was completed.

This determination resolved the how question many voters’ were needed fulfill requisite to 2.5 % of voters, correspondingly, the number that would constitute 5%. Doe had an opportunity appeal to this determi- nation, but chose not I to do so. share the Circuit Court’s 6-210(e) view that day the ten window set EL section was only opportunity judicially challenge this decision. Roskelly majority distinguishes The grounds that “Rosk- elly, as the sponsor ‘aggrieved’ was on June 8 when a final determination denying certification was made.” It holds that aggrieved Doe was not on February and would only aggrieved become if the Citizens Group met all of the legal referendum, requirements for a including filing 100% the signatures. requisite

I appreciate the in position difference Roskelly between Doe, in that objective might Doe’s have been achieved without judicial review if Group the Citizen’s had complete failed to stage second process. referendum But majority cites no authority for the proposition that the term “aggrieved in EL person” section 6-209 means that there must be no outset, not, We note at the whether correct or an issue that we need here; not decide appellants, Lamone advised the consistent with her advice, attempt counsel's their to refer Senate Bill 478 to untimely, referendum was year was not filed in the it passed. deficiency That was a determination of she was 2-206(c)(5) by § appellants timely to make. The respond did not by seeking judicial this determination review. Id. at 912 A.2d at 670. in the will fail seeking referendum party possibility intended If the had legislature process. stage second review will that no result, easily have said it could this under EL section official certifies chief election until the occur completed. has been process the petition 6-208 that requirement invoking “aggrieved” majority’s that the truth change simple not ruling does up its prop ELor in EL section 6-209 either appear “final” does not word 6-209(a)(1) view, EL section majority’s 6-210. Under read as follows: would made under determination by a aggrieved [final]

A person 6-208(a)(2) may this seek 6-206, § subtitle § § or judicial review[.] 6-210(e) read: would

Similarly, EL section §in 6- provided of a determination [A]ny judicial review following 10th subtitle, sought by day shall be 209 of this to which it relates. determination the [final] majority insert does, only does the as it not ruling that the statute, recognize fails to but it “final” into the word “determination[,]” on the terms: two different statute uses not The latter does hand, on the other. and “certification” oné counting verification and “conclusion of the until the occur 6-208(a). time, chief that § “[i]f At EL processes[.]” satisfied all that a has determines election official relating petition, law to that established requirements has petition process that the certify shall chief election official 6-208(b). recognizing § Instead of EL completed[.]” been words, the “certification” as distinct both “determination” determination.” one term —“final the two into majority fuses construction statutory rule of the familiar do so violates To a statute is to be contrary, to the a clear intent that “absent word, clause, is rendered phrase sentence or that no read so Mont- meaningless, nugatory.” or superfluous, surplusage, Buckman, 516, 523-24, A.2d County v. gomery 448, statute, moreover, suggests in the nothing

There is else Adding interpretation. intended this legislature in inconsistency these words does resolve an elsewhere interpretation statute. Nor is this more with the consistent purpose they of the statute than one that treats the words as Indeed, plain were written. words of the statute create a statutory they any legal more sensible scheme in that permit issue about the number or distribution of the geographical required signatures to be resolved more in advance election. election gives This officials and the sides disputing of the issue time to The prepare party more the election. has seeking referendum time to obtain additional different signatures before the deadline has The ninety-day expired. legislation the initial has time to party favoring additional to defend it prepare voting public. minds for a necessity compressed period time which to process, conduct the referendum including judicial review thereof, obviously legislature. a concern for the In estab- lishing the EL process schedule the referendum section 6-210, it imposed day a five limit on the election official to determination”; an it provide gave “advance the chief election official only twenty days to perform verification and counting of the validated on a petition; insti- day filing judicial tuted a limitation for a for twenty review of a determination. As all these time frames are contexts, than seen in I shorter those other discern a legisla- tive effort process to shorten the order facilitate an orderly election process. justifies its majority insertion the word “final” into EL

both 6-209 and relying sections 6-210 on three admin- cases, istrative law which apply ordinarily rule that an appeal from an administrative contested case can proceeding only be a judgment. case, taken from final The present however, perfectly fits within exceptions one the rule: exhaustion legislature is not when the “has indicated its intent statutory remedy that a administration need not [sic] circumstances.” Md. be invoked and some exhausted under Admin., Comm’n on Human Relations Mass Transit 294 Md. 232 449 4 White v. (citing n. A.2d 388 n. Prince George’s County, 282 Md. 387 A.2d 260

742 Nat’l

(1978)); Planning & v. Wash. Capital Md.-Nat’l Park Arena, Unlike Md. majority, this law cases that are cited administrative enacting statutory process. referendum case involves the Article, legislature recognized Law Title 6 of the Election frame that would allow a more compressed the need for a time to the Board’s judicial challenge resolution a speedy It agency a decision. typical than would more determination than the term “a determination” rather clearly by using did so determination,” indicating or other “a final “certification” term petition process. Cf., e.g., end of Md.Code the referendum 10-309(a)(1) (1999, § the Cor Repl.Vol., Supp.), (“A final aggrieved by Article claimant rectional Services may judicial file a determination of the county injury court of the where the review the circuit resides.”); (2001, the claimant Md.Code occurred where Article § 11-630 of the Criminal Procedure Repl.Vol.), (“A order of the by final determination and person aggrieved may II this seek Attorney General under Part subtitle review.”) above, I would affirm the Circuit For the reasons stated Court, Doe file a timely petition on the basis that failed to February judicial review of the 20 determination. Board’s me to state Judges HARRELL and MURPHY authorize they join this Dissent.

Case Details

Case Name: Doe v. Montgomery County Board of Elections

Court Name: Court of Appeals of Maryland

Date Published: Dec 19, 2008

Citation: 962 A.2d 342

Docket Number: 61 September Term, 2008

Court Abbreviation: Md.