Whitley v. Maryland State Board of Elections

ADKINS, J.,

dissenting.

I cannot endorse the Majority’s disregard for our plain-meaning rule of statutory construction,1 and its conclusion that the signer and circulator of a referendum petition can be the same individual. When engaging in statutory interpretation, this Court’s “paramount objective [is] to ascertain and give *164effect to the intent of the legislature.” General Motors Corp. v. Schmitz, 362 Md. 229, 236, 764 A.2d 838, 842 (2001). This “quest ... begins with the text of the statute.” Huffman v. State, 356 Md. 622, 628, 741 A.2d 1088, 1091 (1999). We examine the text and apply its plain meaning, using “a common sense perspective” of how the statutory language is commonly understood. Id.

The Plain Meaning of the Text

The Maryland Constitution provides that “There shall be attached to each paper of signatures filed with a petition an affidavit of the person procuring those signatures that the signatures were affixed in his presence.... ” Md. Const, art. XVI, § 4 (emphasis added). The Election Law Article states that “Each signature page shall contain an affidavit made and executed by the individual in whose presence all of the signatures on that page were affixed and who observed each of those signatures being affixed.” Md.Code (2002, 2010 RepLVol.), § 6-204 of the Election Law Article (emphasis added). The Code of Maryland Regulations (“COMAR”) developed by the Board of Elections requires that “[t]he affidavit shall state that ... [t]he circulator personally observed each signer as the page was signed.” COMAR 33.06.03.08 (emphasis added).

These provisions of Maryland law clearly direct a circulator to procure the required number of signatures for referendum and then attest that she personally observed those signatures being affixed in her presence. Reading these provisions would lead any ordinary person to understand that their obvious and plain meaning contemplates the involvement of two different people: a circulator and a signer. The circulator goes out and procures the required number of signatures from registered voters and then attests that he personally observed these signers affix their signatures in the circulator’s presence.

With a disdainful eye, the Majority calls this plain meaning interpretation of the law “hypertextual.” Maj. Op. at 158-59, 161, 55 A.3d at 53, 54-55. What the Majority ignores, however, is that this supposed “hypertextual” reading is exactly what *165this Court is required to do when interpreting a statute. This Court must read the relevant constitutional and statutory provisions and apply their plain meaning. See Huffman, 356 Md. at 628, 741 A.2d at 1091. Making up a disdainful term, like “hypertextual,”2 does not justify a departure from the well-settled plain meaning rule.

Ignoring the plain meaning of the constitutional and statutory provisions, the Majority stretches the statute to include matters not clearly within its provisions. See State v. Christhilf, 170 Md. 586, 592, 185 A. 456, 458 (1936) (“[I]t is not the duty or province of a court so to stretch the provisions of a statute as to ... gather in objects not contemplated by the legislature or not clearly falling within its provisions.”). The Majority holds that the provisions permit self-circulation because the language “did not require expressly that the signer and circulator be different persons.” Maj. Op. at 159, 55 A.3d at 53. This reasoning, however, imports into the relevant provisions something that is not there. It takes the absence of an explicit distinction between circulator and signer and draws from it an inference of an affirmative right to self-circulate referendum petitions. The Majority is wrong to draw this inference from the statute and allow it to prevail over the plain meaning of the text. See Gorman v. Atlantic Gulf & Pacific Co., 178 Md. 71, 75, 12 A.2d 525, 527 (1940) (“[T]he court may not allow an inference to prevail against the manifest intention of the Legislature.”). Such a holding abandons this Court’s “paramount objective to ascertain and give effect to the intent of the legislature ... [by looking] first to the plain language of the statute.” Schmitz, 362 Md. at 236-37, 764 A.2d at 842 (citation omitted).

The Purpose of the Text

Article XVI, § 6-204, and COMAE 33.06.03.08 obviously contemplate the involvement of two distinct individuals — a *166circulator and a signer. With this clear and unambiguous language, our inquiry would ordinarily end. See Brown v. State, 359 Md. 180, 188, 753 A.2d 84, 88 (2000). We may, however, go on to consider the text in light of the purpose of the statute being interpreted. Specifically, the plain meaning should be construed “as to carry out and effectuate, or aid in, the general purposes and policies” of the statute being interpreted. Johnson v. State, 75 Md.App. 621, 630, 542 A.2d 429, 433 (1988).

The purpose of § 6-204 of the Election Law Article, and the requirement of the circulator’s affidavit contained therein, “is to assure the validity of the signatures” and “clearly addresses prevention of fraud.” Montgomery County Volunteer Fire-Rescue Ass’n v. Montgomery County Bd. of Elections, 418 Md. 463, 478-79, 15 A.3d 798, 807 (2010). Likewise, interpreting the requirement of the circulator’s affidavit contained in Article XVI, § 4 of the Maryland Constitution, this Court has stated: “The purpose of the requirement of the affidavit is to give a prima facie presumption of validity to the petition to which it is attached.” Tyler v. Secretary of State, 229 Md. 397, 404, 184 A.2d 101, 104 (1962). Therefore, the purpose of the circulator’s affidavit is two-fold. It is designed to prevent fraud in the first place, and second, if executed correctly, the affidavit creates a presumption that there is no fraud.

This two-fold purpose of the circulator affidavit supports the plain meaning interpretation that there must be two different individuals — a circulator and a signer. Interpreting the statute to require separate circulators and signers directly carries out, effectuates, and aids the “uncontroverted purpose of preventing voter fraud.” Maj. Op. at 163, 55 A.3d at 56. The existence of the separate circulator provides an independent check on the signer. The circulator is able to vouch that the signer did in fact appear before the circulator and did in fact sign the petition. Thus, the independent circulator prevents an individual from affixing multiple signatures to the petition, as each signer must personally appear in front of the circulator before her signature can be affixed to the petition.

*167The Majority does not deny that this plain meaning interpretation furthers the prevention of fraud. Instead, it says that it is not necessary to interpret the relevant provisions to further the purpose of § 6-204 because “the Election Law Article imposes independent penalties on individuals who commit voter fraud that are designed to shield the referendum process from consideration of petitions with insufficient signatures.” Maj. Op. at 159, 55 A.3d at 53. Specifically, the Majority reasons that the signer of the affidavit “is subject to the threat of a perjury prosecution” and “the Election Law Article provides a broad punitive scheme for individuals who” commit voter fraud. Maj. Op. at 160-61, 55 A.3d at 54. Thus, the Majority holds that it is not necessary to have separate circulators and signers because these other provisions are sufficient to protect against fraud. Maj. Op. at 160-61, 55 A.3d at 54-55.

The Majority misses the mark. It is irrelevant whether the Election Law Article has additional safeguards built in that are also designed to prevent fraud. It is the duty of this Court to interpret every provision of the statute in light of its purpose. This Court cannot pick and choose among statutory provisions and decide that the threat of a perjury conviction is a better means of preventing voter fraud than requiring the circulator and signer to be different people. The Legislature provided for both provisions, and as such, both provisions must be interpreted as a means of preventing fraud. Allowing for self-circulation does nothing to carry out, effectuate, or aid the general purpose of the statute to prevent fraud. The correct interpretation, therefore, is one that requires different circulators and signers. This gives affect to the plain meaning of § 6-204 while also furthering its purpose of preventing fraud.3

*168The Plain Meaning of “Procure,”

“Observe,” and “Presence”

In one final attempt to justify its holding, the Majority says that it would reach the same conclusion even if it decided to engage in this “hypertextual” interpretation of the statute. Maj. Op. at 161, 55 A.3d at 54-55. It quotes dictionary definitions for the terms “procure,” “observe,” and “presence,” and reasons that none of these definitions strictly demand the existence of two individuals. Maj. Op. at 161-63, 55 A.3d at 54-56. The Majority concludes, therefore, that the circulator and signer may be the same person because neither the Constitution nor the statute says otherwise.

The inferences that the Majority draws from these dictionary definitions, however, do not comport with the commonly understood meanings of these terms. See Morris v. Prince George’s County, 319 Md. 597, 606, 573 A.2d 1346, 1350 (1990) (“To determine the most appropriate [meaning of a word] in given circumstances requires more than a glance at a dictionary. It requires careful study of the context in which the word is used.”). Under the Majority’s definitions, the Legislature would have intended for a circulator to procure his own signature from himself; observe himself writing his own signature; and affix his signature in his own presence. This formulation is simply not logical. No one speaks in the manner in which the Majority now attempts to define these terms. No one says that they “procure” something from themself. No one says that they “observe” themself perform an act. No one says that they are “metaphysically in his or her own presence.” Maj. Op. at 162, 55 A.3d at 55. The definitions used by the Majority are not the commonly understood meanings of these words. We should examine the words “procure,” “observe,” and “presence” in context.

*169 Procure

First, the Majority defines “procure” as “to get or obtain” or “to get possession of.” Maj. Op. at 161, 55 A.3d at 54-55. Contrary to the Majority’s interpretation, the common meaning of this definition involves two individuals. One does not “get or obtain” something from herself. She gets or obtains something from someone else. Applying this common understanding of the word procure in this context, a person does not get or obtain her own signature. She procures, or gets or obtains, the signatures of others.

Understanding the term “procure” as requiring two individuals in this context is supported by this Court’s previous description of a circulator: “It is established ... that the one procuring the petitions or circulating them is the agent of the signers.... ” Tyler, 229 Md. at 403, 184 A.2d at 104. Implicit in this Court’s previous statement is that “the one procuring the petitions” is different from “the signers” of the petitions. The circulator procuring the petitions is acting as the agent for the individuals signing the petition. One does not act as an agent for herself. If she were, then she would be the principal, not the agent. An agent acts for someone else. There are two individuals: the principal and the agent. Just as in this case, there are two individuals: the circulator acting as the agent, who procures the signatures, and the signers, who are the principals.

Observe

Second, the Majority defines “observe” to mean “watch carefully” or “to take notice.” Maj. Op. at 161, 55 A.3d at 54-55. Yet, dictionaries in defining this word use examples such as: to “observe a child’s behavior,” American Heritage Dictionary of the English Language 1213 (4th ed.2006) (emphasis removed); “I have observed my own children carefully,” Webster’s Third New International Dictionary Unabridged 1558 (Philip Babcock Grove ed., 2002) (emphasis removed); “He observed the passerby in the street,” “I wanted you to observe her reaction to the judge’s question,” and “He observed frequently that clerks were not as courteous as they used to be,” *170The Random House Dictionary of the English Language 1338 (Stuart Berg Flexuer ed., 2d ed.1987) (emphasis removed). None of these examples portray a person watching himself carefully. They portray a person watching someone else carefully. Applying this common understanding of the word observe in the context of these laws, a person does not observe himself affix his own signature. He observes, or watches carefully, someone else affix their signature.

Evidently, the Majority ignores this common understanding believing that the Legislature intended for the circulator to engage in some form of “self-observation.” I submit that nowhere in the law has the word “observe” been used to mean watching oneself perform some act. Further, the Majority does not offer anywhere in the law where the word “observe” means anything different than the common definitions I provide above.4

Presence

Third, the Majority defines “presence” as “the state or quality of being present.” Maj. Op. at 162, 55 A.3d at 55. It uses this definition to mean that one is in her own presence when she signs the circulator affidavit. It is well established, however, that this Court must construe a statute “so that no word, clause, sentence or phrase is rendered superfluous or nugatory.” Chow v. State, 393 Md. 431, 443, 903 A.2d 388, 395 (2006) (citations and quotation marks omitted). Allowing an individual to sign his own affidavit reads the circulator re*171quirement out of the statute. There is no longer a need for a person to circulate referendum petitions and procure signatures because now each individual can simply sign the petition and the affidavit. Cf. Montgomery County Volunteer Fire-Rescue Ass’n, 418 Md. at 484, 15 A.3d at 810 (Harrell, J., dissenting) (arguing that “the Majority opinion has read the signature requirement out of the [Election law] statute”).

To the contrary, dictionaries defining the term explain that a person is present by “[bjeing at hand or in attendance: Thirty guests were present at the ceremony.” American Heritage Dictionary of the English Language 1388 (emphasis removed). This makes clear that a person is not present in herself. She is present in relation to someone else. As such, applying this common understanding of the word presence in this context, a person is not in her own presence when signing the petition. She is in the presence of someone else signing the petition.

Requiring a second individual in the context of referendum petitions is supported by the common understanding of the term “presence” that this Court has used in other contexts. For example, the Estates and Trusts Article requires that a will should be “attested and signed by two or more credible witnesses in the presence of the testator.” Md.Code (2001, 2011 Repl.Vol.), § 4-102 of the Estates and Trusts Article. Just like the requirement of the circulator’s affidavit in this case, the purpose of attesting to the will in the presence of the testator is to prevent fraud and create a presumption of a valid will. Slack v. Truitt, 368 Md. 2, 12-13, 17, 791 A.2d 129, 135, 138 (2002). In such cases, this Court has always understood that the witnesses and the testator must be different people, notwithstanding the fact that there is no such express distinction in the Estates and Trusts Article. The witnesses must sign in the presence of the testator and a testator cannot witness his own will.5

*172Additionally, Maryland Rule 15-202 defines “direct contempt” as “a contempt committed in the presence of the judge presiding in court.” Md. Rule 15-202(b). In this context, this Court has always understood that the phrase “in the presence of the judge” requires two individuals: the judge, in whose presence the contempt is committed, and a second individual who commits the contempt. Likewise, Maryland law allows a police officer to make an arrest without a warrant for “[cjrimes committed in [the] presence of [the] police officer.” Md.Code (2001, 2008 RepLVol.), § 2-202 of the Criminal Procedure Article. In this context, this Court has also always understood there to be two different individuals: the police officer, in whose presence the crime is committed, and a second individual, who commits the crime.

The legislative language in these three examples is very similar if not identical to that found in the Election Law Article. In the current case, the circulator must attest that “the signatures were affixed in his presence.” Md. Const, art. XVI, § 4. Similarly, the witnesses must sign the will “in the presence of the testator,” the contempt must be “committed in the presence of the judge” and the crime must be “committed in [the] presence of [the] police officer.” In all four cases the *173legislative language is nearly identical and the common understanding of all four provisions leads to the same conclusion— that the term presence contemplates the existence of two different individuals. The Majority cites no instances, and I find none in which the statutory term “in the presence of’ has been judicially determined to refer to only one person.

The Majority is left with only a metaphysical notion, saying that “an individual is necessarily and metaphysically in his or her own presence.” Maj. Op. at 162, 55 A.3d at 55. Under the Majority’s view, each and every circulator would be a modern day Aristotle, continuously pondering his very own existence in the world.6

I submit that the Legislature did not write these words with the intent of requiring this Court to resort to such a metaphysical interpretation. We have a duty to apply the plain meaning of the language under a common sense perspective in terms that the language is commonly understood. See Huffman, 356 Md. at 628, 741 A.2d at 1091. The use of the term “presence” in the Election Law Article is better defined using its commonly understood meaning which involves two distinct people — the circulator and the petition signer.

Conclusion

I would hold, therefore, that Article XVI, § 4 of the Maryland Constitution, § 6-204 of the Election Law Article, and COMAR 33.06.03.08 do not permit the self-circulation of referendum petitions. The plain meaning of these provisions, interpreted in light of furthering the purpose of preventing fraud, contemplates the separate existence of both a circulator and a signer. The same individual cannot fulfill both requirements under the current constitutional and statutory law. I *174would hold that the petition is legally insufficient for lack of the required number of valid signatures.

Judges BATTAGLIA and BARBERA authorize me to state that they agree with the views set forth herein.

. As Justice Scalia explains: “Courts have sometimes ignored plain meaning in astonishing ways.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 72 (2012).

. A search of the American Heritage Dictionary of the English Language (4th ed.2006) and Webster’s Third New International Dictionary Unabridged (Philip Babcock Grove ed., 2002) reveals that neither source contains the word "hypertextual.”

. The Majority’s rationale against interpreting § 6-204 to further the purpose of preventing fraud is further cast into doubt by its complete failure to consider the second half of the purpose of the circulator’s affidavit — the creation of a presumption of validity. Even if one were to accept that the threat of a perjury prosecution was sufficient to ignore our mandate to interpret every provision to carry out and *168effectuate its purpose, the Majority fails to consider that there is no separate provision that creates a presumption of validity.

. To be sure, there have been, writings that have explored the psychological experiment of self observation. Perhaps the Majority has read The Fourth Way and Esoteric Christianity: An Introduction to the Teachings of G.I. Gurdjieff where the author submits that self observation requires a person to divide her attention because there is a difference between “seeing a tree, and seeing yourself seeing a tree.” Rebecca Nottingham, The Fourth Way and Esoteric Christianity: An Introduction to the Teachings of G.I. Gurdjieff 35 (2009). Under this form of self-observation, the field of psychology requires a person to create a "new vantage point in addition to [her] normal awareness” in order to actually observe herself. This form of self-observation is not within the common understanding of the term observe that I have described above.

. The Majority’s rejection of this analogy is mistaken. First, the Majority says that it is unpersuaded by this analogy because the purpose of the signature requirement for a will is to provide a presumption of validity. *172Maj. Op. at 162-63, 55 A.3d at 55-56. The Majority completely misses, however, that the purpose of the circulator's affidavit is also to provide a presumption of validity. Tyler v. Secretary of State, 229 Md. 397, 404, 184 A.2d 101, 104 (1962). As such, the fact that both the signature of the witness and the circulator's affidavit serve the exact same purpose makes this analogy more persuasive, not less.

Second, the Majority argues that this analogy is unpersuasive because the Election Law Article contains additional safeguards against fraud, whereas the Estates and Trusts Article does not. Maj. Op. at 162-63, 55 A.3d at 55-56. As previously explained, this argument completely misses the mark. The existence of additional safeguards in the Election Law Article is completely irrelevant to this case. The Legislature felt it necessary to provide for multiple provisions to aid in the prevention of fraud. This Court cannot choose which provisions it likes the best or which provisions it believes would be most effective in preventing fraud. Indeed, it may have been wise for the Legislature to provide multiple safeguards to prevent fraud since no one method is perfect. As such, it is improper for the Majority to disregard the purpose of the circulator’s affidavit to prevent fraud merely because the threat of a *173perjury conviction also exists. See Maj. Op. at 162-63, 55 A.3d at 55-56.

. As Aristotle once explained, “whenever we perceive, we are conscious that we perceive, and whenever we think, we are conscious that we think, and to be conscious that we are perceiving or thinking is to be conscious that we exist.” Aristotle: Nicomachean Ethics 563 (Harris Rackham trans., 1934). This idea was later explored in greater detail by Descartes, who famously asserted: "I think, therefore I am.”