Koste v. Town of Oxford

ADKINS, J.,

dissenting.

I respectfully dissent because the majority ignores the plain meaning of Article 23A, choosing instead to add words to the statute, and insert an arbitrary beginning date for collection of petition signatures. The majority considers this addition justified under the general principle that “[bjecause referendum ... displacéis] the acts of a representative body, the process was not ‘intended to be easy to fulfill.’ ” Maj. Op. at 33, 63 A.3d at 594 (quoting Town of Oxford v. Koste, 204 Md.App. 578, 588-89, 42 A.3d 637, 643-44 (2012)). I submit that a better reading of the statute is that reached by the Circuit Court, which discerned that “the primary purpose of the statute is to provide an exit point, and not a beginning point for the process.”

As I write, I keep the text of Article 23A, Section 19 glued to my computer screen:

(g) Petition for referendum by residents of municipality. — At any time within the forty-five (45) day period following the final enactment of the resolution, a number of persons equal to not less than twenty per centum (20%) of the qualified voters of the municipal corporation may, in writing, petition the chief executive and administrative officer of the municipal corporation for a referendum on the resolution. Upon the presentation of a petition to the officer, he shall cause to be made a verification.... (Emphasis added).

Md.Code (1957, 2011 Repl.Vol.), Article 23A, § 19(g). There is nothing in this section prohibiting the circulation of petitions before a given date — either the date of the public hearing or the enactment of the resolution. The majority posits:

When the statutory language is read with Article 23A, § 19(d), (e), and (o) in mind, it becomes perhaps more reasonable to interpret “may, in writing, petition” as encompassing the entire petitioning process. This is because such an interpretation gives greater effect to the public hearing provisions designed to inform more fully the electorate about the overall effects of a proposed annexation resolution.

*40Maj. Op. at 30, 63 A.3d at 592. This may or may not be a valid goal, but the legislature did not adopt it, and the majority’s endorsement of it constitutes judicial editing of the statute. The legislature, with all of its experience and resources, surely understood that it could put a start date as well as an end date on the collection of signatures for the petition. It certainly understood, as well, that opponents to a proposed legislation would often be dancing and fidgeting like racehorses at the starting gates, anxious to begin the circulation race.

With a full understanding of the politics of collecting signatures to support a petition for referendum, if the legislature considered it important to hold back these avid petition circulators until after the public hearing, it surely would have said so. Section 19(e), instead, focuses on deferring the effective date of a resolution “until at least forty-five (45) days following its final enactment.” In setting this end date 45 days later, I contend that the legislature was focused on expediting the process — ensuring that the referendum process be over as soon as reasonably possible — not prohibiting the signing of a petition before an arbitrary start date.

The “plain meaning” doctrine, so often called upon in statutory interpretation cases, rests largely on the notion that written language is the best indicator of legislative intent. But it also serves another purpose — when a citizen is reading the statute, he should be able to know how to comply with its requisites. Those citizens of Oxford who opposed the annexation, had they looked at this statute, would have had no reason to know that they were barred from beginning the collection of signatures right after the publication of the notice of the proposed resolution (containing the date and time of the hearing on the resolution). All they would have seen was that the requisite 20% of voters had to sign their petition so that they could, “in writing, petition the chief executive and administrative officer of the municipal corporation for a referendum on the resolution” within 45 days of the final passage. Art. 23A, § 19(g). There is nothing in the statute that says the petition signers could not sign before the final enactment.

*41Yet, without a crystal ball showing that the majority of this Court would erect that entry gate, thereby disqualifying them, the citizens of Oxford had no reason to re-sign the petition after the final enactment of the resolution. A reasonable person would not agree with the majority’s interpretation that the language of Section 19(g) — providing that “[a]t any time within the forty-five (45) day period ... not less than [20%] of the qualified voters ... may, in writing, petition” — means that no signatures may be obtained before the public hearing. In imposing this start date, the Court has unfairly deprived these citizens of the right to petition for referendum.

I submit that application of the majority’s “rigorous” interpretation of the statutory “hurdles” rationale, see Maj. Op. at 33-34, 63 A.3d at 594, which is essential to its conclusion, flatly contradicts our recent referendum decision in Whitley v. Maryland State Board of Elections, 429 Md. 132, 55 A.3d 37 (2012). This new “protect the hurdles” rationale fundamentally calls for a strict construction of the referendum statute, in favor of no referendum. Yet in Whitley, without regard for “protecting the hurdles” that stand in the way of a referendum, a majority of the Court took a most lenient view of the statutory requirements. Interpreting the requirement “that there shall be attached to each paper of signatures ... an affidavit of the person procuring those signatures that the signatures were affixed in his presence[,] ” the Court held that the circulator “procuring” petition signatures “in his presence” could be one-and-the-same as the actual signer of the petition — so that a circulator may procure his own signature in his own presence. Id. at 157, 160-63, 55 A.3d at 52, 54-56. Thus, the Court in Whitley adopted the most lenient rationale possible, making it much easier for the referendum proponents to succeed.

This Court should provide consistent guiding principles for interpretation, not act on an ad hoc basis. If we interpret referendum statutes liberally, to favor referendum, as in Whitley, let us do that consistently. If we interpret referendum statutes strictly, to favor the legislative will over that of the people, as the majority does here, let us do that consistently. *42It is not fair to citizens and their legal advisors, for us to hop from one rationale to the other.

Respectfully, I urge that we hold that the petition signatures gathered after introduction of the resolution, but prior to final enactment of the resolution, be counted, thereby bringing the tally of the signatures up to and beyond the required 20%. The referendum should go forward.

I have been authorized by Chief Judge Bell to state that he joins in this dissent.