Doe v. Montgomery County Board of Elections

Dissenting Opinion by

ADKINS, J.,

which HARRELL and MURPHY, JJ. join.

A cardinal rule of statutory interpretation is that we shall not insert or delete words of the statute. See, e.g., Wheeler v. State, 281 Md. 593, 598, 380 A.2d 1052, 1056 (1977), cert. denied, 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86 (1978)(“We are not at liberty to bring about a different result by inserting or omitting words to make the statute express an intention not evidenced in its original form.”). Another rule is that we should not “find any word ... superfluous, meaningless, or nugatory, unless we have some clear indication to the contrary.” DeBusk v. Johns Hopkins Hosp., 342 Md. 432, 445, *734677 A.2d 73, 79 (1996). Because the majority’s analysis and conclusion disregards both these rule, I respectfully dissent.

Maryland Code (2003, 2008 Supp.), § 6-209(a)(1) of the Election Law Article (EL) states that a “person aggrieved by a determination made under ... § 6-206 ... may seek judicial review[.]” Section 6-206(c)(3) of the Election Law Article, subtitled “Determinations at time of filing,” directs that the 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 ... of signatures!)]”

On February 4, 2008, the Citizens Group submitted 15,146 signatures with the petition for referendum. On February 20, the County Board sent a letter to the Citizens Group stating that 13,476 of these signatures were “valid, accepted signatures,” thus allowing the Citizens Group to proceed with its petition because it met the Montgomery County Code requirement that a petitioner file signatures with its petition equal to “fifty percent of the required signatures” within seventy-five days of the legislation becoming law.1 See Montgomery County Charter § 115. (The other fifty percent must be filed fifteen days later.)

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

*735Section 6-210 establishes the time period for when a person must file a petition for judicial review. Under this law, “any judicial review of a determination, as provided in § 6-209 of this subtitle, shall be sought by the 10th day following the determination to which it relates.” EL § 6-210(e).

I agree with the Circuit Court that Doe’s challenge to the Board’s determination on February 20, 2008 that the Citizens Group had filed 2.5% of the signatures required at the time, was filed too late because it was not filed within ten days of February 20, 2008. As the circuit court explained in its opinion:

Plaintiffs ... judicially challenged the denominator too late.... [A] a judicial challenge to the fixing of the denominator should have been filed on or before February 20, 2008, and perhaps earlier. Certainly, Plaintiffs had constructive notice of the denominator no later than that day, when the first set of signatures was verified and counted by Defendant.
The court rejects Plaintiffs’ suggestion made at the July 9 hearing that the date the petition was certified to the county executive is the measuring date for seeking judicial review. Certification under § 6-208 occurs at the end of the signature-gathering process. While it is true that § 6-209 provides for judicial review of the certification, it does not give Plaintiffs a second bite at the apple on the denominator issue.
Roskelly [v. Lamone, 396 Md. 27, 912 A.2d 658 (2006)] mandates that where referendum petitioners are aggrieved by a rejection of signatures at the first step of the signature-gathering process, they are required to seek judicial review within 10 days of the determination.
Because their request for judicial review was filed on March 14, limitations bars any remedy.

In Roskelly, a citizens group and its chair, Thomas Roskelly (collectively, “Roskelly”), filed a petition for referendum on a new law allowing early voting in the 2006 elections. The new *736law was passed in 2005, but then vetoed by the Governor. During the next legislative session in 2006, the legislature overrode the veto. Roskelly did not file its petition for referendum until after the override, on May 31, 2006, and he submitted 20,221 signatures in support thereof.

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

On June 21, 2006, the Board informed Roskelly that the petition was deficient for another, independent reason, i.e., Roskelly was required under the Maryland Constitution to file one-third of the total required signatures before June 1, 2006.3 Roskelly failed to file a sufficient number of valid signatures by June 1, and Lamone, after counting the signatures, notified him on June 21, 2006 that, for such additional reason, his petition was deficient. Roskelly filed a petition for judicial review within ten days of this letter.

The Court explained how these two determinations by the Election Board interrelated:

*737If, as Lamone maintains and the trial court found, the June 8 letter contained a determination by Lamone, that determination was properly and timely made and mailed to the appellants, the appellants sought judicial review too late and we must affirm the trial court’s dismissal of their action, notwithstanding the timeliness of the action with respect to signature count and validation.

Id. at 46, 912 A.2d at 669-70 (emphasis added). It then summarized Roskelly’s argument on appeal:

The appellants renew in this Court the argument they advanced in the Circuit Court, that the determination by the State Administrator in the June 8 letter was premature since their May 31 submission, because it was not complete, i.e. did not contain the full number of the required signatures and contemplated a subsequent filing, was not the petition. Proceeding from that premise, they further argue that the signature validation process also was premature-until the complete petition is filed, they maintain, neither a determination as to the sufficiency or deficiency of the incomplete petition nor the sufficiency of the number of signatures it contains is appropriate.

Id. at 47, 912 A.2d at 670 (footnote omitted). The Court affirmed the lower court’s judgment dismissing the appeal.

The majority’s holding in this case is comparable to Roskelly’s argument that the election administrator’s June 8 notification to Roskelly was interlocutory and no appeal need be taken from it. The Court in Roskelly rejected Roskelly’s notion that there could be no appealable determination until 100% of the necessary signatures were filed. But here, the majority embraces that concept in holding that the Board’s determination that the 13,476 validated signatures complied with the “fifty percent within 75 days” requirement of Montgomery County Charter Section 115, was not appealable under EL section 6-209 because it was only the first step in a two step signature gathering process.

The Roskelly Court’s rejection of this contention, its holding that the State Administrator could make more than one appealable determination, and that it was a “two-step pro*738cess,” persuades me that we should reject Doe’s comparable contention in this case. In the words of Chief Judge Bell, speaking for the Court in Roskelly:

To refer a law to the vote of the people requires, whether done in one step or two, the filing, before the constitutionally prescribed deadline, of a minimum number of signatures with the Secretary of State. Section 2 of Article XVI states explicitly what is to be filed, a “petition.” That is true whether the filing is to be a single one or two. To be successful, both requirements-the filing of the petition and the requisite number of signatures before June 1-must be met. Although in the case of the two-step process, an additional thirty days, is afforded for the gathering and filing of the signatures, that additional time is obtainable only when the threshold filing of the petition, containing a specified number of signatures, has timely occurred. Entitlement to proceed to the second step, in other words, is dependent upon the sufficiency of the compliance in the first step____
[Bjecause what the appellants filed was a referendum petition, the State Administrator was required to, as she did, review it, EL § 6-205(a), with an eye toward determining its sufficiency or deficiency and making the required determinations. EL § 6-206. To be sure, the State Administrator advised the appellants of her conclusion that the petition was deficient and she was not required to do more. Nevertheless ... she proceeded to verify the signatures and count the validated ones. EL § 6-210. In addition to the reasons stated, this was done, and was necessary, precisely because the appellants’ right to file additional signatures was dependent on whether they had filled the required number prior to the deadline. Whether a referendum petition filed pursuant to § 3(b) is valid is determined by reference to whether it contained, when filed, the required number of valid signatures-more than one-third of the number needed to complete the petition.[4]

*739Id. at 51-52, 912 A.2d at 672-73 (emphasis added). This Court held that Roskelly failed to meet the ten day window for filing his petition for judicial review of the Election Board’s June 8 determination that the petition was required to be filed in 2005. Doe is in a similar position here. I would apply that holding here, reasoning that when the Board accepted 13,476 of the Citizens Group’s first batch of signatures on February 20, 2006, determining that they constituted one-half of the signatures required, the first step in this two-step process was completed.

This determination resolved the question of how many voters’ signatures were needed to fulfill the requisite 2.5 % of registered voters, and correspondingly, the number that would constitute 5%. Doe had an opportunity to appeal this determination, but chose not to do so. I share the Circuit Court’s view that the ten day window set by EL section 6-210(e) was the only opportunity to judicially challenge this decision.

The majority distinguishes Roskelly on grounds that “Roskelly, as the petition sponsor was ‘aggrieved’ on June 8 when a final determination denying certification was made.” It holds that Doe was not aggrieved on February 20, and would only become aggrieved if the Citizens Group met all of the legal requirements for a referendum, including filing 100% of the requisite signatures.

I appreciate the difference in position between Roskelly and Doe, in that Doe’s objective might have been achieved without judicial review if the Citizen’s Group had failed to complete the second stage of the referendum process. But the majority cites no authority for the proposition that the term “aggrieved person” in EL section 6-209 means that there must be no *740possibility that the party seeking referendum will fail in the second stage of the process. If the legislature had intended this result, it could easily have said that no judicial review will occur until the chief election official certifies under EL section 6-208 that the petition process has been completed.

The majority’s invoking the “aggrieved” requirement to prop up its ruling does not change the simple truth that the word “final” does not appear in either EL section 6-209 or EL 6-210. Under the majority’s view, EL section 6-209(a)(1) would read as follows:

A person aggrieved by a [final] determination made under § 6-202, § 6-206, or § 6-208(a)(2) of this subtitle may seek judicial review[.]

Similarly, EL section 6-210(e) would read:

[A]ny judicial review of a determination as provided in § 6-209 of this subtitle, shall be sought by the 10th day following the [final] determination to which it relates.

In ruling as it does, not only does the majority insert the word “final” into the statute, but it fails to recognize that the statute uses two different terms: “determination[,]” on the oné hand, and “certification” on the other. The latter does not occur until the “conclusion of the verification and counting processes[.]” EL § 6-208(a). At that time, “[i]f the chief election official determines that a petition has satisfied all requirements established by law relating to that petition, the chief election official shall certify that the petition process has been completed[.]” EL § 6-208(b). Instead of recognizing both “determination” and “certification” as distinct words, the majority fuses the two into one term — “final determination.” To do so violates the familiar rule of statutory construction that “absent a clear intent to the contrary, a statute is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory.” Montgomery County v. Buckman, 333 Md. 516, 523-24, 636 A.2d 448, 452 (1994).

There is nothing else in the statute, moreover, that suggests that the legislature intended this interpretation. Adding *741these words does not resolve an inconsistency elsewhere in the statute. Nor is this interpretation more consistent with the purpose of the statute than one that treats the words as they were written. Indeed, the plain words of the statute create a more sensible statutory scheme in that they permit any legal issue about the number or geographical distribution of the required signatures to be resolved more in advance of the election. This gives election officials and the disputing sides of the issue more time to prepare for the election. The party seeking referendum has time to obtain additional or different signatures before the ninety-day deadline has expired. The party favoring the initial legislation has additional time to prepare to defend it in the minds of the voting public.

The necessity for a compressed time period in which to conduct the referendum process, including judicial review thereof, was obviously a concern for the legislature. In establishing the schedule for the referendum process in EL section 6-210, it imposed a five day limit on the election official to provide an “advance determination”; it gave the chief election official only twenty days to perform the verification and counting of the validated signatures on a petition; and instituted a twenty day limitation for filing a petition for judicial review of a determination. As all of these time frames are shorter than those seen in other contexts, I discern a legislative effort to shorten the process in order to facilitate an orderly election process.

The majority justifies its insertion of the word “final” into both EL sections 6-209 and 6-210 by relying on three administrative law cases, which apply the rule that ordinarily an appeal from an administrative contested case proceeding can only be taken from a final judgment. The present case, however, fits perfectly within one of the exceptions to the rule: exhaustion is not required when the legislature “has indicated its intent that a statutory administration [sic] remedy need not be invoked and exhausted under some circumstances.” Md. Comm’n on Human Relations v. Mass Transit Admin., 294 Md. 225, 232 n. 4, 449 A.2d 385, 388 n. 4 (1982) (citing White v. Prince George’s County, 282 Md. 641, 649, 387 A.2d 260 *742(1978)); Md.-Nat’l Capital Park & Planning v. Wash. Nat’l Arena, 282 Md. 588, 595-96, 386 A.2d 1216 (1978). Unlike the administrative law cases that are cited by the majority, this case involves the statutory referendum process. In enacting Title 6 of the Election Law Article, the legislature recognized the need for a compressed time frame that would allow a more speedy judicial resolution of a challenge to the County Board’s determination than would a more typical agency decision. It clearly did so by using the term “a determination” rather than “a final determination,” “certification” or other term indicating the end of the referendum petition process. Cf., e.g., Md.Code (1999, 2008 Repl.Vol., 2008 Supp.), § 10-309(a)(1) of the Correctional Services Article (“A claimant aggrieved by a final determination of the Board may file a petition for judicial review in the circuit court of the county where the injury occurred or where the claimant resides.”); Md.Code (2001, 2008 Repl.Vol.), § 11-630 of the Criminal Procedure Article (“A person aggrieved by a final determination and order of the Attorney General under Part II of this subtitle may seek judicial review.”)

For the reasons stated above, I would affirm the Circuit Court, on the basis that Doe failed to file a timely petition for judicial review of the Board’s February 20 determination.

Judges HARRELL and MURPHY authorize me to state that they join this Dissent.

. Section 115 of the Montgomery County Charter provides:

Any petition to refer legislation to the voters of the County shall be filed with the Board of Supervisors of Elections within ninety days after the date on which the legislation shall become law, provided that fifty percent of the required signatures accompanying the petition are filed within seventy-five days after the date when the legislation becomes law. (Emphasis added.)

. Lamone advised that " 'a referendum effort must occur immediately after the regular session at which the legislation is initially passed. Thus, the required signatures should have been filed no later than June 1, 2005.’ ” Roskelly v. Lamone, 396 Md. 27, 33, 912 A.2d 658, 661-62 (2006).

. Maryland Constitution, Art. XVI, Section 3(b) provides, in pertinent part:

If more than one-third, but less than the full number of signatures required to complete any referendum petition against any law passed by the General Assembly, be filed with the Secretaiy of State before the first day of June, the time for the law to take effect and for filing the remainder of signatures to complete the petition shall be extended to the thirtieth day of the same month, with like effect.

. The Court explained that it would not decide the other issue on appeal:

*739We note at the outset, whether correct or not, an issue that we need not decide here; Lamone advised the appellants, consistent with her counsel's advice, that their attempt to refer Senate Bill 478 to referendum was untimely, as the petition was not filed in the year it was passed. That was a determination of deficiency she was required by § 2-206(c)(5) to make. The appellants did not timely respond to this determination by seeking judicial review.

Id. at 47, 912 A.2d at 670.