Suessmann v. Lamone

Dissenting Opinion by

BELL, G.J. which ELDRIDGE, J.,

joins.

The issue that this Court decides today is a constitutional challenge to the procedure long employed in Maryland in the election of Circuit Court judges. Specifically, the question is wdiether the Circuit Court for St. Mary’s County correctly refused to order the St. Mary’s and Anne Arundel County Boards of Elections to conduct new primary judicial elections, holding that the Maryland General Assembly intended that primary judicial elections be “partisan” in nature and application. This Court, which heretofore, by per curiam order, had affirmed that court’s denial of the preliminary injunction sought by Michael B. Suessmann, et al. (the appellants) to *738invalidate the March 2, 2004 primary election, also explains the reasons for that order. I join that portion of the opinion addressing the latter issue, that explains why we refused the preliminary injunction. On the other hand, my answer to the former issue is “no.” There is, in fact, clear case law evincing Maryland’s public policy on this point, that judicial elections should be, and remain, removed from “partisanship,” and, for that reason, I disagree with the Circuit Court and the majority and respectfully dissent.

Maryland Code (2003) § 5-203 of the Election Law Article provides:

“(a) Voter registration required.—
“(1) This subsection does not apply to a candidate for:
“(i) President or Vice President of the United States; or
“(ii) any federal office who seeks nomination by petition.
“(2) Unless the individual is a registered voter affiliated with the political party, an individual may not be a candidate for:
“(i) an office of that political party; or
“(ii) except as provided in subsection (b) of this section,
nomination by that political party.
“(b) Party affiliation — Exception for judicial and county board of education candidates. — The requirements for party affiliation specified under subsection (a) of this section do not apply to a candidate for:
“(1) a judicial office; or
“(2) a county board of education.”

Candidates for judicial office and for county boards of education, thus, are expressly exempt from compelled party affiliation.1 Stated differently, the Legislature, by this Act, *739has prohibited political parties from excluding judicial and board of education candidates, whatever their political affiliation, from their ballots.

Consistent with § 5-203(b), and, indeed, building on it, is § 5-706(a). Providing that the prohibition against the name of a candidate defeated in a primary election appearing on the ballot in the general election “does not apply to ... a candidate for the office of judge of the circuit court,” it permits a judicial candidate to “cross-file” in the primary elections of the principal political parties.

In addition, § 9-210(g) provides:

“(g) General elections — Party designation.—
“(1) Except for contests for judicial office or an office to be filled by nonpartisan election, the party affiliation of a candidate who is a nominee of a political party shall be indicated on the ballot.
“(2) (i) A candidate who is not a nominee of a political party or affiliated with a partisan organization shall be designated as an ‘unaffiliated.’
“(ii) A candidate who is affiliated with a partisan organization shall be designated under ‘other candidates.’ “(3) The names of candidates for judge of the circuit court or for a county board of education, and the names of incumbent appellate judges, shall be placed on the ballot *740without a party label or other distinguishing mark or location which might indicate party affiliation.”

Pursuant to this provision, judicial candidates do not appear on the general election ballot as the nominee of any party or with any party designation.

The necessary intent, and resulting cumulative effect, of these provisions is to remove partisanship “as far as possible,” see Smith v. Higinbothom, 187 Md. 115, 133, 48 A.2d 754, 763 (1946), from the judicial election process, at the primary level and beyond. At the very least, the Legislature intended that this aspect of the process, candidate qualification, not be partisan.

There is another, more practical effect: permitting unaffiliated candidates to run in any2 political party’s primary, in reality, compels them to run in each such primary. A candidate that foregoes the opportunity to participate in as many primaries as may be held and as many nomination methods as there are parties necessarily runs at a distinct disadvantage to his or her competitors, having thereby afforded him or herself only one chance of making it to the general election, rather than the two or more chances otherwise available. Moreover, opening up the primary election process as to candidates for judicial office and precluding political parties from completely controlling the process insofar as who is permitted to compete, rather than being reflective of partisanship, is consistent with the opposite focus.

This Court has commented on the public policy of this State with regard to the place of partisanship in judicial elections. See Smith v. Higinbothom, 187 Md. at 133-134, 48 A.2d at 763. Noting that “[t]he law ... provides that the names of all *741candidates for Judge shall be placed on the ballots or voting machines without any party label or other distinguishing mark or location which might indicate the party affiliation of any such candidate” and that political party affiliation is not required for nominations made at primary judicial elections, the Court observed:

“It can now be said that the public policy of the state is to keep partisanship out of the election of Judges as far as possible, and to retain in the judiciary those Judges who have demonstrated their integrity, wisdom and sound legal knowledge.”

Id.3

The reasons supporting the public policy of keeping, as much as possible, partisanship out of the election of judges and, thereby, maintaining a process where quality and merit are the predominant concerns, are obvious. A non-partisan judiciary more likely will be an independent judiciary, Maryland Rule 16-813, Code of Judicial Conduct, Canon 1 (“An independent and honorable judiciary is indispensable to justice in our society. A judge should observe high standards of conduct so that the integrity and independence of the judiciary may be preserved.”), and one characterized by integrity, wisdom and legal learning. Smith v. Higinbothom, 187 Md. at 123, 48 A.2d at 758. Such a judiciary inspires greater public trust and confidence and is less likely to be the subject of controversy. Moreover, “[a] non-political judiciary that will interpret fairly the law and administer justice without political taint or touch is more vital to the community than anything else. A good judge is entitled to re-election regardless of his *742party affiliation; a poor judicial candidate, pushed by the politicians, should never be supported for party reasons.” Id. at 124, 48 A.2d at 759, quoting Johnson, Kent, Mencken and Owens, The Sunpapers of Baltimore, 144, 145.

Consistent with the notion of a non-political, non-partisan judiciary and judiciary election process are the restrictions prescribed for judicial candidates by the Maryland Canon’s of Judicial Conduct. See Md. Rule 16-813. Canon 5B, pertaining to the “Political Conduct of a Judge Who is a Candidate” is instructive on the meaning of the term “partisan,” in the context of a judicial election. It makes clear the restrictions on the expressly political and partisan conduct in which judges are permitted to engage, as compared to that of other candidates engaged in partisan elections. Canon 5B states:

“B. Political Conduct of a Judge Who Is a Candidate. A judge who is a candidate for election, re-election, or retention to judicial office may engage in partisan political activity allowed by law with respect to such candidacy, except that the judge:
“(1) should not act as a leader or hold any office in a political organization;
“(2) should not make speeches for a political organization or candidate or publicly endorse a candidate for nonjudicial office;
“(3) should maintain the dignity appropriate to judicial office;
“(4) should not allow any other person to do for the judge what the judge is prohibited from doing;
“(5) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office, announce the judge’s views on disputed legal or political issues, or misrepresent the judge’s identity, qualifications, or other fact.”

The Commentary to Canon 5B (2) proscribes a judge running for office publicly endorsing a candidate for another public office by having the judge’s name on the same ticket.

*743The limitations on the judicial candidate’s political or “partisan political activity,” reflected in the 5 exceptions, make clear that the partisanship referred to, and permitted, is limited to the judge’s own candidacy and essentially consists of being allowed to attend political dinners and other functions, which provide the judge with a forum, and enable him or her, to advocate, in a restricted and limited way, on his or her own behalf. The American Heritage College Dictionary, 3rd Edition, defines a “partisan” as “A fervent, sometimes militant supporter or proponent of a party, cause, person or idea.” By this definition, a person who is precluded from making speeches at political events or even publicly endorsing a nonjudicial candidate, hardly could be deemed a “partisan.”

Sections 5-203(b) and 5-706(a) are contained in Title 5 of the Election Law, pertaining to candidate qualification. And although § 9 — 210(g) is in Title 9, pertaining to voting, its focus is on the candidate. As I have shown, the General Assembly has been clear, the election process for judges insofar as candidate qualification is concerned, is not partisan. But the election process consists of more than candidate qualification; to be complete, account must be taken of the participation of the voters, the critical players in the system. Therefore, an election process that is completely non-partisan in the candidate selection aspect still may not be completely non-partisan where the voter participation proceeds on a partisan basis.

In this case, contrary to the way in which it handled the candidate side of the process, and unlike its treatment of the election process for county boards of education, in which the General Assembly was specific as to who could vote in those elections,4 the General Assembly has been completely silent as *744to whether voting in the judicial election process was intended to be non-partisan, whether the voters were expected to participate on a non-partisan basis. This omission renders ambiguous both the legislative intent and the statutory scheme reflecting that intent. Maryland law is clear, when legislative intent is not discernable from the clear language of a statute or a statutory scheme, we seek to discover it in extraneous sources. Given the importance of the integrity of the judicial election process to the existence in fact, and in perception, of an independent and a fair and impartial judiciary, I resolve the ambiguity in favor of non-partisan voter participation, that is, permitting all registered voters to participate at the primary election stage in the selection of the final candidates for judicial office.

The majority reaches the opposite conclusion. Characterizing Maryland’s as a “meticulously crafted judicial elections process,” 388 Md. 697, 726-27, 862 A.2d 1, 18, it concludes that the process “evincfes] a policy of nonpartisanship in judicial elections while nevertheless keeping the election process itself an inherently partisan affair,[ which] reifies] on the long-established infrastructure of a political party primary to accommodate the election of candidates it desires to be selected on bases apart from partisan politics.” Id.5 More particularly, the majority is persuaded that the three provisions in the *745Election Law Article that mention “nonpartisan” do not support the appellants’ argument that the General Assembly-established a system of nonpartisan judicial elections and, in fact, “strongly suggest the opposite view.” Id. at 728-24, 862 A.2d at 16-17.

Not unexpectedly, the majority relies on § 8-802, which, as I have already pointed out, prescribes the election of county school board members “on a nonpartisan basis,” subsection (a)(l )(i), and provides for the participation in these elections of all registered voters, whatever their party affiliation or lack thereof. Subsection (a)(l)(ii). It opines:

“It seems obvious that, just as § 8-802(a)(l)(i)’s purpose is to mandate a nonpartisan general election, § 8-802(a)(l)(ii)’s purpose is to mandate a nonpartisan primary election. Thus, § 8-802(a)(l)(ii) provides us with a useful statutory depiction of what is meant by a nonpartisan primary. The inescapable conclusion is that when the State truly establishes a nonpartisan primary, the primary is characterized by the fact that unaffiliated, voters are eligible to vote in it. Indeed, the statute implies that a nonpartisan primary is defined by the ability of unaffiliated voters to vote in the primary. If this be so, then the political primaries nominating circuit court judges cannot, by definition, be nonpartisan since unaffiliated voters are ineligible to vote in them.”

Suessmann v. Lamone, 383 Md. 697, 723-25, 862 A.2d 1, 16-17.

*746In addition, the majority relies on § 8-802(a)(2)(i)-(v). As to it, the majority contrasts the affiliation provision for judicial candidates with that for candidates for county boards of education, noting that the latter are more detailed and specifically pertain to “all aspects of the election.” Id. at 724-25, 862 A.2d at 17. It also states:

“In contrast to vacancies created by board member candidates after they have won the primary but before the general election, vacancies on the ballot occurring after judicial candidates have won the primary election, vacancies on the ballot occurring after judicial candidates have won the primary election are filled by the central committee of the same political party of the individual vacating the nomination. Compare § 8-805 [6] with § 5-1004 [7]. In sum, the Election Law Article contemplates key features distinguishing nonpartisan board of education elections from the elections for judicial candidates, signaling, at the very least, that its understanding of nonpartisan does not comport with appellants’ view.”

. I do not believe that the more detail in the case of the board of education member than in the case of the judicial officer affects very much, if at all, the comparability of the candidate *747qualification aspect of the election process or the legislative intent to broaden the candidate base and deflect the partisanship. The majority is simply wrong with regard to judicial vacancies being filled by State central committees. While the majority correctly points out that Maryland law requires each political party to have a State and County Central Committee, see §§ 4-201 and 4-202, the filling of vacancies in the office of Circuit Court judge is controlled by the Maryland Constitution and is entrusted to the Governor, rather than directly to political parties. Article IV, Section 5 of the Maryland Constitution provides:

“Upon every occurrence or recurrence of a vacancy through death, resignation, removal, disqualification by reason of age or otherwise, or expiration of the term of fifteen years of any judge of a circuit court, or creation of the office of any such judge, or in any other way, the Governor shall appoint a person duly qualified to fill said office, who shall hold the same until the election and qualification of his successor. His successor shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years (if the vacancy occurred in that way) or the first such general election after one year after the occurrence of the vacancy in any other way than through expiration of such term. Except in case of reappointment of a judge upon expiration of his term of fifteen years, no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed time when his successor would have been elected.” (Emphasis added)

I do not disagree that a characteristic of nonpartisanship in elections is that unaffiliated voters are not excluded, but rather are permitted to vote in it. Of course, it is whether all registered voters may participate in the primary election of Circuit Court judges that is at issue in this case. That question is not answered by a provision that deals specifically with boards of education elections. That the General Assembly was quite specific as to who was eligible to vote in those elections, does not establish the opposite conclusion, that only *748affiliated voters may vote for Circuit Court judges, especially since the right of the affected political parties to control who runs in their primary elections has been restricted with respect to those races and, more important, given the importance of insuring the integrity of such races. Thus, I reject the majority’s assertion that

“When the State wishes to establish a nonpartisan election, it has proven that it knows how by its creation of the explicitly nonpartisan school board elections. It has not done so in the context of judicial elections for the circuit courts, which remain, despite appellants assertions to the contrary, partisan affairs.”

See Suessmann, 383 Md. at 727-29, 862 A.2d at 18-20.

Moreover, in relation to the purely political contests they regulate, judicial elections are significantly different; it does not follow that the rules with regard to who may vote for judicial candidates in those purely political contests were intended to be applied to those judicial candidates or contests. In my view, in short and at best, the Legislature was, and has remained, silent on the issue. Maryland law is clear, legislative silence on a particular subject is not evidence, one way or the other, of legislative intent as to that subject. See Jones v. State, 336 Md. 255, 271 647 A.2d 1204, 1212 (1994); Stouffer v. Staton 152 Md.App. 586, 604 833 A.2d 33, 34 (2003).

To be sure, it can not be gainsaid that § 9-206(a)(5), in prescribing the format of the primary ballot, requires that there be printed at the top of each primary election ballot, “the name of the political party or the words ‘nonpartisan ballot,’ as applicable,” and that judicial candidates appear on party ballots, rather than nonpartisan ballots. Nor do I dispute, or could I, that judicial candidates, consistent with the requirements of § 9-210(a), which enumerate the specific arrangement of the general election ballots, are allotted the sixth spot on such ballots, while the ninth is reserved for “offices filled by nonpartisan election.” I do not find these provisions dispositive.

*749Permitting candidates, who are not affiliated with a party, to run in that party’s primary is antithetical to partisanship; it limits the ability of party or partisan considerations to dominate or determine candidate eligibility. Moreover, coupling the non-affiliation provision with one for cross-filing in competing primaries and for participation in other party activities for which heretofore party affiliation was required, further undermine and limit partisanship and the influence of party. Partisanship and party influence are further reduced by not requiring that the candidates be identified by party labels in the general election, even though presumably a party nomination has occurred. These various provisions draw a sharp distinction between the judicial candidate and other candidates for office, those for offices in the political branches of government.

Indeed, the manners in which the General Assembly has differentiated judicial candidates from those that are clearly partisan and its persistence in this approach, even after this Court’s observation, in Smith v. Higinbothom, of the intended effect of those differentiations, are, 1 repeat, clear evidence of its desire to limit the partisanship associated with the elections for other offices. The issue that this case presents, and the only one, presented for the first time, is how the General Assembly intended to ensure that this limitation of partisanship, the only conceivable benefit and result that could have been contemplated by these differentiations, and the apparent purpose for them, is achieved. More than the placement of provisions in a statutory scheme is required to answer the intent question. Critical to its resolution is, in fact, the benefit sought and the comparison of the impact on that benefit by each approach.

While expanding the candidate eligibility aspect of the judicial election process does reduce the partisanship of the process, it does not reduce it “so far as possible.” The best result may be expected to be achieved when the broadest possible voter base is used to select the ultimate winner. The more eligible voters, and therefore citizens, are allowed to “vet” the judicial candidate for integrity, learning and wisdom, without regard to party or partisan affiliation or consider*750ations, the more the process is rendered non-partisan. , It is not at all clear to me that the Legislature was intent to go only part way in shielding the judicial process from partisanship. That it did not do expressly in the case of the judicial elections process what it did expressly in the case of the county boards of education does not establish that it intended the opposite with respect to voter participation. This is, to me, an especially compelling conclusion since the integrity and independence of the judiciary, such that it enjoys the full (at least to the greatest extent possible) trust and confidence of the public it serves, is at least as important as ensuring an effective and efficient education system.

There is one additional matter which warrants a comment. Article I, § 1, of the Maryland Constitution provides in pertinent part as follows (emphasis added):

“Every citizen of the United States, of the age of 18 years or upwards, who is a resident of the State as of the time for the closing of registration next preceding the election, shall be entitled to vote in the ward or election district in which he resides at all elections to be held in this State”

If the issue had been raised in this case, a persuasive argument could have been made that Article I, § 1, precludes the exclusion of unaffiliated registered voters from primary elections for Circuit Court judges. A Democrat or Republican primary, limited to Democrat or Republican registered voters who are choosing their party’s nominee, may well not be an “election” within the meaning of Article I, § 1. Nonetheless, when that state-regulated primary is open to candidates for judgeships regardless of party affiliation, it is no longer simply a “party” function. With regard to candidates for the office of Circuit Court judge, it very likely is an “election” within the meaning of Article I, § 1.

I dissent.

Judge ELDRIDGE joins in the views herein expressed.

. Curiously, the majority challenges the appellants' assertion, based on Maryland Code (2003) § 5-203(b) of the Election Law Article, that “[ujnique among candidates for public office, Maryland requires politi*739cal parties to permit candidates for judicial office to run in the primary even if they are not members of the party,” stating:

“While we express no opinion as to whether this assertion is correct, we note that appellants have cited, as direct support, authority that does not stand for their proposition. A careful reading of § 5-203(b)(1) reveals that it exempts judicial candidates from the requirement that they be registered members of the party nominating them in its primary; it does not require political parties to accept judicial candidates who are unaffiliated with the party in their primaries.”

383 Md. 697, 726-27 n. 15, 862 A.2d 1, 18 n. 15 (2004). That is indeed a fine distinction and one that, if correct, would render § 5-2 03(b) totally nugatory. We do no1 construe statutes so that they have no meaning. See Gillespie v. State, 370 Md. 219, 222 804 A.2d 426, 428 (2002), Montgomery County v. Buckman, 333 Md. 516, 523-524, 636 A.2d 448, 452 (1994).

. Maryland Code (2003) § l-101(kk) of the Election Law Article defines “Principal political parties” as "the majority party and the principal minority party.” The reference in § 5-203(b) to “the requirements of party affiliation” is not so limited. Thus, a judicial candidate may, under that provision, be a candidate for an office, or nomination, of any political party, not simply of the principal political parties. This answers Judge Harrell’s argument that the judicial election process for Circuit Court judges is “at worst ... bipartisan.”

. If we were correct that the goal of judicial elections is the retention of "those Judges who have demonstrated their integrity, wisdom and sound legal knowledge’’ and, in addition, it is true that insuring the election of such judges even in the first instance, is of critical importance, pronouncing judicial elections to be partisan, with the effect that only affiliated voters may participate in the primary process, would result in ihe irony that a non-affiliated candidate for the Circuit Court could run in a county primary election, but not be able to participate in that election as a registered voter of the state, even to vote for him or herself.

. Section 8-802 provides:

"(a) In general.—
"(1) (i) Members of boards of education shall be elected on a nonpartisan basis.
“(ii) In a primary election to nominate board of education candidates, any registered voter of the county, regardless of party affiliation or lack of party affiliation, is eligible to vote in those contests for nomination.
*744"(2) Candidates for election to boards of education shall, without party designation or regard to party affiliation:
"(i) file certificates of candidacy;
“(ii) be certified to the ballot;
"(iii) appear on the ballot;
"(iv) be voted on; and
"(v) be nominated and elected.
"(b) Exception. — This section does not apply to candidates for nomination or election to a board of education if Title 3 of the Education Article requires a partisan election.”

This section is contained in Subtitle 8 of Title 8, entitled "Boards of Education.”

. I, like the appellants and the majority, see Suessmann v. Lamone, 383 Md. 697, 721-22, 862 A.2d 1, 15-16 (2004), acknowledge that political parties have a First Amendment right of association, upon which the State may not infringe. See California Democratic Party v. Jones, 530 *745U.S. 567, 574, 120 S.Ct. 2402, 2408, 147 L.Ed.2d 502, 509-510 (2000); Tashjian v. Republican Party of Conn., 479 U.S. 208, 214-215, 107 S.Ct. 544, 548, 93 L.Ed.2d 514, 523 (1986). On the other hand, I, like the majority, id. at 708, 862 A.2d at 7, citing Hennegan v. Geartner, 186 Md. 551, 556, 47 A.2d 393, 395 (1946), recognize that "the Legislature has power to create and regulate primary elections, subject only to such prohibition as may be found in the State Constitution, and subject as to Congressional elections to any prohibitions in the Federal Constitution.” The first amendment rights of the political parties are not at issue in this case. Nor is there any issue in this case concerning the importance of the State's interest in regulating judicial elections.

. Section 8-805, "Vacancies in nomination," provides:

"(a) Nominee who dies, declines, or is disqualified.—
"(1) If, after the primary election but before the general election, a nominee dies, declines the nomination, or becomes disqualified before the ballots are printed or at a time when the ballots can be reprinted, the name of the nominee may not appear on the ballot.
"(2) If the number of remaining nominees is less than the number of offices to be filled, a new nominee shall be appointed in the same manner as provided in the Education Article for filling a vacancy on the board of education.
“(b) Votes cast for name remaining on ballot. If a nominee dies, declines the nomination, or is disqualified after the ballots are printed and too late for the ballot to be reprinted, and if that nominee receives sufficient votes to have been elected, the office shall be deemed vacant and shall be filled as if the vacancy had occurred during the term of office.”

. Section 5-1004 requires a vacancy in nomination for an office that is entirely in one county to be filled by that county's central committee of the party of the individual vacating the position.