Daily Record Legal Affairs Writer//May 26, 2010
//Daily Record Legal Affairs Writer
//May 26, 2010
ANNAPOLIS — A judge rejected a bid Wednesday from Baltimore developer David Cordish’s lawyers to question the Maryland Jockey Club’s involvement in a successful petition drive to bring to a referendum Cordish’s plan to build a slots casino at Arundel Mills mall.
Anne Arundel County Circuit Judge Ronald A. Silkworth also turned aside the attorneys’ request to introduce the testimony of regretful petition signers who say slots opponents lied to them about the petition’s goal. For example, some signers were prepared to testify they were told the petition supported slots at the mall, rather than opposed them, said attorney Anthony Herman.
Silkworth granted lawyer Michael Berman’s objections to both types of testimony, saying the line of questioning was beyond the scope of his inquiry into Cordish’s legal challenge to the Anne Arundel County Board of Elections’ approval of the petition drive.
Silkworth’s twin rulings marked the latest defeats in Cordish subsidiary PPE Casino Resorts Maryland’s legal battle against casino opponents, including the jockey club.
Silkworth said his review was limited to ensuring the board committed no procedural irregularities and did not arbitrarily or capriciously approve the signatures.
A judge reviewing a board’s decision has limited authority and does not conduct a trial “about what was said and what was not said,” Silkworth said.
“There is a record that is what it is,” he added, referring to the documents presented to the elections board.
Relevance of sponsorship
PPE sued to block the referendum, which the county elections board certified in February, after accepting as valid 22,967 of the 40,408 signatures received during the petition drive. The number of signatures required for a referendum is 18,790 under county law.
As part of PPE’s challenge, Herman sought to question MJC President Tom Chuckas in an effort to prove that the jockey club was the petition drive’s actual sponsor, rather than citizens’ group CASM (Citizens Against Slots at the Mall).
Herman contended Maryland law requires sponsor disclosure on petitions so would-be signers know if the referendum effort is being spearheaded by a citizens’ group with populist goals or a company, such as the jockey club, with “millions of dollars at stake.”
CASM is a “non-existent entity” created by the jockey club to disguise its involvement in the petition drive, Herman told Silkworth. “It [CASM] was a deception to the prospective signers.”
But Berman, arguing for the jockey club and other slots opponents, said CASM is not a club creation but an umbrella group for slots opponents.
“I am here representing the non-existent entity CASM,” Berman said.
He added that the jockey club has disclosed publicly and to the board its involvement in the petition drive.
The club, which operates Laurel and Pimlico race tracks, has said it believes the casino would put Laurel Park, located 13 miles south of Arundel Mills mall, out of business.
The Daily Record reported last month that the club spent nearly $660,000 in funding the signature-gathering effort.
Berman called the club’s involvement in the petition drive an assertion of its constitutional right to be involved in a matter of intense public debate, namely the placement of slot machines.
“Corporations have the First Amendment right to contribute to political campaigns,” Berman told the judge, citing the Supreme Court’s January decision in Citizens United v. Federal Elections Commission.
Herman, having lost in his effort to question Chuckas, urged Silkworth to admit testimony about alleged deception on the part of petition supporters. Such lies cut at “the very heart of the electoral process” by denying voters the truth about what they are signing, Herman said.
The First Amendment provides “no blanket exemption from fraud liability,” he added.
The elections board should not have just counted signatures but examined if those who signed were truthfully informed, Herman said.
He added he had affidavits from at least 100 signers who claim they were deceived by slots opponents.
Berman countered that Silkworth should defer to the elections board’s judgment and not go down the “slippery slope” of having a full-blown trial in which the court would have to review each of the more than 40,000 conversations between those circulating the petition and those who signed.
Such an inquiry would have a “chilling effect” on the right of people to petition the government, as individuals would not sign for fear of being subpoenaed to testify in court, said Berman, of Rifkin, Livingston, Levitan & Silver LLC in Annapolis.
Silkworth’s rejection of the efforts to have Chuckas and petition signers testify followed the judge’s denial Tuesday of Herman’s effort to introduce testimony from a handwriting expert that many of the signatures had been forged. Silkworth, as he ruled Wednesday, said the expert’s testimony was beyond the scope of his review of the board’s approval of the petition.