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Opinions – 1/23/12: Maryland Court of Appeals

Daily Record Staff//January 22, 2012

Opinions – 1/23/12: Maryland Court of Appeals

By Daily Record Staff

//January 22, 2012

Criminal Procedure

Right to counsel at bail determination

BOTTOM LINE: Under Maryland’s Public Defender statute, an indigent defendant has a right to appointed counsel at his or her initial appearance before a judicial officer in order for the judicial officer to determine whether there was probable cause for the arrest and, if so, whether the defendant should be released on his or her own recognizance, on bail, or not at all, because this initial appearance is a “critical proceeding” in the disposition of the case.

CASE: DeWolfe v. Richmond, No. 34, Sept. Term, 2011 (filed Jan. 4, 2012) (Judges Bell, Harrell, Battaglia, Greene, Adkins, BARBERA & Eldridge (Retired, Specially Assigned)). RecordFax No. 12-0104-20, 46 pages.

FACTS: This appeal arose from a circuit court decision granting summary judgment for the plaintiffs, entering a declaratory judgment, and denying the plaintiffs’ request for an injunction to enforce the rights declared. The plaintiffs sought a declaration that they and the class of indigent persons they represented had the right, under the federal and state constitutions and the Public Defender Act, to be represented by the Public Defender at bail hearings, which are conducted as part of the initial appearance before Commissioners at the Baltimore City Booking and Intake Center (“Central Booking Jail”).

On November 13, 2006, the plaintiffs filed in circuit court a class action complaint (later amended) seeking injunctive and declaratory relief. They sought a declaratory judgment that: (1) the initial bail hearing before the Commissioner is a stage of the criminal proceeding, entitling them to representation under §16-204(b)(2) of the Public Defender Act; (2) they were entitled to counsel under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights because the initial bail hearing is an adversary proceeding and/or a “critical stage” of a criminal prosecution, as that phrase is understood in Sixth Amendment parlance; (3) the initial bail hearing implicated the plaintiffs’ fundamental right to liberty under the Due Process Clause of the Fourteenth Amendment and Article 2411; and (4) they were denied their right to counsel. The plaintiffs also sought an injunction enjoining the defendants from violating the plaintiffs’ right to representation by the Office of the Public Defender at initial bail hearings in Baltimore City.

Each of the named plaintiffs was arrested for a crime that qualified as a “serious offense,” as that term is defined in the Public Defender Statute, §16-101 (h)(1)–(4).13 Each plaintiff was detained at the Central Booking Jail and, without counsel present, was brought before a Commissioner for the purpose of determining eligibility for pretrial release. Each plaintiff informed the Commissioner that he or she could not afford an attorney and requested an attorney to represent him or her at the initial appearance. On each occasion, the Commissioner refused to appoint an attorney and, ultimately, set bail for the plaintiff. The plaintiffs named as defendants the District Court of Maryland, the Chief Judge of the District Court of Maryland, the Coordinator of Commissioner Activity for the Maryland District Court Commissioners, the Administrative Judge of the District Court for Baltimore City, the Administrative Commissioner for Baltimore City, and the Commissioners of the District Court in Baltimore City, individually and collectively in their official capacities as District Court Commissioners. The parties later agreed that the District Court should be dismissed from the case.

The parties filed cross-motions for summary judgment. After a hearing on the motions, at which the circuit court certified the class, the court issued a written order granting summary judgment in favor of the District Court defendants. The plaintiffs appealed to the Court of Special Appeals. While the case was pending in that court, the Court of Appeals issued a writ of certiorari on its own initiative. The Court of Appeals subsequently vacated the order of the circuit court and remanded the case with the direction that it be dismissed if the plaintiffs failed to amend their complaint to assert claims against the Public Defender. On remand, the circuit court conditionally denied the plaintiffs’ petition to certify the class and ordered dismissal of the complaint if the Public Defender was not joined as a defendant.

The plaintiffs amended the complaint to add the Public Defender as a defendant, and, later, amended their complaint orally to add claims for relief against the Public Defender. The Plaintiffs thereafter formally amended their complaint and filed a renewed and amended motion for summary judgment. The amended complaint sought additional injunctive relief from the Public Defender, specifically requesting the court to enter an affirmative injunction directing the Public Defender to assign the district public defender for Baltimore City an attorney to represent indigent defendants at initial bail hearings and thereafter.

On September 30, 2010, the circuit court issued an order ruling that presentment to a Commissioner is a critical stage of a criminal prosecution and therefore indigent arrestees in Baltimore City have a right under the Sixth Amendment and Article 21 to be represented by appointed counsel. The court further ruled that the plaintiffs were entitled to counsel under the Public Defender Act. Finally, the court ruled that, by denying the plaintiffs and those similarly situated any representation at the initial bail hearing, the defendants violated plaintiffs’ due process rights. Based on those rulings, the circuit court denied the District Court defendants’ motion to dismiss (treating it as a motion for summary judgment) and granted the plaintiffs’ motion for summary judgment. The circuit court issued an order staying the decision pending appellate review. By order dated December 28, 2010, the circuit court granted the plaintiffs declaratory relief, and by separate order of the same date, the circuit court denied without prejudice the plaintiffs’ request for injunctive relief.

The plaintiffs then requested that the circuit court amend the order denying injunctive relief “without prejudice,” as the order might not constitute a “final” order for purposes of appellate review. On February 25, 2011, the circuit court issued an order denying the plaintiffs’ request for injunctive relief. The plaintiffs appealed filed an appeal with the Court of Special Appeals. The plaintiffs subsequently filed with a petition for certiorari with the Court of Appeals, seeking consideration of the circuit court’s judgment prior to review by the Court of Special Appeals. The Public Defender filed a conditional cross-petition for a writ of certiorari, presenting the question of whether, in light of the uncontested facts presented by the Public Defender that providing counsel at initial bail hearings would render the Office of the Public Defender unable, within its currently available resources, to provide representation at these proceedings while still meeting its obligation to provide effective, competent, and diligent representation to indigent defendants, the circuit court erred in issuing the declaration without in any way addressing remedy and how this undisputed funding shortfall might be practicably addressed.

The Court of Appeals held that indigent defendants have a right to counsel at initial bail hearings before district court commissioners under Maryland’s Public Defender Act. The Court of Appeals further held that the circuit court did not err in declaring the plaintiffs’ entitlement to representation of appointed counsel at the bail hearing before a Commissioner. With regard to the related question presented by the Public Defender’s cross-petition, the Court held that the circuit court did not err in issuing its declaration without consideration of the costs attendant to the rights declared. As such, the Court of Appeals affirmed the judgment of the circuit court.

LAW: In Maryland, when an individual is arrested, he or she must go before a judicial officer for an initial appearance, pursuant to Maryland Rule 4-213(a). The judicial officer, who in all instances relevant to the matter sub judice is a District Court Commissioner, has a number of duties at the initial appearance, among which is to comply with the pretrial release provisions of Maryland Rule 4-216. That rule requires the Commissioner to determine whether there was probable cause for the arrest and, if so, whether the defendant should be released on his or her own recognizance, on bail, or not at all.

The right to counsel under Maryland’s Public Defender Act is broader in scope than that granted under the Sixth Amendment. See McCarter v. State, 363 Md. 705, 713-14 (2001). Section 16-204 of the Act outlines the scope of representation by the Public Defender and lists the proceedings for which representation shall be provided. Subsection (b)(1) provides, in pertinent part, that indigent defendants or parties shall be provided representation in: (i) a criminal or juvenile proceeding in which a defendant or party is alleged to have committed a serious offense; (ii) a criminal or juvenile proceeding in which an attorney is constitutionally required to be present prior to presentment being made before a commissioner or judge; (iii) a postconviction proceeding for which the defendant has a right to an attorney under Title 7 of this article; (iv) any other proceeding in which confinement under a judicial commitment of an individual in a public or private institution may result; (v) a proceeding involving children in need of assistance under §3-813 of the Courts Article; or (vi) a family law proceeding under Title 5, Subtitle 3, Part II or Part III of the Family Law Article. Subsection 16-204(b)(2) in turn provides that representation shall be provided to an indigent individual in all stages of a proceeding listed in paragraph (1) of this subsection, including, in criminal proceedings, custody, interrogation, preliminary hearing, arraignment, trial, and appeal.

As determined by the circuit court and the Public Defender himself, the relevant language of the Act is unambiguous. The Maryland Court of Appeals has addressed on a number of occasions the applicability vel non of that subsection. See, e.g., Webster v. State, 299 Md. 581 (1984). In Webster, the Court decided, among other issues, whether the Act, then codified at Article 27A, entitles an indigent arrestee to appointed counsel at a pre-indictment lineup. The Webster Court noted that legal representation by the Public Defender is not limited to those proceedings in which the Sixth Amendment demands the assistance of counsel; the statute contemplates such representation in certain areas beyond the reach of that guarantee. Id. at 603. A lineup that takes place before formal accusation, though not a “critical stage” under the Sixth Amendment, is nevertheless a critical stage for the suspect, who, of course, is in custody at the time. Id. at 603-04. Therefore, notwithstanding that a lineup that occurs before formal accusation is not encompassed within the types of cases statutorily designated in as calling for the assistance of the Public Defender, such a confrontation, arranged by the police, at which a suspect is exhibited in order to obtain evidence that he is the criminal agent, is within the ambit of the Public Defender statute. Id. at 604; see also Harris v. State, 344 Md. 497, 511-12 cert. denied, 522 U.S. 1017 (1997); State v. Flansburg, 345 Md. 694, 697 (1997).

Most recently, in McCarter v. State, the Court of Appeals considered whether a defendant has a right to counsel at an initial appearance, under Maryland Rule 4-213(c), at which time the defendant purported to waive his right to a jury trial. McCarter v. State, 363 Md. at 707. The Court held that the Public Defender Act bestows such a right to counsel at the proceeding, and, consequently, the trial court erred when it accepted at that proceeding McCarter’s purported waiver of his right to a jury trial, without the benefit of counsel. Id. at 713. In so holding, the Court undertook the same analysis of the Public Defender Act as in Webster and Flansburg, restating the settled proposition of law that the right to counsel under the Public Defender Act is significantly broader than the constitutional right to counsel. Id. at 713-14.

McCarter, much like Webster and Flansburg preceding it, directed the proper disposition of the present case. The parties agreed, and the Court concurred, that the initial appearance before a Commissioner in Maryland is an event that marks the beginning of the formal criminal adversarial process. Indeed, the Supreme Court has confirmed that a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Rothgery v. Gillepsie County, 554 U.S. at 213. The initial appearance before the Commissioner, including the bail hearing that is part of that event, is clearly encompassed within a “criminal proceeding,” and may result in the defendant’s incarceration. The only remaining question was whether the bail determination is a “stage” of that proceeding, and the Court found that it most certainly was.

For all these reasons, the Court held that the bail-hearing portion of the initial appearance before the Commissioner is a “stage” of the criminal proceeding, as that term is employed in §16-204(b)(2) of the Public Defender Act. Because the bail hearing is a stage of a criminal proceeding, indigent defendants are entitled to appointed counsel at the bail hearing.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: The Public Defender did not challenge the circuit court’s conclusion that the Public Defender Act mandates representation of indigent defendants at the bail-hearing portion of the initial appearance before the Commissioner. The Public Defender asserted, however, that the circuit court nonetheless erred by declaring the plaintiffs’ right to counsel without addressing the practical concerns regarding implementation. That failure, the Public Defender asserted, constituted an obvious error in the application of the principles of equity and was not entitled to any deference.

It has long been held that a person whose rights are affected by a statute may obtain a declaration of his rights and status. Dart Drug Corp. v. Hechinger Co., Inc., 272 Md. 15, 25 (1974).

Courts and Judicial Proceedings Article §3-409 provides, with limited exception not applicable here, that in general, a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if: (1) an actual controversy exists between contending parties; (2) antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or (3) a party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.

Thus, the crucial question here was whether the action was appropriate for declaratory judgment – that is, whether the declaratory judgment would terminate the controversy and whether there were actual, concrete, and adverse claims or interests, as provided by C.J. §3-409.

Maryland courts have never held that declaratory judgment is inappropriate because a party may incur a consequential, albeit substantial burden, particularly under the circumstances here, where the statutory right to counsel is at issue in a class action suit. Moreover, the budgetary concerns of the Public Defender never have played a role in Maryland appellate decisions involving defendants’ statutory right to counsel. See, e.g., Webster v. State, 299 Md. at 623. Reductions in the Public Defender’s budget and his desire to be frugal have no relevance whatever in the matter of whether a defendant qualifies as “indigent” under the Public Defender statute. See Baldwin v. State, 51 Md. App. 538, 555 (1982). A court has the obligation to uphold the law, and that obligation is not subject to or in any way dependent upon the level of appropriations received by the Public Defender. Id. Moreover, there are no known instances in which Maryland courts have delayed implementation of a substantive right, much less one that affects indigent defendants’ statutory right to public defender representation, out of concern for the financial costs attendant to implementation of that right.

As such, the circuit court did not err or abuse its discretion when it issued the declaratory judgment in the plaintiffs’ favor without also considering the Public Defender’s fiscal concerns and crafting a remedy to address them. Accordingly, the Public Defender’s request that the Court of Appeals stay for some period of time implementation of the judgment that indigent defendants are entitled to public defender representation at the bail-hearing portion of the initial appearance before the Commissioner was denied.

PRACTICE TIPS: This right to counsel at the initial bail hearing applies even to indigent defendants who are not charged with a serious offense, because the bail hearing at the initial appearance for the non-serious offense might result in incarceration.

Election Law

Ballot Questions

BOTTOM LINE: The Maryland General Assembly has the power to enact general legislation before, and contingent on, the adoption of a constitutional amendment that it has proposed to the voters, and as a result, the General Assembly’s enactment of senate bill, which enacted comprehensive legislation that would regulate the implementation and the allocation of revenues originating from video lottery terminals in Maryland contingent on voter ratification of a constitutional amendment proposed by house bill which proposed to legalize video slot machine gambling and implement the Governor’s proposed revenue raising program, was constitutional.

CASE: Stop Slots MD v. State Board of Elections, No. 87, Sept. Term, 2008 (filed Jan. 6, 2012) (Judges BELL, Harrell, Battaglia, Greene, Murphy, Adkins & Barbera). RecordFax No. 12-0106-20, 53 pages.

FACTS: In October of 2007, Governor Martin O’Malley issued an executive order calling for a Special Session of the General Assembly, in order for the General Assembly to consider legislation proposing budget cuts and tax increases, including legislation favored, and sponsored, by Governor O’Malley that would legalize video slot machine gambling in Maryland. The General Assembly proposed to legalize video slot machine gambling and implement the Governor’s proposed revenue raising program with a duo of bills, House Bill 4 and Senate Bill 3.

House Bill 4 proposed an amendment to the Maryland Constitution that, if ratified by the voters, would both legalize video lottery and restrict the quantity and location of the lottery terminals. The proposed amendment also provided that the “primary purpose” of the legalization of video lottery and the issuance of licenses for their operation was to raise revenue for public education, pre-k through 12, public school construction and capital projects at community colleges and higher education institutions. Senate Bill 3, its companion legislation, enacted comprehensive legislation that would regulate the implementation and the allocation of revenues originating from video lottery terminals in Maryland.

Because it delineated how, and in what percentage, the revenue from the video lottery program would be appropriated, its efficacy was made contingent on the passage of the constitutional amendment placed on the ballot pursuant to House Bill 4; the failure of the voters to ratify the constitutional amendment legalizing the video lottery would render moot the provisions of the Senate bill. Senate Bill 3 also prescribed the purposes for which the gambling revenue would be used. The House bill was passed by the General Assembly and signed by the Governor, with the result that the amendment was placed on the November 2008 General Election ballot for voter approval as “Question 2.”

Petitioners Stop Slots Maryland, Aaron Meisner, NOcasiNO Maryland, Barbara Knickelbein, and Delegate Michael Smigiel, Sr., challenged both the contingent legislation and the constitutional amendment, in particular, the text of the ballot question proposed to the voters. As to the contingent legislation, they contended that it unconstitutionally delegated legislative power to the voters. They challenged the ballot question language as misleading and deficient due to its assertion that the “primary purpose” for authorizing the State to issue the prescribed number of video lottery licenses was to fund education.

The Maryland Court of Appeals held that the General Assembly’s enactment of Senate Bill 3, contingent on voter ratification of the amendment proposed by House Bill 4, was constitutional. The Court also found that the ballot question, Question 2, sufficiently summarized the amendment proposed by House Bill 4, and was therefore constitutional and in compliance with the Election Law Article.

LAW: Section 7-103 of the Election Law Article addresses the text of ballot questions and delineates the specific information that each such question must contain. In addition, when the question is a proposed constitutional amendment, on the ballot pursuant to Article XIV, §1 of the Constitution, §7-105(b)(1) requires that notice to include “a brief statement, prepared in clear and concise language, devoid of technical and legal terms to the extent practicable, summarizing the question.”

The Department of Legislative Services is charged with preparing this “non-technical summary” of the proposed amendment, which the Attorney General must approve. That summary must also be submitted to the State Board. §7-105(b)(2)(iii). Moreover, the complete text of a question must be posted or made available for public inspection for 30 days prior to the general election, and a copy of that question supplied, without charge, to any person, on request, in person or by mail.

Here, one of the provisions of the proposed constitutional amendment was that, if the video slot machine gambling were to be legalized, its “primary purpose” would be to raise revenue for public school K-12 education, public school construction and capital improvements, and construction of capital projects at community colleges and public senior higher education institutions. Senate Bill 3 provided both the basis and support for that declaration. It identified the recipients of the proceeds from the video lottery, prescribed how a particular recipient’s portion was to be computed and specifically outlined how the portions were to be distributed. Among other provisions, Senate Bill 3 stated that a minimum of 87 cents of every dollar played in a terminal must be returned as winnings to players and that, from the remaining proceeds, 13 cents: a percentage, to be determined by competitive bidding, but not to exceed 33 percent of gross proceeds, must be paid to the slots operator to recover investment and operating expenses.

Question 2, the ballot question summarizing the proposed amendment, as certified to the State Board, read, “Authorizing Video Lottery Terminals (Slot Machines) to Fund Education Authorizes the State to issue up to five video lottery licenses for the primary purpose of raising revenue for education of children in public schools, prekindergarten through grade 12, public school construction and improvements, and construction of capital projects at community colleges and higher education institutions. No more than a total number of 15,000 video lottery terminals may be authorized in the State, and only one license may be issued for each specified location in Anne Arundel, Cecil, Worcester, and Allegany Counties, and Baltimore City. Any additional forms or expansion of commercial gaming in Maryland is prohibited, unless approved by a voter referendum…(Enacts new Article XIX of the Maryland Constitution).”

The petitioners argued that, although it had the authority to legalize video gambling statutorily, the General Assembly refrained from exercising that power and, instead, by characterizing one piece of a legislative package as a constitutional amendment, improperly delegated its legislative power to the Maryland voters. Stated differently, they argued that it was impermissible for the General Assembly, rather than fulfilling its mandated function as the legislative body of the State, to cede its legislative responsibility to the electorate. They contended that the General Assembly shirked its legislative duty by passing an appropriations bill and making it contingent on voter approval of other legislation, albeit packaged as a constitutional amendment, which the General Assembly could, and should, have enacted as ordinary legislation. Thus, the question before the Court was whether either body of the General Assembly may propose a constitutional amendment when a bill would, in theory, suffice.

The issue presented by petitioners was previously addressed in Smigiel v. Franchot, 410 Md. 302 (2009), and the analysis in that case was largely dispositive in the present case. Maryland courts have consistently recognized the principle that the legislature is entrusted with wide discretion in proposing amendments to the Constitution. Andrews v. Governor of Maryland, 294 Md. 285, 297 (1982). Article XIV, §1 of the Maryland Constitution, which governs the General Assembly’s authority to amend the constitution, provides that the General Assembly may propose Amendments to this Constitution, provided that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will stand when amended and passed by three-fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. MD. CONST. art. XIV, §1 (emphasis added).

To be sure, this provision limits the General Assembly’s discretion to propose constitutional amendments, but it does so by requiring that each proposed amendment be embraced in a separate bill, addressing only a single subject. Beyond these constraints, however, there are no restrictions on the subject matter that may be encompassed within amendments proposed by the Senate or the House of Delegates. Thus, the Legislature’s decision to accomplish its objective by amending the Constitution, rather than enacting legislation, did not violate any constitutional provision governing its authority to amend the constitution.

The petitioners also argued that the Legislature exceeded its authority when it referred the amendment proposed by House Bill 4 to the Maryland voters for approval. In so arguing, they relied on the holding in Brawner v. Curran, 141 Md. 586, 597 (1922). Specifically, they contended that in a representative democracy, the people delegate power to legislators, not the other way around. Like the Smigiel petitioners, the petitioners here emphasized the Brawner Court’s observation that given that the people of Maryland have delegated to the Legislature of Maryland the power of making its laws, the Legislature could not legally or validly re-delegate the power and the authority thus conferred upon it to the people themselves. Brawner v. Curran, 141 Md. 586 at 595.

This argument was likewise without merit. First, the General Assembly did not refer the amendment proposed by House Bill 4 to the voters. Because it was a proposed constitutional amendment, pursuant §1 of Article XIV, the matter was placed on the ballot for voter ratification. Moreover, as explained in Smigiel, the petitioners’ reliance on Brawner was misplaced. See Smigiel, 410 Md. at 312–13. In Brawner, the Court invalidated legislation, which, although previously having been passed by the General Assembly, nevertheless was placed on the general ballot for voter approval.

In the present case, by contrast, the petitioners’ challenge involved a bill proposing a constitutional amendment which, if ratified, would trigger the operation of other legislation, Senate Bill 3, enacted in anticipation of just such an eventuality and implementing its stated purpose by prescribing how the revenues expected to be raised as a result of the ratification of the amendment are to be appropriated. Significantly, voter approval of the specific provisions of Senate Bill 3 was not a condition precedent of its passage. Were that the case, Brawner would be on point. However, in the present factual scenario, the contingent statute itself became law immediately upon being enacted by the Legislature and signed by the Governor; its force as law was not, in any way, dependent on voter approval. That the statute’s appropriations provisions would not, and could not, take effect in the absence of voter ratification of the constitutional amendment did not change that fact.

This subtle, yet decisive, difference informed the Smigiel Court’s decision, and by extension, the Court’s decision of the present case. With respect to the Legislature’s enactment of contingent legislation, the Maryland General Assembly has the power to enact general legislation before, and contingent on, the adoption of a constitutional amendment that it had proposed to the voters. Id., 410 Md. at 316. The General Assembly took an action, squarely within its constitutional authority, when it placed a proposed constitutional amendment on the ballot for ratification and, at the same time, passed legislation whose efficacy depended on that amendment’s later ratification.

Accordingly, the General Assembly’s enactment of Senate Bill 3, contingent on voter ratification of the amendment proposed by House Bill 4, was constitutional.

COMMENTARY: The petitioners also challenged the sufficiency of the language of ballot Question 2 to convey satisfactorily to the voters, not simply the purpose of the constitutional amendment proposed by House Bill 4, but also the effect the contingent legislation, Senate Bill 3, which would be triggered upon ratification of the amendment, would have. When the General Assembly submits an amendment to voters for approval, Due Process requires that adequate notice of the referendum be provided to the electorate prior to the election. Anne Arundel County v. McDonough, 277 Md. 271, 282 (1976). Here, the petitioners argued that the ballot language was so constitutionally defective that it could not be cured by said notice.

The notice prescribed by the statutory scheme and the well-settled principles of Due Process of Law underlie any notice inquiry. See Ulman v. Baltimore, 72 Md. 587, 593 (1890). Section 7-105 (a) the Election Law Article requires a local board to provide such notice either by “specimen ballot mailed at least 1 week before the general election,” or, in the alternative, by means of publication or dissemination by mass communication during the 3 weeks immediately preceding the general election at which a question or issue will appear on the ballot. §7-105 (a). This notice must include the text of the actual question as it will appear on the ballot, and, if the question is to be submitted to the electorate for approval pursuant to Article XIV or XVI of the Maryland Constitution, “a brief statement, prepared in clear and concise language, devoid of technical and legal terms to the extent practicable, summarizing the question.” §7-105(b).

It is further required that an individual may receive without charge a copy of the complete text of all constitutional amendments and questions from a local board, either in person or by mail. §7-105 (d) (3). In addition, the full text of the legislation must be published in a forum that is easily accessible to an ordinary voter; this availability is the crux of sufficient notice. McDonough, 277 Md. at 290–91. Thus, in determining the sufficiency of a ballot question summarizing a proposed amendment, it is necessary to inquire not only whether the question itself sufficiently apprised voters of the amendment’s purpose, but also, whether or not its publication, by advertisements, prior to the election, permitted, in a meaningful manner, an intelligent decision, by an average voter, when he exercised his choice, in voting either for or against the proposed amendment. Id., 277 Md. at 291–92.

Here, the petitioners relied on the decision in Anne Arundel County v. McDonough for their argument that the language of Question 2 failed to convey to the voters the full purpose of the amendment proposed by House Bill 4 and of the companion legislation that was contingent upon it. The appellees in McDonough filed a complaint in circuit court against the Board of Supervisors of Elections and the County, 32 days before the election, claiming that the purported description of the amendments as proposed in the ballot question was inapplicable, deceptive, and would result in an unfair and defective election. Id., 277 Md. at 279.

With regard to the wording of the question, the McDonough Court distilled from its review of the relevant case law that, where, as there, the legislative title is not used as the ballot question, the sufficiency of the brief summary of the contents or purpose is judged by whether it, accurately and in a non-misleading manner, apprises the voters of the true nature of the legislation upon which they are voting. Id., 277 Md. at 296.

Applying that standard, the McDonough Court held that the referendum ballot question at issue, as it appeared on the voting machines, and as it was advertised, did not present a clear, unambiguous and understandable statement of the full and complete nature of the issues undertaken to be included in the proposition. Id., 277 Md. at 298.

As a result, the Court concluded, the average voter, provided with the option to vote for or against “rezoning,” rather than for or against the changes to the proposed ordinance, with no further direction, and no prior notice, could not know the effect of his or her approval, and thus, could not make an intelligent decision at the polls. Id., 277 Md. at 305.

The opposite result was reached in Kelly v. Vote kNOw Coalition of Maryland, Inc., 331 Md. 164 (1993). There, the General Assembly enacted, and the Governor signed, legislation making substantial revisions to Maryland statutes governing access to abortion in the State by minors. Id. Pursuant to Md. CONST. art. XVI, § 1, the Vote kNOw Coalition, and others who opposed the legislation, petitioned the legislation to referendum.

The Kelly Court held that by indicating that the legislation established exceptions to the parental notification provision, the ballot language “concisely and intelligently” summarized that portion of the legislation. Id., 331 Md. at 177.

The present case, although involving a constitutional amendment rather than a referendum, was most analogous to Kelly. The ballot language at issue, Question 2, unlike that in McDonough, met the requisite standards and principles. Indeed, the language was much more exact than that which passed constitutional muster in Kelly. Question 2 sufficiently described and explained the amendment proposed by House Bill 4, apprising the electorate of the purpose of the amendment and notifying the voters, in unambiguous language, that the amendment would legalize the operation of a finite number of video lottery terminals at specified locations in the State “for the primary purpose of raising revenue for education. Thus, Question 2 sufficiently summarized the amendment proposed by House Bill 4, and was therefore constitutional, and in compliance with the Election Law Article.


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