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Court of Appeals hears ‘Dream Act’ referendum debate

ANNAPOLIS — Maryland’s highest court appears poised to permit an Election Day referendum on the state’s Dream Act, which permits qualified undocumented students to receive in-state tuition at public colleges, over the objections of an immigrant rights group.

During oral arguments Tuesday, several Court of Appeals judges were openly critical of the arguments advanced by Joseph E. Sandler, Casa de Maryland’s attorney, who contended the law cannot be subject to referendum because it will require the state to raise funds for its implementation.

Under the Maryland Constitution, appropriations measures — those that raise money — are not subject to referendum.

But Chief Judge Robert M. Bell said an appropriations bill is not one that has a mere “fiscal impact.” If that were the case, laws that compel the state to provide additional services at taxpayer expense would be exempt from a referendum challenge, Bell said.

Judge Mary Ellen Barbera interjected that the Dream Act, by itself, does not call for the raising of state funds but might require additional funding and expenditures “down the road,” which would not render the law an appropriations measure.

And Judge Glenn T. Harrell Jr. said the Dream Act can be regarded as an appropriations bill only if it were linked to the state’s funding formula for colleges and universities, which is independent of the law and subject to change.

In response, Sandler said the judges’ narrow view of “appropriations” would bar only state budget legislation from referendum.

The Dream Act is an appropriations measure because opening campuses to more students at in-state tuition rates, which the law does, will force the state to appropriate more money, added Sandler, of Sandler, Reiff, Young & Lamb PC in Washington, D.C.

But Assistant Attorney General Matthew J. Fader, picking up on the judges’ concern, said the Dream Act has nothing to do with appropriating funds but has the “sole” purpose of enabling undocumented students to attend public colleges and universities.

The law is not “designed to raise revenue,” added Fader, who was defending the Maryland State Board of Elections’ decision to put the Dream Act referendum on the ballot Nov. 6.

The act, which Gov. Martin O’Malley signed into law in May 2011, permits undocumented students to receive in-state tuition rates at public colleges and universities if they graduate from a public high school, complete 60 community college credits and prove their parents paid state taxes for the past three years.

Within days of the Dream Act’s passage in the General Assembly last year, the measure spurred a petition drive led by a group called MDPetititions.com.

The group’s petition drive, which has stayed the law from taking effect, succeeded in getting 108,923 signatures from Maryland voters — nearly twice the 55,736 required to put the issue on the ballot on Election Day, Nov. 6, according to the board.

Judicial Watch, a self-described conservative legal advocacy group, represented MDPetitions.com before the Court of Appeals.

Paul Orfanedes, Judicial Watch’s litigation director, told the judges that Casa de Maryland lacked standing to challenge the pending referendum because the group had not shown how it had been injured by it.

But attorney Brett Marston, Sandler’s co-counsel, said the group had standing to challenge the referendum as a party that would be “aggrieved” if the effort succeeds in repealing the duly enacted Dream Act. Marston is with Arnold & Porter LLP in Washington, D.C.

Casa de Maryland first fought the petition drive by challenging the validity of the signatures collected. The group formally abandoned that strategy in December, choosing instead to argue that the elections board lacked authority to approve a referendum because the law is an appropriations measure.

Anne Arundel County Circuit Judge Ronald A. Silkworth rejected that argument in February. Casa De Maryland appealed directly to the high court, which agreed on April 10 to hear the case.

The Court of Appeals, which heard the case on the last scheduled argument day of its 2011-2012 term, did not indicate when it will rule in the case, John Doe v. Maryland State Board of Elections, No. 131, Sept. Term 2011.

Silkworth’s February decision on the Dream Act referendum stands in contrast to his June 2010 decision that blocked a referendum on putting a slots casino near Arundel Mills Mall.

Silkworth found the slots legislation was designed to raise money and therefore was not subject to referendum. The Court of Appeals overturned that decision in July 2010, adding that it would explain its reasons in an opinion to be filed later.

The court has not yet filed that opinion.

The slots bill survived the November 2010 referendum. The casino, Maryland Live, opened last week.