Steve Lash//Daily Record Legal Affairs Writer//December 4, 2013
//Daily Record Legal Affairs Writer
//December 4, 2013
In a victory for careless petition circulators, Maryland’s top court ruled this week that a typo in their ZIP codes does not doom their petition drives.
The Court of Appeals rendered its decision in explaining why it had revived a 2012 ballot challenge to a collective-bargaining ordinance in Montgomery County that police opposed and sought to overturn via referendum. Their union said the ordinance would limit the officers’ say in the day-to-day operations of the police department.
Montgomery County Circuit Judge Eric M. Johnson had temporarily ended the union’s petition drive in June 2012, ruling that a make-or-break number of the collected signatures were invalid because two of the people circulating them had listed incorrect ZIP codes with their home addresses on petition documents.
But the high court overturned Johnson’s decision in a one-page order on Aug. 17, 2012, permitting the union’s challenge to the ordinance to be placed on the ballot that November.
The Fraternal Order of Police Lodge 35’s high court victory, however, was pyrrhic. On Election Day, Montgomery voters upheld the controversial collective-bargaining ordinance by 58 percent to 42 percent.
In explaining its order, the Court of Appeals said Monday that Johnson had read too strictly Section 6-204(b) of the Maryland Election Law Article and regulations requiring circulators to list their home addresses, including ZIP codes, and attest to the accuracy under penalty of invalidating the signatures they had collected.
A typo, such as the failure “to dot an ‘i’ or cross a ‘t,’” should not invalidate the otherwise valid addresses of circulators or the signatures they collect, the high court stated in its 6-1 decision.
“Our laws make it clear that the purpose of attaching the circulator’s affidavit to petition signatures is so that the circulator of the petition can be identified, located, and if necessary served a subpoena,” retired Chief Judge Robert M. Bell wrote in the court’s majority opinion. “Having one or two digits of a circulator’s ZIP code misstated does not defeat that purpose. The circulators still could be identified, as the addresses provided were more than adequate for their intended purposes (location and identification of the circulators), and the correct ZIP code was easily discoverable and available.”
Election-law professor Larry S. Gibson said “there is nothing earth-shattering” about the court’s conclusion that a voter’s signature should not be invalidated because a circulator failed to record his or her own ZIP code accurately.
“Sometimes I think people think that the procedural requirements are there in the interest of the competing parties, when they are there to protect the interest of the voters,” said Gibson, who teaches at the University of Maryland Francis King Carey School of Law.
The high court’s decision safeguards “the interest of a voter in having a signature counted on a petition,” added Gibson, who was not involved in the litigation.
But attorney Jonathan S. Shurberg, who represented the ordinance’s supporters, said the Election Law Article and regulations clearly state that circulators must vouch for their addresses, including the ZIP codes. The strict requirement is intended to prevent fraud in the collection of signatures, he added.
The Court of Appeals’ decision is “opening the door to cheating” by excusing the circulators’ lack of compliance with the mandate of the law and regulations, said Shurberg, a Silver Spring solo practitioner.
The court is essentially saying “close is good enough,” he added. “It is opening the door to cheating. We are basically waving a cape in front of potential fraud.”
Shurberg said a mistaken ZIP code should result not in the automatic invalidation of signatures but merely eliminate the presumption that the collected signatures are valid. Petitioners should then be permitted to seek the signatures’ validation by other means, such as contacting the signatories, he added.
The union’s attorney, F.J. Collins, declined to comment on the decision. Collins is with Kahn, Smith & Collins P.A. in Baltimore.
The FOP lodge launched the petition drive after the Montgomery County Council approved an ordinance in 2011 rescinding the union’s right to collectively bargain over day-to-day operational decisions, known as “effects bargaining.” The union collected 34,828 signatures, which were validated by the Montgomery County Board of Elections, about 4,600 more than required to bring the ordinance to referendum.
Montgomery County and supporters of the ordinance challenged MCBE’s validation of more than 6,000 of the signatures, noting that two petition circulators from Kalamazoo, Mich., had misstated their home ZIP codes.
One circulator, Christopher Head, had collected 3,392 signatures but misstated his 49006 ZIP code as 49008; Jesse Rowe, who had collected 2,744 signatures, listed a ZIP code as 49004, when the actual ZIP code was 49048, according to the high court’s opinion.
Johnson ruled for the county and the ordinance’s supporters, which resulted in the union falling short of the signatures needed to bring the measure to referendum.
The FOP lodge sought review by the Court of Appeals, which ruled for the union.
Bell wrote that “minor errors in the circulator affidavit will not invalidate petition signatures that are already certified by the appropriate administrative body,” which in this case was the MCBE.
Judge Lynne A. Battaglia, the high court’s sole dissenter, agreed with Johnson and said that “an affidavit containing information provided by a circulator that is incorrect is contrary to the unambiguous statutory mandate of Section 6-204(b) of the Election Law Article” and regulations.
WHAT THE COURT HELD
Fraternal Order of Police Lodge 35 et al. v. Montgomery County et al., CA No. 132, Sept. Term 2011. Reported. Opinion by Bell, C.J. (Retired). Dissent by Battaglia, J. Argued Aug. 16, 2012. Filed Dec. 2, 2013.
Did the trial judge err in invalidating petition signatures because the circulators’ ZIP codes were incorrect?
Yes; the incorrect ZIP codes were “minor errors” that should not invalidate certified signatures.
except the current owner of the property.
F.J. Collins for petitioners; Jonathan S. Shurberg and Karen L. Federman Henry for respondents.
RecordFax # 13-1202-20 (26 pages)