Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1557 September Term, 2010

RUSSELL SWATEK v. BOARD OF ELECTIONS OF HOWARD COUNTY

Krauser, CJ, Graeff, Hotten, JJ.

Opinion by Hotten, J.

Filed: February 9, 2012

We have been asked to determine whether the Circuit Court for Howard County abused its discretion in dismissing a petition for judicial review. Appellant, Russell Swatek, challenged the decision of appellee, Board of Elections of Howard County, that appellant's Public Local Law Referendum Petition was insufficient. Appellant subsequently filed a petition for judicial review. The petition was dismissed because appellant failed to submit a memorandum pursuant to Md. Rule 7-207(a).1 Appellant noted an appeal, and in his own words, presents the following question: Did the Circuit Court for Howard County err by dismissing Appellant's Petition on the basis of a technical violation despite it being abundantly clear that Appellee was well aware of the issues raised by Appellant? For the reasons that follow, we affirm the judgment of the circuit court. BACKGROUND On February 1, 2010, the Howard County Council passed CB-59-2009.2 CB-59-2009 amended the Howard County Zoning Ordinance ("Zoning Ordinance") in an effort to foster the redevelopment of downtown Columbia. Appellant, in conjunction with Taxpayers Against Giveaways, prepared a Public Local Law Referendum Petition ("Petition") that sought to change portions of the Zoning Ordinance that were amended. Appellant submitted

1

Md. Rule 7-207(a), in relevant part, provides:

Within 30 days after the clerk sends notice of the filing of the record, a petitioner shall file a memorandum setting forth a concise statement of the questions presented for review, a statement of facts material to those questions, and argument on each question, including citations of authority and references to pages of the record and exhibits relied on. CB-59-2009 was better known as "An Act Amending the Howard County Zoning Regulations to Create a New Downtown Columbia Revitalization Process."
2

3,491 signatures in support of the Petition. Appellee concluded that the Petition was insufficient because 1,352 of the signatures were invalid.3 Appellant subsequently filed a

The Howard County Charter provides Howard County voters with the right to call for a referendum on certain enacted laws, including amendments to the Zoning Ordinance. Section 211of the Howard County Charter outlines the procedures concerning a referendum, and provides: (a) Scope of the referendum. The people of Howard County reserve to themselves the power known as "The Referendum," by petition to have submitted to the registered voters of the County to approve or reject at the polls, any law or a part of any law of the Council. The referendum petition against any such law shall be sufficient if signed by five per centum of the registered voters of the County, but in any case not less than 1,500 nor more than 5,000 signatures shall be required. Such petition shall be filed with the Board of Supervisors of Elections of Howard County within sixty days after the law is enacted. If such a petition is filed as aforesaid, the law or part thereof to be referred shall not take effect until thirty days after its approval by a majority of the qualified voters of the County voting thereon at the next ensuing election held for members of the House of Representatives of the United States; provided, however, that if more than one-half but less than the full number of signatures required to complete any referendum petition against such law be filed within sixty days from the date it is enacted, the time for the law to take effect and the time for filing the remainder of signatures to complete the petition shall be extended for an additional thirty days. Any emergency measure shall remain in force from the date it becomes law notwithstanding the filing of such petition, but shall stand repealed thirty days after having been rejected by a majority of the qualified voters voting thereon. No law making any appropriation for current expenses shall be subject to rejection or repeal under this section. (b) Form of petition. A petition may consist of several papers, but each paper shall contain a fair summary of the Act or the part of the Act petitioned upon; and there shall be attached to each such paper an affidavit of the person procuring the signatures thereon that, to the said person's own personal knowledge, each signature thereon is genuine and bona fide, and that to the best of his or her knowledge, information and belief the signers are registered voters of the State of Maryland and Howard County, as set opposite their (continued...) -2-

3

petition for judicial review. On May 27, 2010, appellee transmitted the record to the circuit court. A hearing was subsequently scheduled for August 27, 2010. On August 26, 2010, appellee filed a "Motion to Dismiss," arguing that the petition for judicial review should be dismissed because appellant failed to submit a memorandum in accordance with Md. Rule 7-207(a). In the motion, appellee asserted that the failure to submit a memorandum caused substantial prejudice because: (1) the 2010 general election was sixty days away and the appeal process would not be completed by the required deadlines; (2) CB-59-2009 was delayed while the Petition was pending but was now "in effect;" (3) the public interest would be impaired if the Petition was upheld and delayed until the 2012 general election; and (4) further delay would cause the county to incur additional legal expenses. On August 27, 2010, the day of the scheduled hearing, the circuit court heard appellee's motion to dismiss. Appellee argued that appellant's failure to file a timely memorandum was prejudicial because it did not know the factual and legal basis for the petition for judicial review. Appellant countered that there was no prejudice because appellee knew the issues. Appellant further asserted that the issues were "so narrowly known" that appellee had to have been aware of them. Appellee responded that it did not know the "specific factual issues" and was not prepared to proceed without reviewing a

(...continued) names. The Board of Supervisors of Elections shall verify the registration of said petitioners. -3-

3

memorandum. Appellee added that the purpose of the memorandum was to narrow the issues. At the conclusion of the hearing, the circuit court dismissed appellant's petition for judicial review. In dismissing it, the court stated: That memorandum should've been filed by, certainly no later than July the 1st of 2010, probably more like June the 26th . . . . *** The [appellant] is not asking

Download Swatek v. Board of Elections.pdf

Maryland Law