V.O.I.C.E. v. Balt. City Elections Bd. , 451 Md. 377 ( 2017 )

Voters Organized for the Integrity of City Elections, et al. v. Baltimore City Elections
Board, et al.
No. 60, September Term 2016
Election Law – Action by Registered Voter with Respect to Act or Omission in
Violation of State Election Law – Mootness. Appeal of a circuit court’s denial of motion
for temporary restraining order that would have required election officials to create a
special system of “inmate voting” in Baltimore City for the 2016 general election was moot
when any court order granting such relief on the day before the election would have been
without practical effect. Maryland Code, Election Law Article, §12-201 et seq.
Circuit Court for Baltimore City
Case No. 24-C-16-005773
Argument: November 7, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 60
September Term, 2016
VOTERS ORGANIZED FOR THE INTEGRITY OF
CITY ELECTIONS, ET AL.
V.
BALTIMORE CITY ELECTIONS BOARD, ET AL.
_____________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Wilner, Alan M. (Senior Judge,
Specially Assigned),
JJ.
______________________________________
Opinion by McDonald, J.
Watts, J., concurs.
______________________________________
Filed: January 23, 2017
There is a medieval legend concerning a Danish king named Canute whose domain
included the British Isles and Scandinavia. To his contemporaries, his authority must have
seemed boundless. Canute was less impressed. To demonstrate that his power was quite
finite in the grand scheme of things, Canute invited his courtiers to the seashore where he
commanded the incoming tide to halt – an order that was, as Canute intended to
demonstrate, without effect.1
An appellate court may sometimes find itself in a situation when, due to time or
other circumstances beyond its control, it is asked to issue an order that, like King Canute’s
command to the sea, would be without practical effect. The appeal is said to be moot and,
typically, the court dismisses it. Such is the case with this appeal.
Appellants, Voters Organized for the Integrity of City Elections (“VOICE”) and its
founder Hassan Giordano, initiated this action just weeks before 2016 general election in
the apparent hope of compelling Appellees, the State Board of Elections (“State Board”)
and the Baltimore City Board of Elections (“City Board” or “local board”), to establish a
special system for “inmate voting” in Baltimore City for the 2016 general election. Their
complaint sought relief on behalf of individuals who were detained pretrial or were
incarcerated as a result of a misdemeanor conviction, who were eligible to vote, and who
1
See Henry of Huntingdon, Historia Anglorum (1154). In some later versions of
the story, King Canute is portrayed as himself believing that his powers were boundless
and vainly commanding the tide to recede. See, e.g., K. Evans, Canute and the Waves: A
Misunderstood Story at . The story was thus
transformed from one of a leader giving a lesson in humility to one of a leader needing a
lesson in humility.
wished either to register to vote or, if already registered, to cast a ballot in the 2016 general
election.
While VOICE and Mr. Giordano may have had the laudable purpose of ensuring
that those with the right to vote were able to do so, the timing and basis on which they took
legal action raised a plethora of issues. The Circuit Court for Baltimore City denied their
request for a broadly worded temporary restraining order (“TRO”) on the ground that they
had filed their complaint too late. Alternatively, the court concluded that, even if it
overlooked the procedural default, they had failed to show, by the “clear and convincing
evidence” standard in the statute, any act or omission by the election boards that threatened
to change the outcome of the election.
The expedited appeal of the Circuit Court’s decision was argued before this Court
on November 7, 2016 – the day before the 2016 general election. We dismissed the appeal
as moot that same day and indicated that the case would be remanded to the Circuit Court
to consider any further request for a declaratory judgment in accordance with an opinion
to be issued by this Court. This is that opinion.
I
Background
The Complaint – Parties and Jurisdiction
On October 28, 2016, less than two weeks before the 2016 general election, VOICE
and Mr. Giordano brought this action against the two election boards in the Circuit Court
for Baltimore City. In its complaint VOICE stated that it is a “watchdog organization” that
is comprised of Maryland voters concerned about the integrity of elections in Baltimore
2
City and that operates “exclusively” in the City. Mr. Giordano was alleged to be a City
voter and the founder of VOICE. The complaint did not identify any other members of
VOICE or name any other individual plaintiffs.
The complaint sought injunctive and declaratory relief with respect to all City and
State detention centers and correctional facilities within the jurisdiction of the Circuit
Court. The complaint alleged that the Circuit Court had jurisdiction of the action under the
State Election Law – in particular, Maryland Code, Election Law Article (“EL”), §12-201
et seq. That provision is limited in scope and requires prompt action by one who seeks to
invoke it. In particular, under that provision, a registered voter may bring an action with
respect to any act or omission “relating to an election”: (1) that is inconsistent with the
State Election Law and (2) that may affect the outcome of the election. EL §12-202(a).
Such an action must be brought either within 10 days after the alleged act or omission
became known to the plaintiff, or within a specified number of days after the election
(depending on whether it is a primary or general election) – whichever of the two dates is
earlier. EL §12-202(b). The complaint also invoked the Maryland Uniform Declaratory
Judgments Act, Maryland Code, Courts & Judicial Proceedings Article (“CJ”), §3-401 et
seq.
The Complaint – Factual Allegations
The complaint appeared to relate the time of its filing to legislation enacted during
the 2016 session of the General Assembly – specifically, Chapter 6, Laws of Maryland
2016 (“2016 legislation”). The 2016 legislation amended the statute that defines the
qualifications for voting (EL §3-102) to limit the disqualification from voting for convicted
3
felons to the period of the individual’s incarceration. Prior to that amendment, a convicted
felon would have also been disqualified from voting during any period of probation or
parole. The amendment was enacted by the General Assembly over the Governor’s veto
and became effective March 20, 2016.
The complaint then focused on two categories of individuals in custody who may
be eligible to vote if they otherwise satisfy the general criteria applicable to all Maryland
citizens2: (1) pretrial detainees who have not been convicted; and (2) individuals in custody
only because they had been convicted of a misdemeanor offense.3 (As will be seen below,
however, the 2016 legislation had no effect on the voting rights of either of these categories
of potential voters.) The complaint alleged that there were “hundreds” of individuals in
State custody in those two categories who were eligible to vote.
The complaint alleged that “the lack of a State strategy governing inmate voter
registration and the casting of ballots in the upcoming election infringes upon the
fundamental right to vote” of those individuals. More particularly, the complaint faulted
2
In order to become registered to vote, an individual must be a United States citizen,
at least 16 years old, and a resident of Maryland at the time of registration. EL §3-102(a).
An individual is disqualified from becoming registered to vote if the individual (1) is a
convicted felon currently serving a sentence of imprisonment for that conviction, (2) is
under guardianship for a mental disability and there is a court finding that the individual
cannot communicate a desire to participate in voting, or (3) has been convicted of buying
or selling votes. EL §3-102(b).
3
The complaint also alluded briefly to a third category of imprisoned individuals
who may be eligible to vote: convicted felons who had completed their term of
incarceration, but who were detained awaiting a hearing on an alleged parole or probation
violation. However, unlike the other two categories of inmates, the plaintiffs did not make
further mention of this third category in the complaint and other filings.
4
the State, the counties, and Baltimore City for lacking a policy or plan to distribute ballots
to pretrial detainees and incarcerated misdemeanants during the early voting period
(October 27 through November 3, 2016) or on election day (November 8, 2016) and for
not providing information about voting, voter eligibility, and voter registration during the
intake process at detention centers and correctional facilities. The complaint alleged that,
as a result, there would be “massive disenfranchisement” that threatened to affect the
outcome of the 2016 general election. The complaint did not allege any details as to how
the outcome of the election was likely to be affected.
The Complaint – Causes of Action and Relief Sought
Based on those factual allegations, the complaint alleged various causes of action
and violations of the Election Law in six counts. It appears that some of the counts pertain
to only one of the two defendant election boards, although the complaint is not always clear
in that regard.
Count I, apparently directed at both the City Board and the State Board, alleged a
violation of the right to register to vote, as provided in EL §3-102, with respect to pretrial
detainees and individuals serving sentences for misdemeanor convictions.
Count II, apparently directed at the City Board alone, asserted that the local board
had failed to carry out the powers and duties assigned to it by EL §2-202,4 by not
4
EL §2-202(b) lists various powers and duties of the local board of elections in each
county and Baltimore City. Count II of the complaint specifically recited the
responsibilities of a local board of elections for overseeing the conduct of elections within
its jurisdiction, providing supplies and equipment for voter registration and voting, and
establishing precincts and polling places. EL §2-202(b)(1), (3), (6).
5
establishing a plan to ensure the opportunity to vote by pretrial detainees and individuals
serving sentences for misdemeanor convictions.
Count III, apparently directed at the State Board alone, alleged that the State Board
had failed to carry out the powers and duties assigned to it by EL §2-1025 by not
establishing a Statewide plan to ensure the opportunity to vote by pretrial detainees and
individuals serving sentences for misdemeanor convictions. That count also quoted State
Board regulations that implemented same day voter registration at early voting centers.
See COMAR 33.19.04.01 et seq.
Count IV, apparently directed at both election boards, alleged a violation of the
statutes governing applications for voter registration. See EL §3-201 et seq. The complaint
asserted that these violations arose from a failure of the two election boards to allocate
resources to provide volunteers to assist pretrial detainees and individuals serving
misdemeanor sentences with registration and voting.
Count V requested injunctive relief, presumably against both election boards,
including a TRO, a preliminary injunction, and a permanent injunction, on the grounds that
the plaintiffs (VOICE and Mr. Giordano) were threatened with irreparable harm, that the
State would be “only slightly inconvenienced” by an injunction, and that the plaintiffs were
5
EL §2-102(b) lists various powers and duties of the State Board. Count III of the
complaint specifically recited the State Board’s responsibilities to manage and supervise
elections in the State and ensure compliance with election laws, to support and evaluate
the activities of local election boards, and to maximize the use of technology in elections.
EL §2-102(b)(1), (2), (7).
6
likely to succeed on the merits of their claims. Count V did not itself specify the nature of
the requested injunctive relief.
Count VI requested declaratory relief, again presumably against both election
boards, although, like Count V, it was not specific as to the declaration of legal rights that
it sought.
The Complaint – Relief Sought
Finally, in a concluding prayer for relief, the complaint became specific as to what
it asked the court to do. As will be evident, much of the relief sought would extend beyond
Baltimore City throughout the State and some would appear to extend beyond the 2016
general election. In particular, the complaint asked the Circuit Court to order:
a. That all pre-trial detainees and individuals serving a court-ordered
period of imprisonment for misdemeanor offenses who are eligible
to vote, shall receive an official ballot and the opportunity to cast it
on November 8, 2016 for the general election, or during early voting
(October 27, 2016 – November 3, 2016);
b. That voting and election information including the opportunity to
register shall be provided within 8 hours upon booking into each
facility throughout the State of Maryland within the jurisdiction of
this court;
c. That all pre-trial detainees and individuals serving a court-ordered
sentence of imprisonment for misdemeanor offenses at a facility
owned by the State of Maryland shall be provided with accurate
education on their right to vote and the process for exercising that
right;
d. That all pre-trial detainees and individuals serving a court-ordered
period of imprisonment for misdemeanor offenses, who are duly
registered to vote, shall be provided with a copy of the official
general election ballot to review ballot questions, candidates and
proposed funding questions relevant to their jurisdiction;
7
e. That the State and local board cover the cost of providing ballots to
all eligible persons in a timely fashion that are clear and legible;
f. That the State and local board account for and maintain control over
the ballots from the beginning of production to post-election storage
and disposition in accordance with [EL] §9-216;
g. That each ballot cast by all eligible persons in their institutions be
counted;
h. That the State and local boards provide a polling place in each
facility to allow an efficient voting process and reduce the
possibility of missing ballots, irregularities or allegations of
disenfranchisement.
Motion for TRO and Opposition
On October 31, 2016, several days after filing the complaint, VOICE and Mr.
Giordano filed a motion for a TRO. That motion reiterated the allegations of the complaint
and recited generally the powers and duties of the two election boards under State law. In
their motion, VOICE and Mr. Giordano argued that the two election boards had failed to
“comply with and implement” EL §3-102 – the statute that sets forth the qualifications an
individual must meet in order to be eligible to vote.6
In arguing that the two election boards had violated EL §3-102, the motion also
inaccurately stated that the 2016 legislation that amended that statute had “restored” the
right to vote for pretrial detainees and individuals serving sentences for misdemeanors. 7
6
See footnote 2 above.
7
In fact, the legislation did not concern the voting rights of pretrial detainees or
individuals serving misdemeanor sentences – such individuals were eligible to register to
vote both before and after the enactment of the 2016 legislation. The effect of that
legislation was to extend voting rights to convicted felons who are on probation or parole
and are not in custody – i.e., not inmates. Whatever obligations the election boards may
8
The motion asserted that the State had not “place[d] any mandate upon jailers to implement
. . . ‘inmate voting’” after passage of the 2016 legislation. In the motion VOICE and Mr.
Giordano argued that their cause of action did not accrue until October 19, 2016 – the day
after the deadline for voter registration for the 2016 general election.
In the motion, VOICE and Mr. Giordano argued that the alleged failures of the two
election boards “may change the outcome of the general election” and that VOICE and its
members would suffer immediate, substantial, and irreparable harm. The motion appeared
to relate these allegations to the outcome of the presidential contest, stating that “[a]t least
three of nine Supreme Court justice positions are at stake, and so too are over 300+ federal
judicial appointments over the next eight years.” Finally, they argued that application of
the four-factor test for issuance of a TRO – likelihood of plaintiff’s success on the merits,
balance of harms to the parties, potential for irreparable injury to the plaintiff, and public
interest8 – favored granting the TRO.
An affidavit by Mr. Giordano submitted in support of the motion reiterated many of
the allegations of the complaint and estimated that there were currently 1,100 registered
voters in detention and approximately another 700 individuals in detention who were
eligible to register to vote. He did not indicate how he calculated those figures. In the
affidavit, Mr. Giordano stated his belief that the Governor had partisan motivations for
have with respect to “inmate voting,” those obligations cannot be traced to the 2016
legislation.
8
See Fritszche v. State Board of Elections, 397 Md. 331, 339-40 (2007).
9
vetoing the 2016 legislation and for not implementing a “plan for ‘inmate voting.’” A draft
order submitted with the motion recited verbatim the same relief sought in the complaint’s
prayer for relief.
In response, the two election boards questioned the standing of VOICE and Mr.
Giordano to bring the action. In particular, they noted that Mr. Giordano did not allege
that he was a detainee who was unable to vote and that VOICE was not a registered voter.
The election boards also argued that the complaint was barred by laches and failed to state
a claim under EL §12-202.
In responding to the merits of the complaint’s allegations, the election boards argued
that VOICE and Mr. Giordano had not made the requisite showing under the four-factor
test for a TRO – in particular, that there was little likelihood the plaintiffs would succeed
on the merits. The election boards noted that the State Election Law did not treat pretrial
detainees and incarcerated misdemeanants differently from other individuals who are
eligible to vote and who are unable to physically visit an early voting center during the
early voting period or to visit their polling place on election day. Such individuals may
request an absentee ballot and may designate an agent, if necessary, to obtain the
application and ballot on their behalf. The election boards asserted that VOICE and Mr.
Giordano had not identified any act or omission of the election boards inconsistent with
the State Election Law, but were in effect protesting the absence of a law requiring special
10
voter outreach services for inmates. The election boards noted that the deadlines for a
registered voter to obtain an absentee ballot had not yet expired.9
The two election boards argued that the voting rights of inmates who were eligible
to vote had not been impeded by the authorities, as volunteers had collected voter
registration applications and applications for absentee ballots from detainees and delivered
them to the City Board. The election boards submitted affidavits from two employees of
the Department of Public Safety and Correctional Services and the Baltimore City
Detention Center, one of whom had been assisting detainees with voting for 16 years.
Circuit Court Denial of TRO
The Circuit Court held a hearing on November 1, 2016 – the day after the motion
for the TRO was filed – and denied the motion. We have not been provided with a
transcript of that hearing other than the oral ruling of the Circuit Court. In that ruling, the
Circuit Court first noted that VOICE was not a registered voter and therefore did not have
standing under EL §12-202, the primary statute under which the complaint was brought.
However, the court concluded that Mr. Giordano did have statutory standing as a registered
voter.
The Circuit Court held that Mr. Giordano’s complaint was barred under the principle
of laches. In particular, the court noted that EL §3-102 – the statute concerning
9
The deadline for applying for an absentee ballot for the 2016 general election
depended on whether the applicant asked to receive the ballot by mail or fax (November
1), downloaded it from the election board’s website (November 4), or picked it up (or had
an agent pick it up) at an election board office (November 8).
11
qualifications for voter registration – was “decades old” and that the 2016 legislation that
was cited in the complaint as the basis for the relief sought was a “red herring” as it was
irrelevant to the categories of individuals on whose behalf Mr. Giordano sought relief from
the court.
Alternatively, the Circuit Court held that the plaintiffs had failed to show, by clear
and convincing evidence, that an “act or omission relating to an election” threatened to
change the outcome of an election. The court noted that the only evidence submitted by
the plaintiffs were “bald unsubstantiated assertions” in the affidavit of Mr. Giordano. The
Court entered a written order consistent with its oral ruling denying the motion for a TRO.
VOICE and Mr. Giordano advise that they sought to have a fuller evidentiary
hearing before the Circuit Court later that week, but were unsuccessful in doing so and
instead pursued the current appeal.
Appeal of Denial of TRO
VOICE and Mr. Giordano immediately appealed the denial of the TRO directly to
this Court, as permitted by EL §12-203(a)(3),10 on Wednesday, November 2, 2016. We
ordered expedited briefing and heard argument on Monday, November 7, 2016 – the day
before the 2016 general election.
10
That provision states that any appeal is to be “taken directly to the Court of
Appeals within 5 days of the decision of the circuit court.” EL §12-203(a)(3). The Court
of Appeals is to give priority to the appeal and decide it “as expeditiously as the
circumstances require.” EL §12-203(b).
12
In their appeal, VOICE and Mr. Giordano argued that (1) the Circuit Court should
have granted the requested TRO and (2) the Circuit Court should have scheduled an
evidentiary hearing on the merits of their request for a preliminary injunction prior to the
election.
In the papers filed with us, VOICE and Mr. Giordano submitted, for the first time,
an affidavit of Terrance Darnell Fields dated November 4, 2016, in which Mr. Fields stated
that he was a registered voter affiliated with the Republican Party, a member of VOICE,
and a current pretrial detainee who wished to vote in the 2016 general election. However,
Mr. Fields was apparently registered to vote in Baltimore County, not Baltimore City – and
therefore not a voter normally served by the City Board. At oral argument, counsel for
VOICE and Mr. Giordano conceded that Mr. Fields’ affidavit had not been presented to
the Circuit Court, but explained that they would have presented testimony like the affidavit
if they had been successful in arranging an additional evidentiary hearing in the Circuit
Court.
In their brief, VOICE and Mr. Giordano argued that they both have standing, that
they were not late in filing their complaint, and that they satisfied the four-factor test for
obtaining a TRO. In contesting the Circuit Court’s rulings on standing and laches, VOICE
and Mr. Giordano modified some of their positions in the Circuit Court. On appeal, they
relied on the alleged membership of Mr. Fields in VOICE to support “associational
standing” of the organization. Although they continued to refer to the effect of the 2016
legislation in expanding voting rights, they appeared to have dropped any contention that
the 2016 legislation affected the voting rights either of pretrial detainees or of incarcerated
13
misdemeanants – or has any bearing on the outcome of this case. With respect to their
contention that the alleged unlawful acts or omissions of the election boards would affect
the outcome of the 2016 general election, they shifted their focus from the presidential
election to the election for the Baltimore City Council, noting that the primary elections
for two seats on the Council had been decided by small margins.
In response, the election boards reiterated the arguments made before the Circuit
Court. They also provided a detailed summary of the statutes governing voter registration
and absentee voting and noted that VOICE and Mr. Giordano had not alleged any violation
of any specific provision of those statutes.
II
Discussion
A. The Standard for a Temporary Restraining Order
A TRO may be granted “only if it clearly appears from specific facts shown by
affidavit or other statement under oath that immediate, substantial, and irreparable harm
will result to the person seeking the order …” Maryland Rule 15-504(a). As noted above,
to determine whether that standard is met, a court is to consider four factors: (1) likelihood
of plaintiff’s success on the merits, (2) balance of the harms to the parties, (3) potential for
irreparable harm to the plaintiff, and (4) the public interest. Fritszche v. State Board of
Elections, 397 Md. 331, 339-40 (2007). An appellate court reviews a circuit court’s
decision to grant or deny injunctive relief, such as a TRO, under an abuse of discretion
standard. Colandrea v. Wilde Lake Community Ass’n, 361 Md. 371, 394 (2000). To the
14
extent that the trial court’s decision turns on a question of law, however, we review that
decision without deference. Ehrlich v. Perez, 394 Md. 691, 708 (2006).
At the outset, there are a number of issues that must be considered to determine
whether VOICE and Mr. Giordano can demonstrate a likelihood of success on the merits:
whether either plaintiff has standing to obtain the relief sought in the complaint, whether
the appropriate defendants have been named and served,11 whether the 2016 legislation on
which much of the plaintiffs’ argument was based affects the particular potential voters on
whose behalf plaintiffs seek relief, whether plaintiffs waited too long to file this action and
are barred by laches, whether they have alleged any act or omission by the two elections
boards contrary to the State Election Law and, assuming there is an act or omission,
whether it would have changed the outcome of the presidential election (or even an election
for a Baltimore City Council seat).
But we need not resolve all of those issues. We dismissed this appeal for the simple
reason that, even if we were to agree with VOICE and Mr. Giordano and conclude that
they were entitled to a TRO with respect to the 2016 general election, there was no way
that such an order could have been implemented as a practical matter.
B. Mootness
An appeal is moot if, as a result of time or circumstances, “any judgment or decree
the court might enter would be without effect.” Hayman v. St. Martin’s Evangelical
11
The relief sought in the complaint would require action to be taken by officials in
charge of correctional facilities and detention centers. Only the two election boards are
named as defendants in the complaint.
15
Lutheran Church, 227 Md. 338, 343 (1962). Although this Court may have the legal
authority to express an opinion about the issues in a moot case, the appeal is typically
dismissed. Mercy Hospital, Inc. v. Jackson, 306 Md. 556, 562 (1986).
An example is Lloyd v. Board of Supervisors of Elections, 206 Md. 36 (1954). In
that case, an individual sought to be listed as a candidate for an Orphans’ Court vacancy
on both the Democratic and Republican primary ballots. When the local elections board
declined to do so – based on an Attorney General opinion that concluded that a candidate
for Orphans’ Court could not run in both primaries – he brought a mandamus action in
circuit court. The circuit court upheld the election board. The candidate appealed, but did
not press for an expedited hearing, and the primary election took place before the appeal
was heard. This Court ultimately dismissed the appeal as moot. The Court declined to
exercise whatever authority it might have to address the legal issue raised by the candidate,
noting that the issue was of statutory rather than of constitutional dimension, that the
Legislature had the option of amending the statute before the next election, and that, if the
Legislature chose not to do so, a similar action could be prosecuted in a more timely manner
before the next election. 206 Md. at 43-44.
In this case, it is evident that, once the complaint was filed, both sides and the Circuit
Court cooperated in advancing this litigation expeditiously. The Circuit Court ruled
immediately after holding a hearing. The parties then promptly briefed this appeal and oral
argument was scheduled the day after the briefs were filed. But, by the time the appeal
was argued to us, the early voting period was over and the general election was just hours
away. Even if this Court, or the Circuit Court on remand from the appeal, were to order
16
State officials to create a system of “inmate voting” for the 2016 general election, it would
have been impossible to effectively accomplish such a task in the few hours remaining
before the polls opened on election day.12 Given that election day is the busiest day of any
year for election officials, such an order would not only have been ineffective, but counter-
productive in ensuring an orderly election. In our view, the request for a TRO related to
the November 8, 2016 general election was moot by the time it reached us on November
7.
VOICE and Mr. Giordano appear to attribute the late filing of their law suit to the
deadline for voter registration. They assert that they did not have a cause of action under
EL §12-202 until the ordinary statutory deadline for voter registration (October 18, 2016)
had passed and an eligible inmate would no longer be able to register to vote.13 It is difficult
12
At oral argument, VOICE and Mr. Giordano adopted a fallback position that a
“package of absentee ballots” could simply be distributed to inmates on election day in lieu
of more extensive relief. However, the particular absentee ballot appropriate for a
particular voter depends on the voter’s residence, which determines the local offices (e.g.,
City Council member) for which the voter may cast a ballot. We were informed that there
were nearly 30 different versions of the ballot – known as “ballot styles” − for the 2016
election in Baltimore City alone, and numerous permutations in each of the other
jurisdictions, such as Baltimore County where Mr. Fields was eligible to vote. One who
wishes to vote by absentee ballot must submit an application for the ballot, in part so that
election authorities can match the voter to the appropriate absentee ballot. Matching a
prospective inmate voter to the appropriate absentee ballot inside the detention centers on
election day would have required a significant diversion of personnel and resources at the
very time that election officials were attempting to timely open and appropriately staff
every polling place in the State – a challenging prospect in the best of times.
13
Effective January 1, 2016, a person could also appear in person at an early voting
center in the county of residence to register to vote during the early voting period (October
27- November 3). EL §3-305. This option would not, of course, be available to an inmate.
17
to discern the logic of this argument under which they waited until election officials,
following the State Election Law, would no longer register inmates to ask a court to order
those officials to register potential voters outside the period specified in the law – under a
statute designed to correct actions of officials contrary to the State Election Law. In any
event, VOICE and Mr. Giordano do not explain why the deadline for voter registration
would affect a cause of action on behalf of inmates who were already registered to vote,
such as Mr. Fields.14 Nor do they explain why, assuming VOICE and Mr. Giordano have
standing, they were precluded from seeking a declaratory judgment before that date.
C. Remand
This is the end of this appeal. It may or may not be the end of this case. At this
juncture, all that has been decided is the plaintiffs’ request for a TRO with respect to the
2016 general election. Any other relief sought with respect to the 2016 general election is,
of course, also moot. As indicated earlier, the complaint appears to request more general
declaratory and injunctive relief. But no trial has been held and any declaratory judgment
would be premature at this point.
Assuming Mr. Giordano or VOICE can demonstrate the requisite standing for
seeking declaratory relief, in theory they might pursue what remains of their complaint on
14
In their appeal brief, they suggested that a cause of action for Mr. Fields did not
accrue until October 27, 2016, the first day of the early voting period. The rationale for
that assertion – i.e., what act or omission inconsistent with the State Election occurred on
that date – is not clear from the brief.
18
remand as it relates to voter registration and voting in a future election. We offer a few
thoughts on standing and declaratory relief for guidance of the Circuit Court.
1. Some Considerations on Standing
To the extent that the complaint is based on EL §12-201 et seq., Mr. Giordano has
statutory standing as a registered voter. See EL §12-201(b); Suessmann v. Lamone, 383
Md. 697, 712-13 (2004). But, as the Circuit Court noted, VOICE is not, and cannot be, a
registered voter and therefore has no standing under that statute. A cause of action under
that statute rests on an allegation that an act or omission in violation of the State Election
Law may affect the outcome of an election – an assertion somewhat more difficult to make
at this juncture with the end of the 2016 general election and the next election more than a
year in the future.
To the extent that the complaint is based on the declaratory judgment statute, CJ §3-
401 et seq., a circuit court may grant such relief “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.
CJ §3-409(a). See also Falls Road Community Ass’n v. Baltimore County, 437 Md. 115,
145-46 (2014).
19
To have standing to bring a declaratory judgment action, VOICE and Mr. Giordano
must have standing under the Maryland common law. 15 This Court recently summarized
that requirement: Absent special statutory standing,16 “a person – individual or
organization – has no standing to bring an action in court unless the person has suffered
some kind of special damage.” Fraternal Order of Police v. Montgomery County, 446 Md.
490, 506 (2016). Thus, common law standing “depends on whether one is aggrieved,
which means whether a plaintiff has an interest such that [the plaintiff] is personally and
specifically affected in a way different from … the public generally.” Kendall v. Howard
County, 431 Md. 590, 603 (2013) (quotation marks and citations omitted).
VOICE has asserted that it has “associational standing” on behalf of its members
under federal case law that recognizes such standing if: (1) an organization’s members
would otherwise have standing to sue as individuals; (2) the interests at stake are germane
to the group’s purpose; and (3) neither the claim made nor the relief requested requires the
participation of individual members in the suit. See Taubman Realty Group L.P. v. Mineta,
320 F.3d 475, 480 (4th Cir. 2003). VOICE did not formally establish the first element of
this formula in the Circuit Court – i.e., whether its members would have standing
15
The declaratory judgment statute also explicitly confers standing on certain
parties in certain types of cases. See, e.g., CJ §3-408 (specifying who may seek declaration
of rights relating to a trust or the estate of a decedent). No such provision in the declaratory
judgment statute, however, applies to this case.
16
See Accokeek, Mattawoman, Piscataway Creeks Community Council, Inc. v.
Public Service Commission, ___ Md. ___, 2016 WL 7324009 (December 16, 2016), for a
case involving a statute broadly conferring standing on potential plaintiffs.
20
individually – although it might achieve that end with the affidavit of Mr. Fields or other
inmate members. In any event, this Court has not yet recognized such derivative standing.
“We have long held the view that, under Maryland common law principles, for an
organization to have standing to bring a judicial action, it must ordinarily have a property
interest of its own – separate and distinct from that of its individual members – and that …
an organization has no standing in court unless [it] has also suffered some kind of special
damage from such wrong differing in character and kind from that suffered by the general
public…. If it were otherwise – if any person or group disenchanted with some public
policy but not adversely affected by it in some special way were free to seek a judicial
declaration that the policy is invalid – the courts, rather than the legislative branch, would
end up setting public policy, and that is not the proper role of the Judiciary.” Evans v.
State, 396 Md. 256, 328-29 (2006) (quotation marks and citations omitted; emphasis in
original).
Thus, VOICE does not have standing to seek a declaratory judgment concerning its
interpretation of the obligations of the election boards under the Election Law Article,
simply because its members are interested in that interpretation or even because its
members may themselves be specially affected by that interpretation. The organization
itself must be specially affected by the interpretation. See Fraternal Order of Police v.
Montgomery County, 446 Md. at 506-07 (police union had standing to challenge county’s
use of public funds to defeat referendum concerning statute on collective bargaining
because statute affected the scope of bargaining by the union on behalf of its members).
21
Neither Mr. Giordano nor VOICE alleged any injury to themselves – i.e., nothing
in the complaint indicates that Mr. Giordano was a pretrial detainee or incarcerated
misdemeanant, much less that he was an inmate who had been denied an opportunity to
register to vote or to obtain an absentee ballot. The belated submission of the affidavit of
Mr. Fields was apparently an effort to remedy this deficiency. It remains to be seen whether
someone with standing can be substituted as a plaintiff.
2. Some Considerations for Any Declaratory Judgment
If Mr. Giordano or VOICE establishes standing, they may pursue the request for
declaratory relief. At the conclusion of that trial, the Circuit Court would be obligated to
issue a declaratory judgment. As this Court has noted on several occasions, even if the
Circuit Court were to reject the proposition advanced by VOICE and Mr. Giordano, it
would still be required to issue a declaratory judgment, assuming at least one plaintiff has
standing to maintain the action.17 In the event this case proceeds further in the Circuit
Court, we offer a few considerations for the Circuit Court for any declaratory judgment
that might be issued in the future based on the current law.
17
That obligation has been succinctly stated as follows:
… when a declaratory judgment action is brought and the controversy
is appropriate for resolution by declaratory judgment, the court must
enter a declaratory judgment, defining the rights and obligations of the
parties or the status of the thing in controversy, and that judgment must
be in writing and in a separate document. That requirement is
applicable even if the action is not decided in favor of the party seeking
the declaratory judgment.
Lovell Land, Inc. v. State Highway Admin, 408 Md. 242, 256 (quotation marks and citations
omitted).
22
Should the Circuit Court be called upon to issue a declaratory judgment on remand,
current law and the record to date supports the following propositions:
• Pretrial detainees and individuals who are incarcerated as a result only
of a misdemeanor conviction and who are otherwise eligible to vote
under EL §3-102 remain eligible to vote, even though they are in
custody.
• The 2016 legislation did not affect the eligibility to vote of pretrial
detainees and of individuals incarcerated as a result only of a
misdemeanor conviction.
• Pretrial detainees and individuals incarcerated as a result only of a
misdemeanor conviction who are eligible to register to vote may
register to vote by mail, online, or with the assistance of a volunteer.
EL §3-201(a)(3), (6), (7).
• Pretrial detainees and individuals incarcerated as a result only of a
misdemeanor conviction who are registered to vote retain the right to
vote by absentee ballot and to have the assistance of an agent pursuant
to EL §9-307 in obtaining the appropriate application and absentee
ballot for that purpose.
• The 2016 legislation imposes no special mandate on the State or local
election boards with respect to individuals who happen to be in custody
as compared to other individuals who may be incapacitated or unable
to visit an early voting site or their designated polling place on election
day – e.g., as a result of health issues, employment, family or school
circumstances.
VOICE and Mr. Giordano assert that “[t]he denial of pretrial detainees’ and
incarcerated misdemeanants’ right to register and vote is inconsistent with the Election
Law article.” Taken in isolation, that statement is undoubtedly true. But it begs the
question that their complaint actually raises – whether the general powers and duties
conferred on the election boards by the State Election Law require the election boards to
create a special system for “inmate voting” beyond what is available for any voter unable
23
to appear at the voter’s polling place on election day and whether the failure to do so is
equivalent to a denial of the right to register and vote.
III
Conclusion
For the reasons explained in this opinion, we dismissed this appeal as moot. We
offer the guidance set forth above for the benefit of the Circuit Court should it be called
upon to issue a declaratory judgment following remand.
COSTS TO BE PAID BY APPELLANTS.
24
Circuit Court for Baltimore City
Case No. 24-C-16-005773
Argued: November 7, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 60
September Term, 2016
______________________________________
VOTERS ORGANIZED FOR THE
INTEGRITY OF CITY ELECTIONS, ET AL.
v.
BALTIMORE CITY ELECTIONS BOARD,
ET AL.
______________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Wilner, Alan M. (Senior Judge,
Specially Assigned)
JJ.
______________________________________
Concurring Opinion by Watts, J.
______________________________________
Filed: January 23, 2017
Respectfully, I concur. I would remand the case to the Circuit Court for Baltimore
City because I agree with the Majority that it remains to be seen whether Terrance Darnell
Fields can be substituted as a plaintiff with standing, or whether anyone else has standing
with respect to the complaint for declaratory judgment. See Maj. Slip Op. at 22. I would,
however, have dismissed the appeal of the denial of the temporary restraining order based
on the lack of standing of Voters Organized for the Integrity of City Elections (“VOICE”),
Appellant, as to the election claims, and because, although Hassan Giordano, Appellant,
may have had standing as a registered voter under Md. Code Ann., Election Law § 12-202,
the election claims were barred by the doctrine of laches.
As to the election claims, Appellants filed the action on October 28, 2016—eleven
days before the 2016 general election—when the claims could have been filed as early as
the April 2016 primary election. “The doctrine of laches, which is both an affirmative
defense and an equitable defense, applies where there is an unreasonable delay in the
assertion of one party’s rights and that delay results in prejudice to the opposing party.”
Jones v. State, 445 Md. 324, 339, 126 A.3d 1162, 1171 (2015) (citation, brackets, and
internal quotation marks omitted). Moreover, the doctrine of laches has been invoked to
bar election claims “where the delay in seeking judicial relief was measured in days[.]”
Baker v. O’Malley, 217 Md. App. 288, 296, 92 A.3d 588, 593, cert. denied, 440 Md. 115,
99 A.3d 779 (2014). I would have found both aspects of the doctrine of laches to be
satisfied. I would not have dismissed the appeal on the ground that it was moot, i.e., that
there was not enough time to take action, and that no order giving Appellants the relief that
they sought could have been implemented.
In other words, the case should be remanded to the circuit court for action consistent
with Part II.C of the majority opinion because VOICE’s lack of standing and the doctrine
of laches barring the election claims precluded this Court from considering the appeal. In
my view, the potential timing of an order to be issued by this Court the day before the 2016
general election did not render the appeal moot.
For the above reasons, respectfully, I concur.
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