That Deadline Business

After the recent ruling by Judge Greenberg, you saw news stories that a judge had "cleared the way" for a referendum on the new gender-identity nondiscrimination bill in Montgomery County, that he had "approved" the referendum, and so forth. The case is under appeal, so the way is not cleared quite yet, but it may be interesting for readers to see what the judge actually said.

The Board of Elections screwed up. They told the Citizens for a Responsible Whatever that they needed 25,001 signatures to get the referendum on the ballot, but they based that on the number of "active" voters, not the number of "registered" voters as required by law. In fact they needed 27,615 valid signatures, which they did not have.

The judge ruled that the CRW had not collected enough signatures to meet the requirement of five percent of registered voters. On that basis, the referendum should have been thrown out. But -- isn't there always a but? -- he also ruled that the plaintiffs filed their complaint too late. And this is where the appeal will come in.

The law says you have ten days to file a complaint on something like this. There are lots of good reasons for having a deadline, that makes sense. But the law does not say when the ten days start ticking down. So the question of the day is, when does the timer start?

Here's how the judge looked at it. Note, I am transcribing this from a smudgy and messy PDF document, and probably got some letters wrong. This is the section from the Memorandum Decision and Declaratory Judgment Order issued by Judge Robert A. Greenberg of the Montgomery County Circuit Court that discusses the deadline issue.

V. Statute of Limitations

The final question remaining for the court's determination is whether the statute of limitations contained in §6-210 bars the relief sought by Plaintiffs. Limitations was pled by Defendant in its answer as an affirmative defense, and raised in its response to the supplemental memorandum filed by Plaintiffs on the issue of the correct denominator.

Statutes of limitations exist to encourage promptness. "They find their justification in necessity and convenience rather than logic. They represent expedience, rather than principles ... They represent a public policy about the privilege to litigate." Walko v. Burger Chef Systems, Inc., 281 d. 207, 210, 378, A.3d 1100, 1101 (1977).

Such statutes are to be strictly construed and the court is not to give them "a strained construction to evade their effect [citation omitted]." Decker v. Fink, 47 Md. App. 202, 206, 422 A.2d 389, 391 (1980).

In a pre-election context, time is of the essence. The General Assembly made a legislative determination in enacting §6-210 that those aggrieved by a decision of the local board must promptly lodge an objection by requesting judicial review.

Defendant claims that any challenge to the denominator should have been raised within ten days of the determination by the Defendant that the referendum petitioner (MCRG) needed 25,001 signatures to place the matter on the ballot.

Plaintiffs aver that any 10-day limitations requirement is triggered by the date that Defendant certified the petition, see MD. CODE ANN., ELEC. §6-208 (2003), and point to the letter sent by the local board to the county executive, dated March 3, 2008. By that calculation, say Plaintiffs, their judicial challenge was timely filed.

The court notes that information regarding the number of active and inactive voters in Montgomery County was available throughout the time period at issue, on the State Board of Elections website, for any interested citizen to view. The Plaintiffs, and members of MCRG, had unfettered access to these numbers. All of those citizens are presumed to know the law regarding the "active-inactive" dichotomy, with the Court of Appeals eliminated in Green Party.

After the decision in that case, it is inescapable that five percent of the registered voters in Montgomery County on November 21, 2007, was not 25,001. Plainly, MCRG did not gather enough signatures to meet the five percent threshold.

Plaintiffs, however, judicially challenged the denominator too late. As was the case in §[unclear], above, a judicial challenge to the fixing of the denominator should have been filed on or before February 20, 2008, and perhaps earlier. Certainly, Plaintiffs had constructive notice of the denominator no later than that day, when the first set of signatures was verified and counted by the Defendant.

The court rejects Plaintiff's suggestion made at the July 9 hearing that the date the petition was certified to the county executive is the measuring date for seeking judicial review. Certification under §6-208 occurs at the end of the signature-gathering process. While it is true that §6-209 provides for judicial review of the certification, it does not give Plaintiffs a second bite at the apple on the denominator issue.

Roskelly mandates that where referendum petitioners are aggrieved by a rejection of signatures at the first step of the signature-gathering process, they are required to seek judicial review within 10 days of the determination. Had the denominator in this case been artificially high, Roskelly would have compelled MCRG to seek judicial review within 10 days, lest they be bound by the higher number. It would not have been permissible to allow MCRG to wait until the certification process to seek such review.

Plaintiffs are not entitled to a more deferential standard than the petition sponsors. Because their request for judicial review was filed on March 14, limitations bars any remedy.

I know some lawyers read this blog, and I hope they'll jump in and clear some of this up in the comments. Here's what I think he's saying. You have ten days to complain. In the case of the first set of signatures, you had ten days from the day they were verified (February 20th) to complain that they were invalid for some reason. Then, when the last set of signatures is submitted, the Board of Elections looks at them all and declares at some point that they are "verified," and then you have ten days to challenge that. Unfortunately, the Board only tells the people who submitted the petitions, they don't announce it in any public way, so if you want to challenge the signatures you have no real way of knowing when the Board verified them or when the ten days run out. There is a specific moment when the Board sends a letter to the County Executive, telling him that the signatures are verified, and as I understand it, that was considered the start of the ten-day countdown for the general challenge to the signatures, which is why the complaint was considered at all. The letter was sent March 6th, the complaint was filed March 14th.

But here's where it gets tricky. There are two things. First, the plaintiffs didn't realize at first that the Board had calculated the number wrong, and they didn't include that in their original complaint. On that account, Judge Greenberg ruled that this was just a new "theory" and could be added later to the list of complaints about the signatures. Second, and this is critical, the judge seems to have opined that since the number was wrong as soon as the Board said it, you had ten days from then to challenge it. As he says here, anybody could look on the web and see that they'd used the wrong numbers.

First of all, a little contradiction. The overall complaint regarding the second batch of signatures was submitted before the deadline. The "denominator" issue, regarding the required number of signatures, was considered to be part of the general complaint. But Judge Greenberg expressed the opinion that that part of the complaint should have a different due-date from the rest of the items. Does that seem a little fishy to you? It can be included, but it won't count because it was included too late. What sense does that make?

I don't know when the Board said the target was 25,001, and have not heard any date proposed for when that was. The judge's words are strange here: ... a judicial challenge to the fixing of the denominator should have been filed on or before February 20, 2008, and perhaps earlier. First of all, what is the word "perhaps" doing in there? He is saying he doesn't know when it should have been filed! He just knows it should have been "on or before February 20, 2008, and perhaps earlier."

So if February 20th was the deadline, you count back and ask, what happened on February 10th? If you have ten days, and the ten days run out on the 20th, then I guess they started on the 10th. So what happened on February 10th that was so special? I don't know. Nobody knows. It was right before the primary elections, the shower-nuts were still trying to get signatures -- there does not appear to be any reason for the judge to select February 20th as the deadline, and his "perhaps" wording does make you think he's pulling it out of ... thin air. It's like it just seemed to him that February 20th was a good-sounding date.

Looking back at the blog, I see mention as far back as December 1st that the CRW need 25,000 signatures. It's a number that was always there, my guess is that they went to the Board of Elections in November and asked, what do we have to do to get a referendum on the ballot, and the Board said, you need 25,001 signatures. The CRW took them at their word, and I have already admitted, I almost sympathize with them on this one, because they trusted their government officials and those officials were just plain wrong. The CRW trusted the government, and our side, the anti-discrimination side, also trusted them, so nobody thought to go back and check their numbers. As far as sympathy goes, though, it is good that the judge noted that the CRW could have found the correct numbers on the Internet, too -- in that sense it is their own fault they didn't have enough signatures, they believed the Board of Elections' arithmetic instead of doing the math themselves.

There is an interesting comment right at the end of the judge's opinion, which has to do with using "a more deferential standard" for plaintiffs than defendants. Okay, so let's imagine the CRW goes to the Board of Elections and says how many signatures do we need? Say the Board says you need a quarter of a million signatures, and the CRW says, but that's too many, and the Board says, that's our determination and that's that. In that case, the CRW would want to go to court right then, to get a ruling that five percent of the registered voters is not a quarter million people. Now the judge is saying, if the CRG would've had to sue right off the bat if the number was too high, the other side should have to, too, when the number is too low. Think it through, that's a little too "fair and balanced" for my tastes.

As I'm writing this, I'm thinking the obvious here. Everybody agrees the CRW did not submit as many signatures as the law requires. The Board of Elections made a mistake, a judge has confirmed that the number was wrong -- so why does it matter that a deadline was missed? The law says that to have a referendum you have to have five percent of the registered voters, and they didn't. Why does it take a group of citizens suing to set that straight? It seems to me that the responsibility of the Board of Elections at this point should be to say, woops, we made a mistake, and reverse their determination that enough signatures had been submitted. You don't need a lawsuit to do that. They should take responsibility for this -- as it is, they are knowingly allowing the law to be broken, they know the threshold was not met and yet they are going to let this referendum go to the voters. They should be responsible for enforcing the law, not just seeing that the lawbreaking is orderly.

It has now been determined that there were not enough signatures, but somebody has to file an appeal and pay for lawyers to argue about when a deadline was, in order for the law to be followed.

The legal process is plodding along as it should. An appeals court is considering whether to hear the case. If they do, things should move swiftly -- we don't have all year, there are ballots to print up! Even though it seems crazy, the legal question is identifying the date by which the plaintiffs had to have filed something challenging the number of signatures needed. You can see, there are a lot of ways to look at it.