intervener's cross-motion to dismiss and/or for … · intervener's cross-motion to...
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V.
JOHN DOE, et al., * IN THE
Plaintifft, * CIRCUIT COURT
* FOR ANNE ARUNDEL COUNTY
MARYLAND STATE BOARD OF * Case No. 02-C-11-163050 ELECTIONS, et al.,
*
Defendants. *
* * * * * * * * * * * * *
INTERVENER'S CROSS-MOTION TO DISMISS AND/OR
FOR SUMMARY JUDGMENT
Intervener MDPetitions.com, by counsel and pursuant to Rules 2-322 and 2-501, hereby
cross-moves for an order dismissing all of the remaining claims in Plaintiffs' Amended
Complaint and/or entering summary judgment in favor of Defendants Maryland State Board of
Elections, Secretary of State John P. McDonough, State Administrator of Elections, and
Intervener MDPetitions.com. Grounds for Intervener's cross-motion are set forth in the
accompanying Statement of Grounds and Authorities.
Dated: December 22, 2011 Respectfully submitted,
JUDICIAL WATCH, INC.
Md. Bar No. 9112190026 Suite 800 425 Third Street, S.W. Washington, DC 20024 Tel: (202) 646-5172 Fax: (202) 646-5199
Attorneys for Intervener
CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of December, 2011, I caused a true and correct copy of the foregoing Intervener's Cross-Motion to Dismiss and/or for Summary Judgment to be
served, via email and first-class U.S. mail, postage prepaid, on the following:
Elizabeth F. Getman
Joseph E. Sandler SANDLER, REIFF, YOUNG & LAMB, P.C. 1025 Vermont Avenue, N.W., Suite 300
Washington, DC 20005
Brett Marston Michael Harris Patricio Grane Laura Cofer Taylor Margarita R. Sanchez ARNOLD & PORTER 555 Twelfth Street, N.W. Washington, DC 20004
Matthew Fader Jeffrey L. Darsie Assistant Attorney Generals OFFICE OF THE ATTORNEY GENERAL 200 St. Paul Place, 20th Floor Baltimore, MD 21202-2021
i.)
*JOHN DOE, et al., IN THE
*Plaintifft, CIRCUIT COURT
* V. FOR ANNE ARUNDEL COUNTY
*MARYLAND STATE BOARD OF Case No. 02-C-11-163050 ELECTIONS, et al.,
*
Defendants. *
* * * * * * * * * * * * *
INTERVENER'S STATEMENT OF GROUNDS AND AUTHORITIES IN OPPOSITION
TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT
OF INTERVENER'S CROSS-MOTION TO DISMISS AND/OR
FOR SUMMARY JUDGMENT
C)
Paul J. Orfanedes
Md. Bar No. 9112190026 JUDICIAL WATCH, INC. Suite 800 425 Third Street, S.W. Washington, DC 20024 Tel: (202) 646-5172
Fax: (202) 646-5199
2.
3.
TABLE OF CONTENTS
I. Introduction.......................................................................................................................... 1
II. Factual Background 1.............................................................................................. ...............
III. Argument ............................................................................................................................. 2
A. Standards of Review ................................................................................................ 2
B. Plaintiffs' Motion Suffers from a Fatal Lack of Proof .. 3..........................................
C. Plaintiffs' Amended Complaint Fails to State a Claim upon Which Relief May Be Granted and Fails to Establish Subject Matter Jurisdiction ...................... .4
1. Plaintiffs John and Jane Doe Failed to Comply with Rule 2-201............... .4
Plaintiffs John and Jane Doe Failed to Plead Sufficient Facts to Establish That They Are Aggrieved Persons ...............................................6
a. Plaintiff John Doe ............................................................................6
b. Plaintiff Jane Doe 8............................................................................
Plaintiff Casa de Maryland Failed to Plead Sufficient Facts to Establish That It Is An Aggrieved Person ...................................................9
4. The Registered Voter Plaintiffs Failed to Plead Sufficient Facts to Establish the Existence of a Justiciable Controversy .............................. 9
D. SB 167 Is Subject to Referendum as a Matter of Law ..... ..................................... 12
1. SB 167 is a Policy Choice, Not an Appropriation ..................................... 12
2. SB 167 Was Not Enacted for the Purpose of Maintaining State Government ................................ .............................................................. 20
3. SB 167 Concerns "Public Institutions," Not State Government .......... ............................................................................ 22
IV. Conclusion ......................................................................................................................... 23
TABLE OF AUTHORITIES
Baltimore Cnty. Coal. Against Unfair Taxes v. Baltimore Cnty., 321Md.184 (1990) ...............12
Bayne v. Secretary of State, 283 Md. 560 (1978) .................................................................... 12, 18
Bickel v. Nice, 173 Md. 1 (1937) .................................................................................................. 17
Boyds Civic Ass 'n v. Montgomery Cnty. Council, 309 Md. 683 (1987) .......................................10
Brown v. Mayor & City Council, 167 Md. App. 306 (2006) .......................................................... 2
Doe v. Montgomery Cnty. Bd. of Elections, 406 Md. 697 (2008) ...................................... 3, 7, 8, 9
Doe v. Shady Grove Adventist Hosp., 89 Md. App. 351 (1991) ..................................................... 5
Dorsey v. Petrott, 178 Md. 230 (1940) ...... .-...................................................................... 12, 13, 19
Hatt v. Anderson, 297 Md. 42 (1983) ..................................................................................... 10, 11
Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439 (2002) .....................................7
Kelly v. Marylanders for Sports Sanity, Inc., 310 Md. 437 (1987) ....................................... passim
Rossaki v. NUS Corp., 116 Md. App. 11 (1997) ............................................................................ 3
Sugarloaf Citizens' Assoc. v. Dep 't of Env't, 344 Md. 271 (1996) ................................................7
Vanhook v. Merchants Mutual Ins. Co., 22 Md. App. 22 (1974) ...................................................3
Winebrenner v. Salmon, 155 Md. 563 (1928) .............................................................................. 17
Federal Statutes
8 U.S.C. § 1324a (2011) ................................................................................................................. 8
50 u.s.c. § 453 (2011) 6......... ..........................................................................................................
50 u.s.c. § 454 (2011) ................................................................................................................... 6
11
Maryland Provisions, Statutes, Constitutional and Rules
Md. Const., art. XVI,§ 1 ............................................................................................................... 12
Md. Const., art. XVI,§ 2 ........................................................................................................ passim
2009 Laws of Maryland, ch. 487, § 1 ............................................................................................ 16
2010 Laws of Maryland, ch. 484, § 3 ............................................................................................ 16
2011 Laws of Maryland, ch. 497, § 1 ............................................................................................ 16
Md. Code Ann., Cts. & Jud. Proc.§ 3-409(a) .............................................................................. 10
Md. Code Ann., Cts. & Jud. Proc. § 3-409(a)(l) .......................................................................... 10
Md. Code Ann., Cts. & Jud. Proc.§ 3-409(a)(2) .......................................................................... 10
Md. Code Ann., Cts. & Jud. Proc. § 3-409(a)(3) ..........................................................................10
Md. Code Ann., Educ. § 10-101 (m) ........................ ............................................................ ........ .13
Md. Code Ann., Educ.§ 10-208 .................................................................................................... 21
Md. Code Ann., Educ.§ 10-208(6) ........................................................................................ 17, 21
Md. Code Ann., Educ. § 12-102(a)(3) ..........................................................................................21
Md. Code Ann., Educ.§ 12-102(b) .............................................................................................. 21
Md. Code Ann., Educ. § 12-104 .................................................................................................... 21
Md. Code Ann., Educ.§ 12-104(c)(3) .......................................................................................... 21
Md. Code Ann., Educ. § 12-105(c) .............................................................................................. 21
Md. Code Ann., Educ.§ 14-101(a)(3) .......................................................................................... 21
Md. Code Ann., Educ.§ 14-102 .................................................................................................... 21
Md. Code Ann., Educ.§ 14-104 .................................................................................................... 21
Md. Code Ann., Educ.§ 14-104(a)(2) .......................................................................................... 21
Md. Code Ann., Educ. § 14-1040)( 1) .................................................................................... 17, 21
111
Page
IV
Md. Code Ann., Educ.§ 14-402: ...................................................................................................21
Md. Code Ann., Educ.§ 14-404 .................................................................................................... 21
Md. Code Ann., Educ.§ 14-404(a) ........................................................................................ 17, 21
Md. Code Ann., Educ.§ 14-404(b)(2) ..........................................................................................21
Md. Code Ann., Educ.§ 14-405(d) ..............................................................................................22
Md. Code Ann., Educ.§ 15-106.8(b)(l) ..................................................................................... 6, 8
Md. Code Ann., Educ. § 15-106.8(b)(4) .........................................................................................8
Md. Code Ann., Educ.§ 15-106.8(b)(5) ..................................................................................... 6, 8
Md. Code Ann., Educ.§ 15-106.8(b)(6) .........................................................................................6
Md. Code Ann., Educ.§ 16-101 ....................................................................................................20
Md. Code Ann., Educ.§ 16-103(c) ..............................................................................................20
Md. Code Ann., Educ.§ 16-104(b)(4) ..........................................................................................20
Md. Code Ann., Educ.§ 16-301 ....................................................................................................20
Md. Code Ann., Educ.§ 16-301(a) ..............................................................................................21
Md. Code Ann., Educ.§ 16-301(e) ..............................................................................................21
Md. Code Ann., Educ.§ 16-302(d) ..............................................................................................21
Md. Code Ann., Educ.§ 16-304 ....................................................................................................20
Md. Code Ann., Educ.§ 16-304(a) ..............................................................................................20
Md. Code Ann., Educ. § 16-305 ....................................................................................................20
Md. Code Ann., Educ.§ 16-305(c) ..............................................................................................15
Md. Code Ann., Elec. Law§ 6-202 ........................................................................................ 7, 8, 9
Md. Code Ann., Elec. Law§ 6-206 ........................................................................................ 7, 8, 9
Page
Md. Code Ann., Elec. Law§ 6-208(a)(2) .............................................................................. 7, 8, 9
Md. Code Ann., Elec. Law§ 6-209(a) ............................................................................... 3, 4, 7, 9
Md. Code Ann., Elec. Law § 6-209(b) passim..................................................................................
Md. Code Ann., State Gov. § 2-1505( e )(3) .................................................................................. 14
Md. Code Ann., State Gov. § 2-1505(e)(l) .................................................................................. 14
Md. Rule 2-201 ............................................................................................................................ 4, 5
Md. Rule 2-322(c) ............... , .......................................................................................................... 4
Other Authorities
12 Op. Att'y Gen. 228 (1927) ....................................................................................................... 20
Md. Code Ann., Educ.§ 16-305 note (Effect of Amendments) ....................................................16
v
Background.
Intervener MDPetitions.com ("Intervener") respectfully submits this Statement of
Grounds and Authorities in Opposition to Plaintiffs' Motion for Summary Judgment and in
Support oflntervener's Cross-Motion to Dismiss and/or for Summary Judgment.
I. Introduction.
In this action, Plaintiffs seek to prevent the voters of Maryland from deciding whether to
allow certain unlawfully present aliens to pay reduced, in-state or in-county tuition at Maryland's
sixteen community colleges and other Maryland public senior higher education institutions. At
least 108,923 confirmed registered voters -- nearly twice the number required -- signed a petition
calling for Senate Bill 167 ("SB 167") to be subject to a referendum in the November 2012
general election. The State Board of Elections certified the measure for placement on the
November 2012 ballot. Not content to let Maryland voters consider SB 167 themselves,
Plaintiffs brought suit to stop the referendum.
Although Plaintiffs move for summary judgment, conspicuously absent from their motion
are any affidavits or other admissible evidence demonstrating that they are "aggrieved" persons
or registered Maryland voters or otherwise entitled to relief. Plaintiffs' motion must fail for this
reason alone. In addition, Plaintiffs' motion must fail because Plaintiffs are wrong as a matter of
law about whether SB 167 is subject to referendum. It clearly is. Moreover, not only must
Plaintiffs' motion fail, but the Amended Complaint must be dismissed and/or summary judgment
be entered against Plaintiffs because they have failed to allege sufficient facts to state a claim
upon which relief may be granted and are not entitled to judgment as a matter of law.
II. Factual
The Maryland General Assembly enacted SB 167, entitled "An Act Concerning Public
Institutions of Higher Education -- Tuition Rates -- Exemption," during its 2011 Session. See
1
Argument.
Stipulation of Facts at if 1. SB 167 was not enacted as part of an annual budget bill or
supplemental appropriation bill. Affidavit of Delegate Neil Parrott (Parrott Aff.") attached as
Exhibit 1 at if 3. It was not referred to either the Senate's Budget and Taxation Committee or the
House of Delegate's Appropriations Committee, which are the committees that consider
proposed education appropriations. Id. Rather, it was referred to the Senate's Education, Health,
and Environmental Affairs Committee and the House of Delegates' Ways and Means
Committee, which are committees that consider proposed general laws and policy questions, not
appropriations. Id. at if 4. The Governor of Maryland signed SB 167 into law on May 10, 2011.
Stipulation of Facts at if 1.
At least 55,735 valid signatures of registered Maryland voters are required to refer a law
enacted by the General Assembly to referendum in the 2012 General Election. Id. at if 2.
Throughout May and June 2011, Intervener collected 132,061 signatures in support of a petition
to refer SB 167 to referendum in the 2012 General Election. Id. at iii! 3 and 9-11. On July 22,
2011, the State Board of Elections notified Intervener that verification and counting of the
signatures had been completed and that a total of 108,923 signatures had been accepted and
23,148 signatures had been rejected. Id. at if 12. That same day, the State Board of Elections
certified that SB 167 would be placed on the ballot in the 2012 General Election. Id. at if 13.
III.
A. Standards of Review.
Summary judgment is appropriate when there is no genuine dispute of material fact and,
based upon the undisputed facts, a party is entitled to judgment as a matter of law. Brown v.
Mayor & City Council, 167 Md. App. 306, 317 (2006). However, mere allegations do not
2
constitute facts, nor establish a genuine dispute of facts. Vanhook v. Merchants Mutual Ins. Co.,
22 Md. App. 22, 27 (1974).
A motion to dismiss should be granted if a complaint does not disclose, on its face, a
legally sufficient cause of action. Rossaki v. NUS Corp., 116 Md. App. 11, 18 (1997). In
considering such motions, the Court must assume the truth of all well pled facts and all
inferences that can reasonably be drawn from them. Id.
B. Plaintiffs' Motion Suffers from a Fatal Lack of Proof.
Section 6-209 authorizes two types of judicial review, albeit each with different remedies.
Under Section 6-209(a), "a person aggrieved by a determination made under § 6-202, § 6-206, or
§ 6-208(a)(2) of this subtitle may seek judicial review ... in the case of ... a petition to refer an
enactment of the General Assembly pursuant to Article XVI of the Maryland Constitution," and
the reviewing court is authorized to grant such "relief as it considers appropriate to assure the
integrity of the electoral process." Doe v. Montgomery Cnty. Bd. of Elections, 406 Md. 697, 715
(2008); Md. Code Ann., Elec. Law§ 6-209(a). Under Section 6-209(b), by contrast, a reviewing
court is authorized to grant only declaratory relief "[p ]ursuant to the Maryland Uniform
Declaratory Judgments Act and upon the complaint of any registered voter." Doe, 406 Md. at
715; Md. Code Ann., Elec. Law§ 6-209(b).
Plaintiffs John Doe, Jane Doe, and Casa de Maryland invoke the "aggrieved " persons
provision of Section 6-209(a) and allege that they have been aggrieved by a determination made
by the State Board of Education pursuant to Section 6-208(a). Amended Complaint for
Declaratory and Injunctive Relief ("AC ") at iii! 16, 18, 25, 43, and 86. They seek declaratory and
injunctive relief. Id. at iii! 99-109. Plaintiffs Jesus Alberto Martinez, Abby Hendrix, Katherine
Ross-Keller, Kim Samele, Camden Douglas Lee, and Catherine Brennan invoke the "registered
3
Subject
Comply
voter" provision of Section 6-209(b) and seek declaratory relief only. Id. at iii! 19-24, 43, and
99-104.
Significantly, Plaintiffs' motion is completely devoid of any evidence -- in the form of
affidavits or otherwise -- establishing that Plaintiffs John and Jane Doe and Casa de Maryland
have been aggrieved by a determination made by the State Board of Elections or that Plaintiffs
Martinez, Hendrix, Ross-Keller, Samele, Lee, and Brennan are registered Maryland voters.
Obviously, these facts are material to Plaintiffs' respective claims for relief under Section 6-
209(a) and Section 6-209(b). Because Plaintiffs have failed to present any evidence establishing
these material facts, their motion for summary judgment must fail for a lack of proof.
C. Plaintiffs' Amended Complaint Fails to State a Claim upon
While Plaintiffs' motion for summary judgment must be denied because of a lack of
proof, the Amended Complaint also is insufficient as a matter of law to give rise to a claim for
declaratory or injunctive relief under Section 6-209(a), in the case of Plaintiffs John Doe, Jane
Doe, and Casa de Maryland, or a claim for declaratory relief only under Section 6-209(b ), in the
case of Plaintiffs Martinez, Hendrix, Ross-Keller, Samele, Lee, and Brennan.1 Consequently, the
Amended Complaint must be dismissed pursuant to Rule 2-322(c).
1. Plaintiffs John and Jane Doe Failed to
Which Relief May Be Granted and Fails to Establish
Matter Jurisdiction.
with Rule 2-201.
As a preliminary matter, Rule 2-201 requires that "[e]very action shall be prosecuted in
the name of the real party in interest." The rule also provides, "No action shall be dismissed on
Intervener preserved this defense and others in its Answer, as did Defendants. See Second Affirmative Defense, Answer oflntervener MDPetitions.com to Plaintiffs' Amended Complaint for Declaratory and Injunctive Relief ("Intervener's Answer") at 25-27; Defendants' Answer to Amended Complaint at 24.
4
the grounds that it is not prosecuted in the name of the real party in interest until a reasonable
time has been allowed after objection for joinder or substitution of the real party in interest."
Rule 2-201 also prevents parties from proceeding under fictitious names unless they
demonstrates that they will suffer "serious harm or injury" if required to proceed under their real
names. Doe v. Shady Grove Adventist Hosp., 89 Md. App. 351, 363-65 (1991).
Plaintiffs John and Jane Doe admittedly bring suit under fictitious names. See AC at
14. Intervener's Answer, filed on October 7, 2011, expressly and specifically objected to
Plaintiffs John and Jane Doe's use of fictitious names. See Intervener's Answer at 14 and p.
26. More than ten weeks have passed since the objection, but Plaintiffs John and Jane Doe have
made no effort to substitute their real names for their fictitious names or demonstrate that they
will suffer "serious harm or injury" if their true names are made public.
As the sponsor of the overwhelmingly successful effort to petition SB 167 to referendum,
Intervener has a compelling interest in knowing the true identities of the persons who seek to
undue Intervener's substantial efforts and prevent Maryland voters from considering SB 167 at
the ballot box. Intervener also has a compelling interest in being able to test the veracity of these
persons' allegations and otherwise assess their claims for relief. Obviously, given the complete
and utter absence of any affidavits or other evidence presented by Plaintiffs John and Jane Doe
demonstrating their true identities or substantiating their factual allegations, Intervener has no
way of determining whether "Plaintiffs John and Jane Doe" are even real people, much less any
way of assessing their claims for relief. Nor does the Court. Because Plaintiffs John and Jane
Doe have made no effort whatsoever to comply with Rule 2-201 in the more than ten weeks
since Intervener noted its objection, their claims should be dismissed.
5
Aggrieved
2. Plaintiffs John and Jane Doe Failed to Plead
Sufficient Facts to Establish That They Are Persons.
Not only have Plaintiffs John and Jane Doe failed to present any affidavits or other
evidence regarding their true identities or substantiating their factual allegations and claims for
relief, but the Amended Complaint fails to plead facts showing that Plaintiffs John and Jane Doe
would qualify to pay reduced, in-state or in-county tuition under SB 167 if the statute were to go
into effect, or that they have been "aggrieved" in any personal or specific way.
a. John Doe.
Plaintiffs set forth the seven, specific requirements for eligibility for in-state and in-
county tuition in their memorandum. See Memorandum of Law in Support of Plaintiffs' Motion
for Summary Judgment ("Plfs' Mem.") at 8. The Amended Complaint, however, fails to allege
that Plaintiff John Doe satisfies all seven of these eligibility requirements. At least three are
absent. First, the Amended Complaint fails to allege that Plaintiff John Doe attended a public or
non-public secondary school in Maryland for at least three years. See Md. Code Ann., Educ. §
15-106.8(b )(1 ). Second, the Amended Complaint fails to allege that Plaintiff John Doe would or
could provide an affidavit stating that he will apply to become a permanent resident within 30
days after becoming eligible to do so. See Md. Code Ann., Educ.§ 15-106.8(b)(5). Third,
although the Amended Complaint alleges that Plaintiff John Doe is eighteen years old, it fails to
allege that he has registered with the Selective Service System or would or could provide
documentation demonstrating that he has complied with his selective service registration
obligation.2 See Md. Code Ann., Educ.§ 15-106.8(b)(6); AC at 15. Thus, Plaintiff John Doe
cannot be "aggrieved" by any determination made by the State Board of Elections under Section
2 See 50 U.S.C. §§ 453 and 454 (2011).
6
6-202, 6-206, or 6-208(a)(2) because he cannot even demonstrate that he is eligible for reduced
in-state or in-county tuition under SB 167.
In addition, in order to be "aggrieved" for purposes of Section 6-209(a), a plaintiff's
interests must be personally and specifically affected in a way different from the public
generally. Doe, 406 Md. at 716 (quoting SugarloefCitizens' Assoc. v. Dep't ofEnv't, 344 Md.
271 (1996)). An "aggrieved" person must suffer some "special damage" differing in character
and kind from that suffered by a member of the general public. Id. at 716-717 (quoting Jordan
Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439, 433 (2002)). Moreover, that "special
damage" must be caused by a determination made by the State Board of Elections under one of
the three specific provisions listed in Section 6-209(a). Md. Code Ann., Elec. Law§ 6-209(a).
Plaintiff John Doe's claim of "special damage" -- harm to his plans to attend community
college -- is too remote, too speculative, and too far removed from any determination by the
State Board of Elections. He does not even attempt to associate his alleged injury to one of the
three provisions specifically listed in Section 6-209(a). In addition, Plaintiff John Doe does not
allege that he currently attends community college in Maryland or that he has any concrete,
specific plans to do so in the near future, much less before the November 2012 election. Nor
does he allege that he has had to change or delay any specific, present plans he may have had to
attend community college in Maryland. All he argues is that "he is working part time at a
catering firm, in an effort to earn and save enough money to attend Baltimore City Community
College" at some indefinite time in the future. See AC at il 15. By alleging only a vague wish to
attend community College at some indefinite time in the future if he can save enough money
from his part-time job -- which itself is a legally dubious prospect given that, under federal law,
U.S. employers must check to make sure that all employees are authorized to work in the United
7
States and it is illegal to knowingly employ an unlawfully present alien (see generally 8 U.S.C. §
1324a (2011)) -- Plaintiff John Doe cannot claim to be personally and specifically harmed by a
determination by the State Board of Elections pursuant to Section 6-202, 6-206, or 6-208(a)(2) in
a way that is different from any other members of the general public. He has no "special
damage," and therefore has no standing. Doe, 406 Md. at 716.
b. Jane Doe.
Like with Plaintiff John Doe, the Amended Complaint fails to allege that Plaintiff Jane
Doe can satisfy at least three of the seven eligibility requirements of SB 167. First, the Amended
Complaint fails to allege that Plaintiff Jane Doe attended a public or non-public secondary school
in Maryland for at least three years. Md. Code Ann., Educ. § 15-106.8(b)(l). Second, the
Amended Complaint fails to allege that Plaintiff Jane Doe can satisfy the statute's requirement
3regarding the provision of tax documentation. Md. Code Ann., Educ.§ 15-106.8(b)(4). Third,
the Amended Complaint fails to allege that Plaintiff Jane Doe would or could provide an
affidavit stating that she will file an application to become a permanent resident within 30 days
after becoming eligible to do so. Md. Code Ann., Educ. § 15-106.8(b)(5). Like Plaintiff John
Doe, Plaintiff Jane Doe cannot even demonstrate that she is eligible for reduced in-state or in-
county tuition under SB 167.
3 To be eligible under the statute, Plaintiff Jane Doe must be able to provide documentation demonstrating that either she or her parent or guardian filed a Maryland income tax return (i) annually for the 3 years while she attended a public or a non-public secondary school in Maryland and (ii) annually during the period between her graduation from high school and her registration at a community college. The Amended Complaint alleges that Plaintiff Jane Doe Qraduated from Baltimore Citv Communitv ColleQe in .Tune 2009. AC at 17. As a result_ she 0-- ---- -- -- -- -- - - - --- - - ------- - - - ---.; - ----------- - - -- - - - - - - -·--- - - - - . - - - - - - J - . -- ---- -- · - · -- .; o I
must be able to demonstrate that she or her parent or guardian filed tax returns each year since 2007 in order to be eligible under the statute. The Amended Complaint only alleges that Plaintiff Jane Doe's parents filed tax returns for the years 2008 through 2010. Id.
8
Aggrieved
Controversy.
Plaintiff Jane Doe's allegations of injury also are nearly identical to Plaintiff John Doe's
allegations of injury. AC at if 17. They also suffer from the same shortcomings. Like Plaintiff
John Doe, Plaintiff Jane Doe cannot claim to be personally and specifically harmed by a
determination by the State Board of Elections pursuant to Section 6-202, 6-206, or 6-208(a)(2) in
a way that is different from any other members of the general public. She has no "special
damage," and, therefore, has no standing. Doe, 406 Md. at 716.
3. Plaintiff Casa de Maryland Failed to Plead Sufficient Facts to Establish That It Is An
Person.
The Amended Complaint also fails to allege sufficient facts to establish that Plaintiff
Casa de Maryland is an "aggrieved" person for purposes of asserting a claim under Section 6-
209(a). According to the Amended Complaint, if SB 167 is rejected by Maryland voters in the
November 2012 election, Plaintiff Casa de Maryland will have to raise and expend additional
funds because unlawfully present aliens, being rendered ineligible for taxpayer-subsidized
college tuition, will be unable to attend college and therefore will earn less money, resulting in
greater demand for Plaintiff Casa de Maryland's services. AC at if 25. This claim is too
generalized, too remote, too speculative, and too far removed from any determination by the
State Board of Elections to constitute the type of "special damage" that would entitle Plaintiff
Casa de Maryland to any relief. Doe, 406 Md. at 716.
4. The Registered Voter Plaintiffs Failed to Plead Sufficient Facts to Establish the Existence of a Justiciable
Section 6-209(b) authorizes a reviewing court to "grant declaratory relief as to any
petition with respect to the provision of this title or other provisions of law" "[p]ursuant to the
Maryland Uniform Declaratory Judgments Act and upon the complaint of any registered voter."
9
Md. Code Ann., Elec. Law§ 6-209(b). The existence of a justiciable controversy is an absolute
prerequisite to a declaratory judgment action under the Maryland Uniform Declaratory Judgment
Act ("UDJA"). Boyds Civic Ass 'n v. Montgomery Cnty. Council, 309 Md. 683, 689 (1987); Hatt
v Anderson, 297 Md. 42, 45 (1983); Md. Code Ann., Cts. & Jud. Proc.§ 3-409(a). A
controversy is justiciable when interested parties assert adverse claims upon a state of facts that
must have accrued and on which a legal decision is sought or demanded. Hatt, 297 Md. at 45-
46. The issue to be decided must present more than a mere difference of opinion between the
parties. Hatt, 297 Md. at 45. Moreover, the existence of a justiciable issue "is an especially
important principle in cases seeking to adjudicate constitutional rights; in such instances we
ordinarily require concrete and specific issues to be raised in actual cases, rather than theoretical
or abstract propositions." Hatt, 297 Md. at 46.
The Amended Complaint falls far short of demonstrating the existence of a justiciable
controversy between Plaintiffs Martinez, Hendrix, Ross-Keller, Samele, Lee, and Brennan ("the
Registered Voter Plaintiffs") and Defendants. It alleges no facts demonstrating the existence of
an "actual controversy" or the presence of "antagonistic claims" between the Registered Voter
Plaintiffs and Defendants. Md. Code Ann., Cts. & Jud. Proc. §§ 3-409(a)(l) and (2). Nor do the
Registered Voter Plaintiffs assert any "legal relation, status, right, or privilege" that is being
"challenged or denied" by Defendants. Id. at§ 3-409(a)(3).
Because this action involves both the constitutional right of referendum and the
constitutional right to vote, it is all the more important that a "concrete and specific issue[] be
raised in [an] actual case[]." Hatt, 297 Md. at 46. The Amended Complaint clearly does not
satisfy this exacting standard. The three paragraphs that identify Plaintiffs Martinez, Lee, and
Brennan do not even mention SB 167. Plaintiff Martinez alleges that he was an "undocumented
10
immigrant" when he entered the United States and became a successful ophthalmic surgeon. AC
at ii 19. Plaintiff Lee is a University of Maryland - College Park student who believes that
policies that promote affordable access to college for all students enhance his university
experience. Id. at ii 23. Plaintiff Brennan believes that, if immigrant students and veterans are
able to attend college at Maryland's public institutions, it will enhance her young children's K-
12 and college experiences. Id. at ii 24. The three paragraphs that identify Plaintiffs Hendrix,
Ross-Keller, and Samele contain only the vaguest of references to their beliefs about SB 167.
Plaintiff Hendrix believes that every student should have the opportunity to attend college and
that SB 167 will promote college attendance. Id. at ii 20. Plaintiff Ross-Keller believes the
statute will benefit the "citizens of Maryland" by providing for a more educated population. Id.
at ii 21. Plaintiff Samele believes SB 167 will benefit public school teachers by providing hope
for students. Id. at ii 22. None of these six paragraphs demonstrate how any of the Registered
Voter Plaintiffs will be harmed or even affected by any actions of Defendants or by the referral
of SB 167 to referendum. Any dispute the Registered Voter Plaintiffs might have regarding SB
167 -- and, again, no dispute is evident from the face of the Amended Complaint -- is not with
Defendants or Intervener. Rather, it is with persons who do not share their opinions about the
statute. A difference of opinion does not constitute a justiciable controversy, however. Hatt,
297 Md. at 45. Because the Registered Voter Plaintiffs have failed to allege the existence of a
justiciable controversy, they are not entitled to relief under the UDJA and their claim under
Section 6-209(b) fails as a matter of law.
11
Subject
Appropriation.
D. SB 167 Is to Referendum as a Matter of Law.
1. SB 167 is a Policy Choice, Not an
In enacting Article XVI of the Maryland Constitution, the people of Maryland reserved
the right to approve or reject any law passed by the General Assembly and signed by the
Governor. Md. Const., art. XVI, § 1. The only limitation on this right is where the law: (1)
makes an appropriation of public funds, and (2) is for the purposes of"maintaining the State
Government" or "maintaining or aiding any public institution." Kelly v. Marylanders for Sports
Sanity, Inc., 310 Md. 437, 450 (1987); Bayne v. Secretary of State, 283 Md. 560, 570 (1978);
Md. Const., art. XVI, § 2. When the purpose of an appropriation is to maintain or aid a "public
institution," the people retained the right ofreferendum if the appropriation constitutes an
"increase" over the prior year's appropriation. Baltimore Cnty. Coal. Against Unfair Taxes v.
Baltimore Cnty., 321 Md. 184, 192 (1990) (construing county charter provision similar to Article
XVI, Section 2); Md. Const., art. XVI, § 2.
In Kelly, the most recent published opinion to address the people's right of referendum,
the Court of Appeals held that an act of the General Assembly is an "appropriation" if its
"primary object is to authorize the withdrawal from the state treasury of a certain sum of money
for a specified public object or purpose to which sum is to be applied." Kelly, 310 Md. at 459
(quoting Dorsey v. Petrott, 178 Md. 230, 245 (1940)). The Court also declared that a general
law does not constitute an "appropriation" even if it contains an incidental provision for the
appropriation of public funds. Kelly, 310 Md. at 459 (citing Dorsey, 178 Md. at 251 ).
SB 167 is completely devoid of any provision authorizing "the withdrawal from the state
treasury of a certain sum of money for a specified public object or purpose to which the sum is to
be applied." Kelly, 310 Md. at 459; Dorsey, 178 Md. at 251. SB 167 is nothing more than a
12
policy choice by the General Assembly that extends eligibility for reduced, in-state and in-county
tuition to a new group of persons. On its face, SB 167 describes its purpose as "establishing that
certain individuals shall be exempt from paying certain tuition rates and shall be eligible to pay
certain tuition rates at certain public institutions of higher education under certain
circumstances." Plfs' Mem. at Exhibit A, p. 1. Thus, the "primary object" of SB 167 is to
establish a new policy that allows certain unlawfully present aliens to pay reduced, in-state or in-
county tuition at Maryland's sixteen community colleges and other Maryland public senior
higher education institutions.4 This new policy choice does not authorize the expenditure of any
public monies at all, much less a particular amount of public money, for a specific purpose. It
does not even refer to public monies or the raising or spending of public monies in any way.
Moreover, Plaintiffs have expressly denied any claim that SB 167 must be considered in pari
materia with some other statute that constitutes an appropriation. Plfs' Mem. at 16.
Consequently, Senate Bill 167 is nothing more than a general law that creates a new policy. It is
not an "appropriation" by any measure. It cannot even be said that SB 167 contains an
"incidental" provision for the appropriation of public funds. Kelly, 310 Md. at 459; Dorsey, 178
Md. at 251.
The fact that SB 167 was not enacted as part of an annual budget bill or supplemental
appropriation bill confirms that it is a general law, not an appropriation. Kelly, 310 Md. at 455;
Dorsey, 178 Md. at 241; Parrott Aff. at i! 3. This conclusion is reinforced by the fact that SB 167
was not referred to either of the two committees that consider proposed education appropriations,
The term "public senior higher education institution" refers to the constituent institutions of the University System of Maryland, Morgan State University, and St. Mary's College of Maryland. Md. Code Ann., Educ.§ 10- lOl(m).
13
4
but instead was referred to two policy committees. Parrott Aff. at 4. Because SB 167 is a
general law, not an appropriation, it is subject to referendum as a matter of law.
Plaintiffs argue that SB 167 is an "appropriation" because the Department of Legislative
Services ("DLS") declared in the Fiscal and Policy Note for SB 167 that the new law "mandates
an appropriation." Plfs' Mem. at 15 (emphasis original). DLS never made any such
declaration. DLS only found that SB 167 "affects a mandated appropriation." Id. at Exhibit E,
p. 1 (emphasis added). Obviously, a policy choice that "affects" an appropriation is different
from an actual appropriation. Plaintiffs' argument ignores the plain language of the note.
Plaintiffs' own memorandum also demonstrates the substantial difference between fiscal notes
for legislative proposals that "mandate" appropriations and fiscal notes for legislative proposals
that only "affect" appropriations. By law, a fiscal note for a bill that mandates an appropriation
"shall contain: (1) a statement that clearly identifies the imposition of the mandated
appropriation; and (2) an estimate of the fiscal impact of the mandated appropriation." Id. at 9
(citing Md. Code Ann., State Gov.§ 2-1505(e)(3) (emphasis added)). DLS' fiscal note for SB
167 does not "clearly identifly] the imposition of the mandated appropriation" or "estimate the
fiscal impact of [a] mandated appropriation." It only discusses the potential effect of a policy
change on future appropriations. Indeed, that is the purpose of fiscal notes. Md. Code Ann.
State Gov.§ 2-1505(e)(l) ("A fiscal note for a bill shall contain an estimate of the fiscal impact
of the bill on the revenues and expenditures of the State government and of local governments.").
Regardless, the people of Maryland have not forfeited the right to challenge enactments
of the General Assembly that merely "affect" appropriations. Most, if not all enactments of the
General Assembly could be found to "affect" an appropriation in some way. Based on a plain
reading of the language of Article XVI, Section 2, however, the people of Maryland only limited
14
their right to challenge certain types of actual appropriations. Md. Const., art. XVI, § 2. By
finding that SB 167 only "affects" an appropriation, DLS has further confirmed that SB 167 is
not itself an appropriation.
Plaintiffs also claim that SB 167 constitutes an "appropriation" because, under the
formula by which the State has chosen to provide assistance to community colleges, known as
"The Senator John A. Cade Funding Formula," the Governor allegedly will be required to
request increased appropriations for community colleges in future fiscal years. Plfs' Mem. at 9
and 15. According to Plaintiffs, a "mandatory" increase in State funding will be necessary to
cover the cost of the additional "full time equivalent" students qualifying for in-state or in-county
tuition because of SB 167. Id. Of course, nothing in SB 167 mandates any particular level of
State spending on community colleges, or any spending at all. If Plaintiffs are correct that State
funding for SB 167 is dependent on appropriations in future Budget Bills, then Plaintiffs'
assertion further confirms that SB 167 is only a policy choice, not an appropriation. If SB 167
were an appropriation, then it would authorize the withdrawal of public monies from the State
Treasury without the need for appropriations in future Budget Bills. Because SB 167 contains no
such authorization, it cannot be an appropriation.
Not only is SB 167 completely silent about the Cade formula, but the formula is not the
automatic trigger Plaintiffs claim. Under the Cade formula, the State provides funding to
community colleges based on a percentage of the funding that it chooses to provide to designated
public four-year institutions of higher education per "full-time equivalent student." See Md.
Code Ann., Educ. § 16-305( c ). By way of example, if in a given year the Governor and the
General Assembly choose to provide $100 of funding for each full-time equivalent student at a
four-year institution and have set the Cade formula at 20% for that year, then the State would
15
provide $20 of funding for each full-time equivalent student at a community college for the year.
Id. Thus, rather than the mandated amount that Plaintiffs claim, the Cade formula requires that
the Governor and the General Assembly first select the level of funding that the State chooses to
provide to the four-year institutions, then select the percentage of that amount that the State
chooses to provide to the community colleges on a per "full-time equivalent student" basis.
Historically, the Governor and the General Assembly have adopted a schedule that sets
forth Cade formula percentages for multiple years, then revised the percentages substantially
based upon the State's financial condition and priorities. Md. Code Ann., Educ.§ 16-305 note
(Effect of Amendments). For example, before 2009, the Cade formula percentage for Fiscal
Year 2013 was set at 30%. Id.; see also 2009 Laws of Maryland, ch. 487, § 1. In 2009, it was
reduced to 27%. Id. In 2010 it was reduced to 21 %, and in 2011, it was reduced to 19%. Id.;
see also 2010 Laws of Maryland, ch. 484, § 3; 2011 Laws of Maryland, ch. 497, § 1. Not only
do the Cade formula percentages fluctuate substantially, but, in enacting the Budget
Reconciliation and Financing Act of 2010, the Governor and the General Assembly abandoned a
percentage formula altogether and instead set State funding for community colleges at a flat
amount for both Fiscal Year 2011 and Fiscal Year 2012. 2010 Laws of Maryland, ch. 484, § 3.
Clearly, nothing in SB 167 directs, much less requires or mandates, an increase in the
State's funding for community colleges in future fiscal years. If more full-time students seek to
attend community college in future years and the State wishes to keep its support for community
colleges at the same level as in prior years, the Governor and the General Assembly retain the
discretion to do so regardless of the policy change made in SB 167. If the State wishes to reduce
its support for community colleges in future years, it may do so regardless of SB 167 as well, and
the community colleges may seek to make up the difference by raising tuition and/or obtaining
16
greater support from the county or counties the community colleges serve. Contrary to
Plaintiffs' argument, the Governor retains discretion to request State funding for community
colleges at whatever level he or she believes is appropriate, and the General Assembly retains the
discretion to adopt or reduce the Governor's request. SB 167 does not mandate any particular
level of State spending on community colleges.
Plaintiffs also are wrong when they argue that SB 167 "directly regulates" the amount of
revenue collected by four-year institutions. Plfs' Mem. at 15. SB 167 has no bearing on the
level at which four-year institutions set the rates they charge students for in-state and out-of-state
tuition. Rather, SB 167 only affects students' eligibility for these different rates. In fact, DLS'
fiscal note expressly states, "tuition revenues at most institutions will not be materially affected."
Id. at Exhibit E, p. 7.
In addition, nothing about SB 167 limits these four-year institutions' discretion to adjust
tuition rates to whatever level they deem necessary to raise the revenue they require. See Md.
Code Ann., Educ.§§ 10-208(6), 14-104G)(l), and§ 14-404(a). If an institution determines that
it needs to increase overall tuition rates to accommodate any students who qualify for in-state
tuition rates under the new policy, nothing in SB 167 prevents the institution from doing so.
SB 167 does not directly or indirectly regulate the amount of tuition collected by any institution.
Nor does it mandate any particular level of state funding to four-year institutions, as Plaintiffs
also erroneously contend.
SB 167 also is not analogous to any of the other enactments found to constitute
appropriations for purposes of Article XVI, Section 2. At issue in Winebrenner v. Salmon, 155
Md. 563, 567 (1928) was the imposition of a new gasoline tax, the proceeds of which were to be
used to build public roads in the State. At issue in Bickel v. Nice, 173 Md. 1 (1937) was the
17
State's issuance of new bonds to fund the construction of an office building in Annapolis to
house state officers and employees. At issue in Bayne, supra, was a specific line item in the
State's Budget Bill -- a quintessential "appropriation" -- that provided for direct payments to
physicians, hospitals, clinics and other medical facilities for medical and hospital care, including
abortions, for indigent persons in the State. 5 The Court of Appeals found all three measures to
constitute appropriations for purposes of Article XVI, Section 2.
At issue in Kelly, supra, was an "intricate financing mechanism" that permitted the State
to "receive and expend public monies" to obtain a site and construct Oriole Park at Camden
Yards and M & T Bank Stadium. The key provision of the enactment at issue in Kelly, Chapter
124, authorized the Maryland Stadium Authority ("the Authority"), a State instrumentality, to
raise and expend specific amounts of money: $85 million for site acquisition, $70 million for
construction of a baseball stadium, $70 million for construction of a football stadium, and $195
million for construction of a multi-use stadium. Kelly, 310 Md. at 442. This same provision also
gave the Authority the power to issue bonds for the purpose of financing the project, created new
sports lotteries to raise funds for the project, and required an annual payment from the City of
Baltimore, among other fund raising measures. Id. at 442-44. In concluding that Chapter 124
constituted an "appropriation," the Court found:
It authorizes the borrowing of funds through the issuance of bonds, the disbursement of those funds through the Authority's Financing Fund, and the payment of the Authority's bonded indebtedness through monies directed to be paid by the State to the Authority through annual appropriations in the Budget Bill, by the City of Baltimore, and through the Authority's own revenues included in its Financing Fund.
The line item in the Budget Bill at issue in Bayne was so obviously an appropriation that the plaintiffs did not even attempt to argue otherwise, but instead argued that it was not an appropriation for maintaining the State Government. Bayne, 283 Md. at 570.
18
5
Kelly, 310 Md. at 460-61. Unlike Chapter 124, SB 167 does not authorize the expenditure or
receipt of any public monie , much less any specific quantity of public monies. Nor does it
create any "intricate financing mechanism." It contains no borrowing, funding, or financing
mechanism at all. SB 167 is nothing more than a policy choice that extends eligibility to pay
reduced, in-state or in-county tuition to a new category of persons. It is not an appropriation
under Kelly.
SB 167 is most analogous to the enactment at issue in Dorsey, supra. In that case, the
General Assembly had created a new "Commission of Fisheries" to regulate the tidewater
fisheries of the State and gave the new commission certain duties and powers, including the
power to hire employees whose salaries were appropriated in the State's annual Budget Bill, and
the power to charge inspection fees and impose monetary fines, both of which were to be paid to
the Comptroller of the State Treasury. The Court of Appeals rejected the argument that these
"incidental" revenue raising and spending measures transformed a general law into an
"appropriation" for purposes of Article XVI, Section 2:
All the features of an appropriation are thus negatived, and it cannot be maintained that [the provision] regulates the manner in which public funds are to be annually supplied and applied to the conservation of the tidewater fisheries of the state. On the contrary, the statute is of the kind clearly indicated by the Referendum Amendment as being within its purview.
Dorsey, 178 Md. at 248. SB 167 does not even contain the "incidental" spending or revenue
raising provisions contained in the statute at issue in Dorsey. Again, SB 167 contains no
provisions for spending or raising public funds at all. Like the statute at issue in Dorsey, SB 167
does not "regulate[] the manner in which public funds are to be annually supplied and applied" to
post-secondary public education in Maryland. Instead, it is a policy choice that makes a new
19
Maintaining
category of persons eligible to pay reduced in-state and in-county tuition. It is a general law, not
an appropriation.
2. SB 167 Was Not Enacted for the Purpose of State Government.
In addition to not being an "appropriation" for purposes of Article XVI, Section 2, SB
167 was not enacted for the purpose of "maintaining State government." On its face, Article
XVI, Section 2 differentiates between "State government" and "public institutions." In Kelly, the
Court of Appeals declared that public institutions "do not necessarily perform government
functions and are largely supported by private capital. Moreover, public institutions are not
controlled by the State, although the State may be given a voice in their management." Kelly,
310 Md. at 475 (quoting 12 Op. Att'y Gen. 228, 237 (1927)). It has long been recognized that
the term "public institution" referenced in Article XVI, Section 2 relates to "educational and
eleemosynary institutions, sometimes designated as State-aided institutions." Id.
Maryland community colleges and "public senior higher education institutions" are the
very picture of the "public institutions" described in Kelly. They are much more a part of
"County government" then they are a part of "State government." See, e.g., Md. Code Ann.,
Educ.§§ 16-101, 16-301, 16-304, and 16-305. They are created by the county or counties that
they serve. Specifically, the governing body of the county served by a community college
appropriates money to "pay the cost of establishing and operating a community college or
regional community college." Id. at§ 16-304(a); see also id. at§ 16-305. The community
colleges themselves are governed by boards of trustees that "exercise general control over the
community college" and appoint a president who is "responsible for the conduct of the
community college and for the administration and supervision of its departments"" Id at§§ 16-
103(c) and 16-104(b)(4). Each year, community colleges prepare and submit budgets to the
20
counties they serve, not to the General Assembly, and it is the counties, not the General
Assembly, that approve the community colleges' budgets. Id. at§§ 16-301(a) and (e).
Community colleges may borrow money, but any such borrowing does not "create or constitute a
debt or obligation of the State" and does not "constitute a debt or obligation of the General
Assembly or pledge the full faith and credit of the State." Id. at§ 16-302(d). Rather than being
"State government," community colleges are at most "public institutions" or "State-aided
institutions."
Maryland's "public senior higher education institutions," are "independent units" of State
government. Id. at§ 12-102(a)(3) (University System of Maryland) and§ 14-101(a)(3) (Morgan
State University). Each is governed by its own Board of Regents or Board of Trustees. Id. at§§
10-208, 12-102(b) and 12-104 (University System of Maryland); 14-102 and 14-104 (Morgan
State University); and 14-402 and 14-404 (St. Mary's College of Maryland). By law, the Board
of Regents of the University System of Maryland "may not be superseded in its authority by any
other State agency or office in managing the affairs of the University System of Maryland or of
any constituent institutions and centers under the Board's jurisdiction." Id. at§ 12-104(c)(3).
Likewise, the Board of Regents of Morgan State University "may not be superseded in its
authority by any other State agency or office in managing the affairs of the University." Id. at§
14-104(a)(2). A similar provision applies to the Board of Trustees of St. Mary's College of
Maryland. Id at § 14-404(b )(2). Each institution sets its own tuition and fees. Id. at § 10-
208(6) (University System of Maryland);§ 14-104(j)(l) (Morgan State University); and§ 14-
404(a) (granting the Board of Trustees of St. Mary's College "all the powers, rights, and
privileges" for governance and management of the College). Like community colleges, both the
University System of Maryland and St. Mary's College of Maryland have authority to borrow
21
money, but such borrowing does not create or constitute a debt or obligation of the State or a
debt or obligation contracted by the General Assembly. Id. at§ 12-105(c) (University System of
Maryland) and§ 14-405(d) (St. Mary's College of Maryland). Nor does it pledge the full faith
and credit of the State. Id.
Nor are these public institutions of postsecondary education "performing government
functions." Postsecondary education in Maryland also includes the great many private colleges
and universities in the State. Obviously, these private institutions are not "performing
government functions." Unlike primary and secondary education, which is a more traditional,
but not exclusive, "government function," postsecondary education is not compulsory. It is
purely voluntary and therefore further removed from a typical "government function." Public
community colleges and four-year institutions also receive substantial quantities of "private
capital" -- the tuition and fees paid by the students who attend them. Kelly, 310 Md. at 475.
Moreover, the provision of postsecondary education is nothing at all like the "government
functions" at issue in the other cases applying Article XVI, Section 2. SB 167 is exactly the type
of policy change unrelated to the maintenance of State government that falls well within the
people's right of referendum.
3. SB 167 Concerns Public Institutions, Not State Government.
Because SB 167 concerns "public institutions," not "State Government," the limitation on
the people's right to referendum contained in Article XVI, Section 2 is even narrower. The
people retain the right to vote for themselves on enactments of the General Assembly that
increase State aid to public institutions:
The framers intended that the neonle should have a check unon the amount of . . . - --- -- ----- - - - ---- - ---- - -- ----- - --- - J_- - .J.- - .I. - - - .
money expended by the legislature for the maintenance or aid of public institutions, not owned or controlled by the State . . . It is, therefore, not improper,
22
��e '
when providing a check upon legislative power, to reserve to the people the right to control any extensions or increases of State aid to such institutions. The reference of such increases should not impair the State government in the exercise of its normal functions, whereas appropriations for the executive, legislative and judicial branches of the Government must be provided, in accordance with the financial needs of these departments, without hindrance or delay.
Kelly, 310 Md. at 475. "That this is now the law of Maryland is beyond all question." Id.
Because Plaintiffs expressly and specifically contend that SB 167 increases the amount of State
aid to the State's postsecondary public institutions of higher education (Plfs. Mem. at 9 and 15),
it would not be subject to the limitation on the right of referendum contained in Article XVI,
Section 2 even if SB 167 were found to be an "appropriation." Consequently, SB 167 is subject
to referendum as a matter of law for this additional reason as well.
IV. Conclusion.
For the foregoing reasons, Plaintiffs' motion for summary judgment should be denied and
Intervener's cross-motion to dismiss and/or for summary judgment should be granted.
Dated: December 22, 2011 Respectfully submitted,
JUDICIAL WATCH, INC.
Md. Bar No. 9112190026 Suite 800 425 Third Street, S.W. Washington, DC 20024 Tel: (202) 646-5172 Fax: (202) 646-5199
Attorneys for Intervener
23
EXHIBIT 1
*JOHN DOE, et al., INTHE
*Plaint[lfs, CIRCUIT COURT
* v. FOR ANNE ARUNDEL COUNTY
*MARYLAND STATE BOARD OF Case No. 02-C-11-163050 ELECTIONS, et al.,
*
Defendants. *
* * * * * * * * * ** *
AFFIDAVIT OF NEIL C. PARROTT
I, Neil C. Panot, hereby state as follows:
1. I am a member of the Maryland House of Delegates I represent District 2B, .
which is located in Washington County, Maryland. I was elected to the House of Delegates on
November 2, 2010 and was sworn in on January 12, 2011. As a member of the House of
Delegates, I am generally familiar with the process by which legislation is passed by the General
Assembly, including the refenal of proposed legislation to committees.
2. I also am the Chairman of MD Petitions.com, an entity that sponsored the petition
to refer Senate Bill 167 ("SB 167") to referendum and the Intervener in this case.
3. When SB 167 was passed by the Maryland General Assembly, it was not enacted
as part of any annual budget bill or supplemental appropriation bill. Nor was it referred to either
the Appropliations Comrriittee or the Budget and Taxation Committee, which are the committees
of the House of Delegates and the Senate, respectively, that consider proposed appropriations,
including education appropriations.
II
II
4. Instead, Senate Bill 167 was referred to the House of Delegates' Ways and Means
Committee and the Senate's Education, l-lealth, and Environmental Affairs Committee, which
are committees that consider proposed general laws and policy questions, not proposed
appropriations.
I solemnly affirm tmdcr the penalties of perjury that the contents of the paper are true to
the best of my knowledge, information, and belief Executed on December 22, 2011 in
Hagerstown, Maryland.
2
CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of December, 2011, I caused a true and correct copy of the foregoing Intervener's Statement of Grounds and Authorities in Opposition to Plaintiffs' Motion for Summary Judgment and in Support oflntervener's Cross-Motion to Dismiss and/or for Summary Judgment_to be served, via email and first-class U.S. mail, postage prepaid, on the following:
Elizabeth F. Getman Joseph E. Sandler SANDLER, REIFF, YOUNG & LAMB, P.C. 1025 Vermont Avenue, N.W., Suite 300 Washington, DC 20005
Brett Marston Michael Harris Patricio Grane Laura Cofer Taylor Margarita R. Sanchez ARNOLD & PORTER 555 Twelfth Street, N.W. Washington, DC 20004
Matthew Fader Jeffrey L. Darsie Assistant Attorney Generals OFFICE OF THE ATTORNEY GENERAL 200 St. Paul Place, 20th Floor Baltimore, MD 21202-2021