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Constantine Koste v. Town of Oxford

March 26, 2013

CONSTANTINE KOSTE
v.
TOWN OF OXFORD, ET AL.



Circuit Court for Talbot County Case No. 20-C-10-007212

The opinion of the court was delivered by: Harrell, J.

Maryland Supreme and/or Appellate Courts

Constantine Koste v. Town of Oxford, et al.,

No.42, September Term, 2012.

STATUTORY CONSTRUCTION - ELECTION LAW - REFERENDUM - ANNEXATION RESOLUTION - CIRCULATING AND SIGNING PETITIONS BEFORE FINAL ENACTMENT PROHIBITED

To submit an annexation resolution to referendum, petition circulators obtained signatures on their referendum petitions before final enactment of the resolution. The Court of Appeals held this violated Md. Code, Article 23A, §19(g), which provides that voters may "petition . . . for a referendum on [an annexation] resolution" any time within the forty-five (45) days after final enactment. The General Assembly intended for the forty-five (45) day period of Article 23A, §19(g) to act as a substantial restriction on when petitions may be circulated. Principal to this determination was: (1) recognition of the fact that the referendum process is intended to be a rigorous one to complete; and (2) an alternative interpretation of the statute would have allowed voters to sign referendum petitions at a time when less than full information regarding the operation and effect of the proposed annexation, i.e., before the public hearing, was available. Consequently, referendum petitions may not be circulated and signed before final enactment of the resolution.

Bell, C.J., Harrell Battaglia Greene Adkins Barbera McDonald, JJ.

Opinion by Harrell, J.

Battaglia, J., joins judgment only. Bell, C.J., and Adkins, J., dissent.

This case presents the novel question of whether a petition seeking to bring a municipal annexation resolution to referendum may be circulated and signed by members of the relevant electorate before final enactment of the targeted resolution. Depending on the answer to that question, there may lurk an additional related query: may the petition be circulated before the commencement of the public hearing on the resolution?

Our story begins with the legislative body of the Town of Oxford, Maryland ("Oxford"), introducing a resolution that proposes to annex a sizable number of acres of submerged lands adjacent to the Town's boundaries. Following first publication in a local newspaper of a legal notice of the pendency of the resolution and of the date and time of a public hearing, as required by the governing annexation statute,*fn1 petition circulators among the voters of Oxford prepared and began circulating promptly a petition for referendum regarding the proposed resolution. Three days before expiration of the statutory deadline to submit the referendum petition to the Town fathers following adoption of the resolution, the circulators submitted the petition containing enough signatures for a referendum.*fn2 In achieving the required number of signatures, the petition contained a number of signatures that were affixed patently before the public hearing on the annexation resolution was held and others after that event, but before the final enactment of the resolution.*fn3 If the signatures affixed prior to enactment of the resolution were deemed invalid, the petition would not have sufficient signatures to place the resolution on the ballot. The Commissioners of the Town of Oxford (the "Commissioners") determined that a referendum was not required because the signatures affixed before final enactment of the resolution were invalid. Petitioner Constantine Koste ("Koste"),*fn4 a resident and registered voter of Oxford, filed in the Circuit Court for Talbot County a Complaint for Declaratory Judgment and a Writ of Mandamus contending that referendum petition signatures may be obtained lawfully before final enactment of an annexation resolution and, thus, the referendum petition was valid. Koste filed also a Motion for Summary Judgment. The Circuit Court granted summary judgment in favor of Koste, holding, as a matter of law, that signatures on a referendum petition may be collected before final enactment of the targeted annexation resolution. Oxford appealed to the Court of Special Appeals, which, in a reported opinion, reversed the Circuit Court's judgment, holding that the referendum petition was insufficient because signatures on a referendum petition may be obtained only after final enactment of the annexation resolution. Town of Oxford v. Koste, 204 Md. App. 578, 593, 42 A.3d 637, 646 (2012). Koste filed timely a petition for writ of certiorari to this Court. We granted the petition to consider the following question:

Are signatures valid on a petition for referendum under Md. Code Ann. Article 23A, §19(g) where the signatures were obtained after the publication of notice of the annexation resolution, the resolution was finally enacted without modification and the petition was presented to and filed with the chief executive and administrative officers of the town within 45 days after final enactment?

Koste v. Town of Oxford, 427 Md. 606, 50 A.3d 606 (2012).

For reasons to be explained, we answer the question in the negative and affirm the judgment of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

On 14 July 2009, the Commissioners introduced Resolution 1001 (the "Resolution"), which purported to annex 142 acres of submerged lands under public waters adjacent to the then municipal boundary of Oxford. The object of the proposed annexation was to establish Oxford's jurisdiction over these adjacent lands and waters of the Tred Avon River in order to regulate, along with the Maryland Department of the Environment, the placement of wharves, piers, mooring piles, mooring buoys, floating docks, and associated structures.

The Commissioners, as required by Article 23 A, §19(d),*fn5 published public notice of the pendency of the Resolution (the "Notice") in a newspaper of general circulation in Oxford, The Star Democrat, for four consecutive weeks, beginning on 10 August 2009. The Notice (1) provided an overview of the Resolution; (2) stated that the Commissioners would be conducting a public hearing on the Resolution on 22 September 2009 at 8:00 p.m.; and (3) stated that "copies of the resolution and exhibits" as well as "[t]he technical legal description of the land proposed for annexation, together with a plat depicting the area to be annexed, and the proposed new boundary of the Town of Oxford, may be inspected in the Town Office."

Early on it became apparent that not everyone in Oxford endorsed the objectives of the Resolution as introduced. Following initial publication of the Notice, certain members of the Oxford electorate prepared promptly a petition seeking to bring to referendum the Resolution, assuming apparently that it would be adopted ultimately by the Commissioners in substantially the same form as introduced. The petition (the "Petition") stated:

We, the undersigned voters of the Town of Oxford, hereby petition to refer Resolution 1001 entitled "A RESOLUTION OF THE COMMISSIONERS OF OXFORD TO ANNEX SUBMERGED LANDS LOCATED UNDER CERTAIN PUBLIC WATERS ADJACENT TO THE TOWN BOUNDARIES IN ORDER TO REGULATE PLACEMENT OF WHARVES, PIERS, MOORING PILES, MOORING BUOYS, FLOATING DOCKS AND ASSOCIATED OR RELATED STRUCTURES" to a vote of the registered voters of the Town of Oxford for approval or rejection at an election to be held in accordance with Article 23A, Section 19 of the Annotated Code of Maryland.

If the full text of the bill/ordinance or part of the bill/ordinance referred (the "proposal") does not appear on the back of this signature page or as an attachment, a fair and accurate summary of the substantive provisions of the proposal must appear on the back or to be attached, and the full text of the proposal must be immediately available from the petition circulator.

NOTICE TO SIGNERS: Sign and print your name (1) as it appears on the voter registration list; OR (2) your surname of registration and at least one full given name AND the initial of any other names. Please print or type all other information other than your signature.

(Emphasis in original.)

The Petition provided space for each signer to print his or her full name, registration address, signature, and date of signing. Not appearing on the face of the Petition was any instruction or advice regarding whether a signer could strike his or her signature, once affixed, and under what circumstances that could occur or how it might be accomplished physically. Circulation of the Petition began at some point after publication of the Notice, but before the public hearing was held and, therefore, prior to adoption of the Resolution.

On 22 September 2010, the Commissioners held the public hearing on the Resolution, which encompassed several hours of testimony (for and against the Resolution), as well as discussion of the details of and the reasons for the Resolution. At the conclusion of the hearing, the Commissioner held the record open for an additional ten days to receive any additional written comments.

The Commissioners adopted unanimously on 10 November 2009 the Resolution, without any material alteration from the version publicized in the Notice. Consequently, under the terms of the Resolution, 10 November 2009 was the date the Resolution was "finally enacted." In accordance with Article 23A, §19(e),*fn6 the Resolution provided that it would become effective forty-five (45) days after the date of final enactment. In addition, pursuant to Article 23A, §19(g), members of the Oxford electorate were able to "petition" for referendum the Resolution "any time within the 45 day period following the final enactment of the resolution." On 22 December 2009, forty-two (42) days after final enactment of the Resolution, the Petition was presented to the Commissioners.

The next day, Oxford's Town Clerk submitted the Petition to the Oxford Board of Supervisors of Elections (the "Board") for verification of the signatures, pursuant to Article 23A, §19(g). The Board determined, in short order, that: (1) there were 616 registered voters in Oxford as of 25 December 2009; (2) the Petition contained 195 signatures, of which 177 were verified and valid signatures; (3) sixty-two (62) of the verified signatures were obtained after the final enactment of the Resolution; and (4), the remaining 115 signatures were acquired before final enactment, of which eighty-three (83) were obtained between the first date of publication of the Notice and the public hearing. The 177 verified signatures represented 28.73% of the qualified voters of Oxford, which was in excess of the twenty (20) percent needed to bring to referendum the Resolution pursuant to Article 23A, §19(g). The ninety-four (94) signatures obtained after the public hearing was conducted, including the sixty-two (62) signatures obtained after final enactment of the Resolution, however, were insufficient by themselves to justify a referendum on the Resolution.

The Commissioners requested a legal opinion from the Office of the Attorney General of Maryland in aid of determining whether the signatures obtained prior to the final enactment of the Resolution could be counted properly to satisfy the threshold necessary to petition to referendum the Resolution and, alternatively, whether signatures obtained prior to the commencement of the public hearing could be used to satisfy that threshold. Before the advisory opinion could be issued, however, Koste filed his complaint in the Circuit Court, which sought declarations (1) that all of the 177 verified signatures were valid; (2) that all of the 177 signatures, including those obtained before the public hearing, may be counted to satisfy the threshold requirement contained in Article 23A, §19(g); and, (3) that the number of valid signatures represented at least twenty (20) percent of the registered voters in Oxford. The complaint further sought a writ of mandamus requiring the Commissioners, pursuant to Article 23A, §19(g), to place the Resolution on the ballot and suspend the effectiveness of the Resolution, contingent upon the results of the referendum. The Commissioners filed an answer requesting an order declaring that the Petition failed to meet the legal requirements of Article 23A, §19(g) and, as a result, the Resolution became effective on 26 December 2009. Soon after, Koste filed his motion for summary judgment.

The Circuit Court conducted a hearing on Koste's motion for summary judgment on 3 December 2010. Ultimately, the trial judge granted Koste's motion, determining that the requirement that citizens must "petition" within forty-five (45) days after final enactment of the Resolution "is there for the time within which the petition must be presented [to the Commissioners] and [does not have] any bearing on when the signatures are obtained, or whether the signatures are obtained prior to that 45 days." Finding that the plain language of Article 23A, ยง19(g) did not require expressly that signatures be obtained only after final enactment of the Resolution and opining "we ought to give the people the opportunity to be heard," the judge held valid the ...


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