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Town of La Plata v. Faison-Rosewick LLC

Court of Appeals of Maryland

September 25, 2013


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


Greene, J.

The ultimate issue presented by this case is what may be placed on a petition for referendum pertaining to land annexation under Maryland Code (1957, 2011 Repl. Vol.), Article 23A, § 19(g).[1] Additionally, the parties present questions regarding a Town Manager's[2] authority to create procedures for the validation and verification of signatures on a referendum petition, whether the administrator in this particular case observed his own procedures, and to what extent, if any, the Election Law Article of the Maryland Code and Maryland common law should apply to municipal land annexation referenda.

We shall hold that a petition for referendum, pertaining to land annexation, shall present foremost a land annexation resolution, but the inclusion of additional legislative enactments that, although non-referable, do not obfuscate the subject matter of the petition for referendum, will not invalidate the petition. See Maryland Code (1957, 2011 Repl. Vol.), Article 23A, § 19(g), (o); Koste v. Town of Oxford, 431 Md. 14, 63 A.3d 582 (2013); Anne Arundel Cnty. v. McDonough, 277 Md. 271, 354 A.2d 788 (1976). Moreover, we hold that the chief executive and administrative officer in the present case acted within his authority when he published Town policies for the validation and verification of signatures on a petition for referendum.


On September 27, 2011, the La Plata Town Council passed four resolutions, one of which was an annexation resolution acquiring a 14.1 acre tract of land. The annexed land consisted of a 4.1 acre right-of-way along Route 301, and a ten-acre parcel owned by one of the Appellees in this case, Johel Limited Partnership (hereinafter, "Johel"). The annexed land was intended as the site to erect a Wal-Mart store and other retail and office spaces. This annexation resolution, Resolution No. 11-12a, passed by a vote of 3-2. The other Resolutions, 11-11a (approving a 2011 annexation agreement to the extent it set out certain conditions under which the Town agreed to consider the 2011 annexation), 11-13 (approving an annexation plan as required under Article 23A, § 19(o) containing the Town Manager's analysis of the consequences of the annexation with regard to Town services such as water and sewer), and 11-14a (approving an amendment to an earlier annexation agreement) all passed by a unanimous vote of the Town Council.

Thereafter, several citizens of La Plata and other interested persons (hereinafter, "the Referendum Supporters"), Appellants in this case, published and circulated a petition to refer the Town Council's annexation resolution to referendum. See Article 23A, § 19(g) of the Maryland Code (describing the municipal annexation referenda process) (hereinafter, all references to Art. 23A, Section 19 of the Code will be cited as "§ 19"). The petition signature page stated:

We, the undersigned voters of the Town of La Plata, hereby petition to refer Resolutions No. 11-11a Approval of Annexation Agreement and Amendment to Existing Annexation Agreement; No. 11-12a Johel Limited Partnership and FCD-Development, LLC Annexation–14.111 Acres; No. 11-13 Johel Limited Partnership and FCD Development, LLC Annexation Plan–14.111 Acres; No. 11-14a Amendment of the Rosewick Annexation Agreements adopted September 27, 2011 to a vote of the registered voters of the Town of La Plata for approval or rejection at the earliest election. If the full text of the bill/ordinance or part of the bill/ordinance referred (the "proposal") does not appear on the back of the signature page or as an attachment, a fair and accurate summary of the substantive provisions of the proposal must appear on the back or be attached, and the full text of the proposal must be immediately available from the petition circulator . . . . By signing this petition, you agree that the aforementioned proposal should be placed on the ballot as a referendum question at the next general election . . . .

On November 8, 2011, several days before the petition signature pages were due for filing with the chief executive and administrative officer of La Plata, Town Manager Daniel Mears ("Mears"), published on the Town's website an eight-page document entitled "Procedures for Validation and Verification of Signatures on Annexation Referendum Petition Signatures Submitted Pursuant to Maryland Annotated Code, Article 23A, Section 19(g)" ("procedures"). The procedures established the process and criteria to guide the Town Manager in validation and verification of signatures on a petition for the purpose of submitting the annexation question to the voters. Included in the procedures are guidelines on the filing, acceptance and preliminary review of the petitions, signature removal, signature validation and reporting results. For example, with regard to the filing, acceptance and preliminary review of petitions, the procedures note that if the Town Manager determines that the petition form is not legally sufficient, he or she will reject the petition. Alternatively, if the form of the petition is determined to be legally sufficient, or if "the Town Manager determines that the legal sufficiency of the petition cannot reasonably be determined . . . but that verification of the petition is in the interest of the orderly management of the election and referendum process, " the Town Manager will begin to validate the signatures. The procedures also contain a provision allowing the Town Manager to reserve the right to modify the procedures on an as-needed basis.

On November 10, 2011, the Referendum Supporters submitted their petition for referendum to Mears. Thereafter, Mears conducted an initial review regarding the legal sufficiency of the form of the petition. Early in his review, Mears requested assistance from counsel for the interested parties as to whether the petition was invalid on its face because its signatories sought to petition to referendum four resolutions when only one of the resolutions was referable. On December 30, 2011, Mears responded:

. . . Based upon these collective arguments and views, no judicial precedent has been cited to me that definitively answers the question that I posed. Based upon review of the case law and relevant statutes and the arguments submitted by counsel, my best assessment is that the form of the petition is not legally sufficient.
However, because the matter is not free from doubt, I have concluded that the judicial system is the more appropriate forum to resolve this question if and when a person with standing chooses to file a lawsuit at the appropriate time. In the meantime, I shortly will begin the process of reviewing, validating and verifying the signatures on the petition sheets. Any further determinations regarding the petition and a referendum election will be made after the conclusion of the signature validation and verification process.

Subsequently, both Mears and the Charles County Board of Elections[3] separately reviewed the referendum petition pages. Following the reviews, Mears issued a thirteen-page document entitled "Report of Johel Annexation Petition Referendum Review, " in which he concluded that "[t]he petition for referendum contained the legally sufficient signatures of more than 20% of individuals qualified to vote in Town elections." The report also noted, however, that "[s]ignificant questions remain regarding the legal sufficiency of the petition as submitted, and the implications of possible irregularities and improprieties in the petition circulation and signature gathering process that do not violate clear principles of Maryland statutory or case law." Mears noted, however, that "[t]he judicial system is the more appropriate forum to resolve these legal questions if and when a person with standing chooses to file a lawsuit."

On March 13, 2012, the Town, through Mears, issued a proclamation stating that sufficient signatures had been submitted. As such, the annexation resolution was suspended, and all four resolutions were referred to referendum. The Town then drafted a referendum ballot for an election to be held on April 18, 2012, asking the citizens of La Plata to approve or reject "all four Resolutions."[4]

Appellees, Faison-Rosewick, LLC, FCD-Development, LLC, John D. Mitchell, III, John Latimer, Sandra L. Latimer, and Johel, a group consisting of voters and taxpayers of the Town, and "some selling landowners and out-of-state contract purchasers and developers" (hereinafter, collectively, "the Referendum Opponents"), filed in the Circuit Court for Charles County a "Petition or Complaint for Judicial Review" of Mears's report validating the signatures and advancing the referendum to a vote. The Town, also an Appellant, moved to dismiss the Referendum Opponents' judicial review petition. The Referendum Opponents then filed an "Amended Petition for Judicial Review; [an] Amended Complaint for Declaratory and Injunctive Relief, and for Administrative Mandamus." At that point, the Referendum Supporters filed a motion to intervene, and thereafter filed legal memoranda, a motion to dismiss, and a motion for summary judgment. The Circuit Court held a scheduling conference on March 27, 2012, where it enjoined the election, set a schedule for full resolution of the case, and ordered that no discovery be permitted. On April 2, 2012, the Referendum Opponents filed an "Amended Petition for Judicial Review; and, a Second Amended Complaint by Interlineation for Declaratory and Injunctive Relief, for Administrative Mandamus, and Mandamus, " which essentially added a count for common law mandamus. Additionally, on April 9, 2012, the Circuit Court granted the Referendum Supporters the conditional right to intervene.

On May 3, 2012, a judge of the Circuit Court heard argument and announced from the bench his ruling in favor of the Referendum Opponents. The trial judge later issued a written order and opinion.[5] The judge's opinion first discussed whether all of the resolutions could be placed on the petition. The trial judge opined:

Case law is clear that whether it's an ordinance or an annexation, as in this case, there should be only one subject. Many cases involve statutes that have more than one subject, then they're struck down; if they do contain more than one subject, then it's because of a failure to competently notify the public as to the subject of the particular ordinance. The Court need not rule on this issue.

The trial judge also reviewed the referendum process. He noted that the dispositive issue in this case "deals with the guidelines . . . that the Town Manager put together two days before the petition had to be filed." According to the trial judge, while § 19(g) is clear in terms of granting the Town Manager the responsibility and duty of verifying the signatures and ascertaining that the signatures reflect 20% of the qualified voters, the statute does not tell the Town Manager how to do it. The trial judge concluded that Mears put together guidelines for the voters, that would, in effect, "give him carte blanche approval in determining his responsibility, namely the verification of the petitions."

After explaining that the court is "required to uphold the administrative decision[] as long as [it] is not arbitrary, capricious or illegal, " the trial judge found that Mears did not have the power to determine his own verification process under the statute. Rather, according to the trial judge, "[t]hat's an action that the Town could have done in exercising its governmental power, but it never did so . . .[and] [t]his was a non-delegable governmental power." Moreover, according to the court, Mears did not have the implied power to create these verification procedures because "[a]n act of this nature which impacts on the election process can hardly be considered ministerial . . . [i]t's up to the Town to promulgate its own ...

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