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Attorney Grievance Commission of Maryland v. Dyer

Court of Appeals of Maryland

June 23, 2017

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
ALLEN RAY DYER & SUSAN BAKER GRAY

          Barbera, C.J. Greene, Adkins, McDonald, [*] Watts, Hotten, Getty, JJ.

          OPINION

          GETTY, J.

         The road to Maryland's political graveyard is paved with multitudes of failed referendum petitions and good intentions of petition circulators and referendum strategists. The controlling statutes in the Maryland Code, Election Law Article for conducting a referendum petition drive present a veritable minefield of technicalities that can quickly scuttle and send awry the best-laid plans of citizen-activists seeking a voter referendum.

         Prior cases before Maryland's appellate courts demonstrate the difficulties for an attorney advising clients mounting a referendum petition drive. For example, a signature on a petition can be declared invalid if it does not reasonably match the citizen's name as it appears on the voter registration rolls. Howard Cnty. Citizens for Open Gov't v. Howard Cnty. Bd. of Elections, 201 Md.App. 605, 625-29 (2011). Moreover, a county election board is not required to provide a citizens' group with prior notice or an opportunity to be heard before declaring signatures on a referendum petition invalid. Id. at 632. A shorter-than-normal deadline exists for requesting judicial review of an election board decision, and failure to meet the ten-day-filing requirement renders the submitted petitions time-barred. Roskelly v. Lamone, 396 Md. 27, 41 n.18 (2006).

         In addition, under the Maryland Constitution's two-step process for filing signatures, failure to meet the first deadline by submitting one-third of the necessary signatures as verified by the local board of elections is a complete bar to the referendum process. Cf. Selinger v. Governor of Maryland, 266 Md. 431, 436-37 (1972) (holding petitioners were not entitled to bring bills to referendum where they failed to obtain one-half of the necessary signatures by the first deadline, as required by the relevant constitutional provision at that time); see also Md. Const. art. XVI § 3(b) (requiring one- third of the necessary signatures by the first deadline). In another case, this Court held that a fatally defective ballot question for a referendum vote regarding the zoning of a property in Anne Arundel County deviated from the terms of the statute, and thus the election result was declared void and treated as a nullity. Anne Arundel County v. McDonough, 277 Md. 271, 307-08 (1976).

         In this case, Allen Ray Dyer and Susan Baker Gray (collectively, "Respondents") represented a group of citizens engaged in a petition drive to take to referendum a zoning ordinance passed by the County Council of Howard County, Maryland. As Ms. Gray attempted to navigate the technical obstacle course of the Election Law Article, the Election Director of the Howard County Board of Elections ("the Board") issued an adverse ruling. The Election Director declined to certify the petition for placement on the ballot, explaining that the petition did not meet the statutory requirement that the petition must provide a fair and accurate summary of the aspects of the law being challenged.

         Next, as Ms. Gray sought judicial review under the shortened deadline set by the 2014 election calendar, the Circuit Court for Howard County failed to notify her of a hearing on the consolidation of four court cases challenging the Board's conduct of the petition process. As the litigation progressed, opposing counsel William E. Erskine, who represented builders and other business clients in opposition to the referendum effort, filed complaints against Ms. Gray and Mr. Dyer, who had joined the litigation as Ms. Gray's co-counsel, with the Attorney Grievance Commission, Petitioner, alleging misconduct related to the litigation.

          It is in the context of this complex and contentious underlying litigation involving a local zoning referendum and petition drive that this attorney discipline proceeding originated. Under these circumstances, Respondents perceived that the system was rigged against their clients, and they must have felt like David versus Goliath. But instead of bringing a slingshot to the legal battle, they employed a strategy of ping-pong by bouncing the case to Maryland's appellate courts in response to negative rulings (whether real or perceived) by the circuit court. And when Mr. Erskine filed his complaints against Respondents in the middle of this contentious litigation, Mr. Dyer failed to respond substantively to Bar Counsel's lawful request for information concerning his position on the allegations in the complaint against him. Instead, he simply challenged Bar Counsel's authority to conduct a "confidential" investigation and refused "to participate in secret attorney grievance proceedings" on First Amendment grounds.

         On August 26, 2015, on behalf of the Attorney Grievance Commission, Assistant Bar Counsel Lydia Lawless filed in this Court a "Petition for Disciplinary or Remedial Action" against Respondents, charging them with violating Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.1 (Competence), 1.3 (Diligence), 1.4(a)(1), 1.4(a)(2), 1.4(b) (Communication), 1.16(a)(1) (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 3.2 (Expediting Litigation), 3.3(a)(1) (Candor Toward the Tribunal), 3.4(a), 3.4(c), 3.4(d) (Fairness to Opposing Party and Counsel), 3.7(a) (Lawyer as Witness), 4.1(a)(1) (Truthfulness in Statements to Others), 4.4(a), 4.4(b) (Respect for Rights of Third Person), 8.1(b) (Disciplinary Matters), 8.2(a) (Judicial and Legal Officials), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).[1]

         On September 3, 2015, this Court initially designated the Honorable Louis A. Becker III of the Circuit Court for Howard County to hear this attorney discipline proceeding. On November 30, 2015, in the Circuit Court for Howard County, Respondents filed, among other things, a motion to transfer venue. On December 18, 2015, Bar Counsel filed a response to the motion to transfer venue. On December 23, 2015, Respondents attempted to re-file in this Court, among other things, the motion to transfer venue as well as a supplement to the motion to transfer venue. On January 5, 2016, this Court issued an order denying the motion. Then, on January 29, 2016, upon receiving the Circuit and County Administrative Judge of the Fifth Judicial Circuit's request to transfer the case, this Court designated the Honorable Ronald A. Silkworth ("the hearing judge") of the Circuit Court for Anne Arundel County to hear this attorney discipline proceeding.[2] On March 14, 15, 16, 17, April 1, 4, 5, and May 5, 6, 9, 10, 11, 13, 19, 20, and 24, 2016, the hearing judge conducted a hearing. On October 7, 2016, the hearing judge filed in the Circuit Court for Anne Arundel County a 115-page opinion including findings of fact and recommended conclusions of law, which was filed in this Court on October 18, 2016. In his opinion, the hearing judge concluded that Respondents had not violated any of the MLRPC charged.[3]

         On January 5, 2017, we heard oral argument. For the following reasons, we shall reprimand Mr. Dyer and dismiss the charges against Ms. Gray.

         BACKGROUND

         The hearing judge made comprehensive findings of fact consisting of approximately seventy-five pages of his opinion and found the following facts, which we summarize.

         On December 29, 1976, this Court admitted Mr. Dyer to the Bar of Maryland. On December 22, 1987, this Court admitted Ms. Gray to the Bar of Maryland. At all relevant times, both Respondents maintained solo law practices in Howard County.

         A. Howard County Zoning and Referendum Petition Process

         The Howard County Zoning Board periodically submits a comprehensive zoning plan to the Howard County Council ("the Council") for review and approval. To enact the comprehensive zoning plan, the Council must pass an ordinance approving and adopting it, and the County Executive must sign the ordinance into law. Howard County citizens may challenge the law, or any portion of it, by submitting a referendum petition to the Howard County Board of Elections. Howard County Charter § 211. Pursuant to the Howard County Code, "[t]he form and content of a petition shall be consistent with the requirements of section 6-103 of the Election Law [Article] of the Maryland Code." Howard County Code § 10.402. Thus, a referendum petition must be signed by a specified percentage of the qualified voters of Howard County, and, among other requirements, must fairly and accurately describe the aspects of the law that are being challenged.

         Section 6-202 of the Election Law Article of the Maryland Code provides for an "advance determination, " a process by which referendum petitioners may contact the chief election official of the appropriate election authority-here the Election Director of the Howard County Board of Elections-and submit to him the proposed format of their petition, in advance of formally filing it, "for a determination of its sufficiency." Md. Code (2002, 2010 Repl. Vol. & 2014 Supp.), Election Law Article ("EL") § 6-202(a).[4] Once the referendum petition is formally filed, if it satisfies all of the required criteria, the Election Director must certify that the petition process has been completed and that the question has qualified to be placed on the ballot. In practice, anyone seeking to have a question placed on the ballot must obtain a final judicial decision regarding its validity some time prior to the third Monday in August of the year of the election, which is the deadline for the county attorney to prepare and certify the question to the local board. EL § 7-103(c)(3). In this case, the relevant deadline was August 18, 2014.

         B. Proceedings Before the Board and Initial Filings in the Circuit Court for Howard County

         On July 25, 2013, the Council enacted an ordinance adopting the 2013 comprehensive zoning plan. On August 6, 2013, Citizens Working to Fix Howard County ("Citizens"), through its officers, [5] submitted a proposed referendum petition ("the petition")[6] to the Board and requested an advance determination of its sufficiency. Ms. Gray, in conjunction with other lawyers, assisted in preparing and reviewing the petition before it was submitted to the Board. On August 20, 2013, the Election Director wrote to Citizens, advising that the petition complied with the technical requirements for formatting of the front page. The Election Director also advised that the back of the petition must include a fair and accurate summary of the law at issue, including the law's substantive provisions, and that, if only a summary was provided, a full copy of the bill must be available from the petition circulators. The Election Director stated that he had not made a decision as to whether the information in the summary complied with all legal requirements. Thereafter, the petition was circulated by, among others, Ms. Gray and Mr. Dyer for the required number of signatures. Ms. Gray was also involved in training some of the petition circulators concerning the legal requirements for gathering valid signatures.

         On October 4, 2013, Citizens submitted to the Board a 777-page petition, containing 3, 454 signatures. The Board accepted 2902 of the submitted signatures, and in a letter dated October 21, 2013, the Board advised Citizens that the submitted petition pages contained a sufficient number of valid signatures to continue the process of gathering signatures for the referendum process. The Board provided Citizens an additional thirty days to collect the required number of signatures.

         On October 30, 2013, a group of individuals and entities with common interests in opposing the referendum effort (collectively, "Normandy") filed in the Circuit Court for Howard County a petition for judicial review challenging the Board's October 21, 2013 determination that there were 2902 valid signatures (hereinafter, "Case No. 866"). Mr. Erskine and Sang W. Oh represented Normandy. In a letter dated November 8, 2013, the Board advised Citizens' officers that Case No. 866 had been filed in the circuit court. Ms. Gray did not receive a copy of the letter.[7] Also on November 8, 2013, the Board filed in the circuit court a motion to dismiss Case No. 866, arguing that Case No. 866 was prematurely filed because the October 21, 2013 letter was not a final determination. A courtesy copy of the motion was sent to one of Citizens' officers, but not to Ms. Gray.

         In a letter dated November 26, 2013, the Election Director advised Citizens that it had submitted the required number of valid signatures. However, the Election Director declined to certify the petition for placement on the ballot, explaining that the petition did not meet the requirement that a fair and accurate summary of the substantive provisions of the proposal was necessary if the petition sought to place a question on the ballot.

         On December 5, 2013, Ms. Gray, on behalf of Citizens, its officers-Carol Jane Gray and Lisa Markovitz-and other individuals-Frederick Gray, [8] Alan Schneider, and Barbera Sieg-filed in the circuit court a petition for judicial review challenging the Board's November 26, 2013 decision that the petition did not contain a fair and accurate summary of the law (hereinafter, "Case No. 213").

         Also on December 5, 2013, Mr. Erskine and Mr. Oh, on Normandy's behalf, filed in the circuit court a second petition for judicial review challenging the Board's findings of August 20, 2013, October 21, 2013, and November 26, 2013, concerning the determination of the number and sufficiency of the signatures submitted by Citizens (hereinafter, "Case No. 220").

         The following day, on December 6, 2013, Ms. Gray, on behalf of Carol, Frederick, Mr. Schneider, and Ms. Markovitz, filed in the circuit court a complaint for declaratory judgment against the Board and the Election Director, seeking, among other things, certification of the petition (hereinafter, "Case No. 230").

         On December 9, 2013, the Board, through its counsel, Gerald M. Richman, filed in Case No. 866 a supplemental motion to dismiss. The supplemental motion sought to dismiss not only Case No. 866, but also Case No. 213 and Case No. 220; the supplemental motion, however, was erroneously filed only in Case No. 866. A "service copy" of the supplemental motion was sent to Ms. Markovitz, but not to Ms. Gray.

         On December 11, 2013, the circuit court issued a notice of hearing in Case No. 866, scheduling a hearing on the motion to dismiss for January 8, 2014. Although Ms. Gray and her clients were entitled to notice and to appear because their case, Case No. 213, was the subject, in part, of the supplemental motion, neither Ms. Gray nor her clients received a copy of the notice of hearing. And, although the time for Ms. Gray to file a notice of intent to participate in Case No. 866 had expired, Ms. Gray's clients, and not Ms. Gray herself, had been notified of the petition for judicial review on November 8, 2013. According to the hearing judge, the notification was sent before "[Ms.] Gray was meaningfully retained."

         On December 16, 2013, Normandy filed in Case No. 866 an opposition to the motion to dismiss; the opposition was not sent to Ms. Gray.

         C. Consolidation and the First Round of Appellate Filings

         On December 26, 2013, the Board filed a motion to consolidate all four cases- Case No. 866, Case No. 213, Case No. 220, and Case No. 230; a copy of the motion was mailed to Ms. Gray. On January 7, 2014, Normandy filed a "consent" to the Board's motion to consolidate in all four cases; a copy of the consent was mailed to Ms. Gray. Also on January 7, 2014, Normandy filed in Case No. 230, a declaratory judgment action, a motion to intervene, and answer of interveners; a copy was sent to Ms. Gray. Although, as of January 7, 2014, Ms. Gray had received the motion to consolidate, she "could not have received" the consent, motion to intervene, and answer of interveners mailed on January 7, 2014, the day before the January 8, 2014 hearing.

         On January 8, 2014, the circuit court conducted a hearing in Case No. 866 on the Board's motion to dismiss. Mr. Erskine, Mr. Oh, and Mr. Richman were present, but neither Citizens nor Ms. Gray had been notified of the hearing, despite being entitled to participate. At the hearing, the circuit court confirmed that the hearing was scheduled only in Case No. 866, and Mr. Oh advised that the three related cases-Case No. 213, Case No. 220, and Case No. 230-were not scheduled for the January 8, 2014 hearing. Mr. Oh also advised the circuit court of the various motions pending in the four cases. The circuit court held the motion to dismiss sub curia until the Administrative Judge could consider the motion to consolidate.[9]

         On January 16, 2014, the Administrative Judge issued an order consolidating the four cases; Ms. Gray did not receive a copy of the order. The order specified that, moving forward, all pleadings were to be filed in Case No. 866. Also on January 16, 2014, the Administrative Judge issued an order of special assignment, assigning a specific trial judge to the consolidated case, renaming the consolidated case, and changing the case number to "866." The two January 16, 2014 orders were entered on January 23, 2014. After the orders were entered, the clerk noted on the docket that Case No. 213, Case No. 220, and Case No. 230 were "closed/inactive."

         Because she had not heard anything from the circuit court, Ms. Gray went to the Clerk's Office and, at that time, learned of the consolidation and the closing by the clerk of Case No. 213, Case No. 220, and Case No. 230. Ms. Gray also noted what she considered discrepancies in the captioning of one or more of the cases. Ms. Gray also learned that a hearing on the Board's motion to dismiss had been scheduled and held on January 8, 2014. Due to her concerns about the cases, their status as closed, and the scheduling and conducting of a hearing without notice to her or her clients, on January 31, 2014, Ms. Gray wrote to the Administrative Judge and the specially assigned judge to express those concerns and to request that the circuit court take no action on any matter related to the cases until her clients had an opportunity to file motions to "address the problems they ha[d] found." Ms. Gray stated that neither she nor her clients had received any notice of any activity occurring in the cases, including copies of the circuit court's orders. Ms. Gray also stated that, after reviewing the tape of the January 8, 2014 hearing, the hearing "appear[ed] to be little more than an ex parte meeting between a Judge and counsel representing parties opposing the referendum." According to Ms. Gray, at the hearing, the circuit court "offered the assistance of certain courthouse staff if opposition counsel needed assistance." Ms. Gray also noted that, as of January 30, 2014, all but one of the notices and orders were missing from the paper files and that neither calendar management nor the file desk at the courthouse could access those materials.

         On February 3, 2014, Ms. Gray filed timely notices of participation in Case No. 866 and Case No. 220. On the same day, Ms. Gray filed a motion to alter or amend judgment, arguing that, if the January 23, 2014 consolidation order closed Case No. 213, Case No. 220, and Case No. 230, and "blend[ed] the parties and matters" in Case No. 866, "thus making the claims in the [other] cases effectively nonjusticiable and non-reviewable on appeal, " then the consolidation order needed to be vacated and the closed cases reopened. In the motion, Ms. Gray also stated that it appeared that the intent of the consolidation order "was to eliminate the claims in the other cases by closing them without notice through the consolidation process, and then to use the [m]otion to [d]ismiss . . . in [Case No.] 866 to get that case dismissed, again without notice."

         In a letter dated February 4, 2014, in response to Ms. Gray's January 31, 2014 letter, the Administrative Judge stated that the hearing on the motion to dismiss did not involve Ms. Gray's clients, so notice would not have been sent to Ms. Gray, and that no ruling on the motion to dismiss was made. As to consolidation, the Administrative Judge stated that, at the hearing on the motion to dismiss, the circuit court, on its own initiative, recommended consolidation, which, in turn, was communicated to her, and that she found the recommendation "to be appropriate and efficient for both the [circuit c]ourt and the parties." The Administrative Judge also advised that the specially assigned judge had recused himself from the case and that the matter had been reassigned. Finally, the Administrative Judge advised that a status conference had been set for February 19, 2014, and that all parties and counsel were to be present.[10]

         On February 7, 2014, the Board filed a response to the motion to alter or amend. And on February 18, 2014, Normandy filed a response in opposition to the motion.

         On February 19, 2014, the circuit court held a status conference in Case No. 866, which was attended by Ms. Gray, Mr. Erskine, Mr. Oh, and Mr. Richman. At the status conference, in response to the circuit court's statement that all four cases had been consolidated and that all of the cases were before the circuit court "as if that was the original case, " Ms. Gray stated that "three of the[] cases were closed and subject to appeal." The circuit court asked Ms. Gray what closed the cases, and Ms. Gray stated that the consolidation order closed the cases and that, according to the acting clerk, the cases were closed and subject to appeal. Ms. Gray expressed concern that a pleading filed in the consolidated case, which referenced a closed case, would "go into a closed case file and [would] never [be] docketed." Ms. Gray pointed out that the docket stated that the cases were closed. The circuit court stated that they could "clear up the docket if that [was] a problem, " but that it was going to proceed and that all four cases were "still alive, they [were] just under one number, that's all that's been done administratively."

         On March 4, 2014, Ms. Gray filed a reply to Normandy's and the Board's responses to the motion to alter or amend judgment, stating, among other things, that although she agreed with consolidating the cases, closing the underlying cases or making it so the cases "los[t] their individual identity" was "contrary to Maryland law." Ms. Gray also alleged that Normandy's counsel "went out of their way to make it seem like the decision to close these cases was an administrative decision made by the Clerk's [O]ffice."

         On the same day, Ms. Gray also filed a "Motion to Ensure Court Order Reopening Cases is Effectuated and Motion to Correct the Docket" ("the Motion to Ensure"). In that motion, Ms. Gray argued that closing the cases after consolidation was inappropriate and stated that "the full explanation of th[e] process tells a highly irregular and inappropriate story of potential misconduct." Ms. Gray further contended that Case No. 866, "under which all the cases have been consolidated is the most tenuous of all the cases and the one most appropriately dismissed, which would have happened but for a series of unlikely events." According to Ms. Gray, once everything was "cleared up, " the other cases could proceed "and any remaining details in the record corrected without all the confusion necessitated by improper and inappropriate actions by counsel for [Normandy], the Board . . . and its counsel, and the [circuit c]ourt." In the motion, Ms. Gray requested that Case No. 866 be dismissed.

         On March 10, 2014, Normandy filed an opposition to the Motion to Ensure, in which it agreed that any inaccuracies and omissions in the docket should be corrected, but argued that all other requested relief should be denied.

         On March 12, 2014, the circuit court conducted a motions hearing. At the hearing, the circuit court stated that, although "[t]here may be some issue of the effect of the consolidation, " all four cases were now one case before the circuit court. Ms. Gray argued that there were four separate cases, three of them "closed cases with final judgments [and o]rders in the docket, closing those cases." The circuit court disagreed that the cases were closed, explaining, "[T]hey are open. That's what consolidation does. There is a mistake in the record, I'm going to correct that." The circuit court also stated that, although all of the cases were consolidated into one case, "all of the issues remain." On the same day, March 12, 2014, the circuit court issued an order denying the motion to alter or amend judgment. The circuit court also issued an order denying, in part, and granting, in part, the Motion to Ensure: denying the motion to the extent that it sought to reopen one or more of the cases that had been consolidated, but granting the motion to the extent that it sought an order directing the clerk to correct the docket in each of the cases that had been consolidated. On March 13, 2014, the two orders were entered.

         On March 18, 2014, Ms. Gray filed two notices of appeal in Case No. 866-one related to Case No. 213 and one related to Case No. 230-that stated, in pertinent part: "[Carol] Jane Gray, Frederick Gray, Alan Schneider and Lisa Markovitz, registered Howard County voters and parties below, appeal the decision in this election[-]related matter entered on March 13, 2014." On the same day, on behalf of Carol, Frederick, Mr. Schneider, and Ms. Markovitz, Ms. Gray filed in this Court two petitions for a writ of certiorari and a request for expedited review. The petitions were docketed as Petition No. 39 and No. 40, September Term, 2014. In the petitions, Ms. Gray asked "for direct and expedited review" of the circuit court's March 13, 2014 denial of the motion to alter or amend judgment "of its January 23, 2014 closing of this case without any review of its merits." Ms. Gray stated that the circuit court had "adjudicated all claims in this action in their entirety and the rights and liabilities of all parties to the action." In the petitions, Ms. Gray posed the following question: "Whether within the context of the decision-making required by [Md. Code, Election Law] § 6-208(a)(2) the [Board]'s one phrase determination that the referendum summary was not 'fair and accurate' is arbitrary, capricious and illegal as a matter of law[.]"

         On March 21, 2014, this Court issued orders granting the petitions and assigning the petitions as Case No. 106 and Case No. 107, September Term, 2014. On March 25, 2014, the Board filed in this Court motions to strike the appeals, stating that the circuit court had not issued a final decision. On March 27, 2014, Ms. Gray filed a response to the motions to strike, arguing that there was a final appealable judgment and that, although the circuit court had stated that closing of the cases was an error on the part of the Clerk's Office, Citizens had moved to have the cases reopened eight times and, each time, the circuit court had denied the motions. Ms. Gray argued that it was "hard to imagine a clearer way the [circuit] court could have expressed its intent to keep the[] cases closed."

         On April 1, 2014, in this Court, Ms. Gray filed a motion to strike Normandy as intervenors in the action, and on April 4, 2014, Normandy filed an opposition to the motion.

         On April 8, 2014, in a per curiam order, this Court dismissed the petitions for a writ of certiorari, stating that "it appear[ed] that the Court lack[ed] appellate jurisdiction because the [c]ircuit [c]ourt has not entered final judgment and no appealable interlocutory judgment or collateral order has been rendered." The Court ordered each party to pay its own costs and fees, and remanded the cases to the circuit court.

         On April 25, 2014, Ms. Gray filed in the circuit court a renewed motion to correct the docket to reflect that Case No. 213, Case No. 220, and Case No. 230 were open.

         D. Initial Discovery and Motions Hearing

         On or about February 1, 2014, the Board propounded interrogatories on Citizens, which referenced Case No. 220 and Case No. 230. Ms. Gray answered the interrogatories.

         On February 19, 2014, the circuit court conducted a status conference in the consolidated case, Case No. 866. At that time, the circuit court declined to stay Case No. 230, the declaratory judgment action, pending resolution of the judicial review matters, stating that the parties could proceed with filing motions and discovery. The circuit court established a scheduling order, setting the hearing date for the judicial review and declaratory judgment matters and setting the merits hearing date for the judicial review matters. As to Case No. 230, the circuit court stated that the declaratory judgment action would "be alive and well" even after the ruling on the judicial review cases, and that there would be "time to file further discovery, " but that there was "no deadline of discovery or a motion for summary judg[ment] or anything else."

         On February 24, 2014, the circuit court issued the scheduling order, providing that memoranda on the judicial review matters were to be filed by March 17, 2014, that a motions hearing was set for March 12, 2014, and that a hearing on the merits of the judicial review matters was set for April 1, 2014. In order for the referendum to be placed on the November 2014 ballot, the Board needed a final judicial decision prior to the third Monday in August 2014, so that local officials could make the appropriate certifications to the Board for the November ballot. See EL § 7-103(c)(3).

         On March 12, 2014, the circuit court conducted a motions hearing in Case No. 866. At that time, the circuit court granted Normandy's motion to intervene in Case No. 230, the declaratory judgment action, and permitted Normandy to conduct discovery. At the hearing, the circuit court and the parties discussed holding Case No. 230 in abeyance pending resolution of the judicial review matters. The circuit court denied Ms. Gray's motion for a protective order. The circuit court also heard argument on the Board's motion and supplemental motion to dismiss and Ms. Gray's motion to dismiss; the circuit court denied the motions.

         On March 18, 2014, the parties filed memoranda in the judicial review matters, and thereafter filed timely reply memoranda. The judicial review matters were set to move forward with the merits hearing scheduled for April 1, 2014.

         E. Postponement of April 1, 2014 Hearing and the Second Round of Appellate Filings

         On March 31, 2014, the Board's counsel, Mr. Richman, filed a motion to postpone the April 1, 2014 hearing "for [e]mergency and [l]egal reasons." Mr. Richman stated that he had recently been hospitalized and needed to withdraw from the case due to health issues. Mr. Richman also argued that, because Ms. Gray had filed a notice of appeal in one of the judicial review matters, the circuit court could not proceed with the merits hearing in that matter. That same day, the Administrative Judge issued an order granting the motion to postpone and striking Mr. Richman's appearance. The order stated that the circuit court believed it "maintain[ed] jurisdiction."

         On April 1, 2014, in Case No. 866, Ms. Gray filed a notice of appeal to the Court of Special Appeals, stating that Citizens was appealing the March 31, 2014 decision of the circuit court. The following day, on April 2, 2014, Ms. Gray filed a petition for a writ of certiorari in this Court. In the petition, Ms. Gray argued that the March 31, 2014 order "struck" the notices of appeal filed on March 18, 2014, and requested that this Court take jurisdiction in Case No. 866 "even though there ha[d] been no final judgment in th[e] matter." Ms. Gray argued that Normandy should not be a party, that the consolidation happened without notice after a "'secret' hearing, " and that if the circuit court retained jurisdiction, it was doubtful the issue of whether the petition's summary was fair and accurate would be addressed "in a meaningful way." Referencing the irregularities she perceived in the cases, Gray stated, "The games that have been played and continue to be played by the [c]ircuit [c]ourt . . . with respect to these referendum cases must stop."

         On April 8, 2014, Normandy filed in the Court of Special Appeals a motion to dismiss the appeal for lack of appellate jurisdiction, arguing that there was no final or appealable judgment or order issued by the circuit court. Normandy contemporaneously filed in this Court an opposition to the petition for a writ of certiorari making the same argument. On April 9, 2014, the Board, through its successor counsel, Kevin Karpinski, filed in the Court of Special Appeals an emergency motion to dismiss the appeal for lack of appellate jurisdiction.

         On April 8, 2014, this Court issued an order dismissing the petition for a writ of certiorari for lack of appellate jurisdiction. And, on April 25, 2014, the Court of Special Appeals dismissed the appeal. Neither this Court nor the Court of Special Appeals suggested that sanctions should be imposed on Ms. Gray for filing frivolous pleadings.

         F. Normandy Discovery Part I

         As stated above, on March 12, 2014, the circuit court granted Normandy's motion to intervene in Citizens' judicial review case and declaratory judgment action. On April 10, 2014, Normandy filed a counterclaim and crossclaim for declaratory judgment and injunctive relief ("the counterclaim"), alleging deficiencies with the signatures collected in support of the petition, including, among other things, the submission of signatures from individuals who were not registered Howard County voters. In the counterclaim, Normandy alleged that there were deficiencies with the petition circulators' affidavits and that the circulators did not comply with the Election Law Article when collecting signatures. Normandy requested an order declaring that Citizens had failed to submit the required number of valid signatures.

         On April 16, 2014, Mr. Erskine wrote to Mr. Oh, Mr. Karpinski, and Ms. Gray, stating that he and Mr. Oh wanted to depose approximately sixty-five to seventy petition circulators, requiring an average of ten minutes per deponent. Mr. Erskine also stated that he and Mr. Oh wanted to depose Mr. Schneider, Carol, Frederick, Ms. Markovitz, and Ms. Gray. Mr. Erskine provided his and Mr. Oh's availability for the proposed depositions, and requested a response from Ms. Gray and Mr. Karpinski.

         On April 18, 2014, Ms. Gray responded to Mr. Erskine by email, asking for his "availability for an emergency hearing next week, " and advising that Citizens would be filing a motion to strike the counterclaim and a motion for a protective order against the discovery. In an email sent later that same day, Ms. Gray told Mr. Erskine that "noting depositions to the circulators is improper." Mr. Erskine responded by email, asking why it would be improper to note depositions of essential witnesses. Ms. Gray did not respond to Mr. Erskine's email.

         On or about April 22, 2014, after ignoring Ms. Gray's request for a date for an emergency hearing, Mr. Erskine issued subpoenas and deposition notices to the plaintiffs and nonparty petition circulators. The nonparty petition circulators were to appear on ten days' notice, and no document production was requested; by contrast, the plaintiffs were to appear on thirty days' notice and to produce extensive documentation. According to the hearing judge, the document request for the plaintiffs' depositions was "extremely broad and outside of the scope outlined in Normandy's Counterclaim."

         On April 28, 2014, Ms. Gray filed a motion to strike or, in the alternative, to dismiss the counterclaim, a request for an emergency hearing, and a memorandum in support. In the motion, Ms. Gray argued that the discovery request was a "fishing expedition" meant to "derail[] th[e] referendum effort" and "to intimidate the entire Howard County community so that referendum efforts will never be mounted again."

         On April 30, 2014, Mr. Dyer entered his appearance as Ms. Gray's co-counsel. Respondents filed a motion to quash the subpoenas and for a protective order, arguing that (1) the declaratory judgment action was closed; (2) the counterclaim was time-barred; (3) the declaratory judgment action could not proceed; (4) discovery was not permissible in referendum-related cases; (5) Normandy was not an aggrieved party; (6) the counterclaim was frivolous; and (7) issuing subpoenas to petition circulators violated the First Amendment. The motion was filed on behalf of Carol, Frederick, Mr. Schneider, Ms. Markovitz, "petition circulators and parties to all referendum cases, and Marie Kendall, Howard County resident and circulator, but not a party to these cases, on behalf of themselves and as representative of all petition circulators, and Citizens."

         On May 1, 2014, on its own initiative, the circuit court stayed all proceedings, including discovery and motions, related to the declaratory judgment action. As of that date, there were several matters pending in the declaratory judgment action, including the motion to strike or dismiss the counterclaim, the motion for protective order, and the discovery depositions noted by Normandy. Following the circuit court's order, Normandy cancelled all pending depositions.

         G. The Third Round of Appellate Filings and May 14, 2014 Hearing

         On May 6, 2014, Respondents filed a notice of interlocutory appeal, stating that Carol, Frederick, Mr. Schneider, and Ms. Markovitz were appealing the circuit court's April 30, 2014 decision;[11] none of the petition circulators was named in the notice of appeal. On the same day, Respondents filed in this Court a petition for a writ of certiorari on behalf of Ms. Kendall and Ellen Long, nonparties, and on behalf of Carol, Frederick, Mr. Schneider, and Ms. Markovitz, plaintiffs, for the circuit court's April 30, 2014 order denying "a motion to quash discovery." In the petition, Respondents argued that Ms. Kendall and Ms. Long, as nonparty petition circulators, had a final order and thus a right to appeal the circuit court's denial of the motion for protective order. Respondents also argued that the interlocutory appeal was appropriate and that the circuit court's order denied Citizens' motion to strike the counterclaim without a hearing. The petition presented two questions for review: (1) "Did the [c]ircuit [c]ourt abuse its discretion in sua sponte staying, not denying, discovery?"; and (2) "Did the [c]ircuit court abuse its discretion in indefinitely staying the entirety of th[e d]eclaratory [j]udgment action?" Respondents requested that this Court grant certiorari, issue an order stopping all discovery, and order the circuit court to set a date by which to render final judgment on all referendum matters.

         On May 9, 2014, Normandy filed an emergency motion to dismiss the appeal for lack of appellate jurisdiction, arguing that the circuit court had not denied the motion for protective order and that Normandy had not filed a response to the motion as the time to do so had not expired. Respondents did not file a response to the motion to dismiss.

         In the meantime, on May 14, 2014, in Case No. 866, the circuit court conducted a hearing on the merits of the judicial review matters. After hearing argument from the parties on the judicial review matters, the circuit court addressed the declaratory judgment action. The circuit court explained that its intent had been to schedule a motions hearing in the declaratory judgment action after the merits hearing on the judicial review matters, but stated that, because an appeal had been filed, if Ms. Gray did not lift the appeal, it would not "do anything further." The circuit court proposed setting a date for a motions hearing in the declaratory judgment action within the next thirty days and "cut[ting] everybody loose to do [] discovery and whatever else." Ms. Gray responded that she had "a big problem saying we are going to let everybody loose to do discovery" when previously it had been agreed that everything would be finished by April 1, 2014. Ms. Gray also argued that the counterclaim was untimely filed under the Election Law Article. Ms. Gray proposed that the circuit court decide the judicial review matters as well as the motion to strike the counterclaim that had been filed in the declaratory judgment action. The circuit court responded that it could not decide the motion to strike because an appeal was pending in the declaratory judgment action and thus the case was stayed, and that it would decide only the judicial review matters and "let the chips fall where they may." Ms. Gray disagreed with the circuit court's statement that it could not decide any matters in the declaratory judgment action.

         With respect to the appellate proceedings, on May 16, 2014, Respondents filed a motion to lift the stay on all proceedings except discovery. On that same day, this Court denied the petition for a writ of certiorari that had been filed on April 2, 2014.

         On May 22, 2014, before the circuit court issued any order in response to the motion to lift stay, Respondents filed in the Court of Special Appeals an emergency petition for expedited certification of the circuit court's jurisdiction, in which they stated that the circuit court's stay "on the untimely filed duplicative" counterclaim, "for all practical purposes restarts the entire declaratory judgment action, making it . . . impossible to ever get this local ballot measure on the November ballot." Respondents stated that it was "an egregious waste of all parties['] and the court's time and part of a relentless, frivolous and unprecedented effort to intimidate Howard County citizens and deprive them of their right to vote on the referendum in November." Respondents requested that the Court of Special Appeals "certify" that the circuit court retained jurisdiction even though the Court of Special Appeals was considering whether to act upon the interlocutory appeal.

         On May 23, 2014, the Court of Special Appeals dismissed the interlocutory appeal, granting Normandy's emergency motion to dismiss the appeal for lack of appellate jurisdiction. No claim was made to that Court that Respondents had acted in bad faith or without substantial justification.

         H. Resolution of the Judicial Review Cases in the Circuit Court

         On May 28, 2014, the circuit court issued an opinion and order in the judicial review cases, affirming the Board's determinations, ruling that the Board correctly determined that the requisite number of valid signatures had been submitted and that the Board had correctly concluded that the summary was not fair and accurate. As such, both Normandy and Citizens did not prevail on their individual petitions for judicial review.

         I. Resumed Litigation of the Declaratory Judgment Action in the Circuit Court

         On May 29, 2014, one day after the resolution of the judicial review cases, the circuit court received the order of the Court of Special Appeals dismissing the interlocutory appeal in the declaratory judgment action. The following day, May 30, 2014, Normandy filed a response to the motion to lift stay, requesting that the stay be lifted in all matters related to the declaratory judgment action. On June 1, 2014, the circuit court issued an order vacating the May 1, 2014 stay.

         On May 30, 2014, Normandy filed a response to the motion to strike or dismiss the counterclaim, a motion to compel discovery, and a response to the April 30, 2014 motion to quash. Normandy argued that, because it was a party to the declaratory judgment action, it should be permitted to conduct discovery. Normandy requested that the circuit court compel the plaintiffs and nonparty petition circulators, Ms. Kendall and Ms. Long, to be deposed. As of that time, neither Mr. Dyer nor Ms. Gray nor their clients or other nonparty petition circulators had failed to comply with lawful discovery requests.

         On June 9, 2014, Normandy requested a status conference as well as an emergency hearing on all outstanding motions in the declaratory judgment action. On the same day, Citizens filed a motion to dismiss based on res judicata, arguing that the circuit court's May 28, 2014 opinion and order resolved all of the issues between the parties. Normandy filed an opposition to the motion, arguing that the issues in the declaratory judgment action remained, and, specifically, that the circuit court had not considered the allegation that the petition circulators failed to comply with the Election Law Article.

         J. The Fourth Round of Appellate Filings and June 17, 2014 Motions Hearing

         On June 2, 2014, Citizens filed a notice of appeal to the Court of Special Appeals and a petition for direct appeal and a writ of certiorari in this Court, seeking review of the circuit court's May 28, 2014 opinion and order. On June 9, 2014, Normandy noted an appeal to the Court of Special Appeals; Normandy later withdrew the appeal without waiving its ability to participate. On June 19, 2014, this Court denied the petition for a writ of certiorari. Meanwhile, in the Court of Special Appeals, a briefing schedule was established, and oral argument was scheduled for August 3, 2014.

         On June 17, 2014, the circuit court conducted a motions hearing in the declaratory judgment action. In support of its motion to compel, Normandy argued that discovery was sought from the petition circulators for the purpose of determining whether they had complied with the requirements of the Election Law Article when collecting signatures and whether there was any fraud. Citizens responded that discovery was inappropriate for several reasons, including that the petition circulators' First Amendment rights would be violated if they were forced to appear for deposition. After hearing argument from the parties, the circuit court stated that it did not find that having nonparty petition circulators deposed violated their First Amendment rights, and that nothing in the Constitution "require[d] that the depositions be quashed in any way." The circuit court granted the motion to compel discovery, denied the motion for a protective order, and stated that ten days' notice was appropriate.[12] After further argument at the motions hearing, the circuit court denied the motion to dismiss for res judicata and stated that the case would proceed. Following the hearing, the circuit court issued orders denying, without explanation, Citizens' motion to dismiss for res judicata, motion to dismiss or strike the counterclaim, and motion for protective order. The circuit court also issued an order granting Normandy's motion to compel, providing that (1) the plaintiffs "shall provide responsive documents that are within their possession, custody or control"; (2) the plaintiffs and nonparty petition circulators, Ms. Kendall and Ms. Long, must "attend and participate in duly noted depositions"; and (3) all "video depositions duces tecum are permitted with ten (10) days['] notice."

         K. Normandy Discovery Part II

         On June 20, 2014, Mr. Erskine emailed all other counsel and advised of his intention to take video depositions of the plaintiffs on July 8, 2014 and of twenty-five petition circulators on July 9 and 10, 2014. Mr. Erskine asked that other counsel inform him immediately, and no later than the close of business on June 23, 2014, if they or any of the plaintiffs had scheduling conflicts. On June 24, 2014, having not received a response from Mr. Dyer or Ms. Gray, Normandy issued notices of depositions to the plaintiffs, specifically, Frederick, Carol, Ms. Markovitz, and Mr. Schneider, for depositions on July 8, 2014. Between June 23 and 26, 2014, Mr. Erskine and his staff prepared and caused to be served subpoenas directed to the individual plaintiffs and approximately thirty subpoenas directed to petition circulators.

         On June 27, 2014, Respondents advised their clients that depositions had been scheduled for July 8, 2014. Ms. Markovitz had a scheduling conflict and was scheduled to travel to Europe, leaving on July 5, 2014, and returning two weeks later. Because Ms. Markovitz could not immediately reach Ms. Gray, she asked Carroll Holzer, an attorney who had represented her in an unrelated matter, to call Mr. Erskine and inform him of the scheduling conflict and to advise him that she was available for deposition on July 3, 2014. Ms. Markovitz did not fault Ms. Gray for the brief delay in response, especially because she knew that Ms. Gray's other clients in the case were being served notices at the same time. On June 27, 2014, Mr. Holzer called Mr. Erskine and explained that, although he was not representing Ms. Markovitz in the case, he had been asked to contact Mr. Erskine to see if it was possible to reschedule Ms. Markovitz's deposition from July 8 to July 3.

         After that telephone call, Mr. Erskine emailed all counsel, advising that he would be willing to reschedule Ms. Markovitz's deposition for July 3, 2014, but before agreeing to do so, he wanted to confirm with all other counsel and parties to obtain their consent because the new deposition date would be provided with fewer than ten days' notice. In his email, Mr. Erskine also stated that a condition of his consent to the rescheduling was that Ms. Markovitz provide "copies of all documents responsive to the request for documents contained within Exhibit A of the Notice of Deposition previously forwarded to her no later than 48 hours prior to the rescheduled deposition."

         Mr. Oh and Mr. Karpinski agreed to reschedule Ms. Markovitz's deposition. On June 28, 2014, Ms. Markovitz delivered the discovery documents to Ms. Gray. On June 28, 2014, having received no response from Mr. Dyer or Ms. Gray, Mr. Erskine emailed Respondents again asking whether they consented to rescheduling Ms. Markovitz's deposition. Mr. Erskine requested a response by noon on June 30, 2014.

         On June 30, 2014, at 2:42 p.m., Mr. Erskine sent another email, advising that he had not heard from Mr. Dyer or Ms. Gray by noon, but was able to reach Ms. Gray by telephone, at which time Ms. Gray stated that she did not consent to rescheduling Ms. Markovitz's deposition. In his email, Mr. Erskine stated that, during their telephone conversation, Ms. Gray had stated that she was filing a notice of appeal as to the circuit court's denial of the motion to quash subpoenas and motion for protective order, as well as the circuit court's grant of the motion to compel discovery, and that she believed the declaratory judgment action would be stayed and that the scheduled depositions would not be able to occur. Mr. Erskine stated in the email that he informed Ms. Gray during the telephone call that "it was improper to file an interlocutory appeal over a discovery issue, " and that, even if she did file such an appeal, the circuit court would retain jurisdiction and the depositions would proceed as scheduled. Mr. Erskine wrote in the email that, during the telephone call, he had advised Ms. Gray that, if she filed the interlocutory appeal in bad faith, he would move for sanctions. Mr. Erskine stated in the email that he would not consent to rescheduling Ms. Markovitz's deposition, that Ms. Markovitz would have to appear on the date and time originally noted, and that, if Ms. Markovitz did not appear, he would seek "to exclude any and all signatures collected by Ms. Markovitz from the referendum tally."

         A few minutes after Mr. Erskine's email, Mr. Dyer replied by email, stating that he "strenuously object[ed] to [Mr. Erskine's] continued harassment of the parties and the non-parties, " and that he recommended Mr. Erskine "speak to an independent ethics advisor as [he] seem[ed] to be headed down an illegal pathway that w[ould] not only result in significant repercussions for [his] career but w[ould] also cast an ugly light upon the entire Maryland legal profession." Mr. Dyer ended his email by stating, "behave yourself."

         Later that evening, Ms. Gray replied to Mr. Erskine's email, stating, "Thank you for acknowledging in our telephone conversation this afternoon that you fully agree that nonparty circulators have a clear right to an interlocutory appeal on discovery matters." Ms. Gray stated that she expected Mr. Erskine to notify the nonparty petition circulators that their depositions were to be stayed pending a decision on the merits of the appeal, and that remaining silent "evidences a clear intent to continue the intimidation and harassment of these individuals as a primary goal of [Mr. Erskine's] clients." As to the deposition of the plaintiffs, Ms. Gray stated, "[T]his is not run of the mill litigation as you contend; it is an election matter where the parties are exercising their most fundamental rights of political speech, " and "[t]here has to be a right of interlocutory appeal when these First Amendment rights are being abused." Ms. Gray stated that there was evidence in the record that Normandy, "through their attorneys, the [Board], and with assistance from the court, are doing everything possible to ensure this referendum does not go on the November ballot." According to Gray, "[h]arassment and intimidation of circulators is just one very, very significant and effective method of derailing referenda, now and in the future, " and that it was "impermissible."

         According to the hearing judge, Respondents "informed their clients of the depositions and correctly informed them of their rights with respect to attending." The hearing judge characterized Mr. Erskine's behavior with respect to the depositions as "overly aggressive, " and remarked that the following testimony by Ms. Markowitz "best summarized" Mr. Erskine's behavior:

[Mr.] Erskine went ahead and picked dates and started serving people having not attempted in good faith to schedule the depositions. Then only a few days after he claims to have first asked for dates, he filed the notices, and then started serving subpoenas right away, and continued to do so even after being told by [Ms.] Gray, [that] she felt the appeal stayed discovery.

         L. The Letter to the Editor

         On June 30, 2014, the Baltimore Sun published a letter to the editor authored by Respondents entitled "Intimidation tactics in play in referendum case." The letter to the editor stated, in full, as follows:

We, as the attorneys for many Howard county residents who circulated a referendum petition to put on the ballot comprehensive zoning changes proposed by Ken Ulman and the Council in July 2013 and whose clients are not subject to developer issued subpoenas for filmed depositions, read your July 24 article ("New controversy erupts in referendum case") with deep concern.
This is not a case where the developers have alleged anything suggesting fraud and have reported such to the Board of Elections. Even if depositions were appropriate, the developers and their attorneys are not even targeting depositions to a particular circulator or two in an attempt [to] get evidence substantiating their allegations. There is no articulated basis at all. Instead, developer attorney [Mr.] Erskine, enabled by the court, issued subpoenas and filed for writs of body attachment for 100-plus petition circulators, one of whom moved to California before being served and would be subject to interstate detainer and extradition back to Maryland. This is unprecedented.
Government officials and the courts cannot side with unlimited money interests (in this case developer interest) to chill speech by 1) hindering the circulation of petitions or the number of voices circulating a petition 2) or engaging in action to keep something off the ballot.
The Supreme Court exhorts time and time again the right of referendum once established, as in the Howard County charter, that all activities related to referendum such as circulating the petition, are "core political speech for which First Amendment protection [is] at its zenith."
Developers hate that citizens got the needed signatures to put their zoning amendments to a vote. More than de[r]ailing the current referendum effort, the developers want to de[r]ail all future referendum efforts, through intimidation. Who will ever circulate a petition if they think there is any risk of being hauled in for a deposition and be intimidated by insinuating wrong doing on their part[?] Without immediate and substantial rectification of these gross miscarriages of justice, the referendum will be dead in Howard County for decades to come.

         On August 13, 2014, as part of an article titled "Special appeals court strikes down Howard zoning referendum, "[13] the Baltimore Sun printed the following quote, attributed to Ms. Gray: "Unreported opinions are the way the appellate courts do their political dirty work . . . that tells you a lot." The hearing judge noted that the accuracy of the attribution was not proven by clear and convincing evidence because no testimony had been presented from the Baltimore Sun reporter or any other witness supporting the quote's accuracy.

         M. The Fifth Round of Appellate Filings Part I

         On June 30, 2014, Respondents filed a notice of interlocutory appeal and request for expedited review on behalf of the plaintiffs and Ms. Long and Barbera Wasserman, nonparty circulators, as representatives of a class of nonparty circulators. Respondents stated that they represented no circulators other than Ms. Wasserman and Ms. Long. On July 9, 2014, Normandy filed an emergency motion to dismiss the appeal for lack of appellate jurisdiction and a request for sanctions pursuant to Maryland Rule 1-341, arguing that the interlocutory appeal was not permitted by law. On July 14, 2014, Respondents filed an opposition to the motion to dismiss.

         N. Ongoing Discovery in the Circuit Court

         On July 2, 2014, on behalf of the plaintiffs and two nonparty petition circulators, Ms. Long and Ms. Wasserman, as "representative of all petition circulators, " Respondents filed in the circuit court a motion to stay discovery. Although Respondents did not file a motion to shorten time to respond to the motion to stay, they attempted to have an emergency hearing conducted before the scheduled depositions.

         Around that time, Respondents held a group meeting with their clients and other nonparty circulators, including those who were not their clients. Respondents offered to represent the nonparty circulators who were not already their clients if they faced sanctions for not attending depositions, and explained the type of sanctions that might occur as a result of not attending depositions. Respondents explained that they believed the subpoenas violated the nonparty circulators' First Amendment rights, but that the nonparty circulators should either comply with the subpoena or seek counsel. After the large group meeting, Respondents met with their clients and advised them that they would surrender their First Amendment rights if they attended the depositions. Respondents also advised their clients that, should the clients not attend the depositions, they would represent them to defend their constitutional rights.

         On July 7, 2014, one day before the scheduled depositions of Carol, Frederick, Mr. Schneider, and Ms. Markovitz, Mr. Erskine emailed Respondents, stating that noting an interlocutory appeal of the discovery orders did not stay the enforcement of those orders and that, unless the circuit court granted the motion to stay discovery by the close of business that day, he intended to proceed with the scheduled depositions. Mr. Erskine asked that, if Respondents advised their clients not to appear, that they advise him as much so that he could cancel the court reporter and videographer, saving approximately $1, 500 in standby costs. Mr. Erskine advised that it would cost approximately $8, 000 to reschedule the depositions of the plaintiffs and nonparty circulators. Mr. Erskine stated that he "fully intend[ed] to seek sanctions against each and every Plaintiff who might fail for any reason to appear" for the scheduled depositions, and that he would seek show cause orders for contempt of any nonparty circulator who failed to appear for the scheduled depositions. Mr. Erskine stated that, "in addition to seeking reimbursement of costs as an appropriate sanction for violation of the [circuit c]ourt's discovery order, [he] also intend[ed] to ask the court to exclude from the referendum tally any signatures collected by a Plaintiff or nonparty circulator who fail[ed] to attend their . . . deposition."

         On July 7, 2014, at approximately 2:00 p.m., the circuit court informed Respondents that it would not rule on the motion to stay discovery prior to the scheduled depositions because Normandy's time to respond to the motion had not expired. Mr. Dyer immediately relayed that information to all of the lawyers involved. Respondents did not file a second motion for protective order or a motion to quash related to the second set of subpoenas issued by Normandy, but instead relied on previous arguments.

         On July 7, 2014, at 4:21 p.m., Mr. Erskine emailed Respondents again stating that, unless the circuit court stayed its discovery orders, the scheduled depositions of ...


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