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Judicial Watch, Inc. v. Lamone

United States District Court, D. Maryland

June 4, 2018

JUDICIAL WATCH, Inc. Plaintiff,
LINDA LAMONE, et al. Defendants.


          Ellen Lipton Hollander, United States District Judge.

         This litigation concerns a request for voter registration records pertaining to Montgomery County, Maryland.

         Plaintiff Judicial Watch, Inc. (“Judicial Watch”) has sued a host of defendants, including Linda Lamone, the Maryland Administrator of Elections, alleging violation of § 8(i)(1) of the National Voter Registration Act of 1993 (“NVRA” or the “Act”), codified, as amended, at 52 U.S.C. § 20507(i)(1). See ECF 1 (“Complaint”). Judicial Watch has also sued David McManus, Jr., the Chairman of the Maryland State Board of Elections (“SBE”); Patrick Hogan, the Vice-Chairman of the SBE; Jared DeMarinis, the Public Information Act Officer and Director of the Division of Candidacy and Campaign Finance for SBE; SBE Members Michael Cogan, Kelley Howells, and Gloria Lawlah (collectively, the “State Defendants”). Id.[1] In addition, plaintiff has sued James Shalleck, the President of the Montgomery County Board of Elections (“MCBE”); Nahid Khozeimeh, the Vice-President of the MCBE; Mary Ann Keeffe, the Secretary of the It appears that Lawlah is no longer an SBE Member. See M ., S MCBE; Alexander Vincent and David Naimon, MCBE Members; and Jacqueline Phillips, an MCBE Substitute Member (collectively, the “County Defendants”). Id. Each defendant was sued in his or her official capacity. Id.

         Plaintiff submitted two exhibits with its Complaint. See ECF 1-1 (letter from Thomas Fitton, President of Judicial Watch, to McManus, dated April 11, 2017); ECF 1-2 (email from DeMarinis to Robert Popper, Esquire, and Eric Lee, Esquire, counsel for Judicial Watch, dated July 7, 2017).

         The State Defendants have filed a “Motion to Dismiss Plaintiff's Complaint or, in the Alternative, For Summary Judgment” (ECF 19), supported by a memorandum of law (ECF 19-1) (collectively, the “State Motion”) and exhibits. See ECF 19-2 through ECF 19-4. The County Defendants also moved to dismiss (ECF 20), supported by a memorandum of law (ECF 20-1) (collectively, the “County Motion”). Judicial Watch filed a combined opposition to both motions (ECF 24, “Opposition”), along with three additional exhibits. See ECF 24-1 through ECF 24-4. Defendants have replied. See ECF 29 (“County Reply”); ECF 31 (“State Reply”).

         No hearing is necessary to resolve the motions. See Local Rules 105.6. For the reasons that follow, I shall deny the State Motion (ECF 19) and I shall grant the County Motion (ECF 20), without prejudice.

         I. Factual Background[2]

         Judicial Watch describes itself as a “not-for-profit, educational organization” that is dedicated to “promot[ing] transparency, integrity, and accountability in government.” ECF 1, ¶ 5. According to Judicial Watch, it “regularly requests records from state and local governments pursuant to Section 8(i) of the NVRA, and state open-records laws . . . .” Id. It then “analyzes all responses and disseminates both its findings and the requested records to the American public to inform it about ‘what the government is up to.'” Id. (citation omitted).

         On April 11, 2017, Thomas Fitton, President of Judicial Watch, “sent an email to the address for the officers and members of the Maryland State Board of Elections and Maryland's State Administrator, and to the address for the officers and members of the Montgomery County Board of Elections.” ECF 1, ¶ 11. The email included a letter to McManus dated April 11, 2017. See ECF 1-1 (“Notice Letter”). Hogan, Cogan, Howells, Lawlah, Lamone, Shalleck, Khozeimeh, Keefe, Vincent, Naimon, Popper, and Nikki Charlson, the Deputy State Administrator of the SBE, were copied on the Notice Letter. ECF 1-1 at 7.[3]

         The Notice Letter, which is appended to the suit (ECF 1-1), was also sent by certified mail to the SBE and the MCBE. ECF 1, ¶ 11. It states, in part, ECF 1-1 at 1-7 (emphasis added):

Dear Chairman McManus:
We write to bring your attention to violations of Section 8 of the National Voter Registration Act (“NVRA”) in Montgomery County, Maryland. From public records obtained, Montgomery County has more total registered voters than adult citizens over the age of 18 as calculated by the U.S. Census Bureau's 2011-2015 American Community Survey. This is strong circumstantial evidence that Montgomery County is not conducting reasonable voter registration record maintenance as mandated under the NVRA.
* * *
This letter serves as statutory notice that Judicial Watch will bring a lawsuit against your office if you do not take specific actions to correct these violations of Section 8 within 90 days. In addition, by this letter we are asking you to produce certain records to us which you are required to make available under Section 8(i) of the NVRA.
* * *
You are receiving this letter because you are the designated chief state election official under the NVRA.
* * *
In order to avoid litigation, we hope you will promptly initiate efforts to comply with Section 8 so that no lawsuit will be necessary. We ask you to please respond to this letter in writing no later than 45 days from today informing us of the compliance steps you are taking. Specifically, we ask you to: (1) conduct or implement a systematic, uniform, nondiscriminatory program to remove from the list of eligible voters the names of persons who have become ineligible to vote by reason of a change in residence; and (2) conduct or implement additional routine measures to remove from the list of eligible voters the names of persons who have become ineligible to vote by reason of death, change in residence, or a disqualifying criminal conviction, and [(3)]to remove noncitizens who have registered to vote unlawfully.
* * *
[P]ursuant to your obligations under the NVRA, please make available to us all pertinent records concerning “the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency” of Maryland's official eligible voter lists during the past 2 years. Please include these records with your response to this letter. These records should include, but are not limited to:
1. Copies of the most recent voter registration database from Montgomery County, Maryland, including fields indicating name, date of birth, home address, most recent voter activity, and active or inactive status.
2. Copies of all email or other communications internal to the office of the Maryland State Board of Elections, including any of its divisions, bureaus, offices, third party agents, or contractors, (hereinafter, collectively “State Board of Elections”) relating to the maintenance of accurate and current voter rolls.
3. Copies of all email or other communications between the State Board of Elections and all Maryland County Voter Registration Officials concerning:
a. Instructions to the counties concerning their general list maintenance practices and obligations; b. Instructions to the counties for the removal of specific noncitizens and deceased, relocated, or convicted persons identified by the State Board of Elections; and c. Notices to the counties concerning any failure to comply with their voter list maintenance obligations under Maryland's program.
4. Copies of all email or other communications between the State Board of Elections and the Maryland State Department of Health, the Maryland State Department of Corrections, the Maryland Motor Vehicle Administration, and the Maryland State Judiciary concerning obtaining information about deceased, relocated, convicted, or noncitizen registered voters for the purpose of updating Maryland's voter registration lists.
5. Copies of all email or other communications between the State Board of Elections and the U.S. Attorney(s) for Maryland, the U.S. District Court for Maryland, the U.S. Social Security Administration, the U.S. Postal Service, the U.S. Citizenship and Immigration Services, and the U.S. Department of Homeland Security concerning the National Change of Address database, the Systematic Alien Verification for Entitlements database, or any other means of obtaining information about deceased, relocated, convicted, or noncitizen registered voters for the purpose of updating Maryland's voter registration lists.
6. Copies of all email or other communications between the State Board of Elections and the Interstate Voter Registration Cross-Check Program, the Electronic Registration Information Center, the National Association for Public Health Statistics and Information Systems, and any other U.S. State concerning obtaining information about deceased or relocated registered voters for the purpose of updating Maryland's voter registration lists. . . .

         Judicial Watch received an email from SBE's Nikki Charlson on May 26, 2017, indicating that the SBE had received the Notice Letter. ECF 1, ¶ 18. Further, she stated that the SBE would issue a response to Judicial Watch, and that the SBE would provide Judicial Watch with the “requested documents next week.” Id.[4]

         Judicial Watch received a letter from Lamone on June 5, 2017. Id. ¶ 19. She stated, inter alia, that Maryland's voter list maintenance program complies with the NVRA, that the SBE was compiling “responsive” documents, and that the SBE would provide those documents to Judicial Watch “‘shortly.'” Id. ¶¶ 19-20.[5]

         By email dated July 7, 2017 (ECF 1-2), DeMarinis informed plaintiff, id.: “The documents that you requested from your April 11, 2017 letter are ready for review. However, . . . the request for the Montgomery County voter registration list was not made in accordance with Election Law Article 3-506. Therefore, it will not be processed.” ECF 1, ¶¶ 21-22. See Md. Code (2017 Repl., 2017 Supp.), § 3-506(a)(1) of the Election Law Article (“E.L.”) (stating that “a list of registered voters shall be provided to a Maryland registered voter”) (emphasis added).

         On July 11, 2017, Popper, as counsel for plaintiff, spoke with DeMarinis by telephone. ECF 1, ¶ 24. During that call, Popper noted that because Judicial Watch is organized under D.C. law, it could not be “a Maryland registered voter, ” as required by E.L. § 3-506(a)(1), and thus could not obtain the “requested voter list.” ECF 1, ¶ 24. DeMarinis confirmed that the Maryland Attorney General's office had so indicated. Id.

         Judicial watch claims that, pursuant to NVRA § 8(i)(1), it is entitled to the materials withheld by defendants. ECF 1, ¶¶ 16, 27-28. Moreover, to the extent that E.L. § 3-506(a)(1) “conflicts with, overrides, or burdens” § 8(i)(1) of the NVRA, Judicial Watch argues that E.L. § 3-506(a)(1) is subject to preemption. ECF 1, ¶ 33.

         Additional facts are included in the Discussion.

         II. Standard of Review


         The State Defendants have moved to dismiss the Complaint under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. See ECF 19. A motion styled in the alternative, to dismiss or for summary judgment, implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary judgment under Rule 56, ” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d); see Adams Housing, LLC v. City of Salisbury, Maryland, 672 Fed.Appx. 220, 222 (4th Cir. 2016) (per curiam). But when, as here, the movant expressly captions its motion “in the alternative, ” as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur, and the court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).

         A district judge has “complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.” 5C Alan Wright & Arthur Miller, Federal Practice & Procedure § 1366 (3d ed.). This discretion “should be exercised with great caution and attention to the parties' procedural rights.” Id. at 149. In general, courts are guided by whether consideration of extraneous material “is likely to facilitate the disposition of the action, ” and “whether discovery prior to the utilization of the summary judgment procedure” is necessary. Id. at 165-67.

         Ordinarily, summary judgment is inappropriate “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co., 637 F.3d at 448-49; see Putney v. Likin, 656 Fed.Appx. 632, 638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014). However, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.'” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (hereinafter, “Harrods”) (quoting Evans v. Tech's. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)); see also Dave & Buster's, Inc. v. White Flint Mall, LLLP, 616 Fed.Appx. 552, 561 (4th Cir. 2015).

         To raise adequately the issue that discovery is needed, the non-movant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for specified reasons, [he] cannot present facts essential to justify its opposition, ” without needed discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing the affidavit requirement of former Rule 56(f)). A non-moving party's Rule 56(d) request for additional discovery is properly denied “where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Gordon v. CIGNA Corp., ___ F.3d ___, 2018 WL 2209305, at *10 (4th Cir. May 15, 2018); Amirmokri v. Abraham, 437 F.Supp.2d 414, 420 (D. Md. 2006), aff'd, 266 Fed.Appx. 274 (4th Cir. 2008), cert. denied, 555 U.S. 885 (2008). In addition, a Rule 56(d) motion may be denied if the opposing party had a reasonable opportunity to conduct discovery. Hodgin v. UTC Fire & Sec. Americas Corp., Inc., 885 F.3d 243, 250 (4th Cir. 2018).

         If a non-moving party believes that further discovery is necessary before consideration of summary judgment, the party who fails to file a Rule 56(d) affidavit does so at his peril, because “‘the failure to file an affidavit . . . is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.'” Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961); see also Dave & Buster's, Inc., 616 Fed.Appx. at 561. But, the non-moving party's failure to file a Rule 56(d) affidavit does not obligate a court to issue a summary judgment ruling that is obviously premature. Although the Fourth Circuit has placed “‘great weight'” on the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for [an] affidavit, '” the appellate court has “not always insisted” on a Rule 56(d) affidavit. Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961). The failure to file an affidavit may be excused “if the nonmoving party has adequately informed the district court that the motion is pre-mature and that more discovery is necessary, ” when the “nonmoving party's objections before the district court ‘served as the functional equivalent of an affidavit', ” and if the nonmoving party “was not lax in pursuing discovery.” Harrods, 302 F.3d at 244-45 (quoting First Chicago Int'l v. United Exchange Co., LTD, 836 F.2d 1375, 1380-81 (D.C. Cir. 1988)).

         Judicial Watch does not contend that summary judgment prior to discovery would be premature or prejudicial. Nor has Judicial Watch filed an affidavit or declaration under Fed.R.Civ.P. 56(d). However, I am of the view that summary judgment is premature because the factual record is not fully developed. Accordingly, I decline to convert the State Motion to one for ...

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