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Fusaro v. Davitt

United States District Court, D. Maryland

September 4, 2018

EMMET DAVITT, et al. Defendants.


          Ellen Lipton Hollander United States District Judge.

         This litigation involves a First Amendment challenge to Md. Code (2017 Repl. Vol., 2017 Supp.), § 3-506 of the Election Law Article (“E.L.”). Under this statute, plaintiff Dennis Fusaro was denied access to a copy of Maryland's list of registered voters (the “List”) because he does not live in Maryland and is not a Maryland registered voter. Fusaro sought such information for the 2014 Maryland gubernatorial primary and general election, and the 2016 presidential primary and general election. ECF 1-3 at 2.

         Fusaro, a resident and registered voter of Virginia, has filed a complaint for declaratory and injunctive relief against a host of defendants in their official capacity: Emmet Davitt, the Maryland State Prosecutor; David McManus, Jr., Chair of the Maryland State Board of Elections (the “Board”); Patrick Hogan, Vice Chair of the Board; and Board Members Michael Cogan, Kelley Howells, and Gloria Lawlah.[1] See ECF 1 (“Complaint”). Fusaro appended several exhibits to his suit. See ECF 1-1 through ECF 1-4. As discussed, infra, the litigation is rooted in Davitt's unsuccessful prosecution of Fusaro in 2016 and 2017 for Maryland campaign violations. ECF 1.

         In Count I, Fusaro avers that E.L. § 3-506(a)(1) is unconstitutional, both facially and as applied to him, because it states that only a “ Maryland registered voter” may obtain a “copy of a list of [Maryland] registered voters . . . .” Therefore, it “selectively advantages some political speakers and disadvantages others.” Id. ¶ 30. Fusaro contends that his “voice in Maryland politics may not be selectively silenced simply because he is not a registered voter” in Maryland. Id. ¶ 32.

         In Count II, Fusaro claims that E.L. §§ 3-506(a)(1)(ii) and (c) create an unconstitutional restriction on speech because § 3-506(a)(1)(ii) requires that one who obtains the List cannot use it for “any . . . purpose not related to the electoral process, ” and E.L. § 3-506(c) provides: “A person who knowingly allows a list of registered voters, under the person's control, to be used for any purpose not related to the electoral process is guilty of a misdemeanor . . . .”[2] He claims that the provision prohibits the use of the List for “constitutionally-protected political speech . . . .” Id. ¶ 36. Moreover, he asserts that the content-based restrictions do not survive strict scrutiny. Id. ¶ 37. In addition, he alleges that the statutory phrase “related to the electoral process” is unconstitutionally vague. Id. ¶ 40. And, he alleges that E.L. § 3-506 “threatens Fusaro with prosecution for forbidden uses of the registered voter list that cannot be readily determined.” Id.

         Fusaro has also filed a Motion for Preliminary Injunction (ECF 17), supported by a memorandum of law (ECF 17-1) (collectively, the “PI Motion”). He asks the Court to enjoin McManus, Hogan, Cogan, Howells, and Lawlah from enforcing E.L. § 3-506(a)(1). See ECF 17 at 1. In addition, Fusaro asks the Court to enjoin all defendants from enforcing E.L. §§ 3-506(a)(1)(ii)(2) and (c). Id.

         Defendants have filed a consolidated Motion to Dismiss the Complaint (“Motion” or “Motion to Dismiss”) and Opposition to the PI Motion (ECF 20), supported by a memorandum of law (ECF 20-1) and exhibits. See ECF 20-2 and ECF 20-3. Plaintiff filed a consolidated Opposition to the Motion to Dismiss and Reply to the PI Motion (ECF 21), supported by an exhibit. See ECF 21-1. Defendants have replied as to the Motion to Dismiss. See ECF 22.[3]

         No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion to Dismiss as to Count I of the Complaint. Therefore, I need not address the Motion with regard to Count II. And, because plaintiff cannot demonstrate a reasonably likelihood of success on the merits of his Complaint, I shall deny the PI Motion.

         I. Factual and Procedural Background [4]


         The Board oversees the administration of elections in Maryland, including compliance with E.L. § 3-506. See ECF 20-1 at 11; ECF 1. Of relevance here, the Board must provide reasonable access to “original voter registration applications” and “other voter registration records, ” E.L. § 3-505, without limitation to registered voters or specific purposes. Moreover, under Code of Maryland Regulations (“COMAR”), “[a]ny person may request to inspect or copy a public record that is in the custody and control of the State Board or a local board [of election.]” Therefore, as the defendants observe, some of these records “may contain similar information to that found in the [L]ist.” ECF 20-1 at 12.

         Davitt is the Maryland State Prosecutor, a position established by Title 14 of the Criminal Procedure Article (“C.P.”) of the Maryland Code (2008 Repl. Vol., 2017 Supp.). As State Prosecutor, Davitt is empowered to investigate and prosecute, inter alia, “a criminal offense under the State election laws” and “a violation of the State . . . perjury . . . laws related to” those “election laws . . . .” C.P. §§ 14-107(a)(1)(i), (a)(1)(v), 14-109(a). The Office of the State Prosecutor is an independent unit within the Office of the Attorney General. C.P. § 14-102(a)(2). He is appointed by the Governor, with the advice and consent of the Maryland Senate. C.P. § 14-102(c)(1).

         As noted, Fusaro is a resident and registered voter in Virginia. ECF 1, ¶¶ 4, 9. But, he has “experience in Maryland politics.” ECF 1, ¶ 16. In 2014, he worked as “campaign manager and consultant” for the successful campaign of Michael Peroutka, who was running for a seat on the Anne Arundel County Council. See ECF 1, ¶ 16; ECF 20-2 (Criminal Summons and Information forms of Dennis Fusaro, District Court for Anne Arundel County, dated April 13, 2016) at 5. In 2007 and 2008, Fusaro was National Field Director for Ron Paul for President. ECF 1, ¶ 17.

         In his Complaint, Fusaro recounts that “[o]n February 21, 2017, [he] was convicted in a bench trial” in the District Court for Anne Arundel County “for failure to include a campaign finance disclaimer on an automated phone call that cost under $100 to facilitate. . . . He was sentenced to 30 days in jail and a $1, 000 fine.” ECF 1, ¶ 1; see State of Maryland v. Fusaro, D-07-CR-16-000734 (D. Ct. M2017). However, Fusaro noted a de novo appeal to the Circuit Court for Anne Arundel County. There, following a jury trial, he was acquitted on August 3, 2017. ECF 1, ¶ 1; see State of Maryland v. Fusaro, C-02-CR-17-000351 (Cir. Ct. for Anne Arundel Cty., Aug. 3, 2017).

         The trials followed a two-count Criminal Information (ECF 20-2 at 5-7), issued by Davitt on April 13, 2016 (ECF 20-2 at 4), charging Fusaro with violations of Maryland election law. Specifically, Fusaro was charged with willfully causing the publication and distribution of campaign materials in Anne Arundel County (the “County”) on October 31, 2014, in violation of E.L. §§ 13-602 and 13-401. See ECF 20-2 at 5-6. Fusaro was also charged with conspiracy to publish and distribute campaign materials in the County, between October 8, 2014 and November 20, 2014, in violation of E.L. §§ 13-602 and 13-401. See ECF 20-2 at 7.

         As to Count I, the Criminal Information alleged that Fusaro, as Peroutka's campaign manager in 2014, caused the dissemination of more than 5, 000 automated telephone calls about Peroutka's opponent, Patrick Armstrong, without the information required by E.L. § 13-401, such as the identity of the person authorizing and paying for the calls. Id. at 5-6.[5] As to Count II, Fusaro was charged with conspiracy to publish and distribute campaign material that did not comply with the requirements of E.L. § 13-402, because the automated telephone calls were alleged to falsely identify the person or organization responsible for the message. ECF 20-2 at 7.

         The State Prosecutor allegedly traced the telephone calls to a prepaid cell phone that had been purchased by Fusaro. See ECF 20-2 at 6. According to the Criminal Information, the robotic telephone calls contained the following message, id. at 5-6:

Hello, what a great opportunity for the LGBT community. We have a true believer for our cause in Patrick Armstrong who's running for County Council in Anne Arundel County, Maryland. Call Patrick today and thank him for his bravery in coming out of the closet. Coming out of the closet and supporting the fairness to all Marylander's [sic] Act, the Maryland State Senate Bill 212, and supporting the rights for all transgenders. Transgenders can now openly and freely go into any bathroom of their choice based on their confused gender identity. Tell Patrick to continue to stand loud and proud in support for transgenders' equal rights. While our opponent argued that children could be at risk by sexual predators with this new law, we celebrate the rights of transgenders and what this does for equality for transgenders in Maryland. Call him today at [phone number redacted] and thank him for supporting the bathroom bill. Paid for and authorized by Marylander's [sic] for Transgenders.

E.L. § 13-602(a)(9) states, id.: “A person may not publish or distribute, or cause to be published or distributed, campaign material that violates § 13-401 of this title.” E.L. § 13-401 requires, inter alia, that campaign materials indicate the name and identity of the person or entity responsible for publishing or distributing the campaign materials. See E.L. §§ 13-401(a)(1), (a)(2), (a)(3), (b).

         On August 24, 2017, some three weeks after Fusaro's acquittal in the Circuit Court for Anne Arundel County, Fusaro submitted an Application for Voter Registration Data to the Board (ECF 1-2 at 2) (“Application”), requesting that the List be placed on a compact disc (“C.D.”) and mailed to Fusaro at his Virginia Post Office address. Id.; see also Id. at 3 (photocopies of two money orders, in the total amount of $128.00, to pay the required Application and C.D. fees). On the Application, Fusaro indicated that he is a Virginia resident. ECF 1-2 at 2.

         The Application contained an oath, providing, in part, ECF 1-2 at 2: “Under penalty of perjury, I hereby declare, as required by Election Law Article, § 3-506, Annotated Code of Maryland, that the list of registered voters for which I am applying is not intended to be used for commercial solicitation or for any other purpose not related to the electoral process. . . .” (Bold and italics in original). Fusaro signed the Application. Id.

         Fusaro submitted as an exhibit to the suit a returned copy of the Application (ECF 1-3) (“Rejected Application”), dated August 28, 2017, which bears the word “REJECTED” and the initials “EWD.” Email correspondence between Fusaro and Erin W. Dennis, a Board employee, dated September 4, 2017 and September 6, 2017, indicates that the initials “EWD” on the Rejected Application are those of Ms. Dennis. See ECF 1-4 (emails between Fusaro and Ms. Dennis). In the email exchange, Ms. Dennis informed Fusaro that his Application “was rejected because [one] must be a Maryland resident and registered voter to request a copy of the [Maryland] voter registration list.” Id.

         Fusaro explains that he wants the List in order “to share his story with Maryland citizens” concerning his prosecution and subsequent acquittal for the alleged violations of Maryland campaign finance law. ECF 1, ¶ 2. According to Fusaro, he wants to “express his frustration with the Maryland State Prosecutor and encourage Marylanders to echo his concern by encouraging Davitt to resign.” Id. Therefore, Fusaro seeks to communicate with Maryland citizens “via U.S. Mail with letters addressed to certain Maryland registered voters, drawing [names and contact information] from” the List. Id. ¶ 3.

         Fusaro has submitted a copy of the document he seeks to mail to certain Maryland registered voters. See ECF 1-1 (the “Letter”). The Letter states, in part, id.:

One example of the failure to uphold the principles of both the U.S. and Maryland Constitutions can be found in the person of the Maryland State Prosecutor, a man named Emmett C. Davitt.
Davitt was appointed to this office, and his term expired in 2016, but he has remained in that office in so-called “holdover” status. He continues to collect his taxpayer-funded salary and attack First Amendment free speech rights under the color of law.
I experienced this censorship first hand. I was charged with violating state campaign finance laws for a speech communication that cost under $100. Davitt wanted me to serve thirty (30) days in jail for speaking out. Thankfully, a jury of my peers found me not guilty in my second trial. Davitt's next target may not be so lucky.
As a Maryland government official, Davitt breaks the law by misusing his power to infringe on constitutionally-protected individual free speech rights. He acts under the “color of law” to violate the law and disobey the oath he swore to uphold and defend the U.S. and Maryland Constitutions against all enemies foreign and domestic. In fact, he himself has become an enemy of the Constitution and the rule of law.
Please call Davitt at . . . (toll free) or email him at . . . .
Ask him to do the right thing. Tell him to resign.


         As to Count I of the Complaint, Fusaro asserts that the Maryland registered voter requirement in E.L. § 3-506(a)(1) is unconstitutional under the First and Fourteenth Amendments. ECF 1 at 6. He asserts that “[b]y limiting access to the registered voter list to Maryland registered voters, E.L. § 3-506(a)(1) selectively advantages some political speakers, ” i.e., Maryland registered voters, “and disadvantages others, ” i.e., those who are not Maryland registered voters. ECF 1, ¶ 30. Although Fusaro acknowledges that he may acquire the same voter registration information from Maryland through other “means, ” he contends that those means are “more time-consuming and expensive.” Id. ¶ 31.

         In Count II, Fusaro alleges that “limiting the use of the List of Registered Voters to purposes ‘related to the electoral process' in E.L. §[§] 3-506(a)(1), (c) is unconstitutional under the First and Fourteenth Amendments.” ECF 1 at 7. In particular, because Davitt is an appointed official, Fusaro claims that his proposed Letter does not relate to the electoral process. ECF 1, ¶¶ 34, 35. Specifically, “Fusaro's letter does not . . . call for Davitt's election or defeat . . . .” ECF 1, ¶ 35. The Letter “has nothing to do with an election” and is “not related to the electoral process.” ECF 1, ¶¶ 5, 26. Therefore, Fusaro fears prosecution under E.L. §§ 3-506(a)(1)(ii) and (c). Id. ¶ 3.

         According to Fusaro, “limiting use of the voter list to purposes ‘related to the electoral process' is a content-based restriction that prohibits the use of the registered voter list for political speech that is entitled to just as much protection as election-related speech.” Id. ¶ 38. Further, he alleges that the “law serves no ...

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