Ademiluyi v. Egbuonu

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          Circuit Court for Prince George’s County, Case No.: CAL18-26458, E. Gregory Wells, Judge.

         Argued by Allen R. Dyer (Law Office of Allen R. Dyer, Ellicott City, MD; April T. Ademiluyi, Law Office of April T. Ademiluyi, Laurel, MD), on memorandum, for Appellants.

         Argued by Bruce L. Marcus (Sydney M. Patterson, MarcusBonsib, LLC, Greenbelt, MD) and Argued by Andrea W. Trento, Asst. Atty. Gen. (Julia Doyle Bernhardt, Asst. Atty. Gen. and Brian E. Frosh, Attorney General of Maryland, Baltimore, MD), on briefs, for Appellees.

         Argued before: Barbera, C.J. ^[*] Greene, ^*Adkins, McDonald, Watts, Hotten, Getty, JJ.

         OPINION

         Getty, J.

[466 Md. 90] The State is not constitutionally barred from evincing a policy of nonpartisanship in judicial elections while nevertheless keeping the election process itself an inherently partisan affair; nor is it barred from relying on the long-established infrastructure of a political party primary to accommodate the election of candidates it desires to be selected on bases apart from partisan politics.

Judge Irma S. Raker

Suessmann v. Lamone , 383 Md. 697, 727, 862 A.2d 1 (2004).

         Maryland’s electoral process for conducting elections of circuit court judges is an imperfect hybrid. As this Court discussed in

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Suessmann v. Lamone, 383 Md. 697, 862 A.2d 1 (2004), this judicial electoral process is a hybrid because it is neither purely partisan nor purely nonpartisan. Circuit court judges have run in partisan elections just as other candidates on the ballot since the Constitution of 1851. An appearance of nonpartisanship was achieved when the General Assembly passed a bill in the 1941 legislative session to remove the designation of party affiliation in the listing of candidates for the office of circuit court judge on the ballot.

         More significantly, perhaps, the hybrid quality exists because this judicial electoral process serves two functions. First, in order for the incumbent judge to retain his or her seat, the judge is required to be a candidate in a potentially contested election. Incumbent judges are required to run after their initial gubernatorial appointment and at the end of each fifteen-year term. The process for initial appointment includes candidates being vetted through a judicial nominating commission. [466 Md. 91] ^[1] Second, the electoral process allows for challengers, who may or may not have been vetted through the judicial nominating commission, to file as candidates as long as they qualify under the constitutional provisions to serve as a circuit court judge.

         The issue confronting this Court in the instant appeal arises from legislation enacted by the General Assembly in 2006 that allows non-principal parties to nominate candidates for circuit court judge elections through whatever nomination process is required by their party bylaws. The critical advantage of a circuit court judge candidate nominated by a non-principal party is that the nominee bypasses the primary election and moves directly to the general election.^[2]

         We are asked to determine whether the Circuit Court for Prince George’s County erred by entering a preliminary injunction which prohibited the State Board of Elections ("the State Board") from certifying the ballot for the 2018 Gubernatorial [466 Md. 92] General Election with April Ademiluyi listed as a candidate for circuit court judge. More specifically, we must determine whether nomination by the Libertarian Party of Maryland ("the Libertarian Party") of Ms. Ademiluyi was improper where the Libertarian Party’s Constitution requires that its candidates for office be registered Libertarians and Ms. Ademiluyi

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was a registered Democrat. For two reasons, we concluded that Ms. Ademiluyi’s candidacy was impermissible under the relevant provisions that regulate judicial elections in Maryland: (i) her candidacy is at odds with the Libertarian Party’s Constitution, which requires all of its candidates for public office to be registered members of the party; and (ii) a judicial candidate’s route to access the ballot is dependent upon his or her party affiliation— candidates registered with a principal party may only achieve this end through participation in primary elections.^[3]

         Upon learning of Ms. Ademiluyi’s party affiliation through a Maryland Public Information Act ("MPIA") request, Chizoba N. Egbuonu, Luther V. Watkins, Sr., Manuel R. Geraldo, and Stella A. Grooms (collectively "Appellees"), challenged her qualifications for nomination as a circuit court judge under Maryland’s election code. At a hearing before the Circuit Court for Prince George’s County, Ms. Ademiluyi failed to appear and therefore made no arguments. After the circuit court ordered that her name be removed from the ballot, Ms. Ademiluyi appealed to this Court and presented us with several questions for review in her appeal memorandum.^[4] [466 Md. 93] However, a grant of preliminary injunction falls within the circuit court’s discretion and the appropriate frame of review is whether the circuit court abused its discretion in granting the preliminary injunction. See Schade v. Maryland State Bd. of Elections, 401 Md. 1, 33, 930 A.2d 304 (2007); see also Ehrlich v. Perez, 394 Md. 691, 707, 908 A.2d 1220 (2006).

         Oral argument in the present appeal was held on September 6, 2018. That same day, we issued a per curiam order affirming the circuit court’s grant of preliminary injunctive relief which enjoined the State Board from certifying the general election ballot with Ms. Ademiluyi’s name listed as a candidate. Ademiluyi v. Egbuonu, 461 Md. 455, 193 A.3d 207 (2018). In that order, we indicated that an opinion detailing the reasoning behind our affirmance of the circuit court’s decision would follow. In explanation of that per curiam order, we conclude that the Libertarian Party’s nomination of Ms. Ademiluyi did not comport with the requirements of

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§ 5-701 of the Election Law Article ("EL") and that the circuit court’s grant of preliminary injunction is sufficiently supported by the appropriate factors.

          We now give our reasons for the September 6, 2018 order. The election of judges in Maryland has been the subject of a lengthy and long-standing debate— initially emerging from [466 Md. 94] constitutional reform of the mid-19th century. It is useful to begin our analysis with a historical review of the partisan underpinnings of this imperfect hybrid of an electoral process.

          BACKGROUND

          The History of Judicial Elections in Maryland

         For the first seventy-five years of Maryland’s history after the adoption of the Constitution of 1776, judges were appointed by the Governor and confirmed but were not required to run in contested elections. Maryland’s first constitution provided for the Governor to appoint all judges with the advice and consent of the Governor’s Council. Md. Const. of 1776 § 48 (1776). The Governor’s Council, under the Constitution of 1776, consisted of five members chosen by vote of the State Senate and House of Delegates. The Governor’s Council played an advisory role and generally provided the Governor with advice and assisted in his appointments, as provided for elsewhere in the Constitution. Md. Const. of 1776 § 26 (1776).^[5]

          In 1836, the Governor’s Council was abolished by constitutional amendment and full executive power was vested in the Governor. 1836 Md. Laws ch. 197 § 13. Instead of confirmation by the Governor’s Council, the Governor made judicial appointments with the advice and consent of the Senate. 1836 Md. Laws ch. 197 § 14.

         Constitutional reform of the mid-19th century modified the method of selection of judicial candidates by introducing contested judicial elections similar to our contemporary system. During the Constitutional Reform Convention of 1850 ("1850 Convention"), a fierce debate emerged concerning the method of selecting judges. The debate primarily consisted of two different methodologies: (i) popular election; and (ii) appointment by the Governor for an indefinite term, with the Governor holding the power to impeach and remove an appointed [466 Md. 95] judge only upon bad behavior.^[6] Debates and Proceedings of the Maryland Constitutional Reform Convention to Revise the State Constitution, Vol. II (1851) ("1850 Debates and Proceedings"). The popular election system carried support from the Democrats while an appointed judiciary appealed to members of the Whig Party. Id.

          As evidenced by the debates, both the Whigs and Democrats were concerned about partisan influence on judicial offices stemming from whichever selection process was adopted. Id. at 497-99. The Democrats expressed concern that appointment by the Governor would transform judicial offices into partisan offices. Id. at 457-62. Similarly, the Whigs expressed concern that, without indefinite terms, incoming Governors would have the power to dismiss incumbent judges throughout the

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State and appoint newly partisan judges. Id. at 470-73, 476.

          In addition to debates concerning the method of selection, a secondary issue emerged concerning temporal aspects of judicial elections. Id. at 490-501. Primarily, some members of the 1850 Convention argued that elections for judicial offices and other courthouse officials including State’s Attorneys and Clerks of the Court, should be held the year following elections for other public officers. Id. Those involved believed that temporal distance between elections for judicial offices and other public offices, such as the Governor and State Legislature, would distance judicial elections from the partisan undercurrent of elections for these public offices. Id. at 537-44.

         Ezekiel F. Chambers, a member of the 1850 Convention and Judge of this Court, summarized the general concerns over the politicization of judicial elections in his sweeping remarks before the 1850 Convention:^[7]

[466 Md. 96] I am aware, Sir, that it is said the people are competent to elect other officers; and if so, why not to elect judges?

          * * *

Now this is the relation in which the judge stands to the people. The judge is supposed to know the law; the people are known not to know it. He is to exercise his judgement, not theirs - to express his opinions, not theirs. Political officers are usually elected for a very short term, and in reference to particular, distinct, well understood questions. They have a certain line of duty, and everybody understands what it is. But it is not so in the case of the judge; his position is perfectly the reverse, in all these particulars. Above all, it differs in one other most important respect. In a political officer, you look for a politician; you expect him to act for those who elected him, and if he never were a politician before, he will surely become such, by serving a while as the representative of the people. Just the reverse it is with the judge. He must not act the politician; he must not know one party from another in the discharge of his duties; and if he had been ever so ardent a politician before, he is sure to cease to be such, in a very short time after he is placed upon the bench.

1850 Debates and Proceedings at 482.

         Other members of the 1850 Convention including William A. Spencer echoed Mr. Chambers’ concerns over the selection of judges through popular election:^[8]

[466 Md. 97] It is my apprehension that by giving the election of the judges to the people, the independence of the bar will be greatly affected. I wish it to be distinctly understood, that I have not the slightest fear of the integrity of the people but my apprehension is that that integrity and confidence will be abused.

Id. at 499.

         However, the 1850 Convention was not unified behind an appointed judiciary and

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a substantial number of its members supported the election of judicial officers. This is evident from Charles J.M. Gwinn’s comments on the debate:^[9]

The gentleman from Anne Arundel [Judge Thomas Beal Dorsey], has drawn a strongly marked picture of the evils attending upon an election of the judges. It has not occurred to him, apparently, that all his arguments apply with equal force to every elective office. If a disposition to obtain popular support and applause, can induce a judge to depart from the line of his public duty, with equal reason may we apprehend that the same evil would ensue upon the method which obtains at present in the selection of our Governors, and members of the Legislature, and of all others who are entrusted with political power.^[10]

Id. at 497.

         After a lengthy debate, a broad restructuring of the Maryland judiciary was authorized upon the ratification of the Constitution of 1851. The trial courts were reorganized into [466 Md. 98] eight judicial circuits.^[11] Initially, each circuit except the fifth, i.e. Baltimore City, was limited to one judge who was subject to election on a partisan ballot. Md. Const. of 1851 art. IV, § 8 (1851). The Judiciary Article of the new Constitution provided that, upon a vacancy in any judgeship, the Governor shall appoint a replacement with the advice and consent of the Senate. The appointed judge shall hold the office until the following general election for delegates. Md. Const. of 1851 art. IV, § 25 (1851). To retain office, the appointed judge became a candidate in partisan elections with the potential that challengers would also file to run in the election. The successful candidate in the election, once the results were certified, would receive a commission for a term of ten years.^[12]

         When the Constitution of 1864 was adopted and ratified, the Judicial Article and the methods of judicial candidate selection saw little substantive change to the preceding provisions. The eight judicial circuits were expanded to thirteen circuits. In addition, the terms of circuit court judges were increased from ten to fifteen

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years.^[13] See Md. Const. of 1864 art. IV, § § 3, [466 Md. 99] 5 (1864). The Constitution of 1864 was the most short-lived Constitution in Maryland’s history and was replaced only three years later in 1867 with substantially the same provisions for circuit court judges. See Md. Const. of 1867 art. IV, § § 3, 5 (1867).

         The State’s current Constitution is the Constitution of 1867, as amended, and thus these 19th century constitutional underpinnings relating to the selection of circuit court judges are relatively unchanged. See Md. Const. art. IV, § § 3, 5. First, circuit court judges are elected at general elections for a term of fifteen years. Md. Const. art. IV, § 3. Upon a vacancy in a judicial office, the Governor is authorized to appoint a judge who shall hold the office until either the first biennial general election for representatives in Congress following the expiration of his or her predecessor’s term. Md. Const. art. IV, § 5. In situations where the vacancy is brought about by means other than the expiration of a predecessor judge’s term, the appointed judge participates in the general election occurring after one year after the opening of such a vacancy. Md. Const. art. IV, § 5.

         Circuit court judges are the only judges in Maryland that are first appointed by the Governor and then must participate and win a subsequent election in which challengers can file to run against them.^[14] See Md. Const. art. IV, § 3 (excepting District Court and appellate judges from participating in contested elections); see also Md. Const. art. IV. § 5A (providing that, after appointment by the Governor, appellate judges must participate in retention elections); Md. Const. art. IV, § 41D (indicating that District Court judges are appointed by the Governor and confirmed by the Senate and are not [466 Md. 100] required to participate in judicial elections). Maryland’s present Constitution also mandates qualifications that all prospective judicial candidates must attain.^[15]

          Judicial Nominating Conventions and Primary Elections

         Pursuant to the Constitution of Maryland, the General Assembly has the responsibility of regulating elections. Lamone v. Capozzi, 396 Md. 53, 60-61, 912 A.2d 674 (2006); see also Md. Const. art. I, § 3; Md. Const. art. III, § 49. Accordingly, throughout the history of the State Constitution and its various amendments, the General Assembly has supplemented these constitutional provisions by enacting and

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amending the statutory law governing elections, primarily former Article 33 of the Maryland Code and the present-day Election Law Article.

         Prior to the adoption of primary elections in the early 20th century, political parties nominated candidates for circuit court judge by party conventions. By the late 19th century, the two principal political parties were the Democratic and Republican parties. These parties would nominate their candidates through separate statewide and county nominating conventions. See 1896 Md. Laws ch. 202 § 36-39. For judicial elections, if a circuit was composed of only one county, the candidate for circuit court judge was selected at the county nominating convention held by the Democratic, Republican, or other political party. If a circuit was composed of more than one county, then each party held a special judicial nominating convention for the circuit at which representatives from each county would vote to select the party’s candidate for circuit court judge. The party nominating convention allowed ...