Ademiluyi v. Egbuonu

          Argued: September 6, 2018

          Circuit Court for Prince George's County Case No.: CAL18-26458

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

          OPINION

          GETTY, J.

         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 (2004).

         Maryland's electoral process for conducting elections of circuit court judges is an imperfect hybrid. As this Court discussed in Suessmann v. Lamone, 383 Md. 697 (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.^[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 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 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] 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 (2007); see also Ehrlich v. Perez, 394 Md. 691, 707 (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 (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 § 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 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 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 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]

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]

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 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 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 years.^[13] See Md. Const. of 1864 art. IV, §§ 3, 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 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 (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 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 parties to nominate a particular candidate to run for judicial office whose name was then placed on the general election ballot. Id.; see also Jackson v. Norris, 173 Md. 579, 586 (1937); 1890 Md. Laws ch. 538.

         Throughout this period, ballots were printed by the political parties and distributed to voters to be placed in the ballot box at their precinct polling location. Unlike ballots today that display the names of all candidates for each office, these ballots only contained the names of the political party's candidates. Thus, a voter could vote the entire slate on the printed party ballot, ^[16] by dropping it in the ballot box. Alternatively, they could scratch through and mark up the printed ballot with different names if they were departing from the party's slate or they could arrive at the polls with their own handwritten ballot. 1805 Md. Laws ch. XCV.^[17] The partisan nature of these circuit court judicial elections is clear on its face: (1) candidates for circuit court judge were selected by each party at a county nominating convention or at a multi-county judicial nominating convention; and (2) the judicial candidate's name was printed on the party's printed partisan ballot that was distributed to voters with encouragement to vote the entire party slate by dropping the ballot, unmarked, into the ballot box.

         Three significant changes occurred to the electoral process in the late 19th and early 20th centuries. First, the General Assembly required that official ballots be printed by the county election board. 1890 Md. Laws ch. 538. Second, the General Assembly enacted provisions that the political parties must follow to nominate their candidates to be listed on the official ballot.^[18] Third, a system of statewide primary elections was created for the benefit of the principal political parties to allow selection of their nominees for the general election by popular vote.

         This system of primary elections more closely resembling the modern iteration appeared in the early 20th century. In 1904, the General Assembly enacted a provision within the Public Local Laws of Allegany County, which provided that the two foremost political parties within the County would select candidates for public offices to participate in the general election by primary election. Kenneweg v. Cty. Comm'rs of Allegany Cty., 102 Md. 119, 120 (1905); see also 1904 Md. Laws ch. 508 § 105. Individually, other counties sought legislation to hold county-wide primaries until 1910 when the first statewide primary election system was enacted. See Md. Laws 1910 ch. 741; Foxwell v. Beck, 117 Md. 1 (1911). With the advent of county and statewide primaries, the selection of circuit court judges by the principal parties was accomplished through contested partisan primaries. Non-principal parties selected their judicial candidates through the traditional party nominating convention or primary meetings. 1896 Md. Laws ch. 202 § 36-39.

         Governor O'Conor and the Bond Commission

         A major impetus to reform judicial elections occurred during the administration of Governor Herbert O'Conor. An attorney and former Attorney General, O'Conor was elected Governor in 1938 and reform of the judiciary and the elimination of partisan elections of judges was a priority of his legislative platform. In his first inaugural address on January 11, 1939, he commented,

I should now like to make known my views with respect to the Judiciary. No single fact has been impressed upon me more forcibly than the necessity of having the judiciary function without outside interference. I am sure that we agree that a State is fortunate whose courts are administered by high-minded judges, incorruptible, learned, and experienced. My policy shall be always to assist in securing the very best judges and in having them function unhampered and uninfluenced in the discharge of their important duties.

Maryland is justly proud of its higher courts and illustrious line of judges who have brought distinction and honor to Maryland. It seems timely, however, to point out that the methods might be devised to avoid the possibility of future election of judges being thrown into political contests. The administration will support well considered plans to prevent such an occurrence.

         Herbert O'Conor, State Papers and Addresses of Governor Herbert R. O'Conor (1947).

         Governor O'Conor initiated a broad package of judicial election reform including revamping this Court as a full-time appellate bench.^[19] However, in the legislative atmosphere created by Governor O'Conor of insulating judicial elections from partisan influence by eliminating judicial elections, Delegate Bernard S. Melnicove offered an alternative approach by introducing legislation in 1941 (House Bill 800) to simply remove party affiliations from the ballot of judicial candidates. See Prepares Bill to Take Bench from Politics, Kerney, N.T., The Sun (1837-1993); Mar 15, 1941: ProQuest Historical Newspapers: The Balt. Sun. Specifically, the legislation required that the names of judicial candidates be listed in alphabetical order "without any party label or other distinguishing mark or location which might directly or indirectly indicate the party affiliation of any such candidate." 1941 Md. Laws Ch. 703.

         Governor O'Conor's legislative proposals to reform the judiciary were controversial and after their initial failure, he formed the Commission on the Judiciary Article of the Constitution of Maryland, widely referred to as the Bond Commission, and appointed Carroll T. Bond, the Chief Judge of this Court, as chairman.^[20] The Bond Commission initially intended to pursue the Governor's aim of reforming judicial electoral process with an eye towards eliminating partisan elements.

         The Melnicove bill created substantial confusion for the judicial candidates required to run in the 1942 election, because this legislation did not provide any new provisions for the conduct of judicial elections except to remove party affiliation from the ballot. Id. Attorney General William C. Walsh was asked to opine on whether candidates were able to file in both the Democratic and Republican primary elections, which was not provided for in the bill that passed the General Assembly.^[21] Ruling Asked on Judiciary: Question on Judges Filing as Candidates of Both Parties Involved, The Sun (1837-1993); May 9, 1942; ProQuest Historical Newspapers: The Balt. Sun. The Attorney General summarized his opinion that "a Democratic Judge may file as a candidate for the Republican nomination in a primary, and that a Republican Judge may file for the Democratic nomination in a primary, and the only remaining question is whether a Judge may file in both primaries for both nominations." 61 Op. Atty Gen. 126, 128 (1942).

         The Attorney General opined that the statute had no prohibition against a candidate filing in the primary election for more than one political party. Id. at 130. He based his conclusion, in part on the fact that H.B. 800 removed party affiliations from ballots, and commented "[t]he purpose of the proposal to have the sitting Judges concerning whom you inquire, nominated by both the major political parties in the primary next September, is to eliminate, in so far as possible, any partisanship in the election of the members of the judiciary, and the passage of [1941 Md. Laws ch. 703 (H.B. 800)] is an indication of legislative approval of this purpose." Id. at 129.

         The Bond Commission proceeded with its work and presented its findings and recommendations that were divided in an interim and a final report. In its interim report, the Bond Commission established the priority of recommending modifications to the structure of the Court of Appeals and appellate judges. Interim Report of the Commission on the Judiciary Article of the Constitution of Maryland 6 (1942) ("Interim Report of the Bond Commission"). The Commission recommended that such judges initially be appointed by the Governor and serve a term of at least one year, at which point the appointed judge should stand for election in the following general election for either State or Federal offices.^[22] Id. at 4. Additionally, the Commission recommended that judicial candidates should be placed on the ballot without any reference to the candidate's party affiliation. ^[23] Id. In the final report, the Bond Commission skirted Governor O'Conor's agenda of eliminating judicial elections by reporting:^[24]

The members of the commission have not overlooked the advantages of appointment alone as a method of selecting judges: many, perhaps a majority, thought that in Maryland, as in some other states and in the federal jurisdiction, that method might procure the best judges in the long run, but they also felt that the people of the state would prefer to have the ultimate power of election, and the effort has been made to retain the opportunity for this.

         Report of the Commission on the Judiciary Article of the Constitution of Maryland, October 21, 1942.

         In 1943, as a result of the Bond Commission's deliberations and recommendations, the General Assembly enacted what is commonly referred to as the Bond Amendment, which was ratified by the electorate in November 1946. 1943 Md. Laws ch. 772; Reed v. McKeldin, 207 Md. 553, 558-59 (1955). Among other things, the amendment modified Article IV, section five of the Constitution of Maryland to provide the following:

Upon every occurrence or recurrence of a vacancy through death, resignation, removal, disqualification by reason of age or otherwise, or expiration of the term of fifteen years of any judge, or creation of the office of any judge, or in any other way, the Governor shall appoint a person duly qualified to fill said office, who shall hold the same until the election and qualification of his successor. His successor shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years (if the vacancy occurred in that way) or the first such general election after one year after the occurrence of the vacancy in any other way than through expiration of such term. Except in case of reappointment of a judge upon expiration of his term of ...