Ficker v. Denny

606 A.2d 1060, 326 Md. 626, 1992 Md. LEXIS 96

• Court: Court of Appeals of Maryland
• Decided: June 5, 1992
• Docket: 62, September Term, 1990
• Status: Published

Opinions

ORDER

PER CURIAM.

Upon consideration of the petition for a writ of certiorari to the Court of Special Appeals, in the above entitled case, it is this 29th day of August, 1990

ORDERED, by the Court of Appeals of Maryland, that the petition be, and it is hereby, granted and a writ of certiorari to the Court of Special Appeals shall issue and said case shall be transferred to the regular docket as No. 62, September Term, 1990.

For reasons to be stated in an opinion later to be filed, a majority of the Court concurring, the judgment of the Circuit Court for Montgomery County is hereby vacated and the case is remanded to that court with directions that it enter a judgment for the Petitioners requiring that the referendum petitions be filed and verified in accordance with the provisions of Article XI-A of the Constitution of Maryland and Maryland Code (1986) Repl.Vol., Article 33. Costs to be paid by the Respondent. Mandate to issue forthwith.

ELDRIDGE, Judge.

The issue presented by this case is whether the sponsors of a petition for a county charter amendment, pursuant to Art. XI-A, § 5, of the Maryland Constitution, ordinarily must file the petition once the requisite number of 10,000 signatures have been obtained.¹ This opinion sets forth the rationale behind the Court’s order issued on August 29, 1990, requiring the Chairman of the organization, Fairness in Taxation, to submit a petition for a proposed charter amendment to the President of the Montgomery County Council.

In response to rising real property taxes in Montgomery County, the political organization Fairness in Taxation ("PIT”) was formed. A non-profit, non-partisan organization, FIT sought to cap the increase in real property taxes permitted in a given year and to compel the Montgomery County Council to find alternative sources of revenue. To achieve these ends, FIT launched a petition drive pursuant to Art. XI-A, § 5, of the Maryland Constitution, to amend the Montgomery County Charter. The petition was designed to place a proposed amendment on the ballot which would have limited the percentage of the County’s Operating Budget derived from real property taxes to no greater than 37% and which would have capped the percentage increase in real property tax revenue in any given year to 75% of the rate of inflation. In the instructions distributed with the petition to the circulators, FIT stated:

“4. With enough signatures, the proposed Charter Amendment will be submitted to the voters in the November elections.”

According to FIT, approximately 12,500 signatures were obtained in support of placing the proposed amendment on the ballot.

After the requisite number of signatures were obtained, but before FIT filed the petition with the President of the Montgomery County Council, leaders of FIT met with the Council and agreed upon a compromise charter amendment to be submitted to the voters for approval. This amendment would have limited the annual increase in real property tax revenue to 100% of the rate of inflation. Robert Denny, chairman of FIT, announced that FIT would not be submitting the petition which it had circulated but instead that FIT intended to support the County Council’s proposed charter amendment.²

Several signers of the petition brought suit in the Circuit Court for Montgomery County, against Robert Denny as Chairman of FIT, to compel Mr. Denny to submit the petition. They relied upon the language of Art. XI-A, § 5, of the Constitution. According to the plaintiffs, a petition is “complete” when the requisite number of signatures are obtained, and once a petition is complete, it “shall be filed with the President of the County Council” and “shall be submitted to the voters.” The plaintiffs asserted that FIT could not unilaterally decide to withhold the petition and that the Chairman of FIT had a duty to the signers of the petition to file it.

Mr. Denny argued that he had no obligation to file the petition, that the County Council’s proposed amendment constituted changed circumstances that relieved him of any obligation to file, that a substantial number of signers no longer supported the petition, and that the juxtaposition of the petition amendment and the County Council amendment would cause confusion that would split the vote and leave Montgomery County with no tax reform in place.

In addition, according to the defendant, requiring the organization to file the petition would deprive many signers of the right to withdraw their names from a petition which they no longer supported. The defendant, however, provided no evidence that more than 2,500 signers withdrew, attempted to withdraw, or desired to withdraw their signatures.³ In an affidavit, Mr. Denny attached only eleven letters from signers who stated that they wanted their names withdrawn from the FIT petition.⁴

The circuit court denied the plaintiffs’ request for relief, concluding that changed circumstances created by the County Council amendment permitted FIT to decide not to file the petition. The circuit court further concluded that a “significant number” of signers no longer supported FIT’s petition. The plaintiffs filed a notice of appeal and requested that the Court of Special Appeals issue an injunction, pending appeal, requiring that the defendant file the petition. On August 10, 1990, the intermediate appellate court, without opinion, denied the plaintiffs’ request for injunctive relief pending appeal.

The plaintiffs thereupon filed in this Court a petition for a writ of certiorari which we granted. On August 29, 1990, this Court vacated the circuit court’s judgment. We further ordered that the circuit court enter judgment for the plaintiffs, requiring that the defendant Denny file the petition.

Article XI-A of the Maryland Constitution grants to counties adopting home rule charters the right to govern themselves with respect to various matters. Article XI-A was the result of a “popular demand for increased local autonomy.” Ritchmount Partnership v. Board of Sup’rs, 283 Md. 48, 56, 388 A.2d 523, 529 (1978). Section 5 of Article XI-A provides that the citizens of a charter county may amend their charter by filing a petition containing a specified number of signatures with the President of the County Council. After setting out the number of signatures necessary to file a petition, Art. XI-A, § 5, states that the petition “shall be filed with ... the President of the County Council” and that the proposed charter amendment “shall be submitted to the voters of the ... County.”

The language of Art. XI-A, § 5, clearly contemplates that, when a petition has the requisite number of signatures and therefore is complete, the petition is to be filed and the proposed charter amendment is to be submitted to the voters. Cf Barnes v. State, Ex Rel Pinkney, 236 Md. 564, 574-575, 204 A.2d 787, 792-793 (1964) (language in Art. XYI of the Constitution which provides for a referendum is mandatory language).

A circulator, or group of circulators, has no greater or lesser right of control over the petition than any other signer. LaFleur, Att’y Gen. v. Frost, 146 Me. 270, 288, 80 A.2d 407, 416 (1951). Addressing this issue, the Supreme Court of Maine stated in LaFleur (ibid.):

“The pressures in the exercise of the initiative and referendum must come upon the City Council and upon the voters, and not upon a group of ten whose sole function is to start the petition. Once this act is accomplished, they become neither more nor less than voters who have signed, and they have neither greater nor less right nor authority than other signers.”

The circulator of a petition under Art. XI-A, § 5, has an obligation to abide by the representation made to the signers that once enough signatures are obtained, the measure will be placed on the ballot. This obligation is implicit in the act of soliciting signatures for the purpose of having a charter amendment placed on the ballot. In light of the language of Art. XI-A, § 5, the representation by one purporting to act under § 5, made to those signing, is that if the requisite number of signatures are obtained the measure will be on the ballot. That implicit pledge was made express in this case when FIT stated in its instructions: “With enough signatures, the proposed Charter Amendment will be submitted to the voters in the November elections.” Once the signatures are obtained, the possessors of the petition have a responsibility to the signers to fulfill their promise and complete the ministerial task of filing the petition. See Tyler v. Secretary of State, 229 Md. 397, 403, 184 A.2d 101, 104 (1962) (“the one procuring the petitions or circulating them is the agent of the signers”).

Embodied in Article XI-A, § 5, of the Constitution is the principle that individual citizens of a county will have a direct say in their fundamental law, i. e., their charter. In light of this principle, citizens have a right to sign a petition as well as a right not to sign or to withdraw their names from a petition. The right is an individual one which can only be exercised by the signer. State ex rel. Tennison v. Coleman, 34 Neb. 440, 442, 51 N.W. 1025, 1026 (1892); State ex rel. Hindley v. Superior Ct., 70 Wash. 352, 361, 126 P. 920, 923 (1912).

In State ex rel. Hindley v. Superior Ct., supra, the Supreme Court of Washington addressed the question of whether a circulator of part of a petition had the right to withdraw the signatures he had collected. The court stated (70 Wash, at 361, 126 P. at 923):

“Some point is made to the effect that, inasmuch as any petitioner can withdraw his name from a petition prior to the time it is acted upon by the council ..., therefore one who has circulated a part of a petition can withdraw that part and the names upon it. We cannot so hold. The right to withdraw, like the right to sign, is a personal privilege, and can be exercised only by the person directly concerned.”

In LaFleur, Att’y Gen. v. Frost, supra, 146 Me. 270, 80 A.2d 407, the Supreme Court of Maine was faced with a question of whether a certain ordinance proposed by the City Council and ratified by the electors was valid under the state constitution. The ordinance sought to designate a committee consisting of the original ten signers of a petition to represent all of the signers of that petition. The committee would have “full power and authority to withdraw the petition or to stop further proceedings at any time when, in their sole and exclusive judgment, such action is deemed advisable.” 146 Me. at 286, 80 A.2d at 415. In striking down this portion of the ordinance, the court stated (146 Me. at 287, 80 A.2d at 415):

“In principle it is entirely without the intent of the initiative and referendum. If the people, that is, the voters, are to have the power to legislate in municipal affairs, why we may ask should such power be limited to the judgment of the original ten petitioners, or any petitioners, once the petition has been signed by the appropriate number of qualified voters?”

The Court went on to state (ibid):

“A system which compels the voter to leave his great rights to legislate, either directly through the initiative or by the people’s veto in a referendum, to the mercy of six out of ten individuals may provide a neat and orderly method for the conduct of business, but it cannot be called the initiative and referendum.”

Although signers have a right to withdraw their names from a petition if they no longer support it, the number of persons withdrawing must bring the number of signatures to less than 10,000 in order to prevent the petition from being filed. As previously discussed, there was no evidence in this case that the number of signers desiring to withdraw approached 2,500 people. Since the number of signers who wished to withdraw did not bring the total number of signers below 10,000, FIT and its Chairman were required to comply with the purpose of Art. XI-A, § 5, and to file the petition with the President of the Montgomery County Council.⁵

1 . Article XI-A, § 5, of the Constitution of Maryland provides:

“Amendments to any charter adopted by ... any County of this State under the provisions of this Article may be proposed by ... the Council of the County, or by a petition signed by not less than 20% of the registered voters of the City or County, provided, however, that in any case 10,000 signatures shall be sufficient to complete a petition. A petition shall be filed with ... the President of the County Council. An amendment so proposed shall be submitted to the voters of the ... County at the next general or congressional election occurring after the passage of the resolution or the filing of the petition. If at the election the majority of the votes cast for and against the amendment shall be in favor thereof, the amendment shall be adopted and become a part of the charter of the ... County from and after the thirtieth day after said election____’’ (Emphasis added).

2 . The press conference announcing this compromise was jointly held by the County Council members proposing the compromise amendment and Mr. Denny. Mr. Denny announced that FIT would support the Council’s amendment, but stated that the 12,000 plus signatures would be guarded as an "insurance policy.” Apparently it was intended that the compromise proposed amendment would be placed on the ballot along with a petition amendment which had already been certified. The sponsor of that petition is one of the plaintiffs in this case, Robin Ficker. His proposed amendment would bar the County Council from raising the tax rate above its fiscal 1988 level. The compromise between the Council and FIT apparently was an attempt to avoid any confusion that would result from multiple tax measures on the ballot. See, however, Monplaisir v. Katz, 26 A.D.2d 804, 805, 273 N.Y.S.2d 839, 841, aff’d sub nom. Cassese v. City Clerk of New York, 18 N.Y.2d 813, 275 N.Y.S.2d 523, 222 N.E.2d 389 (1966) ("Electors have the right to vote on validly submitted propositions even if confusion may be a consequence”).

3 . As approximately 12,500 signatures had been obtained, 2,500 signers would have to withdraw to make the petition insufficiently supported under Art. XI-A, § 5, of the Maryland Constitution.

4 . After the petition for a writ of certiorari was filed in this Court, Mr. Denny represented in another affidavit dated August 24, 1990, that after mailing a letter explaining why FIT believed that the petition should not be filed, he received a total of seventy-seven communications by telephone and by mail. According to his affidavit, seventy-six communications supported FIT’s action and one opposed it.

5 . We do not suggest that there are no circumstances under which a circulating organization, having obtained the requisite signatures for a charter amendment petition under Art. XI-A, would not be required to file the petition. For example, if prior to the filing deadline a court determined that the proposed charter amendment was not proper charter material (see, e.g., Griffith v. Wakefield, 298 Md. 381, 470 A.2d 345 (1984); Cheeks v. Cedlair Corp., 287 Md. 595, 415 A.2d 255 (1980)), or determined that the proposed charter amendment was inconsistent with public general law (see, e.g., Montgomery County v. Board of Elections, 311 Md. 512, 536 A.2d 641 (1988)), a circulating organization would not be required to file the petition. We hold only that, under the circumstances of the present case, FIT and its Chairman were required to file the petition.