Sunday, December 21, 2008

Court Opinion Issued

Back in September, the Maryland Court of Appeals decided to block a referendum promoted by the Citizens for a Responsible Whatever, to relegalize discrimination on the basis of gender identity. At the time, all they did was issue a statement saying who won. You didn't know how the court voted, what their reasoning was, or anything.

This week they issued their opinion document, fifty-three pages of hard reading explaining why they decided the way they did. It was a four to three decision, so the document includes the minority's dissenting opinion. You can read it HERE.

There were a few issues. For one, a lower court had determined that the referendum should go forward because complaints were filed too late, and it was not clear at all how the deadline was determined. There was another issue altogether, having to do with the number of petition signatures -- the county Board of Elections told the bad guys they needed so-many signatures, but they had figured wrong. So it looked like they got the number they were told to get, but when you did the math you saw they needed more than that. They needed five percent of registered voters in the county to sign their petitions, and they didn't have it, but they had the number they thought they were supposed to have, after the board had validated signatures. Finally, there was an issue about the signatures themselves. If you are registered to vote as Dudley Dooright, RCMP, you can't sign the petition as "Dud D." Well, you can, but it won't count, the law says you have to use the name you used when you registered to vote. Actually, if your name ends with RCMP you might not qualify as a resident of Montgomery County, Maryland.

First of all, the court blew off the argument about not meeting the deadline. This gets too complicated, you have ten days to file a complaint but nobody was sure when the ten days started. The first judge ruled that the complaint came too late, but the appeals court decided the complaint was filed in time. I'll tell you, this goes on for page after page, it wasn't easy for these judges to figure it out and I won't explain to you the subtleties of a "determination" and how you know when a person is aggrieved, who gets to have judicial review and who gets declaratory relief. Hey! Open those eyes. In the end, the appeals court decided the good guys' complain was filed in time, that's all that matters. Once they've determined that, then they could look at the content of the complaint, and that's where it gets interesting.

There was a tough question involved in this case. The Board of Elections told the CRW the wrong number, but nobody realized that until the case had already gone to court. The board only included "active" voters in their numbers when they meant "registered," but in fact there are a lot of voters who are inactive for various reasons, but are still registered. So the question is, what number is five percent of registered voters? And the board gave them the wrong number. So the CRW got the number of signatures they were told to get, but they didn't get five percent of registered voters. Our side, the good guys, said the referendum should be thrown out because it didn't meet the standard encoded in the law, and the bad guys said it met the standard they were given by the county government.

This is where I'm glad I'm not a judge.

The legal question had to do with adding this point to the complaint after the deadline had passed. And man, there is a lot of precedent here, they cite a lot of cases where courts have considered these kinds of things. It looks like the big case they go back to was from 1903, it has to do with adding "theories" or reasons to your complaint after the complaint has been filed. It comes down to this: "The statement of the cause of action was different, but the cause of action itself was identical." They decided, on the basis of previous decisions, that amending the complaint was okay.

Having decided that, the question of the number of signatures required became quite a bit easier. The law is clear, you need five percent of the number of registered voters. Based on the case of Maryland Green Party v. Maryland Board of Elections, the court says:
To the extent that this statute, however, permits the maintenance of two lists to determine an individual’s registration status in order to exclude “inactive” voters from the list of registered voters, it is unconstitutional for the reasons stated in our decision in Green Party. We emphasize that there is no room, after our decision in Green Party, for the maintenance of an “inactive” list to define registration status, because both “active” and “inactive” voters are registered voters. The Legislature has “no authority to decree that an ‘inactive’ voter is not a ‘registered voter’ with all the rights of a registered voter.

Here's the money quote:
In the present case Montgomery County’s 52,269 “inactive” voters were excluded from the total number of registered voters, thus greatly diminishing the number of voters necessary to achieve the requisite 5% of registered voters. Had the County Board used all 552,281 registered voters, which includes both “active” and “inactive” voters, as opposed to only the 500,012 “active” voters, it would have determined that 27,615 petition signatures, not 25,001, were needed to achieve the 5% benchmark. Even were we to agree with the Circuit Court that only 26,813 signatures are valid, which we do not, the petition would fail to meet the requisite 27,615 signatures necessary to meet the 5% requirement.

Our county's Board of Elections is a sorry lot. You wouldn't think it would be so hard, especially in this day of computers and databases, to say how many voters you've got. But they couldn't do it, they couldn't put in a simple query to the database that says "Give me the number of registered voters."

Next the court goes through a lot of discussion about the words "shall" and "requirement," and what those mean, how they have interpreted them in the past, and whether somebody signing a petition needs to give their exact name as they have it in their voter registration. The lower court had said it didn't matter if you left out a middle initial, or if a Charles signed as Chuck, even though the law is very specific in saying they have to match up. This made a gigantic difference in the number of valid signatures -- the lower court threw out a few, but kept thousands of contested signatures, saying that the intent of the law was to validate the names, and that could be done even if they didn't match up exactly. Like I say, I'm just glad I'm not a judge.

The important point is here:
Finding none of the County Board’s arguments persuasive, we decline the invitation to reverse our past holding that a signer is required to comply with the signature requirements govern petitions for referendum. Such a holding is in accord with our view that signature requirements "provide additional means by which fraudulent or otherwise improper signatures upon a referendum petition may be detected" ...

Because we hold that Jane Doe’s judicial review action was not time-barred, that "inactive" voters should have been included in the total number of registered voters and finally that the 10,876 challenged signatures were invalid as a matter of law, the reversal of summary judgment entered on behalf of the County Board and entry of summary judgment on behalf of Jane Doe was mandated by this Court on September 9, 2008.

So, not only was the complaint filed on time, not only did the CRW not meet the five percent -- they didn't meet it by a lot, they didn't even meet the easier number that the Board of Elections gave them. This court threw out another ten thousand signatures, which sinks that ship entirely.

22 Comments:

Anonymous old-anon said...

In a surprise move, Barney Frank decides to side with Priya:

"WASHINGTON (Dec. 21) - The longest-serving openly gay member of Congress said Sunday it was a mistake for President-elect Barack Obama to invite the Rev. Rick Warren to deliver the invocation at his inauguration.

"Mr. Warren compared same-sex couples to incest. I found that deeply offensive and unfair," Rep. Barney Frank, D-Mass., said in a broadcast interview.

"If he was inviting the Rev. Warren to participate in a forum and to make a speech, that would be a good thing," Frank said. "But being singled out to give the prayer at the inauguration is a high honor. It has traditionally given as a mark of great respect. And, yes, I think it was wrong to single him out for this mark of respect.""

December 21, 2008 11:45 PM  
Anonymous old-anon said...

here's something that's not a big surprise but important to remember as administrations turmover next month:

"Liberals don't walk the walk when it comes to helping the poor, left-leaning columnist Nicholas Kristof confesses in a we-can-do-better column for the New York Times Sunday edition.

The only debate is whether conservatives give 30 percent more to charity than liberals, as Arthur Brooks, author of "Who Really Cares," claims, or twice as much as liberals, as a study by Google indicates.

Kristof admits to being "unhappy with my findings," echoing sentiments from the researcher Brooks:

"When I started doing research on charity," Mr. Brooks said, "I expected to find that political liberals - who, I believed, genuinely cared more about others than conservatives did - would turn out to be the most privately charitable people. So when my early findings led me to the opposite conclusion, I assumed I had made some sort of technical error. I re-ran analyses. I got new data. Nothing worked. In the end, I had no option but to change my views."

Other findings from the data:

- Conservatives are more likely to donate blood, and more likely to volunteer

- If liberals and moderates donated blood as often as conservatives, the U.S. blood supply would increase by 45 percent

- Conservative donations tend to support religious institutions, while liberal donations shade toward the arts and education (Kristof argues that the former is more likely to help the needy, citing research showing that donations to education disporportionately favor wealthy Americans)

- Conservatives give more to non-secular charities than liberals (when proportion of income is considered)

- The middle class gives less than the working poor"

- Individuals from European countries donate far less than Americans"

December 22, 2008 9:55 AM  
Anonymous Anonymous said...

Conservatives feel the need to pay penance to relieve their guilty consciences for all the denigration of gays they do.

December 22, 2008 10:34 AM  
Blogger David S. Fishback said...

Jim,

Thanks for the report on the Court of Appeals decision. I have not seen it in the press yet.

It is interesting that the three dissenting judges addressed ONLY the timeliness issue -- that is, whether those opposing the referendum filed their suit too late. No judge on the court agreed with CRG that CRG had enough valid signatures to justify putting the community to the time, expense, and aggravation of having a referendum on the issue.

December 22, 2008 10:50 AM  
Blogger David S. Fishback said...

Old-anon,

Congressman Frank laid out the issue concisely and accurately. It was a mistake to invite Pastor Warren. Not necessarily because he supported Prop 8, but because of the offensive and hateful rationale he offered in the media for his position.

I was heartened, but not surprise, by President-Elect Obama's statement in the wake of the announcement that he is a "fierce advocate" for equal rights for gay people. If the controversy over the selection of Pastor Warren results in an in-depth public discussion of Pastor Warren's rationales, then that could end up being a good thing. We can always try to make lemonaide out of lemons -- particularly when the person giving us the lemons wants us to have lemonaide.

December 22, 2008 10:56 AM  
Anonymous Robert said...

Re: Liberal support for education-oriented charitable giving:

Among local lgbt adult-membership organizations, there is a broad tendency to raise money to offer college scholarships to lgbt youth or lgbt supportive youth (with other criteria depending on the organization).

I understand this, given that most openly gay adult members of these organizations are college graduates and support education. I have real problems with it, as follows.

First, a scholarship helps only one or two youth, at some substantial cost.

Second, such scholarships do nothing for lgbt youth who are not college-bound, or do not otherwise have the resources to add to the scholarship and go to college. Sums given to organizations that support youth while they are still in high school, or that support youth who do not have the backing of their families, I think would be better spent.

December 22, 2008 11:27 AM  
Anonymous Anonymous said...

or better yet, give that money to relieve suffering in the Third World

"lbgt" students have no hindrance to getting into college that is peculiar to them

December 22, 2008 12:06 PM  
Anonymous old-anon said...

"Congressman Frank laid out the issue concisely and accurately. It was a mistake to invite Pastor Warren."

That's a matter of opinion, David. A good chunk of our country would agree with everything he says.

Maybe Obama will give him the Congressional Medal of Freedom.

"I was heartened, but not surprise, by President-Elect Obama's statement in the wake of the announcement that he is a "fierce advocate" for equal rights for gay people."

Fierce?

That's Obama trying the old politicians' trick of sending a certain constituency a secret signal that you speak their language.

It makes them complacent and he can then ignore them.

I'm telling you, Warren will be spending a lot of time visiting the White House the next four years until the Palin administration takes over.

December 22, 2008 12:13 PM  
Anonymous Robert said...

Palin-Warren in 2012?

December 22, 2008 12:31 PM  
Blogger David S. Fishback said...

Old-anon,

You state that a "good chunk of our country would agree with everything [Warren] says."

It is probably true that a significant minority still agrees with Warren. And they are sadly misinformed. That is why these issues need airing and serious discussion.

I know you are just gleefulling hoping, on a whole bunch of levels, that Obama is "just another politician" who will throw constituents under the bus out of political cowardice. I think what we have learned in the last couple of years is that Barack Obama is no Bill Clinton. In any event, the proof of the pudding will be in the eating.

December 22, 2008 2:06 PM  
Anonymous Anonymous said...

"Palin-Warren in 2012?"

Nah. Warren is too liberal and tolerant of gays.

Maybe James Dobson or Mike Huckabee.

Warren might run for the Democratic nomination in 2012.

Let's hope he doesn't select Biden for VP.

"I think what we have learned in the last couple of years is that Barack Obama is no Bill Clinton."

How did you learn that?

Unlike Sarah Palin, he's never run anything!

And, of course, Barack and Bill have both been pallin' around with Hillary.

December 22, 2008 2:44 PM  
Blogger Dana Beyer, M.D. said...

I find it interesting, all you Anons, that now that your year-long battle is finally over, you have nothing to say.

You lost, you wasted our time, people are protected in Montgomery County on the basis of their gender identity and expression, and, I bet, you're no worse off for wear.

Have a wonderful holiday season.

December 23, 2008 12:01 AM  
Anonymous Robert said...

A good chunk of our country would agree with everything David says, too. Certainly the entire MCPS school board did.

Rick Warren is not alone. That's why I'm grateful that we have people Jim, David, Christine and everyone to keep up the good fight

December 23, 2008 6:29 AM  
Anonymous Anonymous said...

"I find it interesting, all you Anons, that now that your year-long battle is finally over, you have nothing to say."

Nothing new happened, Doctor. A bunch of judges released a rationalization of their faulty decision. Big deal. The decision was made months ago.

"You lost, you wasted our time,"

You persist in characterizing the pursuit of democracy as a waste of time.

Your side resisted taking a controversial issue to the people because you knew they would reject the gay agenda, just like voters in California did. You don't believe in democracy.

In time, the American people will realize that the gay agenda intends to destroy our democracy and our rights. MC is not an isolated case.

"people are protected in Montgomery County on the basis of their gender identity and expression, and, I bet, you're no worse off for wear."

The law has been in place for a while now. Any idea if it has had any effect?

I think we had a transgender who said they couldn't find a job because of discrimination posting on the site earlier this year. Any change?

December 23, 2008 9:51 AM  
Anonymous Anonymous said...

"Anonymous" troll: You are a Fool!
Your comment: "In time, the American people will realize that the gay agenda intends to destroy our democracy and our rights. MC is not an isolated case." shows you for what you are...an hysterical, hypocritical, psychotic, hateful, paranoid individual who needs professional help before you end up doing harm to others. How sad for you.
Citizen

December 23, 2008 10:12 AM  
Anonymous Robert said...

I wonder if Santa brings presents to trolls?

December 23, 2008 10:56 AM  
Anonymous Anonymous said...

"Your comment: "In time, the American people will realize that the gay agenda intends to destroy our democracy and our rights. MC is not an isolated case." shows you for what you are...an hysterical, hypocritical, psychotic, hateful, paranoid individual who needs professional help before you end up doing harm to others."

Really?

Could you explain how it shows that?

December 23, 2008 10:58 AM  
Anonymous Robert said...

Unfortunately, trolls who do not repent of their livestyle can not be accepted into our congregation. They are, however, encouraged to attend here.

December 23, 2008 2:12 PM  
Blogger Dana Beyer, M.D. said...

Wyatt,

The impact is that the civil rights of all are protected.

You are the ones who promised an orgy of rape and murder in the women's bathroom.

Any evidence of that?

December 23, 2008 5:20 PM  
Anonymous Anonymous said...

Has the CRG launched its highly secret weapon that it promised would reverse the Court's decision yet? I keep waiting for them to make good on their promise. Or were they...as usual...just babbling and venting their anger at having LOST AGAIN? What a sad group of individuals they are...living an Alice in Wonderland existence. I wonder what is next on their spiteful and hateful agenda?
Diogenes

December 23, 2008 8:16 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

December 23, 2008 11:23 PM  
Blogger JimK said...

No, Anon. You're out of line.

JimK

December 23, 2008 11:30 PM  

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