Professional Documents
Culture Documents
No. 09-2304
KENDALL v. BALCERZAK
COUNSEL
ARGUED: Susan Baker Gray, Highland, Maryland, for
Appellant. Kathleen Evelyn Wherthey, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland; Gerald M. Richman, Ellicott City, Maryland, for
Appellees. ON BRIEF: Douglas F. Gansler, Attorney General of Maryland, Baltimore, Maryland, Sandra Benson Brantley, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Annapolis,
Maryland, for Appellees Robert L. Walker and Linda H.
Lamone.
OPINION
DUFFY, Senior District Judge:
This appeal arises out of a petition drive to obtain a referendum on a zoning ordinance passed by the Howard County
Council, of Howard County, Maryland, on November 3,
2008. Paul F. Kendall, who signed the petition, filed a complaint on March 16, 2009, and an amended complaint on
March 30, 2009, in the United States District Court for the
District of Maryland, pursuant to 42 U.S.C. 1983, alleging
violations of his constitutional rights and demanding declara-
KENDALL v. BALCERZAK
tory and injunctive relief. The named Defendants were: Howard County, Maryland (the "County"), President Ann M.
Balcerzak and Director Betty L. Nordaas of the Howard
County Board of Elections (the "County Board Defendants"),
and Chairman Robert L. Walker and Administrator Linda H.
Lamone of the Maryland State Board of Elections (the "State
Defendants").
Kendalls amended complaint asserted three counts against
the Defendants. In the first count, Kendall asserted that all
Defendants had denied his rights to freely associate, petition
the government, and vote, in violation of the First and Fourteenth Amendments of the United States Constitution. The
second count asserted that all the Defendants had denied him
due process and equal protection in violation of the Fourteenth Amendment of the United States Constitution. The
third count alleged that all Defendants had violated Kendalls
constitutional rights that are protected under 42 U.S.C.
1983.
The County and the County Board Defendants moved to
dismiss Kendalls amended complaint, and the State Defendants filed an answer asserting that the complaint failed to
state a claim against them upon which relief could be granted.
The district court subsequently granted the motions of the
County and the County Board Defendants and dismissed the
case against all Defendants. J.A. 117-35.
Kendall noted an appeal on November 17, 2009. On
December 23, 2009, all parties participated in court-ordered
mediation, which led to Kendalls voluntary dismissal of his
claims against the County effective January 15, 2010, but
which otherwise failed to resolve the dispute. This appeal followed.
As explained below, we agree that the district court properly dismissed Kendalls complaint. We therefore affirm the
district courts dismissal.
KENDALL v. BALCERZAK
I.
On November 3, 2008, the Howard County Council passed
Council Bill 58, a bill that substantially increased the size of
a grocery store to be built in the Turf Valley community. Concerned with the passage of this bill, Howard County Citizens
for Open Government ("HCCOG") sought to challenge this
bill by way of referendum, as permitted by Howard County
Charter Section 211. Specifically, Section 211 of the Howard
County Charter provides, in relevant part:
(a) Scope of the referendum
The people of Howard County reserve to themselves the power known as "the Referendum," by
petition to have submitted to the registered voters of
the County to approve or reject at the polls, any law
or part of any law of the Council. The referendum
petition . . . shall be sufficient if signed by five per
centum of the registered voters of the County, but in
any case not less than 1,500 or more than 5,000 signatures shall be required. Such petition shall be filed
with the Board of Supervisors of Election of Howard
County within sixty days after the law is enacted. . . .
[I]f more than one-half, but less than the full number
of signatures required to complete any referendum
petition against such law be filed within sixty days
from the date it is enacted, the time for the law to
take effect and the time for filing the remainder of
signatures to complete the petition shall be extended
for an additional thirty days.
Howard County, Md., Charter 211 (2008).
In Howard County, the signatures of 5,000 registered voters
are generally needed to refer a legislative act of the County
Council to referendum; in this case, the deadline for gathering
KENDALL v. BALCERZAK
(ii)
(iii)
(iv)
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Four days after the March 12, 2009 County Board meeting,
Kendall filed his initial complaint in this action, in the United
States District for the District of Maryland. On March 30,
2009, he filed an amended complaint, which is the operative
pleading in this action.
In Count One of the First Amended Complaint, Kendall
claimed that the actions of Defendants "in interpreting the signature requirements as they did," totally and completely disenfranchised Plaintiff and over 9,300 other signatories of the
petition as well as the entire Howard County electorate of
their right to take Bill 58 to referendum and vote. Kendall
claimed that Defendants violated his (a) "First Amendment
right to express his beliefs by vote, to associate as these rights
are made applicable to Howard County by the Fourteenth
Amendment to the United States Constitution"; (b) "right to
substantive due process and equal protection as established by
the Fourteenth Amendment to the United States Constitution
. . ."; and (c) "right to petition the government for redress of
grievances as protected under the First and Fourteenth
Amendments to the United States Constitution." J.A. 12. Kendall further pled that the requirement that signatures on a referendum petition match exactly the names as written on the
voter registration card is "overbroad" and represents an unreasonable burden on Plaintiffs rights to vote, petition, associate
and engage in politically protected speech. J.A. 13.
In Count Two, Kendall claimed that he was denied equal
protection and procedural and substantive due process. Specifically, Kendall argued that the procedural due process
offered by the County Board was "insufficient" in that no
notice was given of the reversal of the Boards decision and
there was no ability to challenge that decision before it took
effect. J.A. 17. Kendalls substantive due process argument
appears to be that the process was "unfair" in that it applied
"an unconstitutional law and a non-precedential portion of a
Court of Appeals decision to achieve a manifestly unfair
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III.
We now review whether the district court properly dismissed Kendalls amended complaint and correctly ruled that
EL 6-203, as interpreted by Doe, imposes constitutionally
permissible limitations on the right to referendum. "The standard of review for dismissal pursuant to Rule 12(b)(6) is de
novo." Robinson v. Am. Honda Motor Corp., Inc., 551 F.3d
218, 222 (4th Cir. 2009). In addressing the matters on which
a district court rules, the usual appellate standard governing
motions to dismiss considers questions of law de novo and
construes the evidence in the light most favorable to the nonmoving party, applying the same criteria that bound the lower
court. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993); EEOC v. Seafarers Intern. Union, 394 F.3d 197
(4th Cir. 2005). To survive a rule 12(b)(6) motion to dismiss,
the facts alleged "must be enough to raise a right to relief
above the speculative level" and must provide "enough facts
to state a claim to relief that is plausible on its face." Robinson, 551 F.3d at 222 (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007)).
IV.
We find that the district court correctly ruled that EL 6203 does not violate Kendalls right to freely associate, his
right to petition the government, his right to vote, or his First
Amendment right to engage in "politically protected speech."
To begin with, Kendall argues that the right to referendum
implicates the right to vote. We agree with the district courts
conclusion that there is no fundamental right to initiate legislation as there is a fundamental right to vote. Kendall argues
that the district court erred in finding that the right of referenda does not implicate the right to vote and argues that this
case implicates the right to vote and that such right is violated
in this case.
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(ii)
(iii)
(iv)
Therefore, the statute affords the signer four options in signing the petition. The signer can: (1) sign his/her name on the
petition as it appears on his/her voter registration card; (2)
sign his/her full first, middle and last names; (3) sign his/her
full first name, middle initial, and last name; or (4) sign
his/her first initial, and full middle and last names. A signature in any of those formats is valid for purposes of being a
qualified signature on the petition.
This method is both content-neutral and nondiscriminatory. The signature requirement is applied indiscriminately to all petition signers. And, the signature requirement is reasonably related to the purpose of detecting
fraudulent or otherwise improper signatures. The signature
requirement helps to make sure that false signatures are not
put on the petition and that unregistered or ineligible voters do
not sign it. As stated by the State Defendants, "the requirement discourages fraud by supplying a workably complete
signature exemplar that those officials validating the signatures can use to confirm that the signer actually is who he or
she claims to be." Appellees Br. at 19. Therefore, because the
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and that there is a legitimate governmental purpose of detecting fraudulent or otherwise improper signatures upon a referendum petition. States have a legitimate interest in
safeguarding the fairness and honesty of all elections and
have an interest in ensuring that the State and affected local
jurisdictions should not incur the considerable administrative
responsibilities attending a referendum unless there is a
proven interest by a reasonably large segment of the electorate. See Burdick, 504 U.S. at 433 ("Common sense, as well
as constitutional law, compels the conclusion that government
must play an active role in structuring elections . . . if they are
to be fair and honest and if some sort of order, rather than
chaos, is to accompany the democratic process."); Taxpayers
United, 924 F.2d at 297 ("[A] state has a strong interest in
ensuring that its elections are run fairly and honestly."); Howlette, 485 F. Supp. at 28 (recognizing local governments
"compelling interest in preventing electoral fraud" and in "discouraging unnecessary or capricious referenda"). Moreover,
since Kendall has not alleged that any fundamental right or
suspect classification is involved, it is irrelevant that Maryland could have chosen a better method of protecting its interest in guaranteeing an honest referendum system. See
Taxpayers United, 994 F.2d at 298 (citing Schweiker v. Wilson, 450 U.S. 221 (1981) ("The equal protection obligation
. . . is not an obligation to provide the best governance possible.")).
Therefore, because the requirements of EL 6-203 pass a
rational basis review, the district court correctly concluded
that Kendalls right to equal protection has not been denied.
The district court also correctly found that Kendall was not
denied his right to substantive due process. We have noted
that "while liberty interests entitled to procedural due process
protection may be created by state law as well as the Constitution itself, those entitled to substantive due process protection
(whatever the procedures afforded) are created only by the
Constitution." Hawkins v. Freeman, 195 F.3d 732, 748 (4th
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had not validated each signature in accordance with the mandate set forth in Doe, and that upon advice from the Attorney
Generals office, the County Board re-verified the signatures
on the petition submitted on December 30, 2008, and found
that the total number of signatures fell below the 2,500 signatures necessary to qualify HCCOG for a thirty-day extension
to secure the additional signatures. According to the Board, a
written decision was presented at the meeting where members
of HCCOG spoke and the decision of the Board was
explained.
The district court found that the County Boards actions
appear to have complied with the notice requirement of Maryland election law. Maryland law provides that once the local
election authority has verified and counted the signatures submitted on a petition for referendum, the chief election official
shall:
(1) determine whether the validated signatures contained in the petition are sufficient to satisfy all
requirements established by law relating to the number and geographical distribution of signatures; and
(2) . . . determine whether the petition has satisfied
all other requirements established by law for that
petition and immediately notify the sponsor of that
determination, including any specific deficiencies
found.
Md. Code, E.L. 6-208(a).
State law further provides that within two business days of a
determination that a petition is deficient, the chief election
official of the election authority must notify the petitions
sponsor of the determination. Md. Code, E.L. 6-210(b). In
this case, the district court noted that it appears that members
of the HCCOG received notice of HCBEs final determination
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regarding its petition on March 12, 2009, the same date as that
provided on the written decision.
Maryland law does not require, nor did the County Board
provide, notice to anyone associated with HCCOG that it was
considering invalidating signatures on the HCCOG petition
prior to making that determination. But, as the district court
found, the fact that the County Board failed to provide notice
to Kendall that his signature was being invalidated does not
give rise to a due process violation. As the Seventh Circuit
reasoned in Protect Marriage Illinois v. Orr, 463 F.3d 604,
608 (7th Cir. 2006):
[W]hat is required in the name of due process
depends, as the Supreme Court made clear in Matthews v. Eldridge, 424 U.S. 319, 335 (1976), on the
costs as well as the benefits of process. The cost of
allowing tens of thousands of people to demand a
hearing on the validity of their signatures would be
disproportionate to the benefits, which would be
slight because the state allows the organization
orchestrating a campaign to put an advisory question
on the ballot, in this case Protect Marriage Illinois,
to challenge the disqualification of any petitions.
We agree with the district court that, in this case, as in Protect Marriage Illinois, the costs of allowing thousands of people to demand a hearing on the validity of their signatures
would be disproportionate to the benefits. Moreover, Maryland provides a procedure by which "a person aggrieved by
a determination" that a petition is deficient may seek judicial
review in the circuit court for the county in which the petition
is filed. Md. Code, E.L. 6-209(a)(1).
Apparently, HCCOG timely filed a Petition for Judicial
Review of the County Boards final determination in the Circuit Court for Howard County seeking, in part, a declaratory
judgment that the final determination be declared invalid.
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Kendall, along with two other individuals, also filed a Complaint for Declaratory Judgment and Other Appropriate Relief
in the Circuit Court for Howard County. According to Kendall, that case was unrelated to this one, and Kendall voluntarily dismissed that state court action after the County Board
filed a motion to dismiss.
Crediting Kendalls assertion that the lawsuit he filed was
unrelated to this once, then it appears Kendall did not file any
challenge to the County Boards final determination in state
court. For whatever reasons, Kendall chose not to pursue that
course. As the Maryland Court of Appeals noted in Doe, a
registered voter may bring the action for judicial review when
a determination is made that results in aggrievement. Doe,
962 A.2d at 353.
We find that there was adequate process available to Kendall to provide an opportunity to be heard. "[A] procedural
due process violation cannot have occurred when the governmental actor provides apparently adequate procedural remedies and the plaintiff has not availed himself of those
remedies." Elsmere Park Club, L.P. v. Town of Elsmere, 542
F.3d 412, 423 (3rd Cir.2008).
Therefore, as the County Board provided adequate notice
under the circumstances of the decision to invalidate the petition signatures and as there were adequate opportunities for
review of the invalidation of Kendalls petition signature in
state court, the district court was correct in finding that there
was no violation of Kendalls right to procedural due process.
VI.
Therefore, based on the foregoing, we affirm the district
courts dismissal of Kendalls amended complaint for failure
to state a claim upon which relief can be granted. Kendall has
failed to state a claim for a denial of any of his constitutional
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