Ademiluyi v. Egbuono ( 2019 )

April Ademiluyi, et al. v. Chizoba Egbuonu, et al., No. 34, September Term, 2018. Opinion
by Getty, J.
ELECTION LAW—NOMINATIONS—NOMINATIONS BY POLITICAL
PARTIES IN GENERAL
The Court of Appeals held that the Libertarian Party of Maryland’s nomination of a judicial
candidate for the Circuit Court of Prince George’s County was invalid, because the
candidate was a registered Democrat and the Libertarian Party of Maryland’s Constitution
requires that candidates for the party be registered as Libertarians.
ELECTION LAW—LIMITATIONS AND LACHES
A voter’s challenge to the qualifications of a candidate for judicial office was not barred
by the doctrine of laches, where the challenge was based on the candidate’s party
affiliation, because there was little media attention surrounding her candidacy, documents
concerning the candidate’s political affiliation were in the exclusive possession of the State
Board of Elections, and Appellees brought action just one day after receiving the relevant
documents through a Maryland Public Information Act request submitted to the State
Board of Elections.
Circuit Court for Prince George’s County
Case No.: CAL18-26458
Argued: September 6, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 34
September Term, 2018
APRIL ADEMILUYI, et al.
v.
CHIZOBA EGBUONU, et al.
Barbera, C.J.
*Greene,
*Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
Opinion by Getty, J.
Watts, J. concurs in judgment only.
Filed: August 29, 2019
*Greene and Adkins, J.J., now retired,
participated in the hearing and conference of this
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
case while active members of this Court; after
Suzanne Johnson being recalled pursuant to the Md. Constitution,
2020-03-23 09:32-04:00
Article IV, Section 3A, they also participated in
the decision and adoption of this opinion.
Suzanne C. Johnson, Clerk
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
1
In 1970, Governor Marvin Mandel issued the first executive order that established a
judicial nominating commission. See http://mdcourts.gov/judgeselect
(https://perma.cc/EDL7-YQDD). The purpose of judicial nominating commissions is to
ensure proper vetting of judicial candidates and the appointment of qualified candidates
and this practice has been maintained by subsequent Governors. See Exec. Order
01.01.2015.09 for the executive order that was in effect during the time period of the 2018
election.
2
The distinction between principal and non-principal parties is based upon the amount of
support a party was able to attract in the preceding Gubernatorial Election. See EL § 1-
101(dd), (jj), (kk); see also EL 8-202. The term “principal political parties” is defined in
the Election Law Article to encompass only “the majority party and the principal minority
party.” EL § 1-101(kk). The term “principal minority party” is defined as “the principal
political party whose candidate for Governor received the second highest number of votes
of any party candidate at the last preceding general election.” EL § 1-101(jj). Whereas, a
majority party is defined as “the political party to which the incumbent Governor belongs
if the incumbent Governor is a member of a principal political party.” EL § 1-101(dd).
The definition further provides that “[i]f the incumbent Governor is not a member of one
of the two principal political parties, “majority party” means the principal political party
whose candidate for Governor received the highest number of votes of any party candidate
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
at the last preceding general election.” Id. Historically, the principal political parties
within the State have been the Democratic and Republican Parties.
3
This procedure applies to all challengers for the office of circuit court judge. Incumbent
judges who have been appointed by the Governor or have completed their fifteen-year
term, pursuant to Article IV, Section 5 of the Maryland Constitution, are eligible to file in
the primary election regardless of the incumbent judge’s party affiliation.
3
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.
4
Ms. Ademiluyi raises three issues in her appeal memorandum:
1. Does a voter, whom is not affiliated with the Maryland Libertarian Party, have
standing to challenge an alleged failure of the party members to comply with its
bylaws in nominating a candidate for office?
2. Does Election Law Title 5 Candidates Subtitle 2 Qualifications § 5-201 require
political party bylaws to address the party affiliation of the judicial candidates they
nominate?
3. May a Circuit Court’s ruling of a preliminary injunction without a hearing on the
merits and an opportunity to exercise the statutory right to an appeal a [sic] a
decision on the merits remove a candidate’s name from the ballot?
Generally, court will not decide an issue “unless it plainly appears on the record to have
been raised in or decided by the trial court.” Md. Rule 8-131. We have previously
indicated that this rule is intended,
to require counsel to bring the position of their client to the attention of the lower
court at the trial so that the trial court can pass upon, and possibly correct any
errors in the proceedings, and . . . to prevent the trial of cases in a piecemeal
fashion, thus accelerating the termination of litigation.
Maryland State Bd. of Elections v. Libertarian Party of Maryland, 426 Md. 488, 517 (2012)
(quoting Fitzgerald v. State, 384 Md. 484, 505 (2004)).
4
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
5
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
5
See also Maryland State Archives, Archives of Maryland vol. 73: Kilty’s Land-Holder’s
Assistant, and Land-Office Guide, Preface 5 (1808) available at:
http://aomol.msa.maryland.gov/000001/000073/html/index.html (https://perma.cc/HP36-
G7XZ).
6
There was a subsidiary debate among the members of the Constitutional Reform
Convention of 1850 concerning whether judges should be appointed for life or subject to a
6
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.
definite term. Under the proposal of the Whig Party, judges would have a lifetime
appointment. 1850 Debates at 529–32.
7
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.
7
Judge Chambers, of Kent County, was a judge on this Court from 1834 to 1851. In
addition to his role on this Court, Mr. Chambers served as a member of the Maryland
Senate from 1821 to 1825, of the United States Senate from 1826 to 1834, and the Chief
Judge of the second judicial circuit of Maryland. Archives of Maryland, Ezekial Forman
Chambers, MSA SC 3520-1989. At that time, the Chief Judge of a judicial circuit had dual
roles—serving as a trial court judge of the circuit but also, by virtue of being the circuit’s
Chief Judge, as an appellate judge of the Court of Appeals.
8
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
8
Mr. Spencer, of Queen Anne’s County, was a member of the Maryland House of
Delegates from 1838 to 1839, a member of the 1850 Constitutional Convention, and Clerk
of this Court from 1862 to 1863. Archives of Maryland, William A. Spencer, MSA SC
3520-13841.
9
Mr. Gwinn, of Baltimore City, was a member of the Maryland House of Delegates in
1849, a member of the 1850 Convention, the first State’s Attorney of Baltimore elected
under the 1851 Constitution from 1857 to 1861, and Attorney General of Maryland from
1875 to 1883. Archives of Maryland, Charles J. M. Gwinn, MSA SC 3520-1507.
10
Chief Judge Dorsey, of Anne Arundel County, was a member of the Maryland House of
Delegates in 1807, the United States Attorney for Maryland from 1811 to 1812, the
Attorney General of Maryland from 1822 to 1824, an Associate Judge on this Court from
1824 to 1848, and Chief Judge of this Court from 1848 to 1851. Archives of Maryland,
Thomas Beale Dorsey, MSA SC 3520-1498.
9
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
11
Under the 1851 Constitution, the eight judicial circuits consisted of the following
counties: (1) St. Mary’s, Charles, Prince George’s, and Anne Arundel Counties, (2)
Howard, Calvert, and Montgomery Counties; (3) Frederick and Carroll Counties; (4)
Washington and Allegany Counties; (5) Baltimore City; (6) Baltimore, Harford, and Cecil
Counties; (7) Kent, Queen Anne’s, Talbot, and Caroline Counties; (8) Dorchester,
Somerset, and Worcester Counties. Md. Const. of 1851 art. IV, § 19 (1851).
12
The “general election for delegates” essentially means the election year in which the
members of the Maryland House of Delegates are elected. In the mid-19th century,
elections were held every year and thus candidates for judicial offices would run in the
same cycle as Delegates. See 1850 Debates and Proceedings at 204. The introduction of
quadrennial elections through the “Fewer Elections Amendment[,]” i.e. Article XVII of the
Maryland Constitution, did not occur until its adoption in 1922. Cty. Comm’rs for
10
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
Montgomery Cty. v. Supervisors of Elections of Montgomery Cty., 192 Md. 196, 204
(1948).
13
Under the 1867 Constitution, the prior eight judicial circuits were expanded to thirteen.
Md. Const. of 1867 art. IV, § 19 (1867). The judicial circuits were distributed as follows:
(1) St. Mary’s and Charles Counties; (2) Anne Arundel and Calvert Counties; (3) Prince
George’s and Montgomery Counties; (4) Frederick County; (5) Washington County; (6)
Allegany County; (7) Carroll and Howard Counties; (8) Baltimore County; (9) Harford and
Cecil Counties; (10) Kent and Queen Anne’s Counties; (11) Talbot and Caroline Counties;
(12) Dorchester, Somerset, and Worcester Counties; and (13) Baltimore City. Id.
11
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
14
Judges of the Orphan’s Court are elected in purely partisan contests in both the primary
and general elections, but in contrast to circuit court elections, the Governor plays no role
within this process. See Md. Const. art. IV. § 40.
15
Constitutionally, judicial candidates must meet the following qualifications: (i) Maryland
citizenship; (ii) qualified voters; (iii) residents of the State for at least five years; (iv)
residents of the county, city, district, or judicial circuit, within which they seek election,
for at least six months preceding election or appointment; (v) at least thirty-years old; (vi)
admitted to practice law within the State; and (vii) be “distinguished for integrity, wisdom
and sound legal knowledge.” Md. Const. art. IV, § 2.
12
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
13
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
16
This was the general practice throughout Maryland and the United States as a whole,
prior to the introduction of public ballots. See Will Evans, Boston Athenæum Digital
Collections, Nineteenth-Century Political Ballots, available at:
https://cdm.bostonathenaeum.org/digital/collection/p16057coll29
(https://perma.cc/Z28E-N49P) see also Arthur Crosby Ludington, American Ballot Laws
1888–1910, 31–33 (Univ. of the State of N.Y.) (1911).
17
For example, this method of balloting and the process for administration of elections is
authorized as follows:
[T]he elections aforesaid respectively shall commence at nine o’clock in the
morning of the respective days of election, and shall continue without
adjournment, and be closed at six o’clock in the evening of the same day, and
no ballot shall be taken before the said hour of nine o’clock in the morning,
nor after the said hour of six o’clock in the evening, and every vote shall
deliver to the judge or judges of the election in the district in which he offers
to vote, a ballot, on which shall be written, or printed, the name or names of
the person or persons voted for, and the purpose for which the vote is given,
plainly designated, and the ballot so delivered in, and received by the judge
or judges of the election, shall be deposited in the ballot box till the poll is
closed . . . . and if any voter shall offer any more than one ballot, with a
fraudulent design, every such person shall forfeit and pay the sum of twenty
dollars for every such offence.
1805 Md. Laws ch. XCV § XII.
14
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
18
The General Assembly accomplished these two revisions in 1896 within the legislation
that repealed the existing election code and reenacted a new election code, titled Article
33. 1896 Md. Laws ch. 202.
15
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
19
At the time, the Court of Appeals was comprised of the eight chief judges of their
individual judicial circuits. See Final Report of the Bond Commission; O’Conor Backs
Bond Court Plan: Calls it ‘Final Effort to Strengthen Judiciary’, The Sun (1837–1993);
Nov. 3, 1944; ProQuest Historical Newspapers: The Balt. Sun.
16
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.
20
Chief Judge Carroll T. Bond was a trial judge on the Supreme Bench of Baltimore City,
now the Circuit Court for Baltimore City, from 1911 to 1924, and was Chief Judge of this
Court from 1924 to 1943. Archives of Maryland, Carroll T. Bond, MSA SC 3520-1630.
17
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.
21
Attorney General Walsh’s opinion was in response to a letter from James L. Hennegan,
then President of the Board of Supervisors of Elections for Baltimore City. 61 Op. Atty
Gen. 126, 128 (1942). Mr. Hennegan specifically requested Mr. Walsh to opine as to
whether several incumbent judges, i.e. Carroll T. Bond, George A. Solter, Eugene
O’Dunne, and Joseph N. Ulman, could file in both the Democratic and Republican primary
elections. Id. Based upon this advice, the four judges cross-filed and were successful in
their elections.
18
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
22
At the time, judges were appointed to fill vacancies until the Gubernatorial Election
subsequent to their appointment, a quadrennial basis, with judges serving pre-election
terms ranging from “a few days to almost four years” which the Commission felt was “too
long if the judges are to hold office ultimately by election.” Interim Report of the Bond
Commission at 5; Final Report of the Bond Commission at 8. In its interim report, the
Commission recommended that the appointed judges stand for election at the following
election for members of the General Assembly, which occurred every two years—a
biennial basis. Id.
19
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
23
The Bond Commission fully endorsed the concept in the statute that had been introduced
by Delegate Melnicove through H.B. 800 and they advocated that this provision be
retained, despite any other modifications to the electoral process recommended by the
Commission. 1941 Md. Laws ch. 703; see also Interim Report of the Bond Commission
at 4. As evidence of this, the Bond Commission recommended that this provision be
incorporated into art. IV, § 5 of the Maryland Constitution. However, this provision was
cut from the final version of the Bond Amendment but remained part of the statutory
election code. See Bond Commission’s Draft Bill of Proposed Amendments at 56–57.
24
The elimination of contested elections for appellate judges was not adopted at that time
but was accomplished by constitutional amendment in 1976. See 1976 Md. Laws ch. 542.
20
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 fifteen years, no
person shall be appointed who will become disqualified by reason of age and
thereby unable to continue to hold office until the prescribed time when his
successor would have been elected.
1943 Md. Laws ch. 772.25
Over seventy years later, the reforms of the mid-20th century are the core features
of circuit court judge elections today. The Melnicove bill provided a façade of
nonpartisanship in the layout of the judicial ballot. The opinion by Attorney General Walsh
to allow cross-filing in the primary elections of the two principal parties provided a tenor
of bipartisanship. But the inherent partisanship discussed by this Court in Suessmann
remains because the selection of circuit court judicial candidates is vested in the exclusive
domain of the two principal parties, i.e. the Democratic and Republican parties of
Maryland.
Contemporary Statutory Regulation of Elections, this Court’s Decisions in Green Party,
Suessmann, and the General Assembly’s Response
The overarching purpose of the Election Law Article is to ensure fairness within the
elective process and to create an even playing field for candidates, voters, political parties,
and others involved with the conduct of elections. See EL § 1-201. The net effect of the
25
Article IV § 5 was further amended in 1945 which made little substantive change. 1945
Md. Laws ch. 703. This amendment was ratified by the electorate in November of 1944.
21
reform efforts in the mid-20th century created a system of judicial elections that could—at
best—be characterized as an imperfect hybrid. As shown by the short history described
above, the issue of judicial independence versus partisan elections has been hotly debated
since the 1851 Constitution. Today, it is a perennial issue before the General Assembly
with various bills introduced to eliminate the election of circuit court judges or to modify
the current judicial electoral process.
Two recent cases before this Court challenged this electoral process for circuit court
judges. In Maryland Green Party v. Maryland Bd. of Elections (“Green Party”), this Court
was asked to assess the constitutionality of certain provisions of the Election Law Article,
as applied to non-principal parties. 377 Md. 127, 155–56 (2003). Prior to this case,
candidates belonging to non-principal political parties and those unaffiliated with any
political party were required to achieve nomination through petition signed by a certain
number of citizens. 1896 Md. Laws ch. 202; see also Iverson v. Jones, Sec’y of State, 171
Md. 649, 651-652. In challenging this provision, the Green Party of Maryland averred that
the statutory requirement that mandated a petition process to nominate candidates, in
conjunction with the initial petition requirement to form a new political party, was
unconstitutional. Id. at 153. Ultimately, the Court agreed and held that the double
petitioning mandate in the statute violated the equal protection provision of Article 24 of
Maryland’s Declaration of Rights. Id. at 156–157.
The following year, this Court reviewed a challenge by unaffiliated voters who
claimed that their exclusion from voting for circuit court judges in Maryland’s primary
elections was unconstitutional. Suessmann, 383 Md. at 721–22. Specifically, the Court
22
was asked to enjoin the certification of the election results in Anne Arundel County and St.
Mary’s County circuit court elections because the voters of non-principal political parties
and those unaffiliated with a political party were excluded from participating in primary
election on March 2, 2004. Id. at 704–05. We concluded that Maryland’s system of
judicial elections as designed by the General Assembly, through utilization of party
primaries, is constitutional even though the electoral process is inherently partisan.
Suessmann highlights an imperfection within our judicial electoral process. As a
consequence of conducting primary elections through the two principal parties, a large
number of registered voters are excluded. For example, approximately twenty percent of
Maryland’s registered voters were not registered with a principal party and therefore were
ineligible to vote in circuit court judge elections during the 2018 primary. 26 Ultimately,
the Court held that this procedure did not violate the equal protection provisions of the
Maryland or Federal Constitutions. Id. at 733.
As a result of Suessmann and Green Party, the General Assembly enacted
legislation aimed at remedying these deficiencies within our judicial electoral system. See
26
In 2018, there were a total of 4,018,891 registered voters within the State. Maryland
State Board of Elections, Voter Registration Activity Report, November 2108. The
composition of these voters is as follows: 2,204,933 voters registered as Democrats,
1,023,148 voters registered as Republicans, 9,287 voters registered with the Green Party,
22,338 voters registered with the Libertarian Party, 726,001 voters unaffiliated with any
political party, and 33,184 voters registered with other parties. Id. In sum, voters affiliating
with the Green, Libertarian, other parties, and those unaffiliated with any political party
totaled 790,810—nearly twenty percent of the State’s electorate.
23
2006 Md. Laws ch. 120 (S.B. 129).27 Therein, the General Assembly established that non-
principal political parties may nominate candidates through their party bylaws and the
filing of certificates of nomination with the State Board. Id.; EL § 5-701(3).28 This revised
nomination statute allows three avenues for challengers to access the ballot, dependent
upon a candidate’s party affiliation. First, candidates nominated by a principal political
party must be nominated through participation in primary elections. EL §§ 5-701(1), 8-
202(a). Candidates of non-principal political parties must be nominated in accordance with
that party’s constitution or bylaws. EL § 5-701(3). Additionally, as unchanged from earlier
electoral procedure, candidates not affiliated with any political party may seek nomination
by petition signed by a specific number of registered voters. 29 EL § 5-701(2). The instant
appeal concerns these statutory revisions for nomination of candidates by non-principal
parties as enacted by the General Assembly in 2006.
27
As referenced supra in Green Party, this Court held that the “Election Code’s two-tiered
petition requirement for [non-principal] parties[,]” i.e. requiring non-principal parties to
garnish 10,000 signatures to establish the party and requiring its candidate to be nominated
through petition signed by a certain number of voters, was violative of the equal protection
components of the Maryland Declaration of Rights. 377 Md. at 156–
157. In Suessmann, this Court entertained a challenge to the Election Code by unaffiliated
voters. 383 Md. at 704. The Court concluded that the Election Code’s exclusion of
unaffiliated voters from primary elections was constitutional. Id. at 732–733. As a result,
a significant portion of the electorate became disenfranchised.
28
This is an extraordinary power granted to non-principal political parties. It allows, in
this case, parties with less than one percent of the registered voters in the state to nominate
judicial candidates directly to the general election and thus to bypass the primary contests.
As such, it is a power of nomination to be carefully adhered to and closely guarded.
29
Prior to 2006, candidates of non-principal political parties were nominated by petition,
in a similar fashion. However, in 2006, this Court invalidated that provision. See supra at
22–23.
24
Facts Underlying the Instant Appeal
On June 18, 2018, Appellant, April T. Ademiluyi filed a certificate of candidacy
with the State Board seeking certification of her candidacy for the office of Judge of the
Circuit Court for Prince George’s County. Along with her certificate of candidacy, was a
certificate of nomination or designation from the Libertarian Party of Maryland certifying
the party’s nomination of Ms. Ademiluyi. Curiously, Ms. Ademiluyi’s certificate of
candidacy indicates her party affiliation as “judicial” but the certificate of nomination or
designation lists her party affiliation as Democrat.
On June 28, 2018, the State Board posted Ms. Ademiluyi’s name on its website as
a candidate with indication she was a candidate only in the 2018 Gubernatorial General
Election. On July 19, 2018, the State Board certified the results of the primary election
and posted the list of candidates for the 2018 Gubernatorial General Election on its website.
The same day, attorneys for Appellees, of which none are registered members of the
Libertarian Party, submitted a MPIA request to the State Board seeking Ms. Ademiluyi’s
voter registration records and records related to her candidacy for judicial office. On July
24, 2018, Appellees received the documents associated with Ms. Ademiluyi’s party
affiliation and candidacy from the State Board confirming that she is and had been a
registered Democrat.
The following day, on July 25, 2018, Appellees brought action in the Circuit Court
for Prince George’s County against Ms. Ademiluyi, the State Board, Linda H. Lamone in
her capacity as State Administrator of Elections, the Libertarian Party, Robert S. Johnston,
III, Chairman of the Libertarian Party, and Robert E. Glaser, Secretary of the Libertarian
25
Party. Appellees filed a petition for writ of mandamus, declaratory judgment, and
preliminary and permanent injunctive relief aimed at challenging Ms. Ademiluyi’s
qualification for judicial nomination as a Libertarian Party nominee.
Within this action, Appellees sought to remove Ms. Ademiluyi from the general
election ballot and requested injunctive relief against the Libertarian Party requiring the
party to rescind its nomination of Ms. Ademiluyi. Appellees alleged that the Libertarian
Party’s nomination of Ms. Ademiluyi was invalid, because she is a registered Democrat
which they alleged violates the candidate qualification requirements set by the Libertarian
Party’s Constitution. 30
On August 2, 2018, the clerk’s office of the circuit court issued summons and sent
them by regular mail. Appellees’ attorney testified that he received the summons on
August 6, 2018. In response, Appellees sent summons to a private process server whom
served Ms. Ademiluyi, the State Board, Ms. Lamone, and Mr. Glaser on August 8, 2018.
Because the State Board had an incorrect address on file for Mr. Johnston, he was not
served until August 10, 2018. The case was specially assigned to the Honorable E. Gregory
Wells who, at that time, was a Judge of the Circuit Court for Calvert County.31
30
Although Ms. Lamone was present at the hearing, she did not make any arguments
regarding Ms. Ademiluyi’s claims and deferred to the State Board to defend against the
charges. Hereafter, Ms. Lamone and the State Board of Elections will be referred to
collectively as “the State Board.”
31
In March of 2019, Judge Wells was appointed and confirmed to the Court of Special
Appeals of Maryland.
26
On August 15, 2018, Appellees filed a motion for a temporary restraining order and
a preliminary injunction. At a hearing on the same day, the circuit court declined to rule
on Appellees’ motion and scheduled a tentative hearing for the following week. Two days
later, on August 17, Ms. Ademiluyi filed a motion seeking an extension of time and a
rescheduling of the preliminary injunction hearing which was scheduled for August 24. In
her motion, Ms. Ademiluyi alleged improper notice with respect to Appellees’ motion for
a preliminary injunction and that she lacked sufficient time to prepare for the hearing. The
State Board and Ms. Lamone opposed postponement.
At the August 24 hearing, Ms. Ademiluyi did not appear, and the court declined to
rule on her postponement motion. The State Board was the primary party opposing
Appellees’ claims. Although Ms. Ademiluyi was absent, the State Board opposed entry of
a preliminary injunction hearing but took no position on the merits of Appellees’ claims.
Rather, the State Board argued that Appellees’ claims were barred by the statute of
limitations, the doctrine of laches, or both. The State Board argued that Appellees failed
to act diligently in bringing the action, due to the delay between Ms. Ademiluyi’s
nomination being posted on the State Board’s website on June 28 and Appellees’ MPIA
request on July 19. Further, the State Board also indicated that this delay left Ms.
Ademiluyi with insufficient time to change her party affiliation and therefore correct any
deficiencies in her qualifications as a candidate. Although the State Board conceded that
modification of the ballot was possible, the State Board argued that any further delay would
be prejudicial if it was unable to comply with a final order without disrupting the orderly
administration of the election. Additionally, Mr. Johnson attended the hearing for the
27
Libertarian Party but did not oppose Appellees’ motion for a preliminary injunction or
participate in arguments.
After arguments at the August 24 hearing, the circuit court granted the preliminary
injunction. The court rejected arguments by the State Board that Appellees’ claims were
barred by the statute of limitations or the doctrine of laches, finding that Appellees acted
diligently in commencing the action. The circuit court then issued an order which
preliminarily enjoined the State Board from certifying the general election ballot with Ms.
Ademiluyi listed as a candidate. On August 27, 2018, Ms. Ademiluyi filed a motion
seeking recusal of the specially assigned judge alleging a conflict of interest. In addition,
Ms. Ademiluyi filed a motion seeking dismissal or, in the alternative, a stay of the
injunction pending appeal. The following day, Ms. Ademiluyi filed a notice of appeal
pursuant to EL § 12-203(3) which, in certain cases involving issues of election law, permits
a direct appeal from the circuit court to this Court within five days of the circuit court’s
decision.
STANDARD OF REVIEW
In the present appeal, we must determine whether the circuit court erred by granting
preliminary injunctive relief. Generally, when reviewing a grant of preliminary injunction,
this Court does not “determine the merits of the parties’ arguments.” Ehrlich v. Perez, 394
Md. 691, 707 (2006) (quoting LeJeune v. Coin Acceptors, Inc., 381 Md. 288, 300 (2004);
Schade, 401 Md. at 33. Our review is limited to “whether the trial court properly granted
the preliminary injunction.” Ehrlich, 394 Md. at 707. This court has acknowledged on
several occasions that a grant of preliminary injunctive relief rests in the discretion of the
28
circuit court judge. Eastside Vend Distribs., Inc. v. Pepsi Bottling Grp., Inc., 396 Md. 219,
240 (2006); see also State Dep’t of Health & Mental Hygiene v. Balt. Cty., 281 Md. 548,
553 (1977).
When considering whether the affirmative defense of laches has been established
this Court is faced with both questions of fact and law. Liddy v. Lamone, 398 Md. 233,
245 (2007). This Court has previously indicated that “[w]hether the elements of laches
have been established is [a question of] fact . . . while . . . whether in view of the established
facts, laches should be invoked, is a question of law.” Id. at 245–46. Therefore, we review
the circuit court’s finding with regards to the elements of laches under the abuse of
discretion standard and we review the invocation of laches de novo. Id.DISCUSSION
A. The Circuit Court’s Grant of Preliminary Injunction
In determining whether a circuit court abused its discretion in granting preliminary
injunctive relief this Court considers the following factors:
(1) the likelihood that the plaintiff will succeed on the merits; (2) the ‘balance
of convenience’ determined by whether greater injury would be done to the
defendant by granting the injunction than would result from its refusal; (3)
whether the plaintiff will suffer irreparable injury unless the injunction is
granted; and (4) the public interest.
Eastside Vend Distribs., Inc., 396 Md. at 240 (quoting Dep’t of Transp. v. Armacost, 299
Md. 392, 404–05 (1984)); see also State Dep't of Health & Mental Hygiene, 281 Md. at
554. This Court has previously noted that the first and third factors are generally
considered to be the most significant. Eastside Vend Distribs., Inc., 396 Md. at 240–41.
Additionally, the above factors are conjunctive, with the burden of establishing all of the
29
factors falling upon the moving party. Schade, 401 Md. at 36 (“failure to prove the
existence of even one of the four factors will preclude the grant of preliminary injunction
relief.” (quoting Ehrlich, 394 Md. at 708). We have indicated that, in terms of the first
factor, a litigant must prove that there is a “real probability of prevailing on the merits, not
merely a remote possibility of doing so.” Id. at 36 (quoting Ehrlich, 394 Md. at 708).
In this appeal, the second through fourth factors will be reviewed under the more
deferential abuse of discretion standard. Ehrlich, 394 Md. at 708. Whereas, the factor
involving the likelihood of success on the merits is a question of law, which we will review
under the de novo standard. Id. (“[T]he Circuit Court’s determination of the likelihood of
success on the merits is a question of law.”). The de novo standard applies to the first
factor, because it involves interpretation of certain sections of the Election Law Article, EL
§ 12-202’s period of limitations, and the common law doctrine of laches. Additionally, we
review the underlying factual findings of the circuit court in support of its grant of
injunctive relief for clear error. Lamone v. Schlakman, 451 Md. 468, 479 (2017) (citing
Toms v. Calvary Assembly of God, Inc., 446 Md. 543, 551 (2016)).
We must now determine whether the circuit court erred in finding that Appellees’
claim would likely be successful on the merits. EL § 12-202 provides statutory standing
to voters, in certain instances, to challenge aspects of elections including procedure and the
results. See Suessmann, 383 Md. at 713. Previously, this Court has referred to EL § 12-
202 as “the mechanism for challenging the qualifications of a candidate seeking election.”
Ademiluyi v. Maryland State Bd. Of Elections, 458 Md. 1, 30 (2018) (quoting Schlakman,
451 Md. at 482). As the claim was brought pursuant to EL § 12-202, we must examine the
30
statute to determine whether Appellees’ claims are meritorious. EL § 12-202 provides the
following:
(a) If no other timely and adequate remedy is provided by this article, a
registered voter may seek judicial relief from any act or omission relating to
an election, whether or not the election has been held, on the grounds that the
act or omission:
(1) is inconsistent with this article or other law applicable to the
elections process; and
(2) may change or has changed the outcome of the election.
Place and time of filing
(b) A registered voter may seek judicial relief under this section in the
appropriate circuit court within the earlier of:
(1) 10 days after the act or omission or the date the act or omission
became known to the petitioner; or
(2) 7 days after the election results are certified, unless the election
was a gubernatorial primary or special primary election, in which case
3 days after the election results are certified.
EL § 12-202.
Accordingly, we must determine whether Ms. Ademiluyi’s nomination constitutes
an “act or omission . . . inconsistent with [EL] or other law applicable to the elections
process.” Id. Appellees aver that the Libertarian Party’s nomination of Ms. Ademiluyi
was violative of EL § 5-701, which provides that candidates of non-principal political
parties must be nominated in accordance with that party’s constitution or bylaws. Further,
Appellees’ contend that Ms. Ademiluyi’s status as a registered Democrat ran afoul of this
provision, because the Libertarian Party of Maryland’s Constitution requires that its
candidates for public office be registered members of the Party. In contrast, Ms. Ademiluyi
argues that EL § 5-203(b)(1) exempts candidates for judicial office from the requirement
that they be a registered voter affiliated with the particular party of which he or she secured
31
the nomination. If so, Ms. Ademiluyi’s party affiliation is inconsequential and her
nomination does not constitute an act or omission inconsistent with the Election Law
Article under EL § 12-202(a).
As previously mentioned, EL § 5-203(a)(2) provides that only candidates that are
registered voters affiliated with a particular political party may become candidates for that
party; EL § 5-203(b)(1) provides that the provisions regarding party affiliation from
subsection (a) do not apply to candidates for judicial offices. The argument follows that
EL § 5-203(b)(1)’s exception for judicial offices should control in this case, and Ms.
Ademiluyi’s party affiliation should not affect her candidacy. However, this overlooks the
type of political party Ms. Ademiluyi secured the nomination of, the method through which
she was nominated, and EL § 5-701(3) altogether. In enacting EL § 5-701(3), the General
Assembly has clearly decided to defer certain limited spheres of electoral governance to
non-principal political parties—including the qualifications and methods of nominations
of a party’s candidates.
If a candidate is a member of a principal party, currently the Democratic and
Republican parties, they must be nominated through a primary election. If a candidate is
not a member of a principal party, then the party affiliation of a particular candidate
controls the method through which that candidate may be nominated. EL § 5-702
(indicating that principal political party candidates must nominate candidates through
primary elections); EL § 5-703(b) (indicating that candidates not affiliated with any
political party must be nominated by petition); EL § 5-703.1 (indicating that members of
non-principal political parties must be nominated by that party through a certificate of
32
nomination.) In the instant case, Ms. Ademiluyi falls within the group governed EL § 5-
702 as a registered Democrat. She instead wishes to be governed by EL § 5-703.1 and be
nominated by the Libertarian party through a certificate of nomination.
Previously, potential candidates of non-principal political parties were required to
be nominated by petition. The ability of candidates of non-principal political parties to be
nominated through designation in accordance with the party’s constitution was established
by legislation passed in 2006 by the General Assembly as a legislative response to this
Court’s decision in Green Party, 377 Md. 127 (2003); see supra at 22–
23; 2006 Md. Laws ch. 120 (S.B. 129). S.B. 129 introduced present day EL § 5-701(3),
which provides that political parties that do not nominate by primary elections (e.g. non-
principal political parties), must nominate candidates for public offices in accordance with
the party’s constitution or bylaws. 2006 Md. Laws ch. 120 (S.B. 129); EL § 5-701(3). In
addition, the Bill modified EL § 4-102, to provide that, upon the formation of a new
political party—if that political party is not required to nominate candidates for public
office by primary election—its candidates shall be nominated in accordance with that
party’s constitution and bylaws previously submitted to the State Board. 2006 Md. Laws
ch. 120 (S.B. 129); EL § 4-102(f). Moreover, the Bill amended the provision regarding
nomination by petition to provide that candidates not affiliated with any particular party
must be nominated by petition signed by a certain number of voters. 2006 Md. Laws ch.
120 (S.B. 129); EL § 5-701(2).
Together, EL §§ 4-102 and 5-701 make clear that party constitutions or bylaws
control the method through which a non-principal political party may nominate candidates
33
for office—judicial or otherwise. Similarly, the enactment of these two statutes in a single
emergency bill clearly evinces the General Assembly’s decision, in situations involving
the nomination of candidates for office by non-principal political parties, to defer to non-
principal parties these specific aspects of electoral regulation—by delegating this
responsibility to such parties through their constitutions or bylaws.
This conclusion is further supported by earlier decisions of this Court. The
Suessmann Court remarked, “primary elections are not wholly creatures of the State
Government, for the State must share the governance of such elections with the political
party from which the primaries are born.” 383 Md. at 708 (citing California Democratic
Party v. Jones, 530 U.S. 567, 572–73 (2000)). In the limited sphere of candidate
qualifications and the nomination procedures of non-principal political parties, this
principle still holds true. The General Assembly has clearly left some limited aspects of
electoral governance to non-principal political parties themselves by deferring to the
constitutions or bylaws of non-principal political parties to establish controlling provisions.
Therefore, EL § 5-203(b)(1) does not control in the case sub judice; instead EL § 5-701(3)
controls, which defers to the constitutions or bylaws of non-principal political parties to
determine the necessary qualifications and nomination procedure.
In summary, after the General Assembly passed legislation in 2006, the imperfect
hybrid statutory scheme is: (i) judicial candidates of principal political parties must run in
primary elections and those candidates’ names are on the ballot without any designation of
party affiliation; (ii) judicial candidates participating in the primary elections are able to
cross-file in either primary election; (iii) judicial candidates that decline to affiliate with a
34
political party can also participate in general elections through securing nomination by
petition; and (iv) judicial candidates of non-principal political parties may be nominated
by party convention in accordance with that party’s constitution or bylaws—such
candidates do not participate in primary elections and enter straight into the general
election.
Based on this enactment by the General Assembly, it is clear that the legislature
intended to create a path for non-principal political parties to nominate a candidate for
circuit court judge whose party affiliation was aligned with that non-principal party. It is
equally clear that it was not the intent of the General Assembly to permit a voter registered
as a member of a principal political party to circumvent the primary election in its entirety
and move directly to the general election solely by using a non-principal political party,
i.e. the Libertarian Party, as a loophole to secure nomination and obtain ballot access.
Indeed, such an interpretation contravenes the underlying purpose of the Election Law
Article—ensuring fairness to both members of the electorate and candidates alike. See EL
§ 1-201.
In the instant appeal, Ms. Ademiluyi was nominated by the Libertarian Party,
pursuant to EL 5-703.1.32 As set forth above, at that time, the Libertarian Party was not a
32
We note that currently the only non-principal political party recognized in Maryland is
the Bread and Roses Party. On December 31, 2018, the Libertarian and Green parties lost
their status as recognized political parties within Maryland. See EL § 4-103(a)–(c)
(indicating that, to remain a recognized political party, the party’s candidate for the highest
office sought must obtain at least one percent of the total number of votes for that office;
otherwise, the party “loses its status as a political party”); Lillian Reed, Green and
35
principal political party and therefore did not nominate by party primary; the Party was
required to nominate candidates for office in accordance with its constitution or bylaws—
candidates that would thus move directly onto the general election ballot. Accordingly, if
the Libertarian Party violated this provision by nominating a candidate in a manner
inconsistent with its Constitution or Bylaws, it would constitute an act or omission
inconsistent with both EL § 5-701(3) and potentially “other law applicable to the elections
process.” EL § 12-202(a)(1).
Thus, we must turn to the pertinent portions of the Libertarian Party’s Constitution
and supporting documents to ascertain whether the Libertarian Party’s nomination of Ms.
Ademiluyi was inconsistent with the Libertarian Party’s constitution or bylaws, thus
inconsistent with EL § 5-701(3). Regarding nominating candidates for public office, the
Constitution of the Libertarian Party of Maryland provides the following:
Section 1. Qualifications of Nominees: All persons who seek the nomination
of the Party must first meet the legal requirements for age, residency, and
registration as provided by the laws of the State of Maryland for the offices
they seek before applying for the nomination of the Party. At the time of
filing, and continuously through the date of the corresponding General
Election, all candidates of the Maryland Libertarian Party to public office
must be registered Libertarian as defined in the qualification for Central
Committee membership stated in Article IV, Section 2. Should any
candidate fail to meet this qualification after nomination and if the state has
already been notified of that nomination, the Chairman and Secretary are
directed to notify the State Board of Elections that the Party’s nomination is
rescinded.
Libertarian Parties Are Technically no Longer Recognized in Maryland. Here’s Why.,
Balt. Sun, Mar. 20, 2019.
36
In addition, the qualification for Central Committee Membership in Article IV, Section 2
of the Libertarian Party of Maryland’s Constitution further defines a registered Libertarian
stating, “the member certifies agreement with the principle set forth in Article II; the
member is registered as a Libertarian, unless registration as a Libertarian is not permitted;
and is not currently registered as affiliated with any other political party.”
Clearly, the Libertarian Party’s nomination of Ms. Ademiluyi was contrary to the
Party’s Constitution, because she was a registered Democrat at all relevant times
throughout the nomination process. Therefore, the Libertarian Party’s nomination of Ms.
Ademiluyi constituted an act inconsistent with EL §5-701(3) that satisfies the requirements
of EL § 12-202(a)(1). Additionally, there are other statutory aspects which reveal the
inconsistency between the Libertarian Party’s nomination of Ms. Ademiluyi and the
Election Law Article. The General Assembly has specifically chosen one avenue through
which candidates registered with a principal political party may reach the general election,
i.e. participation and victory in the primary election. Based on this directive from the
General Assembly, it becomes clear that, for Ms. Ademiluyi to obtain a spot on the general
election ballot, she must participate in a primary election—based on her status as a
registered member of the Democratic party. See EL §§ 5-701(1), 8-202(a). Furthermore,
Appellees have established that an act or omission inconsistent with the Election Law
Article has occurred, and we must now turn our inquiry to whether that act or omission
“may change . . . the outcome of the election.” EL § 12-202(a)(2).
Previously, this Court has expounded two standards applicable to the statutory
language of EL §12-202(a)(2). In instances where the election has already taken place, a
37
plaintiff must demonstrate “by clear and convincing evidence, a substantial probability
that the outcome would have been different but for the illegality.” Cabrera v. Penate, 439
Md. 99, 112 (2014) (emphasis in original). Whereas, in situations involving an election
which is yet to occur at the time of a judicial challenge, where “our policy against
overturning elections is not implicated” a less exacting standard applies. Id. Accordingly,
in such circumstances, we have held that “there can be no doubt that the inclusion of a
candidate on the ballot ‘may change’ the outcome of an election.” Id.The instant controversy concerned Ms. Ademiluyi’s potential inclusion on the
ballot, even though her qualifications did not comport with the requirements set forth by
the Libertarian Party’s Constitution or the Election Law Article. Therefore, Ms.
Ademiluyi’s inclusion on the ballot had the potentiality to change the outcome of the
election. This is particularly true considering there would be six judicial offices up for
election and Ms. Ademiluyi would constitute the seventh candidate. In such a situation,
the potentiality that the additional candidate on the ballot may change the outcome of the
election is substantial and evident. Next, we must consider the State Board’s arguments
regarding the statute of limitations and the doctrine of laches to determine the extent to
which these defenses influence Appellees’ likelihood of success on the merits.
EL § 12-202 generally controls in situations where there is an issue concerning the
timeliness of a registered voter’s challenge to a judicial candidate’s qualifications. The
pertinent temporal provision of EL § 12-202 provides that a registered voter must bring a
judicial challenge to a candidate’s qualification within ten days after he or she becomes
aware of an act or omission inconsistent with the Election Law Article which may change
38
the outcome of the election. EL § 12-202(b)(1). Therefore, our inquiry must focus on the
applicable dates surrounding this controversy and the point in time at which Appellees
likely became aware of any defects associated with Ms. Ademiluyi’s qualifications for
judicial office.
Before the circuit court, the State Board argued that Appellees’ claims were barred
by the statute of limitations and/or the doctrine of laches. However, “statutes of limitations
are not controlling measures of equitable relief.” Ross v. State Bd. of Elections, 387 Md.
649, 668 (2005). In the instant case, Appellees sought an injunction and a writ of
mandamus, both of which are equitable remedies. Falls Rd. Cmty. Ass’n, Inc. v. Balt. Cty.,
437 Md. 115, 150 (2014) (“an injunction is an equitable remedy[.]”); Talbot Cty. v. Miles
Point Prop., LLC, 415 Md. 372, 393 (2010) (“a writ of mandamus is an equitable
remedy[.]”)
In addition to mandamus relief and an injunction, Appellees sought a declaratory
judgment before the circuit court. A suit seeking a declaratory judgment is unique, in that
it is “neither wholly a suit in equity nor wholly an action at law, [but] may take the on the
color of either equity or law, depending upon the issues presented and relief sought.”
LaSalle Bank, N.A. v. Reeves, 173 Md. App. 392, 411 (2007). Furthermore, we have
previously interpreted a claim seeking a declaratory judgment to remove a candidate from
the ballot as an equitable remedy. See Schlakman, 451 Md. at 483-84. Accordingly, the
ten-day limitation period of EL § 12-202(b)(1) does not directly apply and will not, in and
of itself, bar Appellees’ claims for a writ of mandamus, injunction, and declaratory
judgment.
39
Although Appellees’ claims are equitable in nature, the equitable nature of the
claims does not necessitate jettisoning the limitations period of EL 12-202(b)(1). The ten-
day period of EL § 12-202(b)(1) has previously been utilized as a “benchmark” for
applying the doctrine of laches to “assess whether the Appellees’ delay in filing in the
Circuit Court was unreasonable and whether it prejudiced the interests of Appellants.”
Schlakman, 451 Md. at 485 (citing Liddy, 398 Md. at 242). Therefore, we must analyze
and determine whether Appellees’ claims seeking injunction and declaratory judgment are
barred by the doctrine of laches, applying the ten-day period of EL § 12-202(b)(1) as a
benchmark to assess these claims.
Laches is an affirmative equitable defense that may be raised in a party’s answer or
invoked sua sponte by a court. Md. Rule 2-323(g); see Ipes v. Bd. of Fire Comm’rs of
Balt., 224 Md. 180, 184–86 (1961). Beyond its role as an affirmative defense, “laches is a
defense in equity against stale claims and is based upon grounds of sound public policy by
discouraging fusty demands for the peace of society.” Liddy, 398 Md. at 243–44; Ross,
387 Md. at 668; Parker v. Bd. of Election Supervisors, 230 Md. 126, 130–31 (1962).
Laches may bar a claim in situations where a plaintiff fails to timely assert his or her rights
due to his or her own negligence or lack of diligence. Buxton v. Buxton, 363 Md. 634, 644
(2001).
In other words, the doctrine of laches is applicable in situations where a party
unreasonably delays an assertion of his or her rights that prejudices an opposing party.
Ademiluyi, 458 Md. at 32; Liddy, 398 Md. at 244; Frederick Rd. Ltd. P’ship v. Brown &
Sturm, 360 Md. 76, 117 (2000). If the opposing party is unable to establish that the delay
40
resulted in prejudice, laches will not bar a purely equitable action. Schaeffer v. Anne
Arundel Cty., 338 Md. 75, 83 (1995). Whether prejudice has been established is dependent
“upon the facts and circumstances of each case, but it is generally held to be anything that
places [an opposing party] in a less favorable position.” Parker, 230 Md. at 130.
In terms of prejudice, the State Board experienced very little, if any, prejudice.
Although this will be discussed in greater detail subsequently, it suffices to indicate that
the State Board conceded that it was not prejudiced before the circuit court. However, the
State Board indicated that it would be prejudiced if it was left unable to comply with a final
order that interfered with the electoral calendar. Clearly, such a situation has been avoided
and the State Board has not been prejudiced.
Similarly, Ms. Ademiluyi was not prejudiced by the preliminary injunction or the
suit in general. First, Ms. Ademiluyi’s candidacy did not comport with the requirements
of the Libertarian Party’s Constitution or provisions of the Election Law Article provisions
for registered Democrats. As noted, the Libertarian Party’s Constitution requires that its
candidates for such offices be registered members of the party. Whereas, at all relevant
times, Ms. Ademiluyi was a registered Democrat.
The record is unclear as to whether the Libertarian Party followed the proper
procedures in its Constitution to fulfill the nominating requirements. In selecting a
nominee for a county wide office, such as the Circuit Court for Prince George’s County,
the Constitution provides in Article VII “Nominations for Public Office” as follows:
Section 2. Local Nominations: Nominations of persons by the Party for local
offices (i.e., non-Federal and non-statewide offices) shall be determined by
the local Central Committees of the jurisdiction in which the offices are held,
41
in accordance with the Constitutions and Bylaws of the Local Central
Committees. Should the Local Central Committee of the corresponding
jurisdiction not exist, or not be recognized by the appropriate County or State
Board of Election, or the jurisdiction crosses the boundary of more than one
such Local Central Committee, or the duly authorized Chairman of an
empowered recognized Local Central Committee so request, the State
Central Committee may nominate such candidates in the same manner as
described in Section 3 of this Article.
The certificate of nomination filed with the Board by the Libertarian Party on June
18, 2018, clearly identifies Ms. Ademiluyi and states that her party affiliation is
“DEMOCRAT.” The certificate is signed by the Chairman and Secretary of the Libertarian
Party, and notes that the “Date of Meeting” was June 7, 2017. No additional information
about whether the meeting was a local central committee or a state party convention is
provided. In fact, because the Libertarian Party’s organizational documents require the
candidates it nominates to be registered members of the party, it appears that Ms.
Ademiluyi and the Libertarian Party would have to begin the nomination process anew to
bring a level of legitimacy to her nomination. Therefore, she could not cure the deficiencies
of her nomination solely by changing her party affiliation before the deadline to do so.
Moreover, recognizing that the party affiliation of Prince George’s County is
overwhelmingly Democratic,33 it is clear that Ms. Ademiluyi’s strategy was to conduct a
33
The voter registration activity report of the Board, dated November 2018, provides the
following statistics from Prince George’s County: Democratic 463,345; Unaffiliated
70,085; Republican 40,703; Libertarian 1,725; and Green 1,069.
42
campaign as a Democratic candidate after the subterfuge of being nominated by the
Libertarian Party.34
Overall, Ms. Ademiluyi was not prejudiced because her qualifications as a candidate
for judicial office do not comport with the requirements of the Libertarian Party’s
Constitution and therefore the Election Law Article. A candidate who does not meet the
qualifications for a particular office cannot be prejudiced by a judicial challenge to his or
her candidacy. Permitting such a candidate to participate in the election would run contrary
to the goals underlying our State’s regulation of elections and would subvert the purpose
of the Election Law Article—to ensure fairness throughout the elective process. See EL
§ 1-201.
This Court has routinely commented that “there is no inflexible rule as to what
constitutes, or what does not constitute, laches; hence, its existence must be determined by
the facts and circumstances of each case.” Ademiluyi, 458 Md. at 32 (quoting Schlakman,
451 Md. at 485); see also Ross, 387 Md. at 669; Buxton, 363 Md. at 645; Parker, 230 Md.
at 130. We have previously indicated that, within the context of elections, “any claim
34
Under the Maryland Code of Judicial Conduct, incumbent judges are restricted in their
campaign activities and from making campaign statements or promises that would reflect
upon their judicial integrity. Specifically, in addition to other rules governing political
conduct, an incumbent judge as a candidate “with respect to a case, controversy, or issue
that is likely to come before the court, shall not make a commitment, pledge, or promise
that is inconsistent with the impartial performance of the adjudicative duties of the office”
and “shall not make any statement that would reasonable be expected to affect the outcome
or impair the fairness of a matter pending or impending in any court.” Md. Rule 18-
104.4(d)(3); Md. Rule 18-104.4(d)(4). Challengers who are not incumbent judges do not
have any such restrictions on political conduct and campaign statements.
43
against a state electoral procedure must be expressed expeditiously” and “without
unreasonable delay.” Liddy, 398 Md. at 245 (quoting Ross, 387 Md. at 671); see also
Ademiluyi, 458 Md. at 30. In several instances, this Court held that the doctrine of laches
has barred claims within the context of elections. See Ademiluyi, 458 Md. at 11 (holding
that a challenge to a judicial candidate’s qualifications brought over six months after the
completion of the election was an unreasonable delay and thus barred by laches);
Schlakman, 451 Md. at 485 (holding that a thirty-six day delay in challenging the
qualifications of a candidate for Baltimore City Council was unreasonable and therefore
barred by laches); Ross, 387 Md. at 668, (holding that a twenty-three day delay in
challenging a candidate’s qualifications for the Baltimore City Council, after failing to file
the necessary financing reports, was unreasonable and barred by laches).
For laches to bar a particular claim, a defendant must generally demonstrate that the
opposing party “. . . had knowledge, or the means of knowledge, of the facts which created
his cause of action.” Parker, 230 Md. at 131. Previously, in consideration of the discovery
rule and its relation to the limitations period, this Court has indicated:
[W]hether or not the plaintiff’s failure to discover his cause of action was
due to failure on his part to use due diligence, or to the fact that defendant so
concealed the wrong that plaintiff was unable to discover it by the exercise
of due diligence, is ordinarily a question of fact for the jury.
Frederick Rd. Ltd. P’ship v. Brown & Strum, 360 Md. 76, 96 (2000) (quoting O’Hara v.
Kovens, 305 Md. 280, 295 (1986)). Therefore, we must determine whether the circuit court
clearly erred in finding that Appellees acted diligently in pursuit of their claims.
44
Schlakman, 451 Md. at 479 (“We review the factual findings of the lower court for clear
error.”)
As indicated above, Ms. Ademiluyi filed her nomination papers with the State Board
on June 18, 2018. Ten days later, on June 28, the State Board posted information regarding
Ms. Ademiluyi’s candidacy for judicial office on its website, indicating that she was a
candidate only in the 2018 Gubernatorial General Election. Importantly, the website did
not indicate Ms. Ademiluyi’s political affiliation. Approximately three weeks later, on
July 19, Appellees submitted a MPIA request to the State Board, seeking information
regarding Ms. Ademiluyi’s candidacy. Five days later, on July 24, the State Board returned
the requested information to Appellees. The following day, Appellees filed suit in the
Circuit Court for Prince George’s County.
The present case differs from prior decisions in which we have entertained judicial
challenges to the qualifications of candidates for public offices, because it involves Ms.
Ademiluyi’s party affiliation. In 2017, Ms. Ademiluyi first appeared before this court in a
separate judicial election case in which she challenged the qualifications of an attorney
who was successful in the 2016 general election in the contest for Judge of the Circuit
Court for Prince George’s County. Ademiluyi, 458 Md. at 9. Ms. Ademiluyi proffered that
the successful judicial candidate had never practiced law within Maryland. Id. at 9-10.
However, Ms. Ademiluyi did not file her lawsuit until more than six months after the 2016
Gubernatorial General Election. Id. at 9. In that case, we noted that the judge’s background
of legal practice is “something that would have been easily ascertainable by Appellant
through minimal investigation; i.e., these are facts that would have been readily discernible
45
in today’s digital age.” Id. at 42. Likewise, in Ross, the facts that gave rise to the
underlying challenge were published in a newspaper article and therefore publicly known
on the date of publication. 387 Md. at 667–68.
On prior occasions, this Court has indicated several considerations that should be
taken into account when determining whether a party acted diligently or whether the party’s
claim should be barred by the doctrine of laches. Abrams involved a judicial challenge to
the candidacy of Thomas Perez concerning whether he satisfied the constitutional
requirement that candidates for Attorney General must have practiced law within Maryland
for ten years. Abrams v. Lamone, 398 Md. 146, 151 (2007). Although the Abrams Court
did not reach the issue of the statute of limitations, because there was no cross-appeal, the
court provided significant insights into the interaction between the statutory limitations of
EL § 12-202 and the defense of laches. Id. at 161 n.19.
In Abrams, this Court expounded that plaintiffs, within the context of judicial
challenges to elections, have a certain duty to stay informed. Id. at 159 n.18. With regards
to the level of diligence required to support an EL § 12-202 claim, the Abrams Court
commented:
A reasonable interpretation would place an obligation on a registered voter
seeking to challenge the qualifications of a candidate to keep informed as to
the relevant acts and omissions of that candidate. A voter may not simply
bury his or her head in the sand and, thereby, avoid the triggering of the 10-
day statutory time period, prescribed by § 12-202, in which to “seek judicial
review from any act or omission relating to an election.”
Id. at 159 n.18. In considering the sources from which Abrams could have potentially
gained information regarding the candidate’s qualifications, the Court concluded, “[t]he
46
State Board’s website, along with media coverage, would have been the principal places
from which Abrams would have been able to find information pertaining to Perez’s
candidacy. It was incumbent upon Abrams to avail himself of these sources.” Id.
In contrast, within the instant appeal, there is no indication that Ms. Ademiluyi’s
party affiliation would have been available to Appellees, even given an exercise of
diligence. In fact, considering that there was little to no media attention surrounding Ms.
Ademiluyi’s candidacy and that the documents revealing Ms. Ademiluyi’s party
affiliations were in the exclusive possession of the State Board, prior to Appellees’
submittal of an MPIA request in July, there is simply no indication that failure to uncover
the facts underlying Appellees’ challenge resulted from a lack of due diligence on
Appellees’ behalf. In addition to Ms. Ademiluyi’s party affiliation, the MPIA request also
sought other information pertinent to Appellees’ legal challenge including Ms.
Ademiluyi’s candidacy documents, campaign committee documents, certificate of
nomination, and the Constitution and Bylaws of the Libertarian Party of Maryland.
Therefore, the one-day delay between Appellees’ receipt of the requested
information from the State Board and filing suit simply cannot be classified as
unreasonable. The circuit court was correct in its finding that Appellees “complied as
quickly as they could with discovering the question of Ms. Ademiluyi’s candidacy.”
Accordingly, the circuit court did not err in concluding that Appellees’ claims were not
barred by the statute of limitations or the doctrine of laches, and the circuit court correctly
determined that Appellees established they would likely be successful on the merits. Next,
we transition in our inquiry to consider the balance of convenience between the parties.
47
We must now determine whether the circuit court abused its discretion in finding
that the balance of convenience favored Appellees. In terms of the balance of convenience,
we review the circuit court’s grant of preliminary injunction to determine whether greater
injury would be done to Appellees by the court’s grant of preliminary injunction as
compared to a denial. See Schade, 401 Md. at 36. We shall also consider whether the
circuit court’s grant of preliminary injunction would result in greater injury to Ms.
Ademiluyi and the State Board as compared to the potential injury that would be sustained
by Appellees, had the preliminary injunction been denied. See State Dep’t of Health &
Mental Hygiene, 281 Md. at 56.
In the present appeal, the circuit court specifically found that “the likelihood that
[Ms. Ademiluyi and the State Board] would suffer some sort of greater injury by granting
the injunction is less, even though there is a possibility of appeal, et cetera.” Concerning
the level of specificity and supporting detail required to buttress a circuit court’s finding
regarding a particular factor, this Court has indicated that “a trial judge’s failure to state
each and every consideration or factor in a particular applicable standard does not, absent
more, constitute an abuse of discretion, so long as the record supports a reasonable
conclusion that appropriate factors were taken into account in the exercise of discretion.”
Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 426–27 (2007) (quoting Cobrand v.
Adventist Healthcare, Inc., 149 Md. App. 431, 445 (2003)).
The record clearly demonstrates that a denial of preliminary injunction in this case
would cause greater injury to Appellees as compared to Ms. Ademiluyi or the State Board.
First, had the circuit court not granted the preliminary injunction, Appellees would have
48
run the risk of having their apparently meritorious challenge to her candidacy become moot
prior to adjudication of the issues on the merits. Second, if the preliminary injunction were
not granted, the State Board would proceed to certifying the general election ballot, with
Ms. Ademiluyi’s name included. Twenty-four hours after the State Board’s certification
of the ballot, the State Board must publicly display the content and arrangement of the
ballot on the State Board website. EL § 9-207(c). After the State Board publicly displays
the ballot for two days, “the content and arrangement of the ballot may not be modified.”
EL § 9-207(d).
Although the content and arrangement of the ballot may be judicially challenged
pursuant to EL § 9-209 or § 9-208, this Court has previously determined that EL § 9-209
is not the appropriate vehicle for a registered voter to challenge a candidate’s eligibility or
qualifications. Ross, 387 Md. at 666. Further, the term “content and arrangement[,]”
within this context, is a narrow one. Id. at 665–66. Accordingly, the content of a ballot is
limited to statutorily enumerated items including, but not limited to, the name of a
candidate provided within his or her certificate of candidacy, instructions to voters, titles
of offices up for vote, and party designations for certain candidates. Id. at 666; see also
EL § 9-205. As with the arrangement of a ballot, the content of a ballot does not encompass
a candidate’s qualifications for office. Ross, 387 Md. at 665–66. The arrangement of a
ballot refers only to the layout and format of the ballot including such things as “the order
of offices, candidates’ names, the placement of party designations and county of residence
if applicable, and the order of questions as they appear on the ballot.” Id. at 665.
Furthermore, we have indicated that the statute is limited to situations in which a voter
49
contests “the inclusion of the name of a candidate who is not certified by the State Board
or the exclusion of the name of one who is certified.” Id. at 667. Therefore, had the circuit
court denied Appellees’ preliminary injunction, it is more likely than not that Appellees
would not have been able to bring their claims and the election would have likely proceeded
with Ms. Ademiluyi’s name on the ballot.
In terms of injury to the State Board, the State Board conceded before the circuit
court that the election calendar did not preclude modification of the ballot. However, the
State Board indicated that it would be prejudiced by further delay, if it was unable to
comply with a final order without disrupting the election. As evident, the timeliness and
outcome of these proceedings have assuaged any such concerns. The State Board was
entirely capable of complying with this Courts’ order without resulting in any disruption
or delay to the 2018 Gubernatorial General Election.
Although Ms. Ademiluyi did not appear before the court below and therefore did
not make arguments regarding these issues, it is abundantly clear from the record that the
circuit court’s grant of preliminary injunction resulted in very little, if any, injury to Ms.
Ademiluyi. At its most basic, Ms. Ademiluyi’s nomination failed to comport with the
requirements established in the Libertarian Party’s Constitution. In this respect, Ms.
Ademiluyi cannot be injured by the inability to run for a particular judicial office in which
she clearly did not meet the necessary qualifications. In addition, based on the statutory
framework regulating Maryland’s judicial elections, Ms. Ademiluyi was not injured by the
circuit court’s grant of preliminary injunction. As described above, Ms. Ademiluyi is a
registered Democrat and therefore must enter judicial elections through participation in
50
party primaries. There can be no injury where a judicial candidate, registered as a
Democrat, attempts to circumvent participation in the primary election and enter the
process through avenues intended for those belonging to non-principal political parties or
those unaffiliated with any political party.
In summation, we conclude that the circuit court did not abuse its discretion in its
finding regarding the balance of convenience between the parties. The circuit court’s
determination that the balance of convenience weighed in Appellees’ favor is sufficiently
supported by the record. Therefore, we must now determine whether Appellees would
suffer irreparable injury had the injunction not been granted.
This Court has indicated that for an injury to be considered irreparable, the injury
“need not ‘be beyond all possibility of compensation in damages, nor need it be very
great.’” El Bey v. Moorish Sci. Temple of America, Inc., 362 Md. 339, 355 (2001) (quoting
Washington Nat’l Arena, 282 Md. at 615.) Irreparable injury is generally found in
situations where courts are either unable to determine appropriate monetary damages or
where monetary damages are inadequate. Id. Further, “an injury may be said to be
irreparable when it cannot be measured by any known pecuniary standard.” Dudley v.
Hurst, 67 Md. 44, 52 (1887). In other words,
an injury is irreparable, within the law of injunctions, where it is of such a
character that a fair and reasonable redress may not be had in a court of law, so
that to refuse the injunction would be a denial of justice—in other words, where,
from the nature of the act, or from the circumstances surrounding the person
injured, or from the financial condition of the person committing it, it cannot be
readily, adequately, and completely compensated for with money.
51
State Comm’n on Human Relations v. Talbot Cty. Det. Ctr., 370 Md. 115, 140 (2002)
(alterations in original) (quoting El Bey, 362 Md. at 356).
In the present appeal, had the circuit court denied Appellees’ preliminary injunction
and Ms. Ademiluyi’s name was placed on the general election ballot, it would likely result
in irreparable injury to Appellees. Ms. Ademiluyi’s nomination was not in accordance
with proper election procedure as her qualifications were inconsistent with those required
by the Libertarian Party of Maryland’s Constitution and therefore violative of EL § 5-
701(3). Accordingly, Appellees and all residents of Prince George’s County, risked the
injury of a judge being elected to the Circuit Court for Prince George’s County that lacked
the proper qualifications for the nomination. Clearly, this sort of injury could not be
redressed by any monetary sum, as it would undermine the integrity of the judicial system,
election processes, and nomination procedure. Additionally, although mentioned in our
consideration of the balance of convenience, Appellees would likely be devoid of an
avenue through which to challenge Ms. Ademiluyi’s qualifications and therefore
candidacy, had the preliminary injunction not been granted and the election proceeded as
scheduled.
Importantly, this does not mean that irreparable injury is always present in situations
involving judicial challenges to elections. Aside from our considerations of monetary
remuneration, the instant case is unique in that Appellees would likely have no available
remedy if the preliminary injunction was denied and they succeeded on the merits in their
claim. Based upon deadlines within the election calendar Appellees would have been
largely foreclosed from redress. Additionally, although considered within our discussion
52
concerning the likelihood of success on the merits, the fact there were six judicial offices
up for election and Ms. Ademiluyi would have been the seventh candidate increases the
risk of irreparable harm to Appellees. Therefore, we conclude that the circuit court did
not abuse its discretion in determining that the factor of irreparable harm fell in favor of
Appellees. Next, we must consider whether the circuit court erred in its determination that
granting the preliminary injunction is supported by the relevant public interest.
The circuit court indicated that the public interest at issue within the instant case is
one grounded in “maintaining the integrity of our elections.” The United States Supreme
Court, responding to a constitutional attack upon certain requirements of nominating
petitions pursuant to Georgia’s election code, recognized that States have an important
interest in regulating the number of candidates on the ballot. Jenness v. Fortson, 403 U.S.
431, 442 (1971). Regarding the public interest at stake, the Supreme Court concluded the
following:
[t]here is surely an important state interest in requiring some preliminary
showing of a significant modicum of support before printing the name of a
political organization's candidate on the ballot—the interest, if no other, in
avoiding confusion, deception, and even frustration of the democratic
process at the general election.
Id. at 441. In other words, by limiting the number of candidates on the ballot, states
“understandably and properly seek[] to prevent the clogging of its election machinery,
avoid voter confusion, and assure that the winner is the choice of a majority, or at least a
strong plurality.” Bullock v. Carter, 405 U.S. 134, 145 (1972).
The public interests of maintaining integrity, avoiding confusion, deception, and
frustration within our judicial electoral process are entirely applicable to the present appeal.
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Ms. Ademiluyi’s candidacy threatened to undercut these principles of public interest.
Specifically, if the preliminary injunction were denied and Ms. Ademiluyi was elected,
Prince George’s County would be left with an individual holding a judicial office who
subverted the statutory nomination process. Likewise, as mentioned before, her candidacy
would not comport with the nomination requirements of the Libertarian Party, and
therefore, it would cut against the overarching goals of State regulation of elections, i.e.
fairness. See EL § 1-201. Accordingly, we agree with the circuit court’s conclusion that
granting the preliminary injunction supports the relevant public interests associated with
elections. As the State Board complied with the declaratory judgment and no cross-appeal
was noted, there is no need to consider Appellees’ claim for writ of mandamus.
In conclusion, we hold that the circuit court did not err in its grant of preliminary
injunction. The circuit court’s decision was in accordance with the appropriate preliminary
injunction factors and its findings are adequately supported by the record.
CONCLUSION
As indicated by the per curiam order filed by this Court on September 6, 2018, we
hold that the circuit court did not err in granting Appellees’ preliminary injunction. For
two reasons, we conclude that Ms. Ademiluyi’s candidacy is 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. The
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circuit court correctly determined that the preliminary injunction factors (i.e. likelihood of
success on the merits, the balance of convenience, irreparable injury, and public interest)
weighed in favor of Appellees and supported the circuit court’s grant of preliminary
injunction. Ms. Ademiluyi was not prejudiced by the circuit court’s order because her
candidacy failed to comport with the requirements of the Election Law Article. Further,
we hold that the statute of limitations and laches do not act to bar Appellees’ claims because
Appellees acted diligently and pursued their claims expeditiously. Accordingly, we affirm
the judgment of the circuit court.
Judge Watts joins in judgment only.
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