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Judicial Watch • John Doe et al v Maryland State Board of Elections Interveners Cross Motion to Dismiss andor for Summary Judgment 12222011

John Doe et al v Maryland State Board of Elections Interveners Cross Motion to Dismiss andor for Summary Judgment 12222011

John Doe et al v Maryland State Board of Elections Interveners Cross Motion to Dismiss andor for Summary Judgment 12222011

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JOHN DOE, al., THE 

Plaintifft, CIRCUIT COURT FOR ANNE ARUNDEL COUNTY 
MARYLAND STATE BOARD Case No. 02-C-11-163050 ELECTIONS, al., 
Defendants. 
INTERVENER'S CROSS-MOTION DISMISS AND/OR 
FOR SUMMARY JUDGMENT 

Intervener MDPetitions.com, counsel and pursuant Rules 2-322 and 2-501, hereby cross-moves for order dismissing all the remaining claims Plaintiffs' Amended Complaint and/or entering summary judgment favor Defendants Maryland State Board Elections, Secretary State John McDonough, State Administrator Elections, and Intervener MDPetitions.com. Grounds for Intervener's cross-motion are set forth the accompanying Statement Grounds and Authorities. Dated: December 22, 2011 Respectfully submitted, 
JUDICIAL WATCH, INC. 

Md. Bar No. 9112190026 Suite 800 425 Third Street, S.W. Washington, 20024 Tel: (202) 646-5172 Fax: (202) 646-5199 
Attorneys for Intervener 
CERTIFICATE SERVICE hereby certify that this 22nd day December, 2011, caused true and correct copy the foregoing Intervener's Cross-Motion Dismiss and/or for Summary Judgment served, via email and first-class U.S. mail, postage prepaid, the following: 
Elizabeth Getman Joseph Sandler SANDLER, REIFF, YOUNG LAMB, P.C. 1025 Vermont Avenue, N.W., Suite 300 Washington, 20005 
Brett Marston Michael Harris Patricio Grane Laura Cofer Taylor Margarita Sanchez ARNOLD PORTER 555 Twelfth Street, N.W. Washington, 20004 

Matthew Fader Jeffrey Darsie Assistant Attorney Generals OFFICE THE ATTORNEY GENERAL 200 St. Paul Place, 20th Floor Baltimore, 21202-2021
JOHN DOE, al., THE
Plaintifft, CIRCUIT COURT FOR ANNE ARUNDEL COUNTY
MARYLAND STATE BOARD Case No. 02-C-11-163050 ELECTIONS, al., 
Defendants. 
INTERVENER'S STATEMENT GROUNDS AND AUTHORITIES OPPOSITION PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND SUPPORT INTERVENER'S CROSS-MOTION DISMISS AND/OR 
FOR SUMMARY JUDGMENT 
Paul Orfanedes Md. Bar No. 9112190026 JUDICIAL WATCH, INC. Suite 800 425 Third Street, S.W. Washington, 20024 Tel: (202) 646-5172 Fax: (202) 646-5199 

TABLE CONTENTS 	
Introduction.......................................................................................................................... 

II. 	
Factual Background 1.............................................................................................. ............... 

III. 	
Argument ............................................................................................................................. 	
Standards Review ................................................................................................ 	
Plaintiffs' Motion Suffers from Fatal Lack Proof 3.......................................... 	
Plaintiffs' Amended Complaint Fails State Claim upon Which Relief 
May Granted and Fails Establish Subject Matter Jurisdiction ...................... 	
Plaintiffs John and Jane Doe Failed Comply with Rule 2-201............... 

Plaintiffs John and Jane Doe Failed Plead Sufficient Facts 
Establish That They Are Aggrieved Persons ...............................................6 	
Plaintiff John Doe ..........................................................................
..6 	

Plaintiff Jane Doe 8............................................................................ 
Plaintiff Casa Maryland Failed Plead Sufficient Facts 
Establish That Aggrieved Person ...................................................9 	
The Registered Voter Plaintiffs Failed Plead Sufficient Facts Establish the Existence Justiciable Controversy .............................. 167 Subject Referendum Matter Law ..... ..................................... 167 Policy Choice, Not Appropriation ..................................... 167 Was Not Enacted for the Purpose Maintaining State 
Government ................................ .............................................................. 167 Concerns "Public Institutions," Not 
State Government .......... ............................................................................ 

IV. 	
Conclusion ......................................................................................................................... 

TABLE AUTHORITIES 
Baltimore Cnty. Coal. Against Unfair Taxes Baltimore Cnty., 321Md.184 (1990) ...............12 
Bayne Secretary State, 283 Md. 560 (1978) .................................................................... 12, 
Bickel Nice, 173 Md. (1937) .................................................................................................. 
Boyds Civic Ass Montgomery Cnty. Council, 309 Md. 683 (1987) .......................................10 
Brown Mayor City Council, 167 Md. App. 306 (2006) .......................................................... 
Doe Montgomery Cnty. Bd. Elections, 406 Md. 697 (2008) ...................................... 
Doe Shady Grove Adventist Hosp., Md. App. 351 (1991) ..................................................... 
Dorsey Petrott, 178 Md. 230 (1940) ...... .-...................................................................... 12, 13, 
Hatt Anderson, 297 Md. (1983) ..................................................................................... 10, 
Jordan Towing, Inc. Hebbville Auto Repair, Inc., 369 Md. 439 (2002) .....................................7 
Kelly Marylanders for Sports Sanity, Inc., 310 Md. 437 (1987) ....................................... passim 
Rossaki NUS Corp., 116 Md. App. (1997) ............................................................................ 
Sugarloaf Citizens' Assoc. Dep Env't, 344 Md. 271 (1996) ................................................7 
Vanhook Merchants Mutual Ins. Co., Md. App. (1974) ...................................................3 
Winebrenner Salmon, 155 Md. 563 (1928) .............................................................................. 

Federal Statutes U.S.C.  1324a (2011) ................................................................................................................. u.s.c.  453 (2011)

......... .......................................................................................................... u.s.c.  454 (2011) ................................................................................................................... 

Md. Const., art. XVI, ............................................................................................................... 

Md. Const., art. XVI, ........................................................................................................ passim 
2009 Laws Maryland, ch. 487,  ............................................................................................ 

2010 Laws Maryland, ch. 484,  ............................................................................................ 

2011 Laws Maryland, ch. 497,  ............................................................................................ 

Md. Code Ann., Cts. Jud. Proc. 3-409(a) .............................................................................. 

Md. Code Ann., Cts. Jud. Proc.  3-409(a)(l) .......................................................................... 

Md. Code Ann., Cts. Jud. Proc. 3-409(a)(2) .......................................................................... 

Md. Code Ann., Cts. Jud. Proc.  3-409(a)(3) ..........................................................................10 

Md. Code Ann., Educ.  10-101 (m) ........................ ............................................................ ........ .13 

Md. Code Ann., Educ. 10-208 .................................................................................................... 

Md. Code Ann., Educ. 10-208(6) ........................................................................................ 17, 

Md. Code Ann., Educ.  12-102(a)(3) ..........................................................................................21 

Md. Code Ann., Educ. 12-102(b) .............................................................................................. 

Md. Code Ann., Educ.  12-104 .................................................................................................... 

Md. Code Ann., Educ. 12-104(c)(3) .......................................................................................... 

Md. Code Ann., Educ.  12-105(c) .............................................................................................. 

Md. Code Ann., Educ. 14-101(a)(3) .......................................................................................... 

Md. Code Ann., Educ. 14-102 .................................................................................................... 

Md. Code Ann., Educ. 14-104 .................................................................................................... 

Md. Code Ann., Educ. 14-104(a)(2) .......................................................................................... 

Md. Code Ann., Educ.  14-1040)( .................................................................................... 17, 

Md. Code Ann., Educ. 14-402: ...................................................................................................21 

Md. Code Ann., Educ. 14-404 .................................................................................................... 

Md. Code Ann., Educ. 14-404(a) ........................................................................................ 17, 

Md. Code Ann., Educ. 14-404(b)(2) ..........................................................................................21 

Md. Code Ann., Educ. 14-405(d) ..............................................................................................22 

Md. Code Ann., Educ. 15-106.8(b)(l) ..................................................................................... 

Md. Code Ann., Educ.  15-106.8(b)(4) .........................................................................................8 

Md. Code Ann., Educ. 15-106.8(b)(5) ..................................................................................... 

Md. Code Ann., Educ. 15-106.8(b)(6) .........................................................................................6 

Md. Code Ann., Educ. 16-101 ....................................................................................................20 

Md. Code Ann., Educ. 16-103(c) ..............................................................................................20 

Md. Code Ann., Educ. 16-104(b)(4) ..........................................................................................20 

Md. Code Ann., Educ. 16-301 ....................................................................................................20 

Md. Code Ann., Educ. 16-301(a) ..............................................................................................21 

Md. Code Ann., Educ. 16-301(e) ..............................................................................................21 

Md. Code Ann., Educ. 16-302(d) ..............................................................................................21 

Md. Code Ann., Educ. 16-304 ....................................................................................................20 

Md. Code Ann., Educ. 16-304(a) ..............................................................................................20 

Md. Code Ann., Educ.  16-305 ....................................................................................................20 

Md. Code Ann., Educ. 16-305(c) ..............................................................................................15 

Md. Code Ann., Elec. Law 6-202 ........................................................................................ 

Md. Code Ann., Elec. Law 6-206 ........................................................................................ 

Md. Code Ann., Elec. Law 6-208(a)(2) .............................................................................. 

Md. Code Ann., Elec. Law 6-209(a) ............................................................................... 
Md. 

Code Ann., Elec. Law  6-209(b) passim
.................................................................................. 
Md. Code Ann., State Gov.  2-1505( )(3) .................................................................................. 

Md. Code Ann., State Gov.  2-1505(e)(l) .................................................................................. 

Md. Rule 2-201 ............................................................................................................................ 

Md. Rule 2-322(c) ............... .......................................................................................................... 

Other Authorities Op. Att'y Gen. 228 (1927) ....................................................................................................... 

Md. Code Ann., Educ. 16-305 note (Effect Amendments) ....................................................16 

Intervener MDPetitions.com ("Intervener") respectfully submits this Statement Grounds and Authorities Opposition Plaintiffs' Motion for Summary Judgment and Support oflntervener's Cross-Motion Dismiss and/or for Summary Judgment. Introduction. this action, Plaintiffs seek prevent the voters Maryland from deciding whether allow certain unlawfully present aliens pay reduced, in-state in-county tuition Maryland's sixteen community colleges and other Maryland public senior higher education institutions. least 108,923 confirmed registered voters --nearly twice the number required --signed petition calling for Senate Bill 167 ("SB 167") subject referendum the November 2012 general election. The State Board Elections certified the measure for placement the November 2012 ballot. Not content let Maryland voters consider 167 themselves, Plaintiffs brought suit stop the referendum. 
Although Plaintiffs move for summary judgment, conspicuously absent from their motion are any affidavits other admissible evidence demonstrating that they are "aggrieved" persons registered Maryland voters otherwise entitled relief. Plaintiffs' motion must fail for this reason alone. addition, Plaintiffs' motion must fail because Plaintiffs are wrong matter law about whether 167 subject referendum. clearly is. Moreover, not only must Plaintiffs' motion fail, but the Amended Complaint must dismissed and/or summary judgment entered against Plaintiffs because they have failed allege sufficient facts state claim upon which relief may granted and are not entitled judgment matter law. 

The Maryland General Assembly enacted 167, entitled "An Act Concerning Public Institutions Higher Education --Tuition Rates --Exemption," during its 2011 Session. See 
Stipulation Facts 167 was not enacted part annual budget bill 
supplemental appropriation bill. Affidavit Delegate Neil Parrott (Parrott Aff.") attached Exhibit was not referred either the Senate's Budget and Taxation Committee the House Delegate's Appropriations Committee, which are the committees that consider proposed education appropriations. Id. Rather, was referred the Senate's Education, Health, and Environmental Affairs Committee and the House Delegates' Ways and Means Committee, which are committees that consider proposed general laws and policy questions, not appropriations. Id. The Governor Maryland signed 167 into law May 10, 2011. Stipulation Facts least 55,735 valid signatures registered Maryland voters are required refer law enacted the General Assembly referendum the 2012 General Election. Id. Throughout May and June 2011, Intervener collected 132,061 signatures support petition refer 167 referendum the 2012 General Election. Id. iii! and 9-11. July 22, 2011, the State Board Elections notified Intervener that verification and counting the signatures had been completed and that total 108,923 signatures had been accepted and 23,148 signatures had been rejected. Id. 12. That same day, the State Board Elections certified that 167 would placed the ballot the 2012 General Election. Id. 13. 

Summary judgment appropriate when there genuine dispute material fact and, based upon the undisputed facts, party entitled judgment matter law. Brown Mayor City Council, 167 Md. App. 306, 317 (2006). However, mere allegations not 

constitute facts, nor establish genuine dispute facts. Vanhook Merchants Mutual Ins. Co., Md. App. 22, (1974). motion dismiss should granted complaint does not disclose, its face, legally sufficient cause action. Rossaki NUS Corp., 116 Md. App. 11, (1997). considering such motions, the Court must assume the truth all well pled facts and all inferences that can reasonably drawn from them. Id. Plaintiffs' Motion Suffers from Fatal Lack Proof. 
Section 6-209 authorizes two types judicial review, albeit each with different remedies. Under Section 6-209(a), person aggrieved determination made under  6-202,  6-206, 
 6-208(a)(2) this subtitle may seek judicial review ... the case ... petition refer enactment the General Assembly pursuant Article XVI the Maryland Constitution," and the reviewing court authorized grant such "relief considers appropriate assure the integrity the electoral process." Doe Montgomery Cnty. Bd. Elections, 406 Md. 697, 715 (2008); Md. Code Ann., Elec. Law 6-209(a). Under Section 6-209(b), contrast, reviewing court authorized grant only declaratory relief "[p ]ursuant the Maryland Uniform Declaratory Judgments Act and upon the complaint any registered voter." Doe, 406 Md. 715; Md. Code Ann., Elec. Law 6-209(b). 
Plaintiffs John Doe, Jane Doe, and Casa Maryland invoke the "aggrieved persons provision Section 6-209(a) and allege that they have been aggrieved determination made the State Board Education pursuant Section 6-208(a). Amended Complaint for Declaratory and Injunctive Relief ("AC iii! 16, 18, 25, 43, and 86. They seek declaratory and injunctive relief. Id. iii! 99-109. Plaintiffs Jesus Alberto Martinez, Abby Hendrix, Katherine Ross-Keller, Kim Samele, Camden Douglas Lee, and Catherine Brennan invoke the "registered 

voter" provision Section 6-209(b) and seek declaratory relief only. Id. iii! 19-24, 43, and 
99-104. 
Significantly, Plaintiffs' motion completely devoid any evidence --in the form affidavits otherwise --establishing that Plaintiffs John and Jane Doe and Casa Maryland have been aggrieved determination made the State Board Elections that Plaintiffs Martinez, Hendrix, Ross-Keller, Samele, Lee, and Brennan are registered Maryland voters. Obviously, these facts are material Plaintiffs' respective claims for relief under Section 6209(a) and Section 6-209(b). Because Plaintiffs have failed present any evidence establishing these material facts, their motion for summary judgment must fail for lack proof. Plaintiffs' Amended Complaint Fails State Claim upon 
While Plaintiffs' motion for summary judgment must denied because lack proof, the Amended Complaint also insufficient matter law give rise claim for declaratory injunctive relief under Section 6-209(a), the case Plaintiffs John Doe, Jane Doe, and Casa Maryland, claim for declaratory relief only under Section 6-209(b the case Plaintiffs Martinez, Hendrix, Ross-Keller, Samele, Lee, and Brennan.1 Consequently, the Amended Complaint must dismissed pursuant Rule 2-322(c). Plaintiffs John and Jane Doe Failed preliminary matter, Rule 2-201 requires that "[e]very action shall prosecuted 
the name the real party interest." The rule also provides, "No action shall dismissed 

Intervener preserved this defense and others its Answer, did Defendants. See Second Affirmative Defense, Answer oflntervener MDPetitions.com Plaintiffs' Amended Complaint for Declaratory and Injunctive Relief ("Intervener's Answer") 25-27; Defendants' Answer Amended Complaint 24. 
the grounds that not prosecuted the name the real party interest until reasonable 

time has been allowed after objection for joinder substitution the real party interest." Rule 2-201 also prevents parties from proceeding under fictitious names unless they demonstrates that they will suffer "serious harm injury" required proceed under their real names. Doe Shady Grove Adventist Hosp., Md. App. 351, 363-65 (1991). 
Plaintiffs John and Jane Doe admittedly bring suit under fictitious names. See 
14. Intervener's Answer, filed October 2011, expressly and specifically objected Plaintiffs John and Jane Doe's use fictitious names. See Intervener's Answer and 
26. More than ten weeks have passed since the objection, but Plaintiffs John and Jane Doe have made effort substitute their real names for their fictitious names demonstrate that they will suffer "serious harm injury" their true names are made public. the sponsor the overwhelmingly successful effort petition 167 referendum, Intervener has compelling interest knowing the true identities the persons who seek undue Intervener's substantial efforts and prevent Maryland voters from considering 167 the ballot box. Intervener also has compelling interest being able test the veracity these persons' allegations and otherwise assess their claims for relief. Obviously, given the complete and utter absence any affidavits other evidence presented Plaintiffs John and Jane Doe demonstrating their true identities substantiating their factual allegations, Intervener has way determining whether "Plaintiffs John and Jane Doe" are even real people, much less any way assessing their claims for relief. Nor does the Court. Because Plaintiffs John and Jane Doe have made effort whatsoever comply with Rule 2-201 the more than ten weeks since Intervener noted its objection, their claims should dismissed. 	Plaintiffs John and Jane Doe Failed Plead 
Sufficient Facts Establish That They 

Are Persons. 

Not only have Plaintiffs John and Jane Doe failed present any affidavits other evidence regarding their true identities substantiating their factual allegations and claims for relief, but the Amended Complaint fails plead facts showing that Plaintiffs John and Jane Doe would qualify pay reduced, in-state in-county tuition under 167 the statute were into effect, that they have been "aggrieved" any personal specific way. 	John Doe. 
Plaintiffs set forth the seven, specific requirements for eligibility for in-state and in-county tuition their memorandum. See Memorandum Law Support Plaintiffs' Motion for Summary Judgment ("Plfs' Mem.") The Amended Complaint, however, fails allege that Plaintiff John Doe satisfies all seven these eligibility requirements. least three are absent. First, the Amended Complaint fails allege that Plaintiff John Doe attended public non-public secondary school Maryland for least three years. See Md. Code Ann., Educ.  15-106.8(b )(1 Second, the Amended Complaint fails allege that Plaintiff John Doe would could provide affidavit stating that will apply become permanent resident within days after becoming eligible so. See Md. Code Ann., Educ. 15-106.8(b)(5). Third, although the Amended Complaint alleges that Plaintiff John Doe eighteen years old, fails allege that has registered with the Selective Service System would could provide documentation demonstrating that has complied with his selective service registration obligation.2 See Md. Code Ann., Educ. 15-106.8(b)(6); 15. Thus, Plaintiff John Doe cannot "aggrieved" any determination made the State Board Elections under Section See U.S.C.  453 and 454 (2011). 

6-202, 6-206, 6-208(a)(2) because cannot even demonstrate that eligible for reduced 
in-state in-county tuition under 167. addition, order "aggrieved" for purposes Section 6-209(a), plaintiff's interests must personally and specifically affected way different from the public generally. Doe, 406 Md. 716 (quoting SugarloefCitizens' Assoc. Dep't ofEnv't, 344 Md. 271 (1996)). "aggrieved" person must suffer some "special damage" differing character and kind from that suffered member the general public. Id. 716-717 (quoting Jordan Towing, Inc. Hebbville Auto Repair, Inc., 369 Md. 439, 433 (2002)). Moreover, that "special damage" must caused determination made the State Board Elections under one the three specific provisions listed Section 6-209(a). Md. Code Ann., Elec. Law 6-209(a). 
Plaintiff John Doe's claim "special damage" --harm his plans attend community college --is too remote, too speculative, and too far removed from any determination the State Board Elections. does not even attempt associate his alleged injury one the three provisions specifically listed Section 6-209(a). addition, Plaintiff John Doe does not allege that currently attends community college Maryland that has any concrete, specific plans the near future, much less before the November 2012 election. Nor does allege that has had change delay any specific, present plans may have had attend community college Maryland. All argues that "he working part time catering firm, effort earn and save enough money attend Baltimore City Community College" some indefinite time the future. See 15. alleging only vague wish attend community College some indefinite time the future can save enough money from his part-time job --which itself legally dubious prospect given that, under federal law, 
U.S. employers must check make sure that all employees are authorized work the United 
States and illegal knowingly employ unlawfully present alien (see generally U.S.C.  

1324a (2011)) --Plaintiff John Doe cannot claim personally and specifically harmed determination the State Board Elections pursuant Section 6-202, 6-206, 6-208(a)(2) way that different from any other members the general public. has "special damage," and therefore has standing. Doe, 406 Md. 716. Jane Doe. 
Like with Plaintiff John Doe, the Amended Complaint fails allege that Plaintiff Jane Doe can satisfy least three the seven eligibility requirements 167. First, the Amended Complaint fails allege that Plaintiff Jane Doe attended public non-public secondary school Maryland for least three years. Md. Code Ann., Educ.  15-106.8(b)(l). Second, the Amended Complaint fails allege that Plaintiff Jane Doe can satisfy the statute's requirement
regarding the provision tax documentation.Md. Code Ann., Educ. 15-106.8(b)(4). Third, 
the Amended Complaint fails allege that Plaintiff Jane Doe would could provide 
affidavit stating that she will file application become permanent resident within days 
after becoming eligible so. Md. Code Ann., Educ.  15-106.8(b)(5). Like Plaintiff John 
Doe, Plaintiff Jane Doe cannot even demonstrate that she eligible for reduced in-state in-
county tuition under 167. eligible under the statute, Plaintiff Jane Doe must able provide documentation demonstrating that either she her parent guardian filed Maryland income tax return (i) annually for the years while she attended public non-public secondary school Maryland and (ii) annually during the period between her graduation from high school and her registration community college. The Amended Complaint alleges that Plaintiff Jane Doe 
Qraduated from Baltimore Citv Communitv ColleQe .Tune 2009. 17. result_ she 
0-----------------------------------.; ------------------------------. ------J --------- 
-.; 
must able demonstrate that she her parent guardian filed tax returns each year since 2007 order eligible under the statute. The Amended Complaint only alleges that Plaintiff Jane Doe's parents filed tax returns for the years 2008 through 2010. Id. 
Plaintiff Jane Doe's allegations injury also are nearly identical Plaintiff John Doe's 
allegations injury. 17. They also suffer from the same shortcomings. Like Plaintiff John Doe, Plaintiff Jane Doe cannot claim personally and specifically harmed determination the State Board Elections pursuant Section 6-202, 6-206, 6-208(a)(2) way that different from any other members the general public. She has "special damage," and, therefore, has standing. Doe, 406 Md. 716. 	Plaintiff Casa Maryland Failed Plead 
Sufficient Facts Establish That 

The Amended Complaint also fails allege sufficient facts establish that Plaintiff Casa Maryland "aggrieved" person for purposes asserting claim under Section 6209(a). According the Amended Complaint, 167 rejected Maryland voters the November 2012 election, Plaintiff Casa Maryland will have raise and expend additional funds because unlawfully present aliens, being rendered ineligible for taxpayer-subsidized college tuition, will unable attend college and therefore will earn less money, resulting greater demand for Plaintiff Casa Maryland's services. 25. This claim too generalized, too remote, too speculative, and too far removed from any determination the State Board Elections constitute the type "special damage" that would entitle Plaintiff Casa Maryland any relief. Doe, 406 Md. 716. 	The Registered Voter Plaintiffs Failed 
Plead Sufficient Facts Establish the 

Existence Justiciable 

Section 6-209(b) authorizes reviewing court "grant declaratory relief any petition with respect the provision this title other provisions law" "[p]ursuant the Maryland Uniform Declaratory Judgments Act and upon the complaint any registered voter." 

Md. Code Ann., Elec. Law 6-209(b). The existence justiciable controversy absolute 
prerequisite declaratory judgment action under the Maryland Uniform Declaratory Judgment Act ("UDJA"). Boyds Civic Ass Montgomery Cnty. Council, 309 Md. 683, 689 (1987); Hatt Anderson, 297 Md. 42, (1983); Md. Code Ann., Cts. Jud. Proc. 3-409(a). controversy justiciable when interested parties assert adverse claims upon state facts that must have accrued and which legal decision sought demanded. Hatt, 297 Md.
46. The issue decided must present more than mere difference opinion between the parties. Hatt, 297 Md. 45. Moreover, the existence justiciable issue "is especially important principle cases seeking adjudicate constitutional rights; such instances ordinarily require concrete and specific issues raised actual cases, rather than theoretical abstract propositions." Hatt, 297 Md. 46. 
The Amended Complaint falls far short demonstrating the existence justiciable controversy between Plaintiffs Martinez, Hendrix, Ross-Keller, Samele, Lee, and Brennan ("the Registered Voter Plaintiffs") and Defendants. alleges facts demonstrating the existence "actual controversy" the presence "antagonistic claims" between the Registered Voter Plaintiffs and Defendants. Md. Code Ann., Cts. Jud. Proc.  3-409(a)(l) and (2). Nor the Registered Voter Plaintiffs assert any "legal relation, status, right, privilege" that being "challenged denied" Defendants. Id. at 3-409(a)(3). 
Because this action involves both the constitutional right referendum and the constitutional right vote, all the more important that "concrete and specific issue[] raised [an] actual case[]." Hatt, 297 Md. 46. The Amended Complaint clearly does not satisfy this exacting standard. The three paragraphs that identify Plaintiffs Martinez, Lee, and Brennan not even mention 167. Plaintiff Martinez alleges that was "undocumented 

immigrant" when entered the United States and became successful ophthalmic surgeon. 19. Plaintiff Lee University Maryland -College Park student who believes that policies that promote affordable access college for all students enhance his university experience. Id. 23. Plaintiff Brennan believes that, immigrant students and veterans are able attend college Maryland's public institutions, will enhance her young children's K12 and college experiences. Id. 24. The three paragraphs that identify Plaintiffs Hendrix, Ross-Keller, and Samele contain only the vaguest references their beliefs about 167. Plaintiff Hendrix believes that every student should have the opportunity attend college and that 167 will promote college attendance. Id. 20. Plaintiff Ross-Keller believes the statute will benefit the "citizens Maryland" providing for more educated population. Id. 21. Plaintiff Samele believes 167 will benefit public school teachers providing hope for students. Id. 22. None these six paragraphs demonstrate how any the Registered Voter Plaintiffs will harmed even affected any actions Defendants the referral 167 referendum. Any dispute the Registered Voter Plaintiffs might have regarding 167 --and, again, dispute evident from the face the Amended Complaint --is not with Defendants Intervener. Rather, with persons who not share their opinions about the statute. difference opinion does not constitute justiciable controversy, however. 
Hatt, 297 Md. 45. Because the Registered Voter Plaintiffs have failed allege the existence justiciable controversy, they are not entitled relief under the UDJA and their claim under 
Section 6-209(b) fails matter law. enacting Article XVI the Maryland Constitution, the people Maryland reserved the right approve reject any law passed the General Assembly and signed the Governor. Md. Const., art. XVI,  The only limitation this right where the law: (1) makes appropriation public funds, and (2) for the purposes of"maintaining the State Government" "maintaining aiding any public institution." Kelly Marylanders for Sports Sanity, Inc., 310 Md. 437, 450 (1987); Bayne Secretary State, 283 Md. 560, 570 (1978); Md. Const., art. XVI,  When the purpose appropriation maintain aid "public institution," the people retained the right ofreferendum the appropriation constitutes "increase" over the prior year's appropriation. Baltimore Cnty. Coal. Against Unfair Taxes Baltimore Cnty., 321 Md. 184, 192 (1990) (construing county charter provision similar Article XVI, Section 2); Md. Const., art. XVI,  Kelly, the most recent published opinion address the people's right referendum, the Court Appeals held that act the General Assembly "appropriation" its "primary object authorize the withdrawal from the state treasury certain sum money for specified public object purpose which sum applied." Kelly, 310 Md. 459 (quoting Dorsey Petrott, 178 Md. 230, 245 (1940)). The Court also declared that general law does not constitute "appropriation" even contains incidental provision for the appropriation public funds. Kelly, 310 Md. 459 (citing Dorsey, 178 Md. 251 167 completely devoid any provision authorizing "the withdrawal from the state treasury certain sum money for specified public object purpose which the sum applied." Kelly, 310 Md. 459; Dorsey, 178 Md. 251. 167 nothing more than 
policy choice the General Assembly that extends eligibility for reduced, in-state and in-county 
tuition new group persons. its face, 167 describes its purpose "establishing that certain individuals shall exempt from paying certain tuition rates and shall eligible pay certain tuition rates certain public institutions higher education under certain circumstances." Plfs' Mem. Exhibit Thus, the "primary object" 167 establish new policy that allows certain unlawfully present aliens pay reduced, in-state in-county tuition Maryland's sixteen community colleges and other Maryland public senior higher education institutions.4 This new policy choice does not authorize the expenditure any public monies all, much less particular amount public money, for specific purpose. does not even refer public monies the raising spending public monies any way. Moreover, Plaintiffs have expressly denied any claim that 167 must considered pari materia with some other statute that constitutes appropriation. Plfs' Mem. 16. 

Consequently, Senate Bill 167 nothing more than general law that creates new policy. not "appropriation" any measure. cannot even said that 167 contains 
"incidental" provision for the appropriation public funds. Kelly, 310 Md. 459; Dorsey, 178 
Md. 251. 
The fact that 167 was not enacted part annual budget bill supplemental appropriation bill confirms that general law, not appropriation. Kelly, 310 Md. 455; Dorsey, 178 Md. 241; Parrott Aff. This conclusion reinforced the fact that 167 was not referred either the two committees that consider proposed education appropriations, 
The term "public senior higher education institution" refers the constituent institutions the University System Maryland, Morgan State University, and St. Mary's College Maryland. Md. Code Ann., Educ. 10-lOl(m). 
but instead was referred two policy committees. Parrott Aff. Because 167 
general law, not appropriation, subject referendum matter law. 
Plaintiffs argue that 167 "appropriation" because the Department Legislative Services ("DLS") declared the Fiscal and Policy Note for 167 that the new law "mandates appropriation." Plfs' Mem. (emphasis original). DLS never made any such declaration. DLS only found that 167 "affects mandated appropriation." Id. Exhibit (emphasis added). Obviously, policy choice that "affects" appropriation different from actual appropriation. Plaintiffs' argument ignores the plain language the note. Plaintiffs' own memorandum also demonstrates the substantial difference between fiscal notes for legislative proposals that "mandate" appropriations and fiscal notes for legislative proposals that only "affect" appropriations. law, fiscal note for bill that mandates appropriation "shall contain: (1) statement that clearly identifies the imposition the mandated appropriation; and (2) estimate the fiscal impact the mandated appropriation." Id. (citing Md. Code Ann., State Gov. 2-1505(e)(3) (emphasis added)). DLS' fiscal note for 
167 does not "clearly identifly] the imposition the mandated appropriation" "estimate the fiscal impact [a] mandated appropriation." only discusses the potential effect policy change future appropriations. Indeed, that the purpose fiscal notes. Md. Code Ann. State Gov. 2-1505(e)(l) ("A fiscal note for bill shall contain estimate the fiscal impact the bill the revenues and expenditures the State government and local governments."). 
Regardless, the people Maryland have not forfeited the right challenge enactments the General Assembly that merely "affect" appropriations. Most, not all enactments the General Assembly could found "affect" appropriation some way. Based plain reading the language Article XVI, Section however, the people Maryland only limited 
their right challenge certain types actual appropriations. Md. Const., art. XVI,  
finding that 167 only "affects" appropriation, DLS has further confirmed that 167 not itself appropriation. 
Plaintiffs also claim that 167 constitutes "appropriation" because, under the formula which the State has chosen provide assistance community colleges, known "The Senator John Cade Funding Formula," the Governor allegedly will required request increased appropriations for community colleges future fiscal years. Plfs' Mem. and 15. According Plaintiffs, "mandatory" increase State funding will necessary cover the cost the additional "full time equivalent" students qualifying for in-state in-county tuition because 167. Id. course, nothing 167 mandates any particular level State spending community colleges, any spending all. Plaintiffs are correct that State funding for 167 dependent appropriations future Budget Bills, then Plaintiffs' assertion further confirms that 167 only policy choice, not appropriation. 167 were appropriation, then would authorize the withdrawal public monies from the State Treasury without the need for appropriations future Budget Bills. Because 167 contains such authorization, cannot appropriation. 
Not only 167 completely silent about the Cade formula, but the formula not the automatic trigger Plaintiffs claim. Under the Cade formula, the State provides funding community colleges based percentage the funding that chooses provide designated public four-year institutions higher education per "full-time equivalent student." See Md. Code Ann., Educ.  16-305( way example, given year the Governor and the General Assembly choose provide $100 funding for each full-time equivalent student four-year institution and have set the Cade formula 20% for that year, then the State would 
provide $20 funding for each full-time equivalent student community college for the year. Id. Thus, rather than the mandated amount that Plaintiffs claim, the Cade formula requires that the Governor and the General Assembly first select the level funding that the State chooses provide the four-year institutions, then select the percentage that amount that the State chooses provide the community colleges per "full-time equivalent student" basis. 
Historically, the Governor and the General Assembly have adopted schedule that sets forth Cade formula percentages for multiple years, then revised the percentages substantially based upon the State's financial condition and priorities. Md. Code Ann., Educ. 16-305 note (Effect Amendments). For example, before 2009, the Cade formula percentage for Fiscal Year 2013 was set 30%. Id.; see also 2009 Laws Maryland, ch. 487,  2009, was reduced 27%. Id. 2010 was reduced and 2011, was reduced 19%. Id.; see also 2010 Laws Maryland, ch. 484,  2011 Laws Maryland, ch. 497,  Not only the Cade formula percentages fluctuate substantially, but, enacting the Budget Reconciliation and Financing Act 2010, the Governor and the General Assembly abandoned percentage formula altogether and instead set State funding for community colleges flat amount for both Fiscal Year 2011 and Fiscal Year 2012. 2010 Laws Maryland, ch. 484,  
Clearly, nothing 167 directs, much less requires mandates, increase the State's funding for community colleges future fiscal years. more full-time students seek attend community college future years and the State wishes keep its support for community colleges the same level prior years, the Governor and the General Assembly retain the discretion regardless the policy change made 167. the State wishes reduce its support for community colleges future years, may regardless 167 well, and the community colleges may seek make the difference raising tuition and/or obtaining 

greater support from the county counties the community colleges serve. Contrary Plaintiffs' argument, the Governor retains discretion request State funding for community colleges whatever level she believes appropriate, and the General Assembly retains the discretion adopt reduce the Governor's request. 167 does not mandate any particular level State spending community colleges. 
Plaintiffs also are wrong when they argue that 167 "directly regulates" the amount revenue collected four-year institutions. Plfs' Mem. 15. 167 has bearing the level which four-year institutions set the rates they charge students for in-state and out-of-state tuition. Rather, 167 only affects students' eligibility for these different rates. fact, DLS' fiscal note expressly states, "tuition revenues most institutions will not materially affected." Id. Exhibit addition, nothing about 167 limits these four-year institutions' discretion adjust tuition rates whatever level they deem necessary raise the revenue they require. See Md. Code Ann., Educ. 10-208(6), 14-104G)(l), and 14-404(a). institution determines that needs increase overall tuition rates accommodate any students who qualify for in-state tuition rates under the new policy, nothing 167 prevents the institution from doing so. 167 does not directly indirectly regulate the amount tuition collected any institution. Nor does mandate any particular level state funding four-year institutions, Plaintiffs also erroneously contend. 167 also not analogous any the other enactments found constitute appropriations for purposes Article XVI, Section issue Winebrenner Salmon, 155 Md. 563, 567 (1928) was the imposition new gasoline tax, the proceeds which were used build public roads the State. issue Bickel Nice, 173 Md. (1937) was the 
State's issuance new bonds fund the construction office building Annapolis 
house state officers and employees. issue Bayne, supra, was specific line item the 
State's Budget Bill --a quintessential "appropriation" --that provided for direct payments physicians, hospitals, clinics and other medical facilities for medical and hospital care, including abortions, for indigent persons the State. The Court Appeals found all three measures constitute appropriations for purposes Article XVI, Section issue Kelly, supra, was "intricate financing mechanism" that permitted the State "receive and expend public monies" obtain site and construct Oriole Park Camden Yards and Bank Stadium. The key provision the enactment issue Kelly, Chapter 124, authorized the Maryland Stadium Authority ("the Authority"), State instrumentality, raise and expend specific amounts money: $85 million for site acquisition, $70 million for construction baseball stadium, $70 million for construction football stadium, and $195 million for construction multi-use stadium. Kelly, 310 Md. 442. This same provision also gave the Authority the power issue bonds for the purpose financing the project, created new sports lotteries raise funds for the project, and required annual payment from the City Baltimore, among other fund raising measures. Id. 442-44. concluding that Chapter 124 constituted "appropriation," the Court found: authorizes the borrowing funds through the issuance bonds, the disbursement those funds through the Authority's Financing Fund, and the payment the Authority's bonded indebtedness through monies directed paid the State the Authority through annual appropriations the Budget Bill, the City Baltimore, and through the Authority's own revenues included its Financing Fund. 
The line item the Budget Bill issue Bayne was obviously appropriation that the plaintiffs did not even attempt argue otherwise, but instead argued that was not appropriation for maintaining the State Government. Bayne, 283 Md. 570. 
Kelly, 310 Md. 460-61. Unlike Chapter 124, 167 does not authorize the expenditure receipt any public monie, much less any specific quantity public monies. Nor does create any "intricate financing mechanism." contains borrowing, funding, financing mechanism all. 167 nothing more than policy choice that extends eligibility pay reduced, in-state in-county tuition new category persons. not appropriation under Kelly. 167 most analogous the enactment issue Dorsey, supra. that case, the General Assembly had created new "Commission Fisheries" regulate the tidewater fisheries the State and gave the new commission certain duties and powers, including the power hire employees whose salaries were appropriated the State's annual Budget Bill, and the power charge inspection fees and impose monetary fines, both which were paid the Comptroller the State Treasury. The Court Appeals rejected the argument that these "incidental" revenue raising and spending measures transformed general law into "appropriation" for purposes Article XVI, Section 

All the features appropriation are thus negatived, and cannot maintained that [the provision] regulates the manner which public funds are annually supplied and applied the conservation the tidewater fisheries the state. the contrary, the statute the kind clearly indicated the Referendum Amendment being within its purview. Dorsey, 178 Md. 248. 167 does not even contain the "incidental" spending revenue 
raising provisions contained the statute issue Dorsey. Again, 167 contains 
provisions for spending raising public funds all. Like the statute issue Dorsey, 167 
does not "regulate[] the manner which public funds are annually supplied and applied" 
post-secondary public education Maryland. Instead, policy choice that makes new 
category persons eligible pay reduced in-state and in-county tuition. general law, not appropriation. addition not being "appropriation" for purposes Article XVI, Section 167 was not enacted for the purpose "maintaining State government." its face, Article XVI, Section differentiates between "State government" and "public institutions." Kelly, the Court Appeals declared that public institutions "do not necessarily perform government functions and are largely supported private capital. Moreover, public institutions are not controlled the State, although the State may given voice their management." Kelly, 310 Md. 475 (quoting Op. Att'y Gen. 228, 237 (1927)). has long been recognized that the term "public institution" referenced Article XVI, Section relates "educational and eleemosynary institutions, sometimes designated State-aided institutions." Id. 
Maryland community colleges and "public senior higher education institutions" are the very picture the "public institutions" described Kelly. They are much more part "County government" then they are part "State government." See, e.g., Md. Code Ann., Educ. 16-101, 16-301, 16-304, and 16-305. They are created the county counties that they serve. Specifically, the governing body the county served community college appropriates money "pay the cost establishing and operating community college regional community college." Id. at 16-304(a); see also id. at 16-305. The community colleges themselves are governed boards trustees that "exercise general control over the community college" and appoint president who "responsible for the conduct the community college and for the administration and supervision its departments"" at 16103(c) and 16-104(b)(4). Each year, community colleges prepare and submit budgets the 
counties they serve, not the General Assembly, and the counties, not the General Assembly, that approve the community colleges' budgets. Id. at 16-301(a) and (e). Community colleges may borrow money, but any such borrowing does not "create constitute debt obligation the State" and does not "constitute debt obligation the General Assembly pledge the full faith and credit the State." Id. at 16-302(d). Rather than being "State government," community colleges are most "public institutions" "State-aided institutions." 
Maryland's "public senior higher education institutions," are "independent units" State government. Id. at 12-102(a)(3) (University System Maryland) and 14-101(a)(3) (Morgan State University). Each governed its own Board Regents Board Trustees. Id. at 10-208, 12-102(b) and 12-104 (University System Maryland); 14-102 and 14-104 (Morgan State University); and 14-402 and 14-404 (St. Mary's College Maryland). law, the Board Regents the University System Maryland "may not superseded its authority any other State agency office managing the affairs the University System Maryland any constituent institutions and centers under the Board's jurisdiction." Id. at 12-104(c)(3). Likewise, the Board Regents Morgan State University "may not superseded its authority any other State agency office managing the affairs the University." Id. at 14-104(a)(2). similar provision applies the Board Trustees St. Mary's College Maryland.  14-404(b )(2). Each institution sets its own tuition and fees. Id.  10208(6) (University System Maryland); 14-104(j)(l) (Morgan State University); and 14404(a) (granting the Board Trustees St. Mary's College "all the powers, rights, and privileges" for governance and management the College). Like community colleges, both the University System Maryland and St. Mary's College Maryland have authority borrow 
money, but such borrowing does not create constitute debt obligation the State debt obligation contracted the General Assembly. Id. at 12-105(c) (University System Maryland) and 14-405(d) (St. Mary's College Maryland). Nor does pledge the full faith and credit the State. Id. 
Nor are these public institutions postsecondary education "performing government functions." Postsecondary education Maryland also includes the great many private colleges and universities the State. Obviously, these private institutions are not "performing government functions." Unlike primary and secondary education, which more traditional, but not exclusive, "government function," postsecondary education not compulsory. purely voluntary and therefore further removed from typical "government function." Public community colleges and four-year institutions also receive substantial quantities "private capital" --the tuition and fees paid the students who attend them. Kelly, 310 Md. 475. Moreover, the provision postsecondary education nothing all like the "government functions" issue the other cases applying Article XVI, Section 167 exactly the type policy change unrelated the maintenance State government that falls well within the people's right referendum. 167 Concerns Public Institutions, Not State Government. Because 167 concerns "public institutions," not "State Government," the limitation the people's right referendum contained Article XVI, Section even narrower. The people retain the right vote for themselves enactments the General Assembly that 
increase State aid public institutions: The framers intended that the neonle should have check unon the amount 
------------------------------------J_--.J.--.I. 
money expended the legislature for the maintenance aid public institutions, not owned controlled the State ... is, therefore, not improper, 

when providing check upon legislative power, reserve the people the right control any extensions increases State aid such institutions. The reference such increases should not impair the State government the exercise its normal functions, whereas appropriations for the executive, legislative and judicial branches the Government must provided, accordance with the financial needs these departments, without hindrance delay. 
Kelly, 310 Md. 475. "That this now the law Maryland beyond all question." Id. Because Plaintiffs expressly and specifically contend that 167 increases the amount State aid the State's postsecondary public institutions higher education (Plfs. Mem. and 15), would not subject the limitation the right referendum contained Article XVI, Section even 167 were found "appropriation." Consequently, 167 subject referendum matter law for this additional reason well. 
IV. Conclusion. 
For the foregoing reasons, Plaintiffs' motion for summary judgment should denied and Intervener's cross-motion dismiss and/or for summary judgment should granted. Dated: December 22, 2011 Respectfully submitted, 
JUDICIAL WATCH, INC. 

Md. Bar No. 9112190026 
Suite 800 425 Third Street, S.W. Washington, 20024 Tel: (202) 646-5172 Fax: (202) 646-5199 
Attorneys for Intervener 

EXHIBIT
JOHN DOE, al., 	INTHE
Plaint[lfs, 	CIRCUIT COURT 	FOR ANNE ARUNDEL COUNTY
MARYLAND STATE BOARD Case No. 02-C-11-163050 ELECTIONS, al., 
Defendants. 

AFFIDAVIT NEIL PARROTT Neil Panot, hereby state follows: member the Maryland House DelegatesI represent District 2B, 
which located Washington County, Maryland. was elected the House Delegates November 2010 and was sworn January 12, 2011. member the House Delegates, generally familiar with the process which legislation passed the General Assembly, including the refenal proposed legislation committees. also the Chairman Petitions.com, entity that sponsored the petition refer Senate Bill 167 ("SB 167") referendum and the Intervener this case. 
When 167 was passed the Maryland General Assembly, was not enacted part any annual budget bill supplemental appropriation bill. Nor was referred either the Appropliations Comrriittee the Budget and Taxation Committee, which are the committees the House Delegates and the Senate, respectively, that consider proposed appropriations, including education appropriations. Instead, Senate Bill 167 was referred the House Delegates' Ways and Means Committee and the Senate's Education, l-lealth, and Environmental Affairs Committee, which are committees that consider proposed general laws and policy questions, not proposed appropriations. solemnly affirm tmdcr the penalties perjury that the contents the paper are true the best knowledge, information, and belief Executed December 22, 2011 
Hagerstown, Maryland. 
CERTIFICATE SERVICE hereby certify that this 22nd day December, 2011, caused true and correct copy the foregoing Intervener's Statement Grounds and Authorities Opposition Plaintiffs' Motion for Summary Judgment and Support oflntervener's Cross-Motion Dismiss and/or for Summary Judgment_to served, via email and first-class U.S. mail, postage prepaid, the following: 
Elizabeth Getman Joseph Sandler SANDLER, REIFF, YOUNG LAMB, P.C. 1025 Vermont Avenue, N.W., Suite 300 Washington, 20005 
Brett Marston Michael Harris Patricio Grane Laura Cofer Taylor Margarita Sanchez ARNOLD PORTER 555 Twelfth Street, N.W. Washington, 20004 
Matthew Fader Jeffrey Darsie Assistant Attorney Generals OFFICE THE ATTORNEY GENERAL 200 St. Paul Place, 20th Floor Baltimore, 21202-2021



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