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IN ll!f. COVRT OF SI'F.CIAI_ Al'l'liAI.S
OF MARYLAND
No. 1287
September Term. 2012
TRACY FAIR. eur/.
v.
ROBERT L. IV ALKER, er al.
Wright,
Na:t.arian.!
Davis, Arrie W.
(Retired. Specially Assigned),
JJ.
Opinion by Nazarian, J.
Fil.cd: April?, 2014
,
In the weeks preceding the 2012 Maryland prim31) election, Tracy Fair
and Mary Miltenberger (together. "Appellants"") filed suit. first against President Borack
Ob3ma. then against several Maryland election officials. The lawsuit challenged
President Obamas eligibility to run for re-elect ion and objected to the Maryland primary
election b.1llot listing his name as an eligible candidate. The Circuit Court for Carroll
County dismissed the lawsuit on the ground (among others) orlachcs. We agree with the
circuit court that Appellants had no excuse for filing their suit so lntc in the election process
and that their dcluy prejudiced the Maryland State Board of Elections ("'State Board") and
the vming public. and so we afTmn the circuit coun s dccision to dismiss the case for
laches. We need not and do not address Appellants" other arguments.
I. BACKGROUND
Maryland Scen:l:lry of State John P. McDonough certifi-d !'resident Obama for
inclusion on the 2012 Democratic Maryland Presidential Primary ballots on January 10.
2012. Appellants fi led this suit against l'rcsidcnt Obama on January 26, 201 2.
challenging Mr. Obama's eligibility to serve as J>n:sidcnt. Importantly, the original
complaint named tho Prcsidcm as the sole defendant and did not nmne tho State Board or
any Maryland oniciul. On March 19. 2012, Appcllunts liled an ""Amended Complaint For
Dccloratory Judgment And Injunctive Relief" thot dropped f'resident Obama as a
defendunt but added new claims and new parties (then: were no defendants common to the
two complaints). The March 19 complaint named Secretary of State McDonough and
oth<r stute election officials: Robert L. Walker. the Chairman of the State Board: Linda H.
Lamone. the Stutc Administrator of Elections; and Jane l.)cMarinis. another State Board
official (together. "Appellees"). Appellees were served \\;th copies of the lawsuit on
March 27.2012. one " reek bc((m; the Maryland presidcnlia1 primary eJections on April3,
2012. On April27. 2012. Appellees moved to di,miss on a variety of grounds. including
laches nowing from the timing of the amended complaint. 11te circuit court held a
hearing and cnered an order g.raming the motion to dismiss on August 27. 2 1 2 ~ citing.
among other things, lac.hcs aris ing from Appellants' delay in bringing suit. Appellants
filed a timely notice of appeal on Septe mber (>. 2012.
1
1
Appellants list the following Questions Presented in their brief:
I. Whether lhc Court erred in deciding the time requirements under
9-209 and 12-202 of the Election Law Article, had not been met.
2. Whether the Court was misguided in its definition of natural born
citizen, by citing a ca.c;e, which obtusely admits itself. that it did
not correctly interpret Supreme Court case of l United Stales v.
Wong Kim Ark. 169 U.S. 649 ( 1898)].
3. Whether rthe trial judge] erred in his agreement, that EL (] 8-502
was the only statute appellees were required to follow, on
verifying candidate eligibility].]
4. Whether the misconstnaing of the definition of natural bom
citizen. contributed to the court's belief thal defendantS had
properly followed the law(.]
S. Whether Oarack Obama's birth certificate is a computer
generated forgery and if so. is he still eligible for the Presidency.
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II. DISCUSSION
On appeal. Appellants challenge the deci:.;ion of the circuit courl to dismiss their sui I
contesting President Oba.nas eligibility 10 appear on the primary election ballot in
Maryland. We start with the statutory process of certifying candidates and end with the
doctrine of laches.
A. The Amended Complaint Was Filed And Served Late In The
Eltction
Most candidate.'\ for public office must file a certificate of candidacy-an
u_ndcr-oath filing detailing infonnation about 1he candidate-as a prerequisite to appearing
.
on the ballot. Md. Code (2003, 2010 Rep!. Vol.), 5-301(a) of the Election Law Anicle
.
("CL '}
2
Most, that is, but not all: the statute that cre-ates lhe general filing requirement
1
The required contents of a ccrtilicatc of candidacy arc enumerated in EL S-304(c) and
include:
(I) the office, including. if applicable, the party, districtt and circuit
to which the candidacy relates;
(2) the year of the election:
(3) the name of the individual filing the certificate:
(4) the address on the statewide voter registration list or the current
address of that individual;
(5) a that the irldividual satisfies the requirements of law
for candidacy for the oOice for which the certificate is being filed;
a.nd
(continued ... )
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also exempts Ccrtain calegories of candidales from il. among !hem candidales for l'residcnl
of1hc Uniled S1a1es who arc nomina1ed by a nalional party convenlion. Et 5-301(g).
Na1ional-party l'rcsidcnlial eandida1es arc exempl because 1hc Elcclion taw Article.
1hrough EL 5-60 I and 8-502(e). recognizes anolhcr mclhod of qualifying eandidalcs for
1ha1 office on 1he primary ballol. Under E!. 5-601(2), 1he name of a prosiden1ial
candidate nominated at a national party comcntion remains on the ballot for submission to
primary election voters if'"thc candidate has qualified ... under (the requirements of] Title
8. Sublillc 5" of lhc same article, EL 8-502(e)(2), which requires !he Seerelary ofSiale 10
identify and certify candidates for President n..""Cogni zcd by the state or national news
media:
!d.
/d.
The Sccrclary of S1a1c shall certify 1hc name of a presidenlial
candidate on the ballot when the Secreta.ry has detem1ined, in
lhc Secrctaryts sole discretion and consistent with _party rules,
that 1he candidate's candidacy is generally advocated or
n:.:<:og.nizcd in the news media throughout the United States or
in Maryland ....
(. .. conlinucd)
(6) any informali<m rcqucsled by the S1a1e Board to verify 1he
accuracy oi the inionna.ion provided by the individual under rhis
subsection.
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Se<:tion 8-502(cXI) directs the Secretary of State to certify mcdia-re<:ognized
candidates between eighty and ninety days before the primary election. The decision
whcrher to certify a candidate in lhis manner lies within the sole discretion of the Sccrehlry.
EL at 8-502(c)(2). Pursuant to EL 8-502(0. the State Doard certifies to the local
boards the names of any prcside.ntial candidates certified by the Se<:retary under EL
8-502(c). and the names are "printed on ballots used for the primary election." lei.
Secretary of State McDonough certified President Obama (and other presidential
candidates of national prominence) on Januar)' 10. 2012. in anticipation of Maryland's
April 3 primary. His decision t() cc.rtify those candidates triggered the State Board's
responsibility under EL 5-303(a)(2) and 9-207(a)(l) to certify the "content and
arrangement' ' of the primary ballot by January 23, 2012.
3
Following certification, the
State Board was required to display the content and arrangement of each certified
ballot on its Web site' ' for a two-day period, after which the bullots would be printed. EL
9-207(c)-(c). Then. under 42 U.S.C. 19731f-1(aX8) (2009), the State of Muryland
was required to transmit absentee ballots w absent military and overseas voters by
mid-February. Early voting in the primary election took place between March 24, 2012
' Under El. 5-303(a)(2), cenificates of candidacy were due no "later than 9 p.m. on the
Wedne.<day that is 83 days before the day on which the primary election will be held,'' or
January II, 2012. And under EL 9-207(a). the State Board was obligated to "certify Ute
con1cn1 and arrangement of each ballot . . . for (the] primary election, no more than II days
after the filing date provided in [EL) 5-303." or January 23,2012.
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and March 29. 2012. EL 10301. l (d)(2).'' and the primary itself was scheduled for
April 3. 2012.
Against the timclinc of the primary election process. then.lhis suit comes very late.
Althougll Appellants contend that they first filed suit on January 26, 2012. they did not in
fact challenge President Obama' s eligibility to appear on the Maryland primary ballot until
they amended their complaint on March 19. 2012, and they served Appellees only on
March 27. 2012. These claims surfac.ed more than two months after President Obama and
other candidates had already been certified by the Secretary, more than two months after
the Board had cenificd the content and arrnngement of the ballot, at least a month after
absentee ballots had been sent to military and overseas voters. after at least half of the early
primary voting period had elapsed. and only a week before the primary itself.
4
EL 1 0 ~ 3 0 J I was amended by the Election Law- lmprovirlg Access to Voting Act,
2013 Md. Laws. Chap. 158. The early voting period of March 24-29.2012, derived from
the language of the statute as it existed during 2012.
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B. The Delay In Filing Suit Was "Inexcusable," As The Doc.trine Of Laches
Uses Tbe Term.
Laches is a defense in equity against s1ale claims, and is based upon grounds of
sound public policy by discouraging fusty demands for the peace of society."' Liddy v.
L(/lnone, 398 Md. 233, 243-44 (2007) (quoting Ross v. State 8d. of Elecrions. 387 Md. 649,
668 (2005)). "[Liaches ' applies when there is an unreasonable delay in the assertion of
one's rights and that delay results in prejudice to the opposing party.'" /d. at 244
(citations omitted). A laches defense raises a 'mixed question of fact and law." ld. at
245. 'Whether the clements of laches have been established is [a question] of fact, while
1he question of whether in view of the eslablished f.1cts. lac-hes should be invoked, is a
question of law: ld. at 245-46 (citations omitted}. Although we defer to all
well-pleaded fc1cts in a pany's appeal of a decision granting a motion to Shah v.
HealthPIILS. Inc .. 116 Md. App. 327, 332 (1997) (" 'Upon [an] appeal from the gmnting of a
motion to dismiss tiled under Maryland Rule 2-322(b)(2), an appellate court must assume
the mnh of all well-pleaded rclcvan1 and material in the C()lnplaint, as well as all
inferences that can reasonably he drawn therefrom."'' (quoting Wt1rner v. Lerner. J 15 Md.
App. 428, 431 ( 1997))), the facts relating t<> the timing and circumstances of Appellants'
complaint are few and undisputed (unlike Appellants' contentions on the merits).
The tirst clement of a Sul.'<.-essful det'i;:nse of laches is an '"inexcusable delay/"
Liddy, 398 Md. at244 (quoting Schaeffer v. Anne Arundel Coumy. 338 Md. 75.83 (1995)).
which in this. context means a ""lapse of lime during which the plaincin failed to assert his
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[or her] rigllts.'" /d. (quoting 1/tmgerfordv. Hungerford. 223 Md. 316,320-21 (1960)).
This concept of delay meaStlres the plaimifrs awareness of the circumstances underlying
his or her potential cause of action. " ' [L)aches implies negligence i.n not asserting a rigllt
wilhin a reasonable time after its discovery(;] a party must havc had knowledge, or the
memzs of knowledge. of the Htcls which created his cause of action in order lOr him to be
guilty of laches.'" Ross. 387 Md. at670 (emphasis added) (quoting ~ t o n v. 8t<rton, 363
Md. 634. 646 (200 I)). l'ut another way, if a plaintiiY knew or reasonably could have
known 1he facts creating the cause of action and still did not pursue the claim, the delay
lacks justification and is. for present purposes, '"inexcusable.
me claims before us. and those joining the-Maryland state official deiCndants. we-re
not filed until March 19. 2012. Appellants claim this delay resulted because they were
waiting to obtain copies of President Obama's certitication of candidacy. But their
allegations now from their longheld view. which in no way depended on a ecrtiticale, that
President Obama docs not meet the Constitutional requirements for otlice. Moreover! in
both their amended complaint and their brief i.n this Court, Appellants admit having
discussions with the State Board and the Secretary of State's Om.cc in which they were
informed thtllthc Secre.tary would certify eligibility under EL 8-502 rather than awaiting
a cenificatc from the President or other widely-known candidates.
5
Appellants knew or
' In the March 19 complaint. Appellants noted that they had "discussed this issue many
timt-s with the State Board of Elections and the Se<:retary ofStatc"s Ollice and were told
(continued .. . )
8
could readily have known (from the publicly available text of the statute) of the timcframc:s
built into EL 8502. and the announced date of Maryland's Presidential primary. and
indeed. they contend in their brief that they had been pursuing these claims for over a year
before they filed the initial complaint (and. as they point out as well, their theories of
ineligibility have been litigated extensively across lhe country since before President
Obama was elected the first lime). V.lc recognize that Appellants arc. proceeding prose
and thatthcy moved with all possible speed once they rcali?.ed that they would be forced to
pursue these claims on their 0\\'n.
6
But their claims do not arise from facts or
circumSUlnccs that became known only at the eleventh hour. and we agree with the circuit
court 1hot the delay in filing these claims against these officials was inexcusable. as lhc
cases defining laches usc the term.
( ... continued)
the only law they follow is EL [] 8502, which allows the Secretary of State 10 cenify an
individual to be on the ballot, solely because he's been advocated in the medial.!" In their
brief, Appellants described how they called the State Board and "Secretary of State on a
weekly basis, trying to get copies of the [candidates'! certificates [of candidacy] and the
only answer [they] would get is that [the State Board] followed 8-502 and that Obama was
eligible."
6
We suspect that Appellants meant to bring whatever claims they needed to bring. and to
join any defendants they needed. to challenge the President 's eligibility when they first
filed in January. But without deciding the question., it is far from cle.ar that claims filed on
January 26. 20 12! would have esc-aped dismissal on laches grounds, even if they had joined
the right that point (measuring from filing. not service), the Secrelal)' had
cenified candidates under Et 8-502 two weeks earlier, the Board already had ccnified
the content and amu1gement of the baUot, and the Boal'd was in the midst of preparing
absentee ballots for mailing.
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C. The Delay In Filing Prejudiced Appellees.
from there. a party asserting laches also must demonstrale that it suffered prejudice
as a resuh of the delay. This makes sense in light of the equitable genesis of the laches
defense: [l]fthc delay has not prejudiced the party asserting the defense. it will not bar"'
the claim of the opposing party. Ross. 387 Md. at670 (quoting &ltaeffir. 338 Md. at 83).
rrejudice is generally held to be any thing that places [the defendant] in a less favorable
position."" Liddy. 398 Md. at 244-45 (quoting Ros.t. 387 Md. at 670).
Elections arc particularly time-sensiti ve, and thus particularly vulnerable to
potential prejudice from delayed "claims arising out of clcclions. Ross, 387 Md. at 671.
As we have recognized in prior election-based laches cases. plaintiffs seeking 10 challenge
elections must raise their complainls and grievances delay when the elec.tion
approaches.'' /d. at 672. In particular, plaintifiS must bring expeditiously "'any claim
against a state electoral procedure' .. . because '(als time passes, the state's interest in
proceeding with the election increases in importance as resources are commincd and
irrevocable de<:isions are mude. " ' /d. (quoting Fulani v. Hogsw, 917 F.2d I 028, I 031
(7th Cir. 1990)); see also Liddy, 398 Md. at 245 (describing judicial disnptions to the
cle<:tion process as potentially imposing ""unreasonable or embarrassing demands on [the)
State' " (quoting MacGovem v. Connolly. 637 F.Supp. Ill. 115 (0. Mass. 1986))). A
delayed challenge to a candidate' s eligibility affects not only the candidate. but also the
voting public and the State Board. which has statutory obligations to prepare for and
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oversee the clcc1ion by eslablished and innexiblc deadlines. Ross. 387 Md. at 672-73.
These realities in tum require the courts to avoid adding '''wholly unanticipated
unccnaintie.s at the cle\'enth hour."' !d. at 671 (quoting &1rtltelmes v. Morris. 342
F.Supp. 153. 160-61 (D. Md. 1972)); see also Liddy. 398 Md. at 250 ("'Court orders
affecting especially conflicting orders. can themselves result in voter confusion
and incentive to remain away from the polls. As an election draws closer. thai
risk will increase: (quoting P1ucell v. Gonzulez. 549 U.S. I , 4-5 (1989))).
Liddy and Ross. whidl arose in similar contexts. frame our analysis of prejudice ro
1he Slate elce1ion oflicials from lalebr<'ltking procedural challenges to forthcoming
elections. Both cases featured similar delays in filing suit. See Liddy. 398 Md. at 25253
(describing the challenge occurring eighteen days before the cl<'<:tion as not allowing the
court sufficicnl time ''to consider arld decide'' the matter or "address the merits" of the
case); Ross, 387 Md. at 672-73 (disallowing a challenge that occurred three days after the
election). In both cases. as here. the challengers' claims could have been raised earlier in
the election process. Litldy. 398 Md. at 253 ("IA)ppcllant's dilatory challenge was . . .
prejudicial. as it could have been brought long before not just the general election but the
primary election as well.''); Ross, 387 Md. at 673 (notir'g that petitioner's claims "could
have been protested judicially'' earlier in the election process). And in charactc.riz.ing the
respective filing delays as prejudicial. the Liddy and Ross decisions both described the
disn.ptive efTcclthc challenges would have on the election apparatus and the prejudice that
II
would arise to the State Board and voters in the State. Liddy. 398 Md. at 253: Ross. 387
Md. at 672-73. We sec the S<>mc prejudicilll character in the timing of the filing at issue
here. and we agree with the circuit court that Appellants' claims were barred properly by
laches.
Our decision on lachc:.s eliminates any need tOr us to address Appellants' other
contentions. and we express no views on them.
JUDGMENT OF THE CIRCUIT COURT
FOR CARROLL COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
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