Posted: 7:51 pm Thu, June 3, 2010
By Liz Farmer
Daily Record Business Writer
ANNAPOLIS — After more than three days of closing arguments, the fate of a county-wide referendum on a slots casino next to the Arundel Mills mall is in a judge’s hands.
At issue is the validity of 22,967 signatures certified by the Anne Arundel County Board of Elections out of 40,408 collected during the petition drive by led by opponents of the casino, including the Maryland Jockey Club. The casino would be built and operated by Baltimore developer David Cordish.
PPE Casino Resorts Maryland LLC, a subsidiary of the Cordish Co., is suing the county board, challenging the process by which those signatures were verified.
In his rebuttal closing argument Thursday in Anne Arundel County Circuit Court, PPE attorney Anthony Herman explained why the company believes the board should have abided by the stricter county code regarding requirements for referendums and petitions.
Closing arguments in the hearing began a week earlier, with each side taking a day and a half to state its case. The hearing, which began May 24, is an administrative review, meaning only the election board’s review of the petition materials will be considered by Judge Ronald A. Silkworth.
Herman contended there was no legal reason for the county elections board to evaluate the petition signatures based on the broader state requirements, as the county board had argued in its closing last week. The Anne Arundel County Code lists petition requirements such as that the printed name and signature must match exactly; the state statute on petitions for referendums is not as specific.
“We are aware of [no] intention by the General Assembly to preclude charter counties that have a more rigorous standard,” Herman said, noting that in other areas of law like minimum sentencing for drug convictions, charter counties are allowed to have stricter standards than the state.
“The county can arrive at a different conclusion from the state … as long as there’s no conflict, and here there is none,” he added.
Herman also reiterated PPE’s argument that the board lacked legal authority to certify a referendum because the constitutional amendment and laws permitting slot machines were appropriations measures, designed to raise money for education and school construction.
Under the Maryland Constitution, revenue-generating bills approved by the General Assembly are not subject to popular challenge.
And even if the court didn’t agree on those legal points, it must take issue with the inconsistent process by which the board evaluated the petition signatures, Herman concluded. He said, for example, that the board invalidated petition signatures that were illegible but did not invalidate petition pages that had an unreadable petition circulator signature.
“The board offers no explanation for the requirement of legible signatures for signers but for not enforcing the same requirements for circulators,” Herman said.
“An inconsistency by an agency, it’s the very essence — it’s the very core of what takes a rational process and makes it arbitrary and capricious,” he added.
Throughout closing arguments, attorneys for both sides have said Silkworth can not only evaluate the law dictating the procedure for the elections board, but can also review the individual signatures approved by the board.
On that point, however, casino opponents have insisted Silkworth not substitute his judgment for the election board’s, while PPE is essentially asking the judge to invalidate some signatures initially approved by the board.
PPE attorneys say they believe more than 9,000 signatures are invalid. If 4,175 of the more than 23,000 approved signatures are rejected, the petition would fail.
After both sides file their post-hearing memorandums on June 11, Silkworth is expected to issue a written ruling quickly given the time-sensitive nature of the issue. In order to make it on November’s ballot, the referendum would have to be “ballot ready” by mid-August, according to Alan Rifkin, an attorney for the casino opponents.
Rifkin added that if the case went to appeal, he believed the Court of Appeals would expedite it and issue a ruling before that deadline.