Barber v. Md. Bd. of Elections

CLAUDIA BARBER AND JUDICIAL CAMPAIGN OF CLAUDIA BARBER v. MARYLAND BOARD OF ELECTIONS

No. 2238

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

July 26, 2019

Circuit Court for Anne Arundel County

Case No. C-02-CV-17-001691

UNREPORTED

Meredith, Shaw Geter, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

Opinion by Meredith, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

In 2016, Claudia Barber ("Ms. Barber"), one of the appellants in this case, was a candidate seeking to be elected to serve as a judge on the Circuit Court for Anne Arundel County. Her campaign committee, named "Judicial Campaign of Claudia Barber" (the "Committee"), is also an appellant. During the 2016 election cycle, the Committee filed periodic reports of its income and expenses with the Maryland State Board of Elections ("the Board"), appellee.

By letter dated November 15, 2016, the Board's Director of the Candidacy and Campaign Finance Division notified the treasurer of Ms. Barber's Committee that the Board had reviewed the campaign finance reports filed by the Committee and had concluded that certain reported expenditures for the payment of legal fees were not permissible campaign expenses, and therefore, the amounts paid for legal expenses "must be reimbursed by the candidate." The letter provided a list of payments that totaled $8,769.46, and stated: "Please be advised that you have thirty (30) days from the date of this notice to provide this office with evidence that the campaign has been reimbursed for the impermissible expenditures. Failure to correct these violations will result in the matter being referred to the Office of the State Prosecutor. If you have questions regarding this matter, please contact the Audit and Enforcement Unit (AEU) at 410-269-[####]."

Within 30 days after receiving the letter, Ms. Barber reported that she had repaid $8,769.46 to the Committee. But she also exchanged e-mails with employees of the Board, disputing the Board's conclusion that the payments were not permissible campaign expenses.

On March 20, 2017, Ms. Barber filed a Petition for Declaratory Ruling with the Board, requesting "a declaratory ruling from the Maryland Board of Election members that the legal expenses incurred met the nexus requirement as discussed by the attorney general decision [cited] above[, i.e., 78 Md. Op. Atty. Gen. 155, 1993 WL 467835 (1993)]. And if not when would the nexus requirement be met in this situation."

At its meeting on May 18, 2017, the Board considered Ms. Barber's request for a declaratory ruling, and voted to deny the request. By letter dated May 22, 2017, the Board's Deputy Administrator advised Ms. Barber that the Board had declined to issue a declaratory ruling because it had "long been the practice of the Board" to issue declaratory rulings only when asked "how a rule or regulation would apply to prospective behavior, not to actions that have already taken place . . . ."

On June 13, 2017, Ms. Barber and the Committee filed a "Complaint and Petition for Judicial Review of Declaratory Ruling" in the Circuit Court for Anne Arundel County. That pleading was superseded by an "Amended Petition for Judicial Review" filed on July 24, 2017. On August 1, 2017, the Board filed a motion to dismiss. After a hearing, the circuit court granted the Board's motion to dismiss. This appeal followed.

QUESTIONS PRESENTED

Ms. Barber and the Committee present the following questions for our review, which we quote (but reorder):

1. Whether [the Board] took "administrative action" by substantively deciding and unilaterally deciding to reverse Ms. Barber's campaign expenditures without due process.

2. Whether there was a denial of constitutional due process for Ms. Barber when she was required to become a criminal defendant in a lawsuit brought by a state prosecutor before due process was given to her.

3. Whether the lower court erred in dismissing Ms. Barber's Petition for Judicial Review of Declaratory Relief addressing Constitutional Due Process Claims.

4. Whether there was reversible error in failing to include appeal rights in [the Board's] decisions sent to Ms. Barber.

5. Whether there was reversible error in the lower court's failure to acknowledge Appellants' Amended Petition spelling out declaratory and injunctive relief as well as Ms. Barber's Supplemental Exhibits reflecting substantive due process claims in light of [the Board's] administrative action taken against Ms. Barber to reverse Ms. Barber's campaign expenditures.

Because we conclude that the circuit court did not err in dismissing the Amended Petition for Judicial Review, we shall affirm the judgment of the Circuit Court for Anne Arundel County.

FACTS AND PROCEDURAL HISTORY

In 2016, Claudia Barber was a candidate seeking to be elected to serve as a judge on the Circuit Court for Anne Arundel County. As a result, Ms. Barber and her Committee were required to file campaign finance reports with the Board at the times and for the periods set forth in Maryland Code (2003, 2016 Supp.), Election Law ("EL"), § 13-301 et seq. Pursuant to EL § 13-304(b)(1), Ms. Barber's campaign Committee was obligated to file reports with the Board disclosing "all expenditures made by or on behalf of the campaign finance entity during the designated reporting period." Campaign finance reports are subject to discretionary audit by the Board. EL § 2-102(b)(5).

On November 15, 2016, Jared DeMarinis, Director of the Board's Candidacy and Campaign Finance Division, sent a letter to the Treasurer of Ms. Barber's Committee. The letter provided the following explanation for the Director's conclusion that the Committee had used campaign funds for the payment of impermissible expenses:

According to a recent news article the Judicial Campaign of Claudia Barber made numerous expenditures for litigation and legal fees. The State Board of Elections ([the Board]) has reviewed the filed campaign finance reports and confirmed the expenditures were made by the committee for that purpose. Given the reported nature of the litigation, the expenditures made are personal, not campaign- or election-related, and therefore under Maryland law campaign funds may not be used to pay for such expenses.

The legal matter in question concerned Ms. Barber's employment with the District of Columbia (D.C[.]) Office of Administrative Hearings. The litigation expenses paid by the campaign were incurred in defending Ms. Barber against a complaint alleging that she violated her employer's code of ethics by running for Circuit Court Judge in Anne Arundel County, Maryland.

Pursuant to Election Law Article § 13-218(b), a campaign finance entity may disburse campaign funds only in accordance with the purpose of the political committee.¹ The purpose of an authorized candidate campaign committee is to promote the candidate's candidacy. Additionally, any expenditure must "promote or assist in the promotion of the success or defeat of a candidate, political party, or question at an election." See Election Law Article § 1-101.² Therefore, a permissible expenditure by anauthorized candidate campaign committee must aid in the promotion of its authorized candidate in an election.

Pursuant to the Code of Maryland Administrative Regulations (COMAR) 33.13.10.03(B)(6), a political committee is prohibited from paying a candidate's legal defense costs or expenses, except those relating to investigations or legal actions resulting from the conduct of the campaign or election.³ The [Board's] Summary Guide explains that "[i]t is prohibited for any candidate or political committee to use campaign funds for legal or other expenses related to investigations or court proceedings that do not have a direct connection with the candidacy. For example, investigations or charges involving misconduct in an individual's employment or public office are not campaign-related, even if the charges first come to light as a result of the individual's decision to run for elected office." See Summary Guide, revised August 2010.

As noted above, legal fees and litigation expenses incurred to avoid disciplinary or personnel action in one's employment are personal in nature; an ethics complaint concerning employment restrictions imposed by an employer is not an allegation of a campaign violation. Therefore, the litigation cannot be considered campaign related and campaign funds may not be used to pay for such expenses. The Assistant Attorney General who serves as counsel to the State Board agrees that the State Board's determination is consistent with past advice from the Office of the Attorney General on campaign expenditures.

After reviewing the campaign finance reports of Judicial Campaign of Claudia Barber, the following expenditures and outstanding obligations are not permissible [and] must be reimbursed by the candidate, Ms. Barber.

Expenditures:

Date

Payee

Amount

Remarks

2016 Pre-General 1 Report Presidential Due 8/30/2016

6/28/2016

Osborn, Maledon

PA

$1,949.00

Legal Fees -

Campaign Election

Relates / Expert

Witness-Mark

Harrison

8/12/2016

David Branch and

Associates

1,000.00

Legal Fees -

Campaign Election

Relates/ Legal fees

regarding

candidacy

2016 Pre-General 2 Report Presidential Due 10/28/2016

9/6/2016

Barber, Claudia

Adeline

2,000.00

Legal Fees-General /

Legal fees

reimbursed

9/6/2016

Free State

Reporting

300.00

Legal Fees-General /

Stenographer

Services

9/12/2016

Free State

Reporting

498.71

Legal Fees-General /

Court reporting

services

9/13/2016

Barber, Claudia

Adeline

1,000.00

Legal Fees-General /

Reimbursement for

legal expenses

9/26/2016

Barber, Claudia

Adeline

1,400.00

Legal Fees-General /

Legal expenses

9/27/2016

DC Court of

13.25

Legal Fees-General /

   Appeals   Copies made, plusATM fee of $3.25  9/27/2016  DC SuperiorCourt  8.50  Legal

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