Liddy v. Lamone

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Nikos Stanfo rd Lidd y v. Linda H. Lam one, et a l., No. 71 , Septem ber Te rm 200 6. Opinion by Bell, C.J. ELECTIONS - CIVIL PROCEDURE - AFFIRMATIVE DEFENSES - LACHES An action challenging the constitutional qualifications of a candidate for the office of the Attorney General filed more than three months after a similar action, almost 2 months after this Court s Order in that case and just 18 days prior to the general election, is barred by the eq uitable d octrine o f lache s. IN THE COURT OF APPEALS OF MARYLAND No. 71 September Term, 2006 NIKOS STANFORD LIDDY v. LINDA H. LAMONE, ET AL. Bell, C. J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C. J. Filed: March 29, 2007 *Wilner, J., now retired, participated in the hearing and conf erence of this case while an active member of this Court; after being recalled pursuant to the Cons titution, Article IV, Section 3A , he also participated in the decision and adoption of this opinion. This is the second of two cases involving the eligibility requirem ents of a ca ndidate for the office of the Attorney General of Maryland. In Abrams v. Lamone, __ Md. __, __ A.2d __ (2007), this Court considered a petition by Stephen A. Abrams ( Abram s ) 1 challenging the eligibility of Thomas E. Perez ( Perez ) to hold the office of the Attorney General. In Abrams, a case of first impression for this Court, this Court was required to interpret Article V, Section 4 of the Maryland Constitution, which provides: No person sh all be eligible to th e office o f Attorney-G eneral, wh o is not a citizen of this State, and a qualified voter therein, and has not resided and practiced Law in this S tate for at least ten years. (Emphasis adde d). Concluding that Per ez had not me t the eligib ility require ments, i.e., he had not been a member of the Maryland Bar for the requisite period, we reversed the judgment of the Circuit Court for Anne Arundel County, __ Md. at __, __ A.2d at __, which had ruled that Perez met the necessary qualifications to run in the 2006 Gubernatorial Primary Election.2 1 Abrams filed his action in the Circuit Court for Anne Arundel County on July 13, 2006. In it, he sought an order declaring that Perez did not have the qualifications required fo r the office o f the Attorn ey General a nd injunctio ns requiring Perez to withdraw his certificate of candidacy and prohibiting Linda H. Lamone, in her official capacity as the State Administrator of Elections, and the State Board of Elections from placing Perez s name on the b allot as a candid ate for th e offic e of the Attorn ey Gene ral. 2 This Court filed a Per Curiam Order on August 25, 2006, holding that Perez was not qualified to run for the office of the Attorney General and that his name was to be removed from the primary election ballot. The appellees sought modification of the portion of the Order that required Perez s name to be removed from the ballot because they claimed, with only 18 days remaining before the primary election, that it was impossible for them to reprogram voting machines or reorder paper ballots for absentee and provisional voters in order to prepare an entirely new ballot. This Court granted the appellees motion and issued a modified Per Curiam Order on August 29, 2006. That Order directed the local boards of elections to post notices conspicuously in each polling The instant challenge was brought by Nikos S tanford L iddy ( Liddy ), the appellant, against Douglas F. G ansler ( Gansler ), one of the appellees, the victor in the September 12, 2006 primary election, thus the Democratic Party s nominee for the office of the Attorney Gene ral. In ad dition to Gans ler, the ap pellant a lso nam ed Lin da H. L amone ( Lamone ), the State Administrator of Elections, and the State Board of Elections ( the State Board ), collectively, the appellees, as defendants. It was filed on October 20, 2006, more than three months after the Abrams suit, almost two months a fter this Cou rt s Order in that case, and just 18 days prior to the November 7, 2006 g eneral electio n. In the com plaint, he asserted that Gansler, like Perez, was ineligible to run for the office of the Attorney General, arguing that Gansler has not practiced Law in this State for at least ten years. There is, however, a threshold issue which must be addressed, whether the appellant waited too long to bring this action and, thus, is barred, by the equitable doctrine of laches, from bringing it now.3 We shall hold that this action is barred by laches. A. location to inform voters that Perez was not a candidate for the office of the Attorney General and that any votes cast for him would not be counted. 3 The appellees, Lamone and the State Board, claimed, in addition, that the appellant s action is barred by § 12-202 of the Election Law Article, specifically § 12202(b )(2), see infra note 7, at 4, the applicable statute of limitations. They argued that the action needed to hav e been brough t within three days of the certification of the p rimary election results by the State Board. Because that occurred on September 26, 2006, the appellant, they submit, should have brought his action by September 29, 2006 . We, however, need not address this issue, as we are disposing of the appellant s claim on the equitable theory of laches. 2 As stated earlier, in order for one to run for the office of the Attorney General, one must be qua lified to d o so. Article V, § 4 of the Maryland Constitution prescribes those qualifications. In addi tion, un der the c urrent E lection L aw A rticle, see Maryland Code (2003, 2006 C um. Su pp.), §§ 1-101, et seq., a candidate wishing to hold the office of the Attorney General must register his or her candidacy by filing, with the State Board, pursuant to § 5-301(a), 4 a certificate of candidacy, under oath.5 On June 28, 2006, Gansler filed his certificate of candidacy, in which he certified that he is a registered voter and a citizen of Maryland and meet[s] all other requirements for the...office [of the Attorney General]. The State Board ac cepted G ansler s certific ate and, pursuant to § 5-601(1)6 of the Election Law 4 Maryland C ode (200 3, 2006 C um. Sup p.) § 5-301 (a) of the E lection Law Article provides: In general (a) An in dividual m ay become a candida te for a pub lic or party office only if: (1) the individu al files a certifica te of cand idacy in accordan ce with this s ubtitle; and (2) the individual does not file a certificate of withdrawal under Subtitle 5 of this title. (Emph asis added). 5 See Maryland Code (2003, 2006 Cum. Supp.) § 5-302(a) of the Election Law Article, which provides: On form (a) A certificate of candidacy shall be filed under oath on the prescribed form. 6 Maryland C ode (200 3, 2006 C um. Sup p.) § 5-601 (a) of the E lection Law Article provides: The name of a candidate shall remain on the ballot and be submitted to the voters at a primary election if: (1) the can didate has f iled a certificate of candid acy in accordance with the requirements of § 5-301 of this title and 3 Article, p laced h is name on the b allot for the 200 6 Gub ernator ial Prim ary Electio n. The Election Law Article also provides that any registered voter may seek judicial relief if he or she alleges that an act or omission relating to an election, whether or not the election has been held, is inconsistent with th[e Election Law A]rticle or other law applic able to the elections process and may change or has changed the outcome of the election , provided that the action is filed within the earlier of 10 days after the act or omission or the date the act or omission became known to the petitioner or 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. 7 As stated earlier, has satisfied any other requ irements of this article relating to the office which the individual is a candidate, provided the candidate (i) has not w ithdrawn the candid acy in accordan ce with Su btitle 5 of this title; (ii) has not died or become disqualified, and that fact is known to the applicable board by the deadline prescribed in § 5-504(b) of this title; (iii) does not seek nomination by petition pursuant to the provisio ns of § 5-7 03 of this title; or (iv) is not a write-in candidate. 7 See Maryland Code (2003, 2006 Cum. Supp.) § 12-202 of the Election Law Article, which provides: § 12-202. Judicial challenges (a) In general. If no other tim ely and adeq uate reme dy 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 incon sistent with this article or other la w applica ble to 4 Liddy brought a challenge to Gansler s qualifications. He did so on October 20, 2006, when he sough t declara tory and in junctive relief ag ainst G ansler, L amone, and the State Board because, he claimed , Gansler s le gal experie nce did no t satisfy Article V, § 4's requirement that a candidate for that office practice[] Law in this State for at least ten years. Gansler filed a Motion to Dismiss Or, In The Alternativ e, for Sum mary Judgm ent, contending that he met all eligibility requirements for the office. Moving to dismiss and expedite scheduling, the other appellees contended that Liddy s action was barred by limitations and by laches. In suppor t, they alleged that their sole interest in the action was to ensure an orderly administration of the election process, the deadlines of which would be jeop ardized i f the actio n we re no t adju dica ted expeditio usly. 8 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 gub ernatorial primary or special primary election, in which case 3 d ays after the election results are certified. (Emphasis add ed). 8 A number of stipulations were placed on the record, in support of the appellees position: that Gansler filed his certification for candidacy on June 28, 2006; the 2006 Gubernatorial Primary Election was held on September 12, 2006, and the primary election results were certified on September 26, 2006; plaintiff s Complaint was filed on October 20, 2006; on October 25, 2006, 138,043 applications for absentee ballots had been received by the State Board, of which 7,074 were from service members overseas; the deadline f or the filing o f such ap plications w as Octob er 31, 2006 ; 14,277 ab sentee ballo ts had already been cast and received by the State Board; 19,000 electronic voting machines 5 Following a hearing at which it heard extensive testimony pertaining to the merits of Gansler s constitutional eligibility for the office of the Attorney General, the Circuit Court for Anne Arundel County denied the dispositive motions filed by the appellees and G ansler. 9 Although the Circuit Court addressed , in addition to la ches, the issu es of the ap plicable statute of limitations and the merits of the case, we will confine our discussion to the equitable doctrine of laches.10 had been deployed throughout the State, and 13 of the 24 election jurisdictions had completed the required testing of these units; and an upward of 1.1 million paper ballots, of more than 200 different styles, had been ordered and were in the process of being delivered to the more than 3 million registered Maryland voters. 9 Pertaining to the merits of the case, Liddy testified that he first became aware of Gansler s lack of qualifications for Attorney General during the week of October 16, 2006 when he was conducting some research on the Internet. There he claims to have found information on Gansler s limited practice of law in Maryland. He, in fact, testified that, apart from Gansler s service for the past eight years as State s Attorney for Montg omery Cou nty, the sites he co nsulted refe rred only to G ansler s prac tice in Washington, D.C. and not in Maryland. Based on this information, Liddy inferred that Gansler did not meet the constitutional ten-year practice of law requirement and decided to bring suit challenging Gansler s continued candidacy for the office of the Attorney Gene ral. Gansler, on the other hand, testified to having continuously practiced law in the State since h is admission to the Ma ryland Bar in 1 989. He cited his judic ial clerkship from 1989-90 and numerous pro bono matters he h andled in th e State wh ile practicing in the D istric t of C olum bia, b efor e bec oming th e Sta te s A ttorn ey for Mo ntgo mery Cou nty. 10 On the issue of the applicable statute of limitations, the Circuit Court stated that §12-202(b)(2) does not yet apply because the general election has not yet taken place, and consequently, the election results have not yet been certified. The court continued, stating that [b]ecause the general election has not yet been held, the earlier of the two deadlines set forth in §12-2 02(b) is §12-2 02(b)(1 ), ten days of it being known to the Plaintiff that an allegedly ineligible candidate will be running in the general election. See Marylan d Cod e (2003 , 2006 C um. Su pp.) § 1 2-202 of the E lection L aw A rticle, supra note 7, at 4. The court ultimately held that Liddy s claim was not barred by any 6 On the issue of laches, the appellees argued that the appellant s claim was an eleventh hour lawsuit that threaten[ed ] to disrupt the entire election s machine ry, to sew doubt in the minds of voters, to create voter confusion and uncertainty, and generally to defeat voters choices. The appellees maintained voters ought to be able to make their choice intelligently and base d on the ba llots that have been created and in accordance with the election law. The appellees paramount concern was the prejudice this action would have on the electorate and its choice of Attorney General candidates. In addition, they outlined the various procedures which had already taken place, and which were in the process of taking place, and insisted that the appellant s claim was simp ly brought too close to the general election to allow any changes or alterations to be made. The process was well und erw ay, and to gran t the app ellant the relief he reques ted, i.e. the removal of Gansler s name from the general election ballot, at such a late stage w ould lead to an unma nageable disruption of the general election and disenfranchise thousands of voters. Conversely, the appellant argued that the constitutional issue, the interpretation of Article V, § 4, outweighed any merit found in the lac hes def ense. In rejecting the appellees arguments, the Circuit Court, citing Ross v. State Board of applicable statute of limitations because it had no reason to disbelieve his testimony that he recently came to the conclusion on October 16, 2006, while accessing the internet, that Mr. Gansler had only practiced law in this State for eight years. Addressing the merits of the case, the Circuit Court found, as a factual matter, that Mr. Gansler does possess the requisite ten (10) years of practice in Maryland making him eligible to run for the Office of the Attorney General. 7 Elections, 387 Md. 649, 671, 876 A.2d 692, 705 (2005), held that application of laches was inapprop riate in a situation such as the case sub judice. It determined that Liddy was not responsible for any inexc usable dela y in the process ing of his co mplaint [and found] i t inapprop riate to allow the general election to g o forward w ithout examining w hether a candidate who m ay become this State s ne xt Attorney G eneral is con stitutionally eligible to hold that office. The court further noted, on the issue of prejudice, that Mr. Gansler cannot be prejudiced because if, in fact, he does not meet the eligibility requirements, he ought not to be on the ballot. The S[tate] B[oard of] E[lections] is not prejudiced because it is undispute d that at this late date, there is nothing that can be done to alter the makeup of the ballot for this election. On the other hand, the court noted that Plaintiff [Liddy] and similarly situated voters would b e prejudiced if an ineligible can didate were to remain on the ballot be cause o f a dela y in findin g out ab out the la ck of e ligibility. Although the appellant prevailed on the dispositive motions, the Circu it Court ultimately ruled in favor of Gansler and his continued candidacy for the office of the Attorney General. The appellant, pursuant to § 12-203(a)11 of the Elec tion Law Article, in 11 Maryland C ode (200 3, 2006 C um. Sup p.) § 12-20 3(a) of the E lection Law Article provides: (a) In general. A proceeding under this subtitle shall be conducted in accordance with the M aryland Rule s, except tha t: (1) the proceeding shall be heard and decided without a jury and as expeditiously as the circumstances require; (2) on the request of a party or sua sponte, the chief administrative judge of the circu it court may assig n the case to a three-judg e panel of circuit court judges; and 8 response, noted an appeal to this C ourt and to the Court of Special Appea ls. In addition, he filed, in this C ourt, a P etition fo r Writ o f Certio rari, wh ich this C ourt gra nted. Liddy v. Lamone, 395 Md. 420, 910 A.2d 1061 (20 06). The a ppellees an d Gansle r subsequ ently filed a Joint Cross-Petition for Writ of Certiorari. Oral argument was heard on November 2, 2006, and, on th at same d ay, the Court issued its Order vacating the ju dgment of the C ircuit Court and remanding the case to that court with directions to dismiss it on the ground of laches. We now set forth the reasons for that O rder. B. Laches is one of the affirmative defenses recognize d and exp ressly listed in M d. Rule 2-323.12 Generally, it must be pled, but it can be invo ked by a c ourt on its own initiative . (3) an ap peal shall be ta ken directly to the C ourt of A ppeals w ithin 5 days of the date of the dec ision of the c ircuit court. (Emphasis added). 12 Maryland R ule 2-323 provides, in p ertinent part: ANSWER * * * (g) Affirmative Defenses. Whether proceeding under section (c) or section (d) of this Rule, a party shall set forth by separate defenses: (1) accord and satisfaction, (2) merger of a claim by arbitration into an award, (3) assumption of risk, (4) collateral estoppel as a defense to a claim, (5) contributory negligence, (6) duress, (7) estoppel, (8) fraud, (9) illegality, (10) laches, (11) payment, (12) release, (13) res judicata, (14) statute of frauds, (15) statute of limitations, (16) ultra vires, (17) usur y, (18) wa iver, (19) priv ilege , and (20) total or pa rtial c haritable imm unity. In addition, a party may include by separate defense any other matter constituting an avoida nce or aff irmative def ense on leg al or equitab le ground s. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court shall treat the pleading as if there had been a proper designation, if justice so requ ires. 9 See, e.g., Ipes v. Board of Fire Comm rs of Baltimore, 224 Md. 180, 183, 167 A.2d 337, 339 (1961) (recognizin g that laches is a proper g round fo r refusing to issue a writ of mandamu s); Baltimore County v. Glendale Corp., 219 Md. 465, 468, 150 A.2d 433, 435 (1959) (noting that, although it is essential to raise the defense of laches in the pleadings, equity may decline relief for a sta le claim after the facts are fully develop ed ); Warbu rton v. Dav is, 123 Md. 225, 231, 91 A. 163, 165 (1914) (recognizing that a court, in a proper case and on its own motion, may refuse to gran t relief to a complainant w ho on the final hearing appears to have been guilty of laches, although the defense was not interposed by the defendant), citing Syester v. Brewer, 27 Md. 288, 31 9 (1867). 13 This Court has held that laches is a 13 Other states also recognize that a court, in its discretion, may invoke the doctrine of lach es as a m atter of la w. See, e.g., Stewart v. Bass River Sav. Bank, 336 N.E.2d 921, 925 n.2 (Mass. A pp. 1 975) ( A lthough not p lead ed, a judg e ma y sua sponte find and ru le on the bas is of laches w here justice so requires ) (e mphasis a dded); Becker v. Becker, 202 N.W .2d 688, 69 1 (Wis. 19 72) (noting that the defe nse of lach es must be pleaded in the answer as a matter of affirmative defense unless laches appears obvious from the face of co mplaint ); Rutt v. Frank, 186 N.W .2d 911, 91 5 (Neb. 1 971) (asser ting that facts constituting laches should normally be pleaded, but a court of equity may deny relief on the ground of laches when admissible evidence together with plaintiff s pleading shows laches); Wallace v. Timmons, 101 S.E.2d 844, 847 (S.C. 1958) (stating that in a proper case, the defense of laches can be considered by a court on its own motion, even though not pleade d, since [i]t is n ot necessar y to set up lache s in a form al manne r ); Baslego v. Kruleskie , 56 A.2d 3 77, 379 (P a. Super 19 48) (noting that where fact of lach es appears in the eviden ce, a court m ay deny relief on th e ground of laches in its discretion an d on its own m otion, th ough la ches w as not p leaded in defe nse). Cf. Hansen v. Kiernan, 499 P.2d 787, 792 (Mont. 1972) (recognizing that a court would not consider a claim of laches which w as not plead ed); Danovitz v. Portnov, 161 A.2d 146, 148 (Pa. 1960) (noting that the defense of lach es which w as not raised in the pleadings n or at any time in court below c ould not b e considere d by the appe llate court); Lincoln County v. Fischer 339 P.2d 1084, 109 7 (Or. 1959) ( [L ]aches is not available as a def ense unless pleaded ); Otero v. Sandoval, 292 P.2d 319, 321 (N.M. 1956) (asserting that where laches was not 10 defense in equity against stale claims, and is based upon grounds of sound public policy by discouraging fusty demands for the peace of society. Ross, supra, 387 Md. at 668, 876 A.2d at 703, quoting Parker v. Board o f Election Superviso rs, 230 Md. 126, 130, 186 A.2d 195, 197 (1962); Buxton v. Buxton, 363 Md. 634, 645, 770 A.2d 152, 158 (2001); Berman v. Leckner, 193 M d. 177, 187 , 66 A.2d 3 92, 396 (1 949); Kaufm an v. Plitt, 191 Md. 24, 28, 59 A.2d 634, 635 (1948). In its application, [t]here 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. Ross, 387 Md. at 669, 876 A.2 d at 704 , quoting Parker, 230 Md. at 130, 1 86 A.2 d at 197 , citing Brashears v. Collision, 207 Md. 339, 352, 115 A.2d 289, 295 (1955); Bowie v. Ford, 269 M d. 111, 122 , 304 A.2d 803, 810 (1973); Day v. Day, 237 Md. 2 29, 236 , 205 A .2d 798 , 803 (1 965). It is, howev er, well settled that lach es applies w hen there is an unreasonable delay in the assertion of one s rights and that delay results in prejudice to the op posing party. Frederick Road Ltd. Partnership v. B rown & S turm, 360 Md. 76, 117, 756 A.2d 963, 985 (2000), citing Inlet Assoc. v. Assateague H ouse Condo minium Ass n , 313 Md. 413, 438-39, 545 A.2d 12 96, 1309 (1988); See Ross, 387 Md. at 669, 876 A.2d at 704 ( [L]aches must include an unjustifiable delay and some amount of prejudice to the defendant ); Schaeffer pleaded a s an affirm ative defen se, it was no t available); Kramer v. Johnson, 238 S.W.2d 416, 421 (Mo. 1951) (holding that where defense of laches was not pleaded, denial of equitab le relief o n grou nds of laches w as error ). 11 v. Anne Arundel County, 338 Md. 75, 83, 656 A.2d 751, 755 (1995) ( [L]aches is an inexcusab le delay, withou t necessary refe rence to du ration in asserting an equitable claim ) (emphas is in original); Simpers v. Clark, 239 M d. 395, 403, 211 A.2d 753, 757 (1965) ( [F]or the doctrine [of laches] to be applicable, there must be a show ing that the d elay [in the assertion of a right] worked a disadvan tage to ano ther ); Hungerford v. Hungerford , 223 Md. 316, 320-21, 164 A.2 d 518, 52 1 (1960) ( Only two requ isites are nece ssary in order to invoke the doctrine of laches. There must have been some lapse of time during which plaintiff failed to assert his rights, and the lapse must have caused some prejudice to the defendant ). Prejudice is generally held to be any thing that places [the defendant] in a less favorable position. Ross, 387 Md. at 670, 876 A.2d at 704, quoting Buxton, 363 Md. at 646, 770 A.2d at 159; Parker, 230 Md. at 130, 186 A.2d at 197; Roberto v. Catino, 140 Md. 38, 43,116 A. 873 , 875 (1922). Moreover, this Court has recognized that in the conte xt of election matters, any cla im against a state electoral procedure must be expressed expeditiously, Ross, 387 Md. at 671, 876 A.2d a t 705, quoting Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990) (noting that [a]s time passes, the state's interest in proceeding with the election increases in importance as resources are committed and irrevocable decision s are made ), cert. denied 501 U.S. 1206, 111 S. Ct. 2799, 115 L. Ed. 2d 972 (1991); Kay v. Austin, 621 F.2d 809, 81 3 (6th Cir. 1980), without unreas onable delay, so a s to not c ause pr ejudice to the de fenda nt. Fulani, 917 F.2d at 1031. See, e.g., MacGovern v. Conno lly, 637 F.Supp. 111, 115 (D.Mass. 1986) (stating 12 that in awarding or withholding relief, a court should...endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreason able or embarr assing dem ands on a State in adju sting to the req uirements of the court's d ecree ), quoting Reynolds v. Sims, 377 U.S. 533, 585, 84 S. Ct. 1362, 1394, 12 L. Ed. 2d 506, 541 (1964); Farnum v. Barns, 548 F.Supp. 769, 774 (D.R.I. 1982) (noting that equitable principles ma y require a cou rt not to interfere w ith the cond uct of rapid ly upcoming elections where the election machinery is already in gear ) (emph asis added); Barthelmes v. Morris , 342 F.Supp. 153 , 160 (D.Md . 1972) (stating that although the election process is one fraught with uncertainty[, i]t does not follow [] that a court should add a further element o f wholly un anticipated u ncertainty into the process at the eleventh ho ur ); cf. Ross, 387 Md. at 671 n.9, 87 6 A.2d at 705 n .9 (outlining instances where the application of lach es in the election contex t may not a pply). We note that, in rev iewing the Circuit Court s decision, the issue of lach es, in this case, is a mixed question of f act and law. Whether the elements of laches have been established is one of fac t, see, e.g., Schmidt v. Farm Credit Services 977 F.2d 511, 516 (10th Cir. 1992) (noting that w heth er a p arty's delay is unreasonable is a question for the trier of fact); Harman v. Masoneilan Internationa l, Inc., 442 A.2d 487, 503 (Del. 1982) (stating that a finding of unreason able delay is a factual qu estion); Everett v. Bosch, 50 Cal. Rptr. 813, 820 (Cal.Ct.App. 1966) (noting that whether there has been delay amounting to laches is a fact question); Leathers v. Stewart , 79 A.16, 18 (Me. 1911) ( The circumstances in a given 13 case which are claimed to constitute laches is, of course, a question of fact ), while the question of whether in view of the established facts, laches should be invoked, is a question of law. See, e.g., Waddell v. Small Tube Products, Inc., 799 F.2d 69, 77 (3d Cir. 1989) ( [T]he conclusion that a delay is inexcusable comprehends both the application of a legal standard and an exercis e of the trial co urt's sound d iscretion in ass essing the e quitable circumstances of a pa rticular c ase ), quoting Churma v. United States Steel Corp., 514 F.2d 589, 593 (3d C ir. 1975); Freeman v. M artin Robowash, Inc., 457 S.W.2d 606, 689 (Tenn. App. 1970) ( The question whether in view of the established facts, relief is to be denied-that is, whether , it would be inequitable or unjust to the defendant to enforce the complainants right-is a question o f law ); Leathers, 79 A. at 18 ( [ T]he con clusion w hether upo n the facts it would be inequitable to enforce the right, and whether the claimant is barred by laches, involves a question of law ). Maryland Rule 8-131, providing: c) Action tried without a jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the ju dgment of the trial cou rt on the evid ence unle ss clearly erroneous, and will giv e due rega rd to the opp ortunity of the trial court to judge the credibility of the witnesses, (empha sis added), governs the standa rd of re view f or ques tions of fact, i.e. whether the elements of laches have been established. In addition, this Court has held that questions of law, i.e. whether the facts taken together are sufficient to sustain the defense of laches, are subject to review under the de novo standa rd. See In re Karl H., 394 Md. 402, 411, 906 A.2 d 898, 90 3 (2006); Ehrlich 14 v. Perez, 394 M d. 691, 708 , 908 A.2d 1220, 12 30 (2006 ); Renbaum v. Custom Holding, Inc., 386 Md. 28, 43, 871 A.2d 55 4, 563 (20 05); Mohan v. Norris, 386 Md. 63, 67, 871 A.2d 575, 577 (200 5); Wholey v. Sears Roebuck, 370 Md. 38, 48 , 803 A.2d 482 , 487 (2002). With respect to the standard o f review f or mixed q uestions of fact and law , in Bowers v. Eastern Aluminum Corp., on the other hand, we held that this Court must affirm the trial court s decision on mixed questions of fact and law when we can not say [that its findings] were clearly erro neous [,]...[a]n d we f ind no e rror in [it s] applic ation of the law to the fa cts. 240 Md. 625, 214 A.2d 924 (1965). Thus, we have stated that mixed questions of fact and law are entitled to deferential review on judi cial revie w. See, e.g., Charles County Dept. of Social Services v. Vann, 382 Md. 286, 296, 855 A.2d 313, 319 (2004) (noting that when an agency decisio n unde r judicia l review involv es a mix ed que stion of fact an d law, the reviewing court applies the same stan dard of review it w ould apply to the review of an agency factual find ing); NCR Corp. v. Comptroller of the Treasury, Income Tax Div., 313 Md. 118, 133-34, 544 A.2d 764, 771 (1988) (stating that a reviewing court must defer to a tax court s expertise on determinations involving mixed questions of fact and law); Pemberton v. Mon tgomery Co unty, 275 Md. 363, 368, 340 A.2d 240, 243 (1975) (asserting that, on questio ns of mix ed fact and law, it is not the f unction of the appellate court to substitute its assessme nt of the fa cts, as they relate to the issues of a particular case, for those of the a dminis trative ag ency). Where, however, an admin istrative agen cy decision is not being reviewed and, thus, 15 the expertise of the decision-maker is not implicated, critical or germane, we have held that the de novo standa rd of re view is approp riate, see Cartnail v. S tate, 359 Md. 272, 282, 753 A.2d 519, 525 (2000) ( Issues of law and mixed questions of law and fact are reviewed de novo ), at least w ith respe ct to app lication o f law to facts. See also Whiting v. State, 389 Md. 334, 345, 885 A.2d 785, 791 (2005) ( Although we extend great deference to the hearing judge s fin dings of f act, we rev iew indep endently the application of the law to those facts ); Winder v . State, 362 Md. 275, 310-11, 765 A.2d 97, 116 (2001) ( The trial court s determination of whether a confession was made voluntarily is a mixed question of law and fact. As such, we undertake a de novo review of the trial judge s ultimate determination on the issue of voluntariness ) (interna l citations omitted). 14 The latter formulation is precisely this case. A trial court is in no better position to apply, and has no more expertise in applying, the law to facts, even those it has found, than an appella te court. See United States v. McConney, 728 F.2d 119 5, 1201-02 (9th C ir. 1984), cert. denied 469 U.S . 824, 105 S . Ct. 101, 83 L. Ed. 2d 46 (1984). 15 Accordingly, where the 14 It is important to note that we do not express an opinion as to the merits of the case sub judice. Unlike the application o f law to fa cts, findings o f fact are en titled to substan tial defe rence. See Wilkes v. S tate, 364 Md. 554, 569, 774 A.2d 420, 429 (2001) ( We extend great deference to the fact finding of the [trial] court and accept the facts as found by that co urt unle ss clearly e rroneo us ). See also Friendly Finan ce Corp. v . Orbit Chrysler Plymouth Dodge Truck, Inc., 378 Md. 337, 342, 835 A.2d 1197, 1200 (2003) (noting that factual findings of a trial court will not be set aside unless clearly erroneou s); North River Ins. C o. v. Mayor and City Cou ncil of Baltimore, 343 Md. 34, 88, 680 A.2d 480, 507 (1996 ) (Bell, J., dissenting) (stating that findings of fact ma de by the trial court are entitled to great deference as th at court is in the best position to make such findings); Marylan d Rule 8-131 (c), supra at 14. We, thus, do not rev iew the Circuit Cou rt s ultimate finding that Ga nsler is e ligible, i.e. he meets th e constitution al requirem ents prescribed in Article V, § 4, to serve as the Attorney General of Maryland. 15 In that case, the court articulated the policy concerns that underlie standard of review jurisprudence, stating: Structurally, app ellate courts h ave severa l advantag es over trial co urts in 16 issue is whether a party is precluded by lach es fr om c halle ngin g an actio n of another party, we shall review the trial court s ultimate determination of the issue de novo, just as we do in similar circumstances.16 Thus, we hold that the Circuit Court erred in not invoking the deciding q uestions of law. First, app ellate judges a re freer to co ncentrate on the legal questions because they are not encumbered, as are trial judges, by the vital, but time-consuming, process of hearing evidence. Second, the judgment of at least three members of an appellate panel is brought to bear on every case. It stands to reason that the collaborative, deliberative process of appellate courts reduces the risk of judicial error on questions of law. Thus, de novo review of questions of law, like clearly erroneous review o f questions of fact, serv es to minim ize judicial erro r by assigning to the court best positioned to decide the issue the primary responsibility for doing so. In addition, o n the appro priate standa rd of review for a low er court s ap plication of la w to facts, the court specifically enunciated: [T]he c oncerns o f judicial adm inistration will g enerally favor the appellate court, justifying de novo review. This is so because usually the application of law to fact will require the consideration of legal concepts and involve the exe rcise of judgm ent abo ut the va lues un derlying le gal prin ciples. 16 The cases from other jurisdictions that, focusing on the heavily factual nature of lach es, ap ply the clearly er rone ous s tand ard o f rev iew are n ot ne cess arily to the c ontrary. See, e.g., Pullman-Standard v. Swint, 456 U .S. 273 , 288-9 0, 102 S . Ct. 178 1, 1790 -91, L. Ed. 2d 66, 79-8 1 (1982) (recognizing that mixed questions of fact and law that are essentially factual in nature should be reviewed under the clearly erroneous standard as opposed to the generally administered de novo standard); Jarrows Formulas Inc. v. Nutrition Now, Inc., 304 F.3d 829, 834 (9th Cir. 2002) ( [T]he district court s application of the laches factors is entitled to deference, not to be reviewed de novo ); Lozier v. Auto Owners Ins. Co., 951 F.2d 251, 254 (9th Cir. 1991) ( [M]ixed questions in which the applicable legal standard provides for a strictly factual test...are reviewed for clear error ), citing McConney, 728 F.2d at 1203-04 (adopting a functional analysis for mixed questions o f fact and law that fo cuses on th e nature of the inquiry); Bermuda Exp. N.V. v. M/V Litsa (Ex. Laurie U), 872 F.2d 554, 557 (3d Cir. 1989) (on length of delay and prejudice issu es); Minnesota Mining and Manufacturing Co. v. Berwick Industries, Inc., 532 F.2d 330, 334 (3d Cir.19 76) (on pre judice issue); Tagarop ulos, S.A.v . S.S. Santa Paula ex S.S. Hans Isbrandtsen, 502 F.2d 1171, 11 73 (9th C ir. 1974); Carter-Wallace, Inc. v. Procter & Gamble Co., 434 F .2d 794 , 803 (9 th Cir. 1 970). See also Piper Aircraft Corp. v. Wag-Aero, Inc.,741 F.2d 925, 935-41 (7th Cir. 1984) (Posner, J., concurring) 17 doctrine of laches as a bar to the appellant s untimely claim when it placed the determination of a can dida te s e ligib ility ah ead o f the urge ncy of the election itself a nd the pos sible disenfranchisement of Maryland voters. C. As stated earlier, any claim against a state electoral procedure must be expressed exped itiously. Ross, 387 Md. at 671, 876 A.2d at 705. The reason for this is plain. As the Supreme Court of the United States stated recently in Purcell v. Gonzalez, __ U.S. __, 127 S. Ct. 5, 166 L. Ed. 2d 1 (2006), reversing a lower court s injunction, in an election case, enjoining operation of voter identification procedures just weeks before an election, [a] State indisputably has a compelling interest in preserving the integrity of its election proces s. __ U.S. at __, 127 S. Ct. at 7, 1 66 L. Ed. 2d at 4, quoting Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 231, 109 S. Ct. 1013, 1024,103 L. Ed. 2d 271, 287 (1989). The Court articulated further that [c]onfidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. __ U.S. at __, 127 S. Ct. at 7, 166 L. Ed. 2d at 4. The Purcell Court, moreover, addressed the issue of the app licability of laches o n an election challenge, s tating: [the lower court] was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, consideration s specific to (providing an historical overview of equity and concluding that the proper standard of review in lache s decisio ns is the c learly erron eous sta ndard) . Cf. Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002 , 1009 (9th Cir. 2004) (rev iewing the trial court s laches dete rmination f or abuse o f discretion); Eastman Kodak Co. v. Goodyear Tire & Rubber Co., 114 F.3d 1547, 1558 (Fed. Cir. 1997) (noting that an appellate court reviews a lower co urt s laches d etermination for abuse of discretion ); Bermuda, 872 F.2d at 557 (asserting that the lower court s balancing of the equities is reviewed for abuse of discretion, while its application of legal precepts in determining that any delay was excusable is reviewe d under a plenary standard). 18 election cases a nd its ow n institutio nal pro cedure s. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequ ent incentive to remain away from the polls. As an election draws closer, that risk will increase. Id. (Emphasis added ). The Supreme Court, ultimately, held that, [g]iven the imminence of the election and the inadequa te time to resolve the factual disputes, [its] action [] shall of necessity allow the election to proceed without an injunction. __ U.S. at __, 127 S. Ct. at 8, 166 L. Ed. 2d at 5. Thus, it made clear that injunctive relief may be inappropriate in an elections case if the election is too close for the State, reali stica lly, to be able to implement the necessary changes before the election. It is such pragmatic imperatives related to the implementation of the elections process, coupled with the statutory schem e govern ing the proc ess itself, that resu lt in the need for expedited resolutions of dispute s. See also Reynolds, supra, 377 U.S. at 585, 84 S. Ct. at 139 4, 12 L. Ed . 2d at 541 (s tating that a c ourt is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general eq uitable princip les); Wells v. Rockefeller, 394 U.S. 542, 547, 89 S. Ct. 1234, 1237, 22 L. Ed. 2d 535, 539-40 (1969) (finding no error when court allowed an election that was o nly three mon ths away to p roceed d espite its constitutional infirmities ); Kilgarin v. H all, 386 U.S. 120, 121, 87 S. Ct. 820, 821, 17 L. Ed. 2d 771, 774 (1967) (affirming ruling to allow an election, co nstitutionally infirm in certain respects, to proceed). In the case sub judice, this Court is faced with the same quandary as the Purcell Court and must contemplate the considerations specific to election cases, i.e. the potential harm to the appellee s and, mo re importan t, to the electorate , which, w e believe, the Circuit Court failed to do. The Circuit Court, citing Ross v. State Board of Elections, and relying more 19 specifically on Melendez v. O Connor, 654 N.W.2d 114 (Minn. 2002), dismissed the appellees laches argument, concluding that it would be inappropriate to allow the general election to go forward without examining whether a cand idate who may bec ome this State s next Attorn ey General is constitutionally eligible to hold that office. We do not agree. To be sure, this Court h as stated , see Ross, 387 Md. at 671 n.9, 876 A.2d a t 705 n.9 , that there may be instances whe re laches would be inapplicable, and even further, that, perhaps, a dispute concerning the eligibility requirements of a candidate to run for office should not be given a laches analysis, id., the facts presented by the case sub judice, however, do not constitu te such an insta nce. In Melendez, the court held that a petition brought by citizens to have a candidate for state representativ e remove d from the ballot on the grounds that he did not meet the residency requirements was not barred by laches. 654 N.W.2d at 117. The court reasoned that regardless of whether there has been an unreasonable delay by petitioners in filing their petition, there wo uld be no p rejudice to [th e candida te] or others in granting the relief...[t]here is nothing in the record indicating that [the candidate] was prejudiced by the timing of the filing of the petition. Id. Melendez is distinguisha ble from the case sub judice for tw o distinc t reason s. First, the citizens petition in Melendez was filed on October 2, 2002, over a month before the November 5, 2002 general election was to take place. Here, the appellant brought his challenge on October 20, 2006, only 18 days before the November 7, 2006 general election, claiming that it was proper under the statutory provisions governing the election. The case was heard O ctober 25, 2 006 in the C ircuit Court a nd then on Novem ber 2, 2006 in this Cou rt, lea ving only 5 days remaining before the general election. The time c onstraints 20 thus placed on this Cou rt, as well as the Circuit Court, we re substantially different than those of the Melendez Court. Moreover, notwithstanding that the appellant s filing may have been within the governing sta tutory pro visions outlined in the E lection L aw A rticle, his failure diligently to pursue h is challenge left this Court, as well as the court below, a very brief time in which to consider a nd decide this matter. See Lubin v. Thomas 144 P.3d 510, 512 (Ariz. 2006) (noting that merely complying with the time limits [of a state statute] for filing notice of appeal may be insufficient if the appellant does not also pro mptly prosecute the appeal ). Second, it is clear that the court in Melendez was more concerned with the prejudice to the candid ate than it w as with pre judice to the e lectorate itself. T his, perhaps, can be attributed to the addition al time affo rded to the c ourt in mak ing its decision , again, over a month, and the additional time available to the State s Election Division Director of the Secretary of State to make the requisite cha nges to the ballot, as well as any other election processes that had already taken place.17 This Court, however, was not afforded that luxu ry. This Court could not, without causing a substantial encumbra nce to the State s entire elections process, address the merits of this case. Moreover, and more important, the harm caused by the appellan t s tardy filing did n ot only extend to the cand idate himself, but to the State B oard an d the m illions of voters o f this Sta te. On the issue of prejudice, the Circuit Court held: Mr. Gansler cannot be prejudiced because if, in fact, he does not meet the eligibility requirements, he ought not to be on the ballot. The SBE is not prejudiced because it is u ndisputed that at this late date, there is nothing that can be done to alter the makeup of the ballot for this election. In fact, if this Court were to determine that Mr. Gansler is not eligible to run for the office of the Attorney General, other remedies are available to preserve the integrity of 17 The Melendez court issued an order granting the petition on October 15, 2002, giving the Ele ction D ivision D irector th ree we eks to m ake an y necessa ry chang es. 21 the election process and to give the voters the choice of qualified candidates that they d eserve . Again, we do not agree. To begin, Gansler relied on the State Board s initial certification of his candidacy and, later, its certification of the results of the primary election, which confirmed him as the D emocratic Party s nominee for the office o f the Attorn ey General in the general elec tion. For G ansler, the ap pellant s dilator y challenge w as, indeed, p rejudicial, as it could have been brought long before not just the general election but the primary election as well. The appellant s challenge, in fact, could have been brought at any time after Gan sler s Jun e 28, 200 6 fili ng of his certi fica tion of ca ndid acy. Next, the State Board also relied upon the accuracy of the ballots for both the primary and genera l election s. At the time the instant case was filed, the State Board had completed extensive, and was proceeding with other, elections preparations. The State B oard, more spec ifica lly, had printed ballots, received back tens of thousands of absentee ballots, and completed most of its programming and testing of electronic voting machines.18 Contrary to the Circuit Court s ruling, we believe that, with just five days until th e election, the S tate Board s inability to alter the makeup of the ballot was, in fact, cause for prejudice. With insufficient time to reprogram, install, and test voting m achines, and to redesign, reo rder, reprint, and distribute absentee and provisional ballots, the State Board was, indeed, prejudiced, particularly since, once again, the appellant s action could have been brought long before the eve of the general elec tion. This C ourt, moreo ver, does n ot agree with the Circuit Court that the State Board, in fact, did have other remedies available to it, and would posit, further, that eleventh-hour, ballot-access challenges such as the one in the case 18 See supra note 8, at 5-6. 22 sub judice threaten the exercise of the most fundamental right granted to Maryland citizens as memb ers o f a fr ee so ciety. 19 Last, and paramount to this case, the appellant s delay prejudiced the electorate as a whole. The re lief sou ght by the appella nt, i.e. the removal of Gansler s name from the ballot, or, in the alternative, signs being posted to ind icate Gan sler s ineligibility to vote rs, would have caused a great deal of uncertainty in the entire election process. The confusion that would have resulted from such last-m inute chan ges wou ld have, ind ubitably, interfere d with the rights of Maryland voters, particularly those who had already cast absentee ballots, causing them to be disenfranchised and the value of their votes diluted as they would not be able to vote again. The Lubin Court commented on the importance of absentee voting in the context of election challeng es, and, in fact, articulated a more stringent guideline for those 19 This C ourt ha s long re cogniz ed the im portan ce of th e electiv e franc hise. See Maryland Green Party v. State Board of Elections, 377 Md. 127, 150, 832 A.2d 214, 228 (2003) (stating that Article 7 of the Maryland Declaration of Rights has been held to be even more protective of rights of political participation than the provisions of the federal Constitution ); Munsell v. Hennegan, 182 Md. 15, 22, 31 A.2d 640, 644 (1943) (holding that electors should have the fullest opportunity to vote for candidates of any political party, and any restrictions that are destructive of freedom of choice by voters will not be upheld); Kemp v. Owens, 76 Md. 235, 241, 24 A. 606, 608 (1892) (noting that [t]he elective franchise is the highest right of the citizen, and the spirit of our institutions require s that ev ery oppo rtunity sho uld be a fforde d for its f air and f ree exe rcise). See also Maryland D eclaration of Rights, A rticle 7, which states [t]hat th e right of the People to participate in the Legislature is the best security of liberty and the foundation of all free Government; for this purpose, elections ought to be free and frequent; and every citizen having the qualification s prescribed by the Cons titution, ough t to have the right to suffrage. 23 bringing such claims. The court stated that [t]ime is of particular importance because all disputes must be resolved before the printing of absentee ballots. 144 P.3d at 512. The court went on to say that [u]nreasonable delay can therefore prejudice the administration of justice by compelling the court to steamroll th rough...delica te legal issues in order to meet the ballot printing deadlines. Id., quoting Mathieu v. Mahoney, 851 P.2d 81, 84 (Ariz. 1993); State ex rel. Fidanque v. Paulus, 688 P .2d 130 3, 1308 (Or. 19 84). While we recognize and respect the seriousness of the appellant s claim, we hold that the Circuit Court erred in failing to apply the equitable doctrine of laches to bar the appellant s claim, as his actions, coupled w ith the less favorable position in w hich Gansler, the State Board, and the electorate as a whole were placed, were too disruptive of the election apparatus to be consistent w ith the objectiv e of an ord erly election. Allo wing ch allenges to be brought at such a late date w ould call into question the value and the quality of our entire elections process and would only serve as a catalyst for future challenges. Such delayed challen ges go to the co re of ou r demo cratic syste m and canno t be toler ated. It is for the forgoing reaso ns that we vacated the judgmen t of the Circ uit Court. 24

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