Amid the latest fray in a case to bring about a dozen Howard County zoning changes to referendum this fall, there is a final deadline in sight.
August 18 – less than a month away – is the drop-dead date for a referendum question to be submitted to the Board of Elections in time to make it onto the ballot in November.
Before that can happen, three cases related to the referendum have to be decided at the Court of Special Appeals in Annapolis. A final piece in the referendum case is still tied up at the local Circuit Court level.
This last case is at the center of the latest controversy in the nearly year-old referendum saga.
Bill Erskine, who represents several developers whose projects have been put on hold by the referendum effort, has angered members of the referendum group, Citizens Working to Fix Howard County, by filing subpoenas to bring in more than three dozen petitioners for a videotaped interview about the signature collection process.
Erskine says the interviews are part of his clients’ due-process right to ensure that petitioners followed the rules when collecting signatures.
The petitioners, on the other hand, say the subpoena is a violation of their First Amendment rights and an attempt at intimidation. They plan to protest before a County Council hearing scheduled for Monday night.
“This is a calculated intimidation designed to make sure a referendum never happens in this county again,” said Susan Gray, an attorney for the citizens’ group.
Barbara Wasserman, a petitioner who became involved in the referendum effort after learning about a change in zoning language that some believe could allow “treated human waste” to be used on county farms, was one of those called in for questioning.
Wasserman, a physician, said she had just returned from a horseback riding excursion late last month when she received the subpoena. She didn’t know, at first, why a stranger was handing her an envelope: “I was a little bit shaken by it, needless to say.”
Wasserman got in touch with Gray, who advised her not to attend the deposition.
When Wasserman and the other petitioners didn’t show up, they received a second notice informing them that a sheriff could bring them into court for contempt.
This time, Wasserman said, “I felt we were going back hundreds of years and I was not living in the United States of America - it was like being in the Star Chamber of England.”
Gray and others have echoed Wasserman’s concerns, saying that the subpoenas violate their First Amendment right to petition the government.
In an email to Erskine on June 30 - the same day she and co-attorney Allen Dyer appealed the subpoena to a higher court - Gray wrote that this is “an election matter where the parties are exercising their most fundamental rights of political speech. There has to be a right of interlocutory appeal [an appeal to a higher court] when these First Amendment rights are being abused, as here. Otherwise, there is no right. After the fact review offers no remedy.”
Erskine offered a very different perspective. He noted that Judge John Tisdale denied the petitioners’ appeal of the subpoenas at the Circuit Court level.
“They have stalled, they have delayed, they have protested the lawsuit,” he said. “They seem to feel that [the subpoena] violates their First Amendment rights. What I don’t understand is, in what way?
“Other parties have due process rights,” he added. “Before the value of their property is taken away from them, they have a right to make sure the law was followed. … It just seems that some people are very interested in forcing what they see as their own rights, but they don’t care about the property owners’ rights.”
University of Maryland School of Law professor Mark Graber said Erskine was within the law in calling for subpoenas of the petitioners.
According to Graber, if “part of the issue is whether some of the signatures are fraudulent... of course you can ask questions about the way they got the petitions. That’s not a violation of anybody’s First Amendment rights, anymore than if you’re accused of cashing a fraudulent check” and are asked to testify, he said.
But, Graber, added, that doesn’t exclude the possibility that the action was intended to have a chilling effect on future referendum efforts.
“A court would have to look carefully to make sure: is this a legitimate effort at getting information, or is this simply an effort to intimidate people?” he said.
Motives aside, the consequences of ignoring a subpoena are laid out in Maryland Rule 2-510(j), which allows for “attachment” - in other words, a sheriff can be called upon to accompany a subpoenaed person to court.
None of the petitioners so far have been escorted against their will.
Whatever happens next, time is running short.
In Erskine’s opinion, the subpoena debate has “almost guaranteed that there’s no way that a final, non-appealable decision can be made by the courts in time for this go on the November ballot.”
Gray feels the crunch of time, but isn’t so sure the petitioners’ fight is over yet.
“I’m pretty confident we will get [the referendum] on the ballot, because this is a squeaky clean referendum and the abuse that the citizens have been through is just horrific, unconscionable and it’s going to get out,” she said.
Oral arguments for the cases currently before the Court of Special Appeals will be held Aug. 4.