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Court of Appeals set to rule on transgender rights vote

September 9, 2008: Although not mentioned in this article, Murnaghan Fellow Greg Care wrote an amicus brief for the PJC in this case. See http://publicjustice.org/news/press/127.

Court of Appeals set to rule on transgender rights vote

Daily Record Legal Affairs Writer

September 8, 2008 6:22 PM

ANNAPOLIS — The Court of Appeals is debating whether a transgender-rights group was too late in filing its challenge to an upcoming referendum to overturn a new Montgomery County antidiscrimination law.

There was disagreement among the justices during oral arguments on Monday over a circuit court decision to choke off a challenge to the referendum brought by Equality Maryland and about a dozen county residents who want the transgender protections to go into effect as adopted last November.

Montgomery County Circuit Judge Robert A. Greenberg had held that Equality Maryland and the residents failed to file their challenge within 10 days of the county Board of Elections’ Feb. 20 verification of signatures on the referendum petition drive.

But Chief Judge Robert M. Bell said the 10-day clock should not have started until the board certified the referendum on March 6. That marks the day the law’s supporters became an “aggrieved” party in that they — for the first time — faced the reality that the referendum would go forward and the law might be overturned, Bell said.

Equality Maryland filed its challenge March 14, more than 10 days after the Feb. 20 date of signature verification but only eight days after the board’s final certification of a referendum.

The judges agreed to hear Equality Maryland’s appeal straight from the circuit court, an indication of its desire to decide the matter before Election Day, Nov. 4.

Equality Maryland is neither awaiting nor hopeful of the court’s decision but is pressing ahead with a campaign to convince Montgomery County voters to support the law should it come to a referendum, said Dan Furmansky, the group’s executive director.

“We are already geared up to bring our case to the voters of Montgomery County,” he said.

During the high-court session, Jonathan S. Shurberg, Equality Maryland’s attorney, faced few questions as he argued the 10-day clock should have started at certification, when the public was notified the vote would occur unless a successful objection were filed.

But Kevin Karpinski, the board’s attorney, drew fire from the bench when he said the group had notice and an opportunity to challenge Board of Election’s actions on Feb. 20, the day it verified the signatures and the day the Non-Discrimination — Gender Identity law was slated to go into effect.

Judge Clayton Greene Jr. said courts can generally review only final agency decisions. The verification of signatures was a preliminary board action and not its final decision to certify the referendum, Greene said.

Judge Mary Ellen Barbera called it a matter of fairness that the clock not start until certification. To rule otherwise would put the onus on residents to inquire regularly with the board as to whether any referendum petition drives were afoot, lest a subsequent challenge be filed too late, she said.

“It seems to put an unreasonable burden on the interested voters,” Barbera said.

Karpinski responded that Montgomery County residents — particularly those who belong to Equality Maryland — had strong reason to expect a referendum petition drive would be mounted by opponents when the county council passed the law on Nov. 13. Equality Maryland had in fact hired Shurberg before the board’s March 6 certification, Karpinski said.

“I don’t believe the process permits you to wait until the end” before filing a challenge to a proposed referendum, said Karpinski, a partner at Karpinski, Colaresi & Karp P.A. in Baltimore. “I don’t think you can sit on your hands.”

Shurberg countered that he could not have filed a challenge until after the board’s March 6 certification because no “live dispute” existed before then.

“There’s got to be something that pokes you in the ribs and says, ‘You’ve got to go look now,’” he said. That rib-poking event was the board’s certification of a referendum, not its earlier decision to verify signatures, added Shurberg, a solo practitioner in Silver Spring.

The law would ensure equal treatment for transgendered people in employment, public accommodations, housing and cable-television and taxicab service.

Maryland Citizens for a Responsible Government waged the referendum petition drive, saying residents should be allowed to decide for themselves if people who have “made a choice” to change genders should have legal protection against discrimination, said the group’s spokesperson Michelle Turner. The group is not a party to the high-court dispute but filed a brief in the case, arguing that the challenge was filed too late.

If the court permits the challenge to proceed, Equality Maryland said it will contend that the board miscalculated in stating that MCRG needed 25,001 valid signatures, or 5 percent of the county’s registered voters, to bring the issue to a referendum. Equality Maryland contends that the accurate 5-percent figure is 27,615.

MCRG collected 26,892 signatures, according to the board. The case is Jane Doe v. Montgomery County Board of Elections, No. 61 of September Term 2008.

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