by Anna Killius

In the 97 years since Maryland amended its constitution to allow for referendums, citizens have successfully put legislation to a popular vote only 13 times. Often, petitions failed to collect the necessary number of validated signatures, but the modern use of online petitions has facilitated the collection of signatures, accounting for up to 40% of those validated by the state Board of Elections. Consequently, Maryland citizens will soon have the opportunity to vote on three referendums, an unprecedented number, targeted at defeating the expansion of in-state tuition coverage, gay marriage equality, and a congressional redistricting plan. Proponents of the challenged measures have turned to the courts in an effort to prevent the referendums from reaching the November ballot.

Following the failed effort to pass the federal Development, Relief, and Education for Alien Minors (DREAM) Act in December of 2010, the Maryland legislature passed its own Dream Act, extending the in-state tuition rate to military veterans within four years of honorable discharge and qualified undocumented immigrant students. Fears concerning the effect of increased student eligibility on the state budget have galvanized the referendum effort, successfully placing Maryland’s Dream Act on the ballot for popular vote.

In an interesting twist, proponents of the act, while underplaying the burden on taxpayers, have challenged the referendum in state court on the very basis of future budgetary effects. Article XVI of the Maryland Constitution reserves to the people the power “by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act or any Act of the General Assembly.” However, “[n]o law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution…shall be subject to rejection or repeal” by referendum. Those opposed to the referendum claimed that the Dream bill acts as an appropriation by “inherently affecting the financing of higher education in the State.” Unconvinced, the Circuit Court of Anne Arundel County upheld the referendum, and, on June 13th, the Court of Appeals affirmed, with the opinion filed September 25th.

In order for an act of the General Assembly to qualify as an appropriation, the “law’s primary purpose must be to assign the monies for a specified purpose.” Appellants (undocumented students, registered voters, and CASA de Maryland) argued that the Maryland Dream Act, by increasing in-state student eligibility, necessarily involved augmenting state funding of public higher education institutions. They emphasized the importance of a Fiscal and Policy Note issued by Department of Legislative Services indicating that the Act “affects a mandated appropriation.”

The Appellate Court, however, refused to accept the future potential impact of the law on state appropriations as a primary purpose. In the court’s estimation, the Maryland Dream Act should be read as a policy change concerning the definition of in-state eligibility, and not a spending measure. A more expansive interpretation would “effectively depriv[e] voters the right to referendum.” Any law with future budgetary effects could be classified as an appropriation and made exempt from a popular vote.

Appellants alternatively argued that the Maryland Dream Act should not be read in isolation, but in pari materia with the Cade Funding Formula—the statutory tool for calculating state appropriations for community colleges—and future budget bills. Statutes concerning the same matter or subject can be construed together to meet the appropriations exception under Article XVI. It was in this manner that a 1987 law authorizing the Maryland Stadium Authority to commission Camden Yards was exempted from referendum when read jointly with a concurrent bill financing the project. Proponents of the Maryland Dream Act asserted that Act’s expansion of coverage would increase the number of students at community colleges, raising the appropriations calculated under the Cade Funding Formula, and affecting future state budget bills. Because of this integral connection, the Dream Act would qualify under the more expansive definition of an appropriation allowed under Article XVI.

The Court of Appeals was not persuaded. The Dream Act and Cade Funding Formula were not interdependent in the same way that the Stadium Authority bills had been in 1987. The formula and future budget bills would exist and function without the Dream Act. Also, the statutes were separated by time, suggesting that they should not be read together for the purposes of a referendum exemption. Finally, though some connection could be made between the Dream Act and future budget bills, it was far too attenuated. The “long and complicated path” needed to “discover a possible effect on future appropriations” could not qualify the legislation as an appropriation.

As it stands, the Dream Act referendum remains on the November ballot. The act’s effect on future appropriations, a large motivation in the push for referendum though too tenuous for exemption, will ultimately be decided by Maryland voters.


Fleming was only fiftyfive and suffering from a proceed the link right now chronic heart condition.
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