Last week's ruling by Anne Arundel County Circuit Court Judge Ronald A. Silkworth tossing out a voter referendum on the zoning ordinance allowing slots at Arundel Mills mall was an unexpected twist in the convoluted path Maryland has taken toward legalized slot machines. But what's most surprising of all is that it might just stand up on appeal.
That's because the decision hinges on provisions of the state constitution and county charter that expressly forbid appropriation bills from being put to voter referendum. There's a logic to this: If voters had a veto on the state or county budget, most every spending proposal would be vetoed and not much would get done.
But a county zoning bill is not the same as a state appropriation bill, so the only real surprise in Judge Silkworth's ruling is that he links one to the other using the same logic employed 23 years ago in quite a different context — the legislation that authorized and financed what are now Oriole Park at Camden Yards and M&T Bank Stadium.
The stadiums, their financing and the authority governing them were authorized by three bills passed by the General Assembly. Opponents sought to put only the legislation that did not deal directly with the appropriation element to voter referendum. But the Court of Appeals ruled that the bills were too interdependent and legally inseparable for that to happen. A referendum would "thwart the legislative design," the court ruled at that time.
Judge Silkworth sees a similar problem with the zoning bill and its impact on state and county finances. While acknowledging the circumstances are quite different (the constitution gives county governments the explicit right to reject any or all sites), he sees the effect of an Anne Arundel referendum as equivalent. Because the rezoning is needed for slots to finance public schools as the state legislature has endorsed, the judge ruled the measure to be "interdependent and legally inseparable from the larger appropriation package." Under his reading of the law, local governments could reject slots zoning, but voters could not use the referendum process to do so.
Opponents may see that as a stretch, but the courts have never ruled how far the stadium decision known as Kelly v. Marylanders for Sports Sanity can be extrapolated. The question comes down to whether it applies to a zoning bill approved by county government that has an impact on legislation passed two years earlier by the Maryland General Assembly. The judge has made a cogent argument that it does, but it will be up to a higher court to have the final say. (Notice of appeal has already been filed.) Certainly, it's a matter worthy of further debate.
In these uncertain times with so many harboring a distrust of government, it's popular to view a voter referendum as somehow more democratic than decisions made by elected representatives, but in reality, there is a role (and appropriate limitations) for both. The slots legislation has already incorporated both, as a healthy majority of Maryland voters endorsed the measure two years ago.
We were less surprised but disappointed nonetheless that Judge Silkworth did not explore further the issue of possible fraud in the voter petition process raised by Cordish Cos. lawyers. Not because such fraud has necessarily taken place (the court declined to hear the evidence one way or the other) but because the lawsuit revealed a significant lack of oversight in the matter.
Is there a better way for local elections boards to review petitions? That possibility ought to be explored. No matter how the Arundel Mills case is resolved, voters deserve to know that the referendum process is adequately protected against even a theoretical risk of fraud.