- The Enterprise
- The Recorder
La Plata’s Walmart annexation referendum will go straight to Maryland’s highest court, the Court of Appeals, likely in March.
The Court of Appeals agreed to hear the case, Faison et. al. vs. Town of La Plata et. al.
Steve Scott of Scott Law Group in La Plata said Faison and Mitchell’s Supply asked for the Court of Appeals to take the case by way of a bypass motion.
The move functions essentially like the certiorari process, Scott said, where the Court of Appeals has discretion whether to hear a case heard by the Court of Special Appeals. The only difference is that the move allows the case to be directly heard by the Court of Appeals.
“We believe it was important to bypass the intermediary step for efficiency for the litigants and the importance of the case to the state,” Scott said.
Scott said he believes the reason the state’s highest court took the case is its importance to the community and because it would render a decision more efficiently than through the intermediate court.
Scott said the case likely will be heard in early spring, and expects the Charles County Circuit Court decision to be upheld.
Town attorney Fred Sussman said oral arguments would likely be in March and that the case’s assignment to the Court of Appeals allows for a final decision to be rendered more quickly.
The case dates from a lawsuit that Faison Capital Development of Charlotte, N.C., and Johel Limited Partnership filed in the Charles County Circuit Court in March, alleging that the town did not follow state law in drafting procedures to verify the signatures bringing the proposed annexation to referendum, and that irregularities in the signature gathering process occurred.
The annexation, requested by Faison and Johel Limited Partnership, intends to bring 14.11 acres into the town for Faison to build a 181,500-square-foot Walmart Supercenter, 50,000 square feet of office space and three commercial buildings.
The La Plata Town Council voted 3-2 Sept. 27, 2011, to approve the annexation. Referendum petitioners filed a petition Nov. 10 to request the issue be voted on by the town’s registered voters.
Judge James L. Lombardi, a retired Prince George’s County Circuit Court judge, ruled May 3 in county circuit court that the referendum petition “had to fail” because Town Manager Daniel Mears drafted and used procedures to verify the petition signatures that Lombardi said Mears did not have the authority to use.
The case was headed to the Court of Special Appeals, the second highest court, because the town appealed the case June 4.
Sussman has argued that state law designates Mears as the one to verify the signatures and that he was using his administrative powers to draft and follow the procedures he released two days before the referendum petition was due.
Sussman has argued that Mears did due diligence as a public servant in making the procedures known to the public and systematically verifying the signatures.
Attorney Maury Epner argued on behalf of the referendum petitioners that collectors gathered signatures from more than 20 percent of the town’s registered voters and that those wishing to remove their signatures due to allegations of misleading signature circulators were permitted to request removal.
Mears verified 1,323 signatures on the petition, more than the 1,194 signatures that represent 20 percent of the town’s registered voters needed. More than 60 signatures were removed from the referendum petition after people requested they be removed.
Attorneys representing the original plaintiffs in the case, Michael Berman of Rifkin, Livingston, Levitan & Silver and La Plata attorney Sue Greer, have argued that only the town council has the authority to draft the procedures Mears used because it is a legislative power.
Berman represents Faison Capital Development of Charlotte, N.C., and three citizens in the case. Greer represents Johel Limited Partnership, which owns approximately 10 acres in the annexation.
Berman has argued that the referendum petition did not follow state law because it refers to four resolutions instead of just the annexation resolution. Berman also has argued that the petition was invalid because it was not safeguarded from alleged misleading or nonpresent signature circulators.