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February 22, 2017: Decision in State of Maryland v. Fusaro and State of Maryland v. Waters

State of Maryland v. Dennis Fusaro     Case No. D-07-CR-16-000734

State of Maryland v. Stephen Waters    Case No. D-07-CR-16-000735

DECISION

     In this action, the Defendants Dennis Fusaro and Stephen Waters are charged by way of criminal information with two separate offenses. In Count I, the Defendants are charged with violation of Section 13-602 of the Election Law Article by causing the publication and distribution of campaign material that did not comply with the disclosure requirements of Section 13-401 of the Election Law Article. In Count II of the charging document, the Defendants are charged with conspiracy to violate Section 13-602 of the Election Law Article in regard to the publication and distribution of the campaign material not complying with the disclosure requirements of Section 13-401 of the Election Law Article.

     In Buckley v. Valeo, 424 U.S. 1 (1976) the Supreme Court considered various challenges to the Federal Election Campaign Act of 1971 (FECA) as amended in 1974 containing provisions for political contribution limits to candidates for federal office, expenditure limits by individuals or groups relative to clearly identified candidates, and disclosure and disclaimer provisions for political contributions and expenditures. The constitutional challenges to FECA in Buckley included alleged violations of First Amendment rights to speech and association. In addressing the First Amendment challenges to the political contribution and expenditure limits under FECA, the Supreme Court applied a strict scrutiny test, however in regard to the disclosure and disclaimer provisions contained in FECA, the Supreme Court applied an “exacting scrutiny” test which requires a “substantial relation” between the disclosure requirement and a “sufficiently important” governmental interest. Buckley v. Valeo, supra at 64, 66. The Court noted that disclaimer and disclosure requirements may burden the ability to speak, however they “impose no sealing on campaign related activities.” Buckley v. Valeo, supra at 64. In Buckley the Supreme Court explained that the disclosure requirements were justified based upon the substantial government interest in (1) providing the electorate with information as to the source of campaign funding and how it is spent by candidates; (2) deterring actual corruption and avoiding the appearance of corruption by exposing large contribution and expenditures to the light of publicity; and (3) providing record keeping and reporting as an essential means of gathering data necessary to detect violations of contribution limits.

     In McConnell v. Federal Election Commission 540 U.S. 93 (2003), the Court considered First Amendment challenges to the Bipartisan Campaign Reform Act of 2002 (BCRA) including the disclosure and disclaimer provisions under the BCRA. In McConnell, supra at 201 the Court held that disclaimer and disclosure requirements “do not prevent anyone from speaking” and applying the exacting scrutiny test established under Buckley, the Court upheld the BCRA disclosure and disclaimer provisions against First Amendment challenges. However, the Court citing Buckley acknowledged that as applied challenges to the disclosure and disclaimer provisions could be made upon a showing of a reasonable probability that the compelled disclosure of a party’s contributor’s names would subject them to threats, harassment, or reprisal from either government officials or private parties. Buckley, supra at 74; McConnell, supra at 198-199.

      In Federal Election Commission v. Wisconsin Right to Life, Inc.; 551 U.S. 449 (2007) (WRTL), the Supreme Court considered the application of campaign expenditure limits imposed by the Bipartisan Campaign Reform Act of2002. The Court noted that in Buckley v. Valeo, supra at 42, independent expenditure limits were held constitutional under the First Amendment as those limits covered “express advocacy of the election or defeat of a clearly identified candidate” by the use of “magic words” such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” and “reject.” WRTL supra at 453. The Court in WRTL, supra at 469-470, also upheld the constitutionality under the First Amendment of campaign expenditure limits as they covered “the functional equivalent of express advocacy” which the Court defined as speech “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

     In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Supreme Court addressed several issues under the BCRA, and once again the Court considered First Amendment challenges to the disclosure requirements under the federal statute. Reaffirming the rulings in Buckley v. Valeo, supra, McConnell v. FEC; supra, and WRTL, supra, in regard to disclosure requirements generally, the Supreme Court upheld the constitutionality of campaign disclosure requirements with regard to express advocacy, the functional equivalent of express advocacy, and also independent expenditures that advocate the election or defeat of a candidate.

      Fifteen years prior to the decision in Citizens United, supra, the Supreme Court in Mclntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) addressed the right of individuals under the First Amendment to engage in anonymous speech. In Mclntyre, supra, the Ohio statute imposed disclosure requirements not only to expenditures expressly advocating the election or defeat of a candidate but also all speech promoting the adoption or defeat of any issue, and the Supreme Court held that the broadly written Ohio statute prohibiting the distribution of anonymous campaign material violated First Amendment rights. Mcintyre, supra, at 357. In Bailey v. Maine Commission of Governmental Ethics and Election Practices, 900 F. Supp. 2d 75, at 83-86 (2012), the District Court discussed what it described as “the tension between Citizens United and McIntyre.”

    In upholding Maine’s statutory disclosure requirements against First Arnendment challenges based in part upon Mclntyre, supra, the District Court distinguished Bailey from Mclntyre, in several respects. Bailey, supra, at 86. First, the District Court noted that the Maine disclosure statute was a narrowly drawn law dealing with express advocacy of candidates rather than speech related to ballot initiatives or issues. Second, Bailey was expressly advocating the defeat of a gubematorial candidate shortly prior to the election. Also, the District Court emphasized that Bailey was an experienced political operative connected with an opposing campaign in the election process whereas Mrs. Mclntyre was a private citizen expressing her personal views on a ballot issue. In addition, Mrs. Mclntyre had acted truly independently while Bailey was closely associated with an opposing candidate and campaign in the Maine gubernatorial elections. The right to speak anonymously as addressed in Mclntyre v. Ohio was addressed in an opinion of the Maryland Attomey General. 80 Op. Att’y Gen. 110 (May 16, 1995). In reviewing the effect of McIntyre, supra, upon a former version of the Maryland Disclaimer Law, the Attorney General opined that certain sections of the former statute were unconstitutional and could not be enforced against individuals independently producing , campaign material, however, the Attorney General also opined that the provisions of the former  statute could be enforced against candidates, campaign treasurers, political committees, and others acting in coordination with such campaigns. Opinions of the Attorney General are entitled to careful consideration, however such opinions are not binding upon the Court. Montgomery County v. Atlantic Guns. Inc., 302 Md. 540 (1985); Scott v. Clerk of Circuit Court for Frederick County, 112 Md. App. 234 (1996). In considering the referenced opinion of the Attorney General in this case, the Court notes that the opinion was issued prior to and without the benefit of consideration of the reasoning and rules stated in McConnell, supra; WRTL, supra; Citizens United v. FEC, supra; and Bailey v. Maine Commission, supra. 1 In this case, an issue is raised as to whether the Telephone Consumer Protection Act (TCPA) preempts Maryland’s Election Law Statute. The Maryland Telephone Consumer Protection Act (“MTCPA”), MD Ann. Code, Commercial Law Article, §§ 14-3201- 14-3202 prohibits a person from violating the TCPA, 47 U.S.C. §277, as implemented by the Federal Communications Commission in the Restrictions on Telemarketing and Telephone Solicitations Rule (47 C.F.R. Part 64, Subpart L). The TCPA expressly declines preemption of state laws. 47 U.S.C. §227(F)(1)(stating “State law not preempted”). The MTCP A was enacted merely to enable a private right of action under the TCP A. Lynn v. Monarch Recovery Management. Inc., 953 F.Supp.2d 612 (D. Maryland, 2013); Worsham v. Erlich, 181 Md. App. 711 (2008). In Erlich, supra, a civil action filed by the  recipients of unsolicited prerecorded political campaigned telephone calls, the Court of Special Appeals held the MTCPA and TCP A provided no private right of action for deficient, improperly identified calls, and held the TCPA prohibits states from creating more restrictive intrastate identification standards. Unlike Erlich, supra, the instant case is a criminal action against Defendants involving interstate robo- calls, not a civil action filed by a recipient of an unsolicited robo-call.

     In Patriotic Veterans, Inc. v. Indiana, 736 F.3d 528 (S.D.N.Y., 2005), a non-profit seeking to communicate political messages relating to particular candidates or issues of interest to Indiana-residing veterans sought to challenge the Indiana Automated Dialing Machine statute (IADM) via preemption by the TCP A. The Court of Appeals for the Seventh Circuit held that the TCPA did not preempt the IADM noting that the TCPA’s non-preemption clause “is the first and best evidence that the federal government did not intend to occupy the entire field of robocall regulation.” The court further noted, arguendo, even if the TCPA was inescapably ambiguous and “it was appropriate to tum to legislative history to construe the intent of a statute, one would also have had to consider the fact that earlier, un-enacted drafts of the TCPA would have expressly preempted ‘any provision of State law concerning interstate communications that are inconsistent with the interstate communications provisions’ … [but] We cannot assume that Congress intended to enact statutory language that it has earlier discarded in favor of other language.” Patriotic Veterans, Inc. v. Indiana at 1053, citing 137 Cong. Rec. S. 16200, 16202 (1991) and Chickasaw Nation v. U.S. 534 U.S. 84,93 (2001).

     Other courts have disfavored preemption. See Van Bergen v. State of Minn, 59 F.3d 1542, 1547-48 (8th Cir., 1995)(holding TCPA’s savings clause does not preempt Iess restrictive state Iaws); Sussman v. I.C. System, Inc., 928 F. Supp.2d 784 (S.D.N.Y., 2013)(denying motion to dismiss on preemption grounds “having found that Congress did not expressly or impliedly preempt state law”); State ex rel. Stenejam v. FreeEats.com, Inc., 712 N.W.2d 828 (2006)(“We conclude that Congress has clearly and unambiguously expressed its intent that the TCPA does not preempt application of a state statute prohibiting interstate telemarketing calls which use automatic dialing equipment or artificial or prerecorded voice messages”).

      In this case, Maryland’s disclosure law in Section 13-401 of the Election Law Article has been challenged as impermissibly broad and vague in light of the protections afforded by the First Amendment speech rights and Fifth Amendment due process rights. In Center For Individual Freedom v. Madigan, 697 F. 3d 464 (2012 7th Cir.), the court analyzed challenges to the Illinois campaign disclosure law under the overbreadth doctrine and the void-for-vagueness doctrine. Noting that the Supreme Court had upheld against vagueness and overbreadth challenges provisions of FECA, discussed in Buckley, supra, McConnell, supra, WRTL, supra, and Citizens United, supra, the Seventh Circuit rejected overbreadth and vagueness challenges to similar provisions in the Illinois disclosure law. In Buckley, supra at 39-45, the Supreme Court upheld the disclosure provisions of FECA “Relative to a Clearly Identified Candidate” by narrowly construing that term to apply to communications that “in express terms advocate the election or defeat of a clearly identified candidate for (federal) office”. The provisions of Section 13-401 of the Election Law Article apply to “Campaign Material” as defined in section 1-101(k) which must be interpreted with the definition of “Candidate” in Section 1-101(1) of the Election Law Article. These provisions of the Election Law Article, more specific than the provision of FECA considered in Buckley, supra, clearly apply to material that advocates the election or defeat of a candidate for office.

      As to whether robo-calls are included within the scope of the definition of “Campaign Material” under Section 1-1 O 1 (k) of the Election Law Article, the statute must be reviewed to effectuate the legislature’s intent, and if the words of the statute are clear and unambiguous, according to the commonly understood meaning of those words, the court must apply that meaning. Nesbit v. Geico, 382 Md. 65, 854 A.2d 879 (2004); Chesapeake and Potomac Telephone Co. of Maryland v. Director of Finance for Mayor and City Council of Baltimore, 343 Md. 567,683 A.2d 512 (1996). Although robo-calls are not specifically mentioned within the statute, this form of communication clearly falls within the scope of “Campaign Material” under Section 1-101(k). A robo-call is material transmitted by electronic medium, a telephone, to the ultimate recipient, or by telephone or intemet, to vendors who actually upload the material for communication to the ultimate recipient. Section 1-101(k)(2)(i). A robo-call is an oral message communicated for a fee through a commercial service, a telephone company, an internet service provider, or a robo-call vendar who transmits the communication to the final recipient. Section 1-101(k)(2)(ii). Further, a robo-call can begin as a script, a “text”. Section”l-101(k)(l)(i).

FINDINGS OF F ACT AND CONCLUSIONS OF LAW

      The court makes the following findings of fact. Michael Peroutka and Patirck Armstrong were opponents for election to the 5th Councilmanic District seat on the Anne Arundel County Council in the 2014 Maryland Gubematorial General Election . Early voting for the General Election commenced on October 23, 2014 and ended on October 30, 2014. Election Day for the General Election was November 4, 2014. The authorized campaign committee for Mr. Peroutka was registered with the State Board of Elections as Friends of Michael Anthony Peroutka, and the campaign chairman registered with the State Board of Elections was Michael Anthony Peroutka and the registered campaign treasurer was Thomas Pavlinic. 

A. The Robo-Calls

     On October 31, 2014 approximately 5000 automated telephone calls (“robo-calls”) were made to households or residents of Anne Arundel County, Maryland. A recording of the identical oral communication contained in the robo-calls was admitted into evidence as Exhibit 1 for the State. The message of the robo-call refers specifically to the impending election for County Council in Anne Arundel County, and Patrick Armstrong is identified in the robo-call as a candidate for that public office. The message, in pertinent part, calls  upon the recipient of the robo-call to contact the candidate Armstrong and “thank him for his bravery in coming out of the closet. .. and supporting the rights of transgenders”; tell (Armstrong) “to continue to stand loud and proud in support of transgenders’ equal rights”, “thank him (Armstrong) for supporting the bathroom bill”. The robo-call states that “transgenders can now openly and freely go into any bathroom of their choice based on their confused gender identity”. The robo-call also refers to an “opponent”, and logically this comment refers to Mr. Armstrong’s opponent in the referenced election, Mr. Peroutka. The robo-call states that the opponent (Peroutka) has “argued that children could be at risk by sexual predators with this new law”. The robo-call message concludes by stating “Paid for and authorized by Marylander’s for Transgenders”.

      Taken at face value, the content of the robo-call could be perceived as complimentary and supportive of Mr. Armstrong’s positions and campaign such that the recipient of the robocall should thank Mr. Armstrong in the upcoming election. However, several witnesses at trial testified that they perceived the robo-call as an attack upon Mr. Armstrong and his candidacy and as a criticism of Mr. Amstrong’s lifestyle. For the purposes of the present case, the issue for the court is whether the content of the robo-call is express advocacy, or the functional equivalent of express advocacy, or issue advocacy. Arguably the robo-call is express advocacy even though it  lacks the “magic words” referenced in WRTL such as “vote for” or “vote against”, but the robocall is beyond question “the functional equivalent of express advocacy” since it is “susceptible of no reasonable interpretation other than asan appeal to vote for or against a specific candidate”.

     The robo-call is clearly about the impending election for public office and the purported positions of Mr. Armstrong and his opponent, Mr. Peroutka. The robo-call identifies the specific impending election for a seat on the Anne Arundel County Council. By the date on which the calls were made, early voting had already taken place and the general election was days away. Whether the robo-call is perceived as supportive of Mr. Armstrong and his candidacy; or as criticism and attack upon Mr. Arrnstrong and his candidacy, either altemative reriders the robocall as the “functional equivalent of express advocacy” since it is either an appeal to vote for or against Mr. Armstrong. It should also be noted that the comment concerning Mr. Peroutka’s position of protecting children from sexual predators could be perceived by sorne recipients of the robo-calls as an appeal to vote for Mr. Peroutka, again the ‘functional equivalent of express advocacy’. Thus, this case is controlled by the line of cases upholding the constitutionality of disclosure laws, Buckley, supra, McConnell, supra, WRTL,supra, Citizens United, supra, and Bailey v. Maine, supra rather than Mclntyre v. Ohio, supra. The publishers or distributors of the robo-calls in the circumstance of this case possessed no right to speak anonymously.

     The robo-call, according to its concluding line was “Paid for and authorized by Marylanders’ for Transgenders”. At trial, three recipients of the robo-calls testified as to their lack ofknowledge about the group identified in the robo-call as “Marylanders’ for Transgenders” Testimony of the three robo-call recipients’ efforts to identify “Marylanders’ for Transgenders” was that internet searches revealed no intemet site or reference to the group. The robo-call in this case was not incompliance with Section 1-402(b) of the Election Law Article in  that the disclosure and disclaimer required by the statute were omitted. The name of the payor or any organization affiliated with the payor; and the name and title of the treasurer or president of the payor were omitted from the robo-call. Finally, the disclaimer message for any campaign material not authorized by the candidate was also omitted from the message in the robo-call.

B Defendant Stephen Waters

  Aaron Evans, a representative of Impact Strategies, L.L.C. testified as to the involvement of the Defendant Stephen Walters in the distribution of the robo-calls. Impact Strategies, L.L.C. (Impact) is in the business of causing the distribution of automated telephone calls or robo-calls for a fee at the request of its customers. The Defendant Waters placed an order for a robo-call with Impact, and the company fulfilled Mr.Waters’ order. Mr. Waters placed the order either by telephone on on-line. Mr. Waters provided the necessary information to distribute the robocall including the scheduled time and date for the robo-call, the audio recorded message for the robo-cal!, the lists of telephone numbers to which the robo-calls would be directed, a caller identification number to be associated with the robo-call. The robo-call in this case, state’s exhibit 1 was the audio recording and robo-call that was Mr. Waters’ order with Impact. After receipt of the order from Mr. Waters, Impact utilized the services of Stratics Networks, Inc.(Stratics), a company located in Ontario, Canada. Stratics is a technology firm that provides a computerized system for the making of robo-calls, and in this case Impact’ s employees loaded the robo-call ordered by Mr. Waters, utilizing the information provided by Mr. Waters, into Stratics robo-call system including the schedule for the distribution of the robo-calls. Mr. Waters paid Impact by credit card for the distribution of the robo-calls in this case. 

 C. Defendant Dennis Fusaro

     Evidence in the form of witness testimony and various documents was admitted at trial as to the involvement of the Defendant, Dennis Fusaro in the distribution of the robo-calls in this case. During the course of the trial, counsel have commented that the evidence offered against Mr. Fusaro is highly circumstantial. This comment is not precisely accurate; instead a review of the evidence offered as to Mr. Fusaro’s involvement in the robo-calls is a mixture of both direct and circumstantial evidence. A review of the chain of events leading to the distribution of the robo-calls on October 31, 2014, and certain events thereafter is necessary to understand Mr. Fusaro’s involvement in the distribution of the robo-calls.

     Dennis Fusaro operating under his business name Grass Roots Solutions, lnc. was hired by Candidate Michael Peroutka’s campaign in July of 2014. Mr. Fusaro was an experienced campaign consultant and political operative who had worked in the past in other political campaigns. Mr. Fusaro was paid a base monthly fee of $4,000 plus expenses by the Peroutka campaign. Mr. Fusaro ran the day to day operations of the Peroutka campaign. Mr. Fusaro’s responsibilities and duties with the campaign were many including helping to prepare for campaign events, preparing copy and campaign advertisements for mailing.

     Mr. Fusaro arranged and managed relationships with vendors for the campaign including the robo-call vendor. Mr. Fusaro wrote the copy or script for the Petrouka campaign’s robo-calls. Mr. Fusaro’s responsibility included submission of scripts for robo-calls to Candidate Peroutka who would record the robo-calls over the phone with the robo-call vendor. Mr. Fusa ro managed the entire robocall component of the Peroutka campaign. Mr. Fusaro arranged for use of robo-calls in the Peroutka campaign including mid- October of 2014 and particularly toward the end of the election season. Mr. Fusaro and Mr. Peroutka considered the use of information regarding the opposing Candidate Armstrong’s sexual orientation and lifestyle as an issue to damage Armstrong’s campaign and candidacy. Mr. Fusaro suggested the distribution of a robo-call known as “big boy pants” to make an issue of Mr. Armstrong’s sexual orientation and lifestyle in the election. Mr. Fusaro discussed the proposed sexual orientation issue with Mr. Peroutka who decided against the use of Mr. Armstrong’s sexual orientation as an issue in the campaign. Mr. Fusaro was fully aware that the Candidate Peroutka had refused to authorize the use of Mr. Armstrong’s sexual orientation in the form of the “big boy pants” robo-call or any other similar robo-call or in any other manner in the election.

     Mr. Fusaro had contact in October 2014 with Defendant Stephen Waters who was an outsider to the Peroutka campaign. Mr. Fusaro and Mr. Waters had known each other from political activities in the past. Mr. Fusaro and Mr. Waters exchanged telephone calls and text messages on several occasions in October of 2014, and particularly on October 26, 30, and 31 of 2014. On October 26, 2014, Mr. Fusaro traveled south by auto from his home in the Front Royal area of Virginia to the Fredericksburg area. On the same date Mr. Waters by auto travelled north from the Richmond area of Virginia to the Fredericksburg area. Mr. Fusaro in company of Mr. Waters arrived at the parking lot of the Wal-Mart store in Fredericksburg in the same automobile. Mr. Fusaro and Mr. Waters had met at some other location and rode together in the same auto to the Wai-Mart store. Mr. Fusaro with Mr. Waters exited the vehicle and entered the Wal-Mart store together. Mr. Fusaro separated from Mr. Waters after a entering the store and proceeded to a cashiers counter. Mr. Fusaro purchased a 76 cent candy bar for purchase with a debit card, and he requested and received $100 in the form of 5 twenty dollar bills as cash back at 3:49PM. Mr. Fusaro and Mr. Waters approximately seven minutes later appeared at another cashier’s counter where Mr. Waters presented a cell phone to the cashier and requested activation of the phone giving to the cashier 5 twenty dollar bills. Mr. Fusaro was present during the entire purchase of the cell phone and the activation of the phone; and during the activation process, Mr. Waters stood back while Mr. Fusaro actively interacted with the cashier, Ms. Mills-Davis, in activating  the phone and testing its use. Mr. Fusaro was also the final recipient of the change from the purchase and the receipt for the phone when Mr. Waters delivered the change and the receipt to Mr. Fusaro after Mr. Waters had received the same from the cashier. Mr. Fusaro in reality purchased the cell phone from the cashier who at trial testified that she gave the phone to Mr. Fusaro on the belief that Fusaro and Waters were purchasing the cell phone together. Mr. Fusaro then placed the cell phone into Mr. Waters shopping bag who had purchased other items using his own funds. The cell phone purchased by Mr. Fusaro and Mr. Waters on October 26 was the same phone utilized to cause the distribution ofthe robo-calls in Anne Arundel County on October 31, 2014. Mr. Fusaro accompanied by Mr. Waters, after the purchase of the cell phone departed the Wai-Mart store leaving together in the same auto.

     Mr. Fusaro, from his work as the manager of the robo-call component of the Peroutka campaign, had access to the telephone lists of Anne Arundel County voters in District 5, as well as the information pertaining to Mr. Armstrong’s sexual orientation. Mr. Waters using the cell phone purchased with Mr. Fusaro at the Wal-Mart on October 26 conveyed this information to lmpact  Strategies and to Stratics Networks and finally to Anne Arundel County voters on October 31, 2014.

     After the distribution of the robo-calls was made known, Mr. Peroutka questioned the staff of his campaign about the origin of the robo-calls. In an e-mail to Mr. Peroutka, Mr. Fusaro responded “Again, your campaign did not make the call. That’s a fact.” Since Mr. Waters was not an official member of the Peroutka campaign, Mr. Fusaro’s representation may be accurate in that sense. However, in his reply, Mr. Fusaro withheld from Mr. Peroutka the information concerning Mr. Waters and his activities, the circumstances of the purchase of the cell phone, and the so rce of the call identification number for the phone.

     In this case, the evidence of the Defendant Waters’ guilt is overwhelming, and the state has clearly met its burden of proof beyond a reasonable doubt that Mr. Waters is guilty of causing the publication and distribution of campaign material in violation of Maryland’s election laws. 

     As to the Defendant Dennis Fusaro, the state has offered at trial a mixture of both direct evidence and circumstantial evidence in support of the charges. The Court views the evidence presented against Mr. Fusaro as links in a chain of events. The chain of events must be considered in their totality. Any one link of the chain, viewed in isolation, could have an innocent explanation. However, when all of the links of the chain of evidence are considered collectively and sequentially, the true picture of Mr. Fusaro’s involvement in the distribution of the robo-calls is crystal clear.

      Mr. Fusaro was manager of the robo-calls for the Peroutka campaign. All of the robo-calls authorized by the Candidate Peroutka contained a disclosure statement pursuant to Maryland election law. Candidate Peroutka refused to grant to Mr. Fusaro the authority to utilize Mr. Armstrong’s sexual orientation as an issue in the campaign. Mr. Fusaro than contracted an outsider to the campaign, Mr. Waters and enlisted his aid without the approval or knowledge of the other members of the Peroutha campaign. Fusaro and Waters met at a pre-arranged location and in a transaction designed to conceal their purpose, purchased the cell phone that was used to distribute the offending robo-calls. The efforts to conceal their activities continued even when Mr. Fusaro was questioned by Mr. Peroutka himself about possible involvement in the robo-call scheme. Mr. Fusaro denied any involvement by any member of the campaign when he was aware of the role played by the outsider to the campaign.

      The entire chain of events concerning Mr. Fusaro’s involvement considered in its entirety compels the finding that Mr. Fusaro orchestrated with the agreement and aid of Mr. Waters the distribution of the robo-calls in violation of Maryland law. The state has proven in this case beyond a reasonable doubt the guilt of both defendants as to all charges.

1 The Court notes that under Section 1-101 (k) (1) (ii), the definition of campaign material includes material that relate to “the approval or rejection of a question”. In light of the rules governing disclosure requirements pertaining to ballot issues, referenda, or other electoral issues, the constitutionality of Maryland’s disclosure laws to such material is possibly subject to question, however, in light of principles concerning severability of statutes, that issue is not presented in the instant case. Section 1-210, General Provision Article of the Annotated Code of Maryland; Jackson v. Duckman, 422 Md. 357 (2011); Davis v. State, 294 Md. 370 (1982).

This 21st day of February, 2017.

 

__________________________

John P. McKenna, Jr.

Judge

 

 

 


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