Before voters can decide the fate of Maryland's Dream Act, the Court of Appeals must decide whether voters can decide in the first place.

Before the seven judges of Maryland’s highest court,  on Tuesday, June 12, attorneys will argue whether the Act is an appropriations bill which is not subject to referendum.Passed by the General Assembly and signed into law on May 10, 2011, the Maryland Dream Act allows certain undocumented immigrants as well as veterans and active-duty members of the armed services to receive in-state tuition rates at Maryland colleges. Qualifying students initially attend community college. After two years, students could then transfer to a four year school.

While the Maryland Constitution generally permits citizens to refer laws passed by the Maryland General Assembly to the ballot before the laws become effective, the Constitution exempts laws "making any appropriation for maintaining the State Government." Md. Const. Art. XVI, sec. 2. Under Maryland’s Constitution, an appropriations bill is "either a Budget Bill, or a Supplementary Appropriation Bill." Md. Const. Art. III, sec. 52(2).

On its face, the Maryland Dream Act is neither a budget bill nor a supplementary appropriation bill. However, in certain circumstances, the Court of Appeals has held that, even if a bill does not squarely fit into one of those categories, it could still be "within the class of money bills or spending measures contemplated by the exceptions to the referendum right under Art. XVI." Kelly v. Marylanders for Sports Sanity, Inc., 310 Md. 437, 455 (1987).

In the case of John Doe v. Maryland State Board of Elections, referendum opponents made this very argument before Judge Ronald Silkworth of the Circuit Court for Anne Arundel County. Asserting that the Maryland Dream Act was within Kelly-type of bills which are not subject to referendum, plaintiffs argued that the Act would increase the number of students qualified for in-state tuition at community colleges and ultimately require the Governor to put specified additional appropriations in future budget bills. In support of their argument, Plaintiffs also pointed to the Fiscal Summary to the Act prepared by the Department of Legislative Services which states, "This bill affects a mandated appropriation." Judge Silkworth rejected this argument.

"The Maryland Dream Act makes no reference to revenue or appropriations, but solely discusses new eligibility requirements for in-state tuition for a specified class of people," Judge Silkworth wrote. "Any future impact on the state’s budget that could result from the Maryland Dream Act is merely an incidental result of a law aiming to change policy."

Judge Silkworth’s ruling was a victory for those seeking to overturn the law by referendum.

On Tuesday, June 12, referendum opponents will have a final opportunity to halt the referendum. If referendum opponents fail to convince the Court that the Act is an appropriations bills which is not subject to referendum, Maryland voters will have the final word on the Maryland Dream Act at the polls in November.