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Jones v. Anne Arundel County

Court of Appeals of Maryland

July 1, 2013

DARYL JONES
v.
ANNE ARUNDEL COUNTY, MARYLAND, et al.

Bell, C.J. Harrell Battaglia Adkins Barbera McDonald Raker, Irma S. (Retired, specially assigned), JJ.

OPINION

Battaglia, J.

Our decision of the present case depends upon whether "residence, " in a provision of the Anne Arundel County Charter, means a place of abode or domicile. A place of abode includes any dwelling or place w here one sleeps, Boer v. University Specialty Hospital, 421 Md. 529, 538, 27 A.3d 175, 180 (2011), and merely requires "actual physical presence, " Bainum v. Kalen, 272 Md. 490, 496, 325 A.2d 392, 395 (1974), while domicile is the particular permanent home of an individual, "to which place he has, whenever he is absent, the intention of returning." Shenton v. Abbott, 178 Md. 526, 530, 15 A.2d 906, 908 (1940). A domicile serves as an individual's residence for "voting, income tax returns, driver's license, motor vehicle registration, school attendance, receipt of mail, banking, contracts and legal documents, the keeping of personal belongings, [and] membership in organizations[.]" Blount v. Boston, 351 Md. 360, 367-68, 718 A.2d 1111, 1115 (1998). An individual may have several abodes, but he or she may have but one domicile. Shenton, 178 Md. at 530, 15 A.2d at 908.

The section of the Anne Arundel County Charter at issue provides:

(c) Change of Residence. If any member of the County Council during his term of office shall move his residence from the councilmanic district in which he resided at the time of his election, his office shall be forthwith vacated; but no member of the County Council shall be required to vacate his office by reason of any change in the boundary lines of his councilmanic district made during his term.

Based upon this provision, the Anne Arundel County Council, Appellee, enacted a bill that provided that Daryl Jones, Appellant, forfeited his elected councilmanic position. The County Council reasoned that Jones "move[d] his residence from the councilmanic district in which he resided at the time of his election" to a correctional facility in South Carolina, after having been convicted of failing to file a federal tax return.

Jones, thereafter, in the Circuit Court for Anne Arundel County challenged the authority of the County Council to expel him as a member based upon its interpretation of "residence" as a temporary place of abode. The Circuit Court granted summary judgment in favor of the County and County Council, concluding that the County Council had the authority to declare Jones's seat vacant under the Express Powers Act, Section 5(S), Article 25A of the Maryland Code[1] and that the County Council properly interpreted "residence" under Section 202(c) as a temporary place of abode. Jones appealed and, prior to a decision in the Court of Special Appeals, filed a Petition for Writ of Certiorari, which we granted. 427 Md. 62, 46 A.3d 404 (2012). Jones presents two questions for our consideration:

1. Whether the County Council for Anne Arundel County may remove Jones from his seat as an elected official (a) for conviction of a misdemeanor when there is no local law in effect to govern the removal of a Councilmember for conviction of a crime and Section 2 of Article XV of the Maryland Constitution does not allow for removal under the circumstances presented here or (b) for Jones' inability to perform all of the daily duties of office for a period of five months when there is no local law that allows a Councilmember to be removed from office on th is ground and local law with respect to the County Executive and Councilmembers called to active military duty allows a vacancy to be declared only if the elected official is unable to perform the daily duties of office for a period of six months.
2.Whether the County Council for Anne Arundel County may remove Jones from his seat as an elected official for conviction of a crime or for an inability to perform all of the daily duties of office by interpreting a Charter residency requirement to mean "place of abode, " rather than "domicile, " when this Court has held for more than 10 0 years that a residency requirement in the context of qualifications for political office means "domicile" and, specifically, that a similar residency requirement in the Baltimore City Charter means "domicile."

In response, the County and County Council filed an Answer to Petition for Writ of Certiorari and Conditional Cross-Petition, which we also granted, 427 Md. 62, 46 A .3d 404 (2012), to consider the following question:

Does the Clean Hands Doctrine bar the Petitioner's claims for relief seeking removal of the incumbent member of the County Council who now represents the First Councilmanic District from office and restoration of the Petitioner to office for the remainder of the term that expires in December 2014?

We shall hold that the County Council did not have the authority, under Section 5 of the Express Powers A ct, to declare Jones's seat vacant and that "residence" in Section 202(c) embodies the notion of domicile, such that Jones did not "move his residence" by virtue of his five-month incarceration. We fin ally shall hold that the clean hands doctrine does not bar Jones's claim.

In 2006 and again in 2010, Daryl Jones was elected to serve as a member of the Anne Arundel County Council for the First Councilmanic District. In November of 2011, however, Jones pled guilty pursuant to a plea agreement in federal district court to one count of willful failure to file income tax returns, in violation of Section 7203 of Title 26 of the United States Code, and was sentenced to a 5 month term, commencing on January 23, 2012, in a federal correctional facility in South Carolina.

In December of 2011, pursuant to the advice of the County Attorney, Councilmember Benoit of the Anne Arundel County Council introduced Bill 85-11 and Councilmember Grasso introduced Resolution 65-11, which declared that Jones's seat would be vacated, according to Section 202(c) of the Charter, "on the date that Councilman Jones begins 'residence' in a federal correctional facility that is located outside of Councilmanic District I."[2] The Bill and Resolution were scheduled to be considered by the County Council on January 17, 201 2.

On January 4, 2012, Jones filed a three-count Complaint for Declaratory, Injunctive, and Other Relief in the Circuit Court for Anne Arundel County. In Count One, Jones sought a declaratory judgment that “(A) Councilman Jones’ temporary absence from Councilmanic District I does not constitute a change in residence under Section 202 (c) of the Anne Arundel County Charter and (B) his office as a Councilman does not become vacant by virtue of the temporary absence." Counts Two and Three reiterated the substance of Count One, and included requests for injunctive relief and mandamus to prevent the declaration of a vacancy of Jones's seat and the removal of Jones from office. On January 17, 2012, the County Council, with Jones abstaining, voted to adopt Bill 85-11. Peter I. Smith was later appointed to fill the vacancy for the First Councilmanic District.

Thereafter, on January 25, 2011, Jones filed a Motion for Summary Judgment and for the Entry of Expedited Declaratory Relief, alleging that the County Council lacked the authority to declare his seat vacant and misinterpreted "residence" to mean place of abode rather than domicile. The County and County Council also filed a Motion for Summary Judgment as to all counts, arguing that the removal of Jones from his council seat was a nonjusticiable political question and, nonetheless, that the County Council was authorized to remove Jones pursuant to Section 5(Q) of the Express Powers Act, which provides that the County Council may enact local laws "to govern the conduct and actions of all such county officers in the performance of their public duties, and to provide for penalties, including removal from office, for violation of any such laws or the regulations adopted thereunder." In answering Jones's summary judgment motion, the County and County Council raised the "clean hands" defense to Jones's allegations, contending that Jones committed "fraud perpetrated upon the voters of the First Councilmanic District of Anne Arundel County [because he] deliberately withheld information about his criminal behavior and pending plea agreement with the United States Attorney because he knew that such information would have a material effect on the election held on November 2, 2010."

The Circuit Court Judge denied Jones's Motion, but granted the County and County Council's Motion. The Circuit Court rejected the County Council's argument that its authority to remove Jones was derived from Section 5(Q), which provides the County with the power to "enact local laws designed . . . to provide for penalties, including removal from office, for violation of any such laws or the regulations adopted thereunder, " because this provision "merely delegate[s] to the County Council the power to enact local laws." The judge, nonetheless, determined that the removal was authorized by the General Welfare Clause of the Express Powers Act, Section 5(S), which provides that the Act shall not limit the County's power "to pass all ordinances . . . as may be deemed expedient in maintaining the peace, good government, health and welfare of the county, " and based on a need to avoid vacancies on the County Council that would "deadlock" votes regarding "important tasks in front of [the Council] when it holds its legislative session in May."

In so doing, the court concluded that the County Council acted within its authority because Jones "move[d] his residence, " under Section 202(c) of the Anne Arundel County Charter, when he reported to the correctional facility in South Carolina, even though his domicile remained in the First Councilmanic District, because "residence" equates to a place of abode. Thus, the Circuit Court denied Jones's Motion for Summary Judgment, which sought a declaratory judgment, and granted the County and County Council's Motion for Summary Judgment as to all counts.

Before us, Jones challenges as error the Circuit Court's conclusion that the County Council had the authority to expel him from office under the General Welfare Clause, Section 5(S) of the Express Powers Act, because this provision does not empower the County Council to enact a specific expulsion of a sitting member. He also contends that the Circuit Court should have heeded our longstanding jurisprudence defining "residence" as domicile.

The County and County Council counter that the removal of a councilmember, for the failure to meet the qualifications of his or her office, is within the exclusive purview of the County Council and is, thereby, a political question from which this Court must abstain. They reason that this exclusive power comes from Section 5(Q) of the Express Powers Act, which provides the County with the sole authority to "enact local laws designed . . . to govern the conduct and actions of all such county officers in the performance of their public duties, and to provide for penalties, including removal from office, for violation of any such laws or the regulations adopted thereunder."

They alternatively con tend that, if no t a political question, the County Council's action was taken pursuant to Section 5(Q) of the Express Powers Act, as opposed to the provision that the Circuit Court held to provide the County Council's authority, Section 5(S), the General Welfare Clause. They contend that the Circuit Court was correct in its interpretation of "residence" in Section 202(c) of the Anne Arundel County Charter to mean a place of abode, rather than domicile, and point to a comment written by the Reporter and Counsel to the Charter Board, the drafters of the original Proposed Anne Arundel County Charter, which stated that the purpose of Section 202(c) was to "require[] that each councilmanic district shall be represented in the Council by a member who actually resides therein during his full term." "Actually resides, " they contend, means the place of abode where the councilmember sleeps and is physically present.

As a threshold matter, the County and County Council contend that under the political question doctrine, the Court must abstain from intervening in the removal of a councilmember. They maintain that the County Council has the sole authority to judge the qualifications of a councilmember, citing Section 5(Q)(1) of the Express Powers Act, which provides the County with the power to

enact local laws designed to prevent conflicts between the private interests and public duties of any county officers, including members of the county council, and to govern the conduct and actions of all such county officers in the performance of their public duties, and to provide for penalties, including removal from office, for violation of any such laws or the regulations adopted thereunder.

The Circuit Court rejected this very argument and concluded that Section 5(Q)(1) "merely delegate[s] to the County Council the power to enact local laws" and that there was no provision of the Anne Arundel County Code pertaining to the removal of councilmembers.

The political question doctrine embodies judicial abstention and depends on the notion that an issue is solely "committed to an elected branch of government and thus should not be heard in . . . court." James R. May, AEP v. Connecticut and the Future of the Political Question Doctrine, 121 Yale L. J Online 127 (2011), available at http://yalelawjournalorg/2011/09/13/mayhtml; see also Nixon v United States, 506 U.S. 224, 252–53, 113 S.Ct. 732, 747-48, 122 L.Ed.2d 1, 24 (1993) (Souter, J, concurring) ("[T]he political question doctrine is essentially a function of the separation of powers, existing to restrain courts from inappropriate interference in the business of the other branches of Government, and deriving in large part from prudential concerns about the respect we owe the political departments." (Internal citations and quotation marks omitted)).

The existence of politics in a case, however, does not define whether a case involves a political question . INS v. Chadha, 462 U.S. 919, 942-43, 103 S.Ct. 2764, 2780, 77 L.Ed.2d 317, 339 (1983) ("It is correct that this controversy [involving the congressional authority to veto a determination that an individual should not be deported] may, in a sense, be termed 'political.' But the presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine."). In Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663, 685-86 (1962), the Supreme Court outlined the essential aspects of a political question:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

In a case close to point, Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the United States House of Representatives expelled Congressman Adam Clayton Powell, Jr., based in part on his misuse of government funds. Powell challenged the constitutionality of the expulsion, which the Speaker and other members of the House of Representatives contended to be a political question, because, they alleged, Section 5 of Article I of the United States Constitution, [3] was a "textually demonstrable" commitment to that body to adjudicate the qualifications of its members. Powell acknowledged that Section 5 committed to the House of Representatives the duty to judge the qualification s of its members, but countered that it em powered Congress to "exclude him only if it found he failed to meet the standing requirements of age, citizenship, and residence contained in [Section 2 of Article I] of the Constitution—requirements the Ho use specifically found Powell met." Id. at 489, 89 S.Ct. at 1947, 23 L.Ed.2d at 498. After the District Court dismissed the case as nonjusticiable under the political question doctrine, and the Court of Appeals for the District of Columbia Circuit affirmed, the Supreme Court interpreted the House's "textually demonstrable constitutional commitment" to adjudicate the qualifications of its members to be limited to the "standing qualifications expressly prescribed by the Constitution, " such that the House's expulsion of Powell for misuse of funds, which was not a standing qualification of office, was subject to judicial scrutiny. Id. at 519-20, 89 S.Ct. at 1962-63, 23 L.Ed.2d at 516.

The Supreme Court then proceeded to the merits of the case, involving whether the House had the power to expel Powell. The Court concluded, similar to its analysis under the political question doctrine, that the power to remove a member for the failure to meet qualifications of office under Section 5 of Article I was limited "to the standing qualifications prescribed in the Constitution." Id. at 550, 89 S .Ct. at 1979, 23 L.Ed.2d at 533. Therefore, "the House was without power" to remove Powell because he met all standing qualifications. Id.

We have had occasion to consider whether a political question is present in a case in Lamb v. Hammond, 308 Md. 286, 518 A.2d 1057 (1987), involving a contest between two candidates, John R. Hammond and Donald E. Lamb, in a neck-and-neck election for a House of Delegates seat from Anne Arundel County. While Lamb appeared to have one more vote than Hammond, the latter was declared the winner after he learned that some absentee b allots had not been counted by the Board of Canvassers and filed an action seeking declaratory and injunctive relief, and the Circuit Court, over Lamb's objection, ordered that these absentee ballots be counted. Lamb argued that the court should not have intruded into the House election process, because the House of Delegates had the "textually demonstrable constitutional commitment" to judge the qualifications and elections of its members under Section 19 of Article III of the Maryland Constitution, which provides:

Each House shall be judge of the qualifications and elections of its members, as prescribed by the Constitution and Laws of the State, and shall appoint its own officers, determine the rules of its ow n proceedings, punish a member for disorderly or disrespectful behaviour and with the consent of two-thirds of its whole number of members elected, expel a member; but no member shall be expelled a second time for the same offence.

We rejected Lamb's argument. Lamb, 308 Md. at 304, 518 A.2d at 1066.

We opined that this legislative power to adjudicate the qualifications and elections of its members was "not unbridled, " but instead limited by its express language: "as prescribed by the Constitution and Laws of the State." Id. A law of this State, we continued, did limit the House's sole adjudicatory authority because Section 27-10 of Article 33, Maryland Code (1957) provided that, "[a]ny candidate or absentee voter aggrieved by any decision or action of such board shall have the right of appeal to the circuit court for the county to review such decision or action, and jurisdiction to hear and determine such appeals is hereby conferred upon said courts." Id. at 291, 518 A.2d at 1059 (emphasis in original), quoting Maryland Code (1957), Article 33, Section 27-10. W e proceed ed, then, to the merits of Lamb's appeal, and concluded that the absentee ballots at issue should not have been counted because they were submitted late, under Section 27-9 of Article 33, Maryland Code (1957), and reversed the Circuit Court's judgment.

The instant removal of Jones is akin to the removal of Congressman Powell in Powell v. McCormack, in which the Supreme Court did not abstain from reaching the merits based upon the United States Constitution. Bo th Section 5 of Article I of the U.S. Constitution and Section 19 of Article III of the Maryland Constitution provide legislative bodies with express power to adjudicate the qualifications of its members; but as Powell and Lamb demonstrate, that power is limited by its very language, either to standing qualifications, under Section 5 of Article I of the U.S. Constitution, or prescription by the Constitution and Laws of the State, under Section 19 of Article III of the Maryland Constitution. The political question doctrine is narrowly applied; courts will not abstain from reviewing actions that are not within the express purview of the "textually demonstrable constitutional commitment."

In the present case, Section 5(Q) of the Express Powers Act embodies less of a commitment to sole legislative purview than those constitutional provisions which name legislative bodies the sole judges of its members' qualifications, because there just is no commitment rendering the County Council the sole arbiter of its members' qualifications. We conclude, thus, that ...


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