Jones v. Anne Arundel Cnty.

• Decision Date: 01 July 2013
• Docket Number: No. 32,Sept. Term, 2012.,32
• Citation: 432 Md. 386,69 A.3d 426
• Parties: Daryl JONES v. ANNE ARUNDEL COUNTY, Maryland, et al.
• Court: Maryland Court of Appeals

432 Md. 386

69 A.3d 426

Daryl JONES

v.ANNE ARUNDEL COUNTY, Maryland, et al.

No. 32, Sept. Term, 2012.

Court of Appeals of Maryland.

July 1, 2013.

Linda M. Schuett (Linowes and Blocher, LLP, Annapolis, MD), on brief, for Appellant/Cross–Appellee.

David A. Plymyer, Deputy County Attorney (Jonathan A. Hodgson, County Attorney, and William C. Dickerson, Senior Assistant County Attorney of Anne Arundel County Office of Law, Annapolis, MD), on brief, for Appellees/Cross–Appellant.

Argued before BELL, C.J., HARRELL, BATTAGLIA, ADKINS, BARBERA, McDONALD, IRMA S. RAKER, (Retired, specially assigned), JJ.

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 where 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 Code¹ 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 this 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 100 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 Act, 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 finally 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, 2012.

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...