Sometimes legal issues have public “sizzle”; sometimes they are a little dryer and of interest primarily to true legal scholars. My law school classmate Dan Friedman, author of a major reference text on Maryland constitutional law, has written in The Daily Record a critique of the reasoning of the Court of Appeals in Daryl Jones v. Anne Arundel County, regarding the power of the Anne Arundel County Council to pass a law to fill the practical vacancy on that council of a seat occupied by a councilman who served a period of several months’ incarceration due to his failure to file personal income and employee withholding taxes for several years.
The article lies behind the Daily Record paywall but Dan was kind enough to forward me a electronic copy of the article; I will not reprint the article here out of respect for the copyright of the Daily Record, as Dan’s forwarding it to me would in my view fall under fair use privilege but my reprint here of his copy probably would not. If you don’t subscribe and don’t want to spent the dollar, go to the public library and take a look at it; it is page 15A of the Monday, August 5, 2013 issue of The Daily Record.
I would be tempted to write a casenote of the case as part of my “Major Maryland Cases” series but my effort wouldn’t do the matter justice. This is Dan’s wheelhouse, but I will try to summarize his points.
Three issues presented themselves in the case:
- did the Council have the power to pass the law that it passed,
- did Councilman Jones move his “residence” outside of his councilmanic district when he served his federal sentence, causing his seat to be vacated, and
- did Councilman Jones lose his ability to challenge the County Council under the doctrine of unclean hands.
The Court’s majority answered each question in the negative, while the dissent argued that there was an insufficient record by which to determine whether the clean hands doctrine applies and that the legislative history of the Anne Arundel County Charter indicated that “residence” meant actual residence and not domicile (i.e. permanent intended residence, presumably for Mr. Jones his home in Anne Arundel County and not federal prison.)
Dan criticizes the majority opinion for its apparent prohibition on charter counties from passing “special laws”, i.e. laws written merely for one person, as opposed to “local laws” applying more broadly. Dan argues that three paragraphs of the majority opinion regarding “special laws” are poorly conceived insofar as charter counties, unlike the General Assembly of Maryland, should not be considered to be banned from making “special laws”, and that prior precedent holds that a local law may affect a class of persons numbering exactly one member if an important public concern is at stake. Dan further suggests that the paragraphs regarding special laws in the opinion may be dicta, i.e. speculative commentary not necessary to the decision and therefore of no value as precedent; the majority opinion held that Jones had not changed his residence and was not prohibited by unclean hands from bringing the case, so the special laws discussion wasn’t necessary to the holding that Jones retained his seat.
Go give your brain a workout; read his piece – twice, maybe three times. It will convince you that Dan Friedman belongs in service to the people of Maryland on an appellate court (though I was convinced of that quite a while ago myself.)