The Maryland Court of Appeals is considering a petition by ousted Anne Arundel County Councilman Daryl Jones to return him to his District 1 seat. The Appeals Court heard oral arguments regarding the petition Monday.
"I am pleased the court has taken the matter up," Jones said. "I am sure they will render a decision that is devoid of politics."
Jones pleaded guilty in August 2011 to one misdemeanor count of failure to file a tax return. The plea was part of a deal with Maryland's U.S. attorney's office, which discovered that Jones owed more than $100,000 in back taxes from 2002 to 2006.
In January, County Council removed Jones from office a few days before he started serving a five-month sentence in a federal prison in South Carolina, saying his incarceration violated the county charter's residency requirement.
Jones sued, but a Circuit Court judge sided with Anne Arundel County. He then appealed the decision.
The case centered around three main themes: How the County Charter defines residency, whether Jones' was legally removed from office and whether Jones can legally ask for reinstatement.
County Council interpreted its charter's residency requirement as "actually living within the district"—a requirement that Jones broke when he began serving his prison sentence.
"If all you do is hold your domicile in the district and you live elsewhere for all practical purposes, you have not met that standard," county attorney David Plymyer said. "This was not a vacation; this was not an illness; this was an absence due to incarceration."
The county argued that the extended absence of one member would harm the work of County Council because its six remaining members could find themselves repeatedly deadlocked on legislation.
"He wasn't available as a consequence of his own misconduct to do his job," Plymyer said.
Jones and his attorney, Linda Schuett, disagreed.
“Its interpretation files in the face of case-law which has established for over 100 years that a residency requirement for political office means that the elected official must be ‘domiciled’ in the district he represents,” according to Jones' petition.
Schuett argued that state lawmakers often spend one or more nights away from their districts, and that even the recent amendment to the county's charter requires an absence of more than six months.
Removal From Office
If the court defines residency as a domicile, then Jones was illegally removed from office, Schuett said.
She referenced November's election as evidence, saying that the passage of a charter amendment establishing guidelines from removing a council member from office proved that the council had no prior legal framework.
Plymyer disagreed, saying the charter amendment wasn't necessary because council has always had such rights under Maryland's Express Powers Act.
The act gives county governments the right to act in a manner that it deems appropriate.
Jones' written petition to the court argued that, “Under the trial court’s determination, the County Council would have the power to remove one of its elected officials for any number of mundane events, such as the failure to obey a traffic signal."
The final argument made by the county is that even if Jones was illegally removed from office, he cannot seek damages or reinstatement because he would be profiting off of a bad act. This is known as the clean hands doctrine.
The county argued that Jones knew about his criminal investigation in the spring 2010 but chose to keep it from voters.
"It seems an understatement to say that there was a 'substantial and significant' possibility that the plaintiff would have lost the election and this case never would have been filed if the plaintiff had chosen not to deceive the voters," according to the county's court documents. "For the court to allow the plaintiff to use the judicial process to preserve the benefit of his own wrongdoing would violate the core purpose of the clean hands doctrine."
Schuett responded by stating that while Jones knew of the investigation, the plea agreement was not finalized until August 2011 and even then he was not sure he would serve a prison sentence.
She also argued that clean hands can only be applied to the direct act being challenged. The county isn't claiming that Jones attempted to impede or influence the vote to remove him from office.
The seven-member judicial panel seemed hesitant about reinstating Jones several months after Severn resident Peter Smith (D-District 1) replaced him.
"Removal could have many remedies, one of which could be damages," Judge Lynne Battaglia said. "The law doesn’t necessarily say one remedy is that remedy."
One idea floated during the hearing was reinstating Jones' salary and health benefits until the end of his 2014 term.
Schuett argued for full reinstatement.
"If the original declaration is invalid, there really is no vacancy at all," Schuett said. "There is no valid placeholder."
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