McMillan v. Love
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Herbert McMillan v. Delegate Mary Ann Love No. 116, September Term, 2002 HEAD NOTE S: 14 TH A MENDMENT, O NE-PERSON/O NE-VOTE, M ARYLAND G ENERAL A SSEMBLY , C OUNTY D ELEGATIONS, V OTE DILUTION, GOVERNMENTAL FUNCTIONS County delegations, for which the primary responsibilities are to refer and recommend legislation to the General A ssembly of purely local impact, do no t perform sufficient governmental functions to invoke the one-person/one-vote standard mandated by the 14th Ame ndme nt of the United States C onstitutio n. Circuit Co urt for An ne Arun del Coun ty Case N o: C-20 03-86 019.I.J IN THE COURT OF APPEALS OF MARYLAND No. 116 September Term, 2002 _________________________________ Herbert M cMillan e t al. v. Delegate Mary Ann Love _________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Rodowsky, Lawrence F. (Retired, spe cially assigned) JJ. _________________________________ Opinion by Bell, C.J. _________________________________ Filed: February 17, 2004 In this case, we are asked to d etermine whether a county delegation consisting of publicly-elected members of the Maryland General Assembly House of Delegates performs governmental fu nctions sufficient to trigger the one-person/one-vote requirement of the 14th Amendment to the United States Constitution. I. The relevant facts of this case are undisputed. County delegations,1 consisting of members of the General Assembly whose districts lie within, or partially within, one of Maryland s counties, play an important role in the enactment of local legislation. House of Delegates Rule 19A provides that, during the 90-day legislative session, which begins each January, county delegations serve as select committees with responsibility for considering bills and resolutions of a strictly local nature or which amend a particular Code of Public Local Laws and have no statewide implications. The delegations also lobby for funds and recommend individuals for certain civic boards and committees.2 The House of Delegates Rule 19A prescribes the voting rights of the state delegation s. It provides, in r elevant par t: (b)(1) Except as provide d by paragrap h (2) of this su bsection, ea ch delega te 1 The delegations are required to consist of a minimum of three (3) members. Under House of Delegates Rule 19 (a), if a delegation consists of less than three members, the Speaker may appoint additional members from other counties. 2 The Delegation recommends appointments to community colleges, boards of trustees, liquor boards, special citizens boards and the county board of election supervisors. They also lobby for funds for police and educational and recreational facilities. who represents any portion of a county has one vote in the county delegation in which the district lies. (2) After an opportunity for all delegates to be heard, a majority of delegation members present and voting may elect to allocate nonresident delegates less than one full vote. The vote may not be less than one-third of a vote. Rule 19A, thus, is the default rule an d requires that, unless the Deleg ation votes otherw ise with respect to nonresident Delegation m embers, all D elegation m embers ar e entitled to one vo te each . The Anne A rundel D elegation has enacted rules to govern its actions. Delegation Rule 3 governs the allocation of votes to each delegation member. When this controversy arose, the Anne Arundel County Delegation consisted of 12 members who represented the 6 districts of which the County was comprised. Three of the members of the delegation were from Dist rict 2 1, the boundaries o f wh ich a re w ithin both Ann e Ar undel Co unty a nd Prince George s County. Because only a small portion of District 21 is in Anne Arundel Cou nty, those Delegation members represented significantly fewer citizens than did the delegates representing districts entirely, or more substantially, within the County s borders.3 On A pril 5 , 200 2, by a majo rity vo te of the A nne Aru ndel County D elegation, the 21 st District representatives were allotted one-third of a vote each. After the April 5, 2002 vote, Rule 3 read: 3 Compare District 21, representing 24,227 people with District 30, representing 117,102 residents, District 31 representing 115, 256 residents, District 32, representing 118, 319 residents, D istrict 33A, rep resenting 7 6,116 resid ents. and D istrict B representing 38,636 residents. 2 3. Voting - Subject to th e limitations he rein, all mem bers are eligib le to vote on any and all issues brought before the Delegation unless, under the rules of the House, a member excuses himself or herself. Each member who represents a legislative district completely within the boundaries of Anne Arundel County is entitled to one vote. Of this group, only members who are present may vote. Members who represent a legislative district which is not complete ly within the boundaries of Anne Arundel County form a group and are colle ctive ly enti tled t o one vote. This v ote m ay be cas t by any one of the district s members who is present at a meeting. The Chairman shall vote on all issues brought before the delegation. With this vo te allocation, the delegation was ma jority Democ rat. In November, 2002, petitioners Herbert McMillan and Donald Dwyer, both members of the Re publican party, w ere elected to the Marylan d Hous e of Dele gates, to represent districts within A nne Aru ndel Cou nty. The petition ers replaced two De mocrats and, thus, w ith their election , given the ru les in effect w ith respect to the vote allocation in the An ne Aru ndel C ounty D elegatio n, the D elegatio n wou ld be m ajority Re publica n. On December 2, 2002, after the General Assembly election results were certified, but before the start of the 2003 legislative session, when th e newly electe d memb ers would be sworn, the Delegation, as it was then constituted, including the outgoing members of the Delegation and excluding the newly elected members, met and amended Delegation Rule 3. By that a mend ment, each dele gation membe r, including the delegation me mbers from District 21, was allocated one vote, which assured that the Democrats retained the majority in the Delegation. The newly elected members of the General Assembly and future Delegation members protested their exclusion from this Delegation meeting and vote. 3 On Januar y 3, 2003 , the petitioners filed in the Circuit Court for Anne Arundel County a Verified Complaint for Declaratory and Injunctive Relief under 42 U.S.C. §1983 4 against the Chair of the Anne Arundel Cou nty Delegatio n, respond ent, Deleg ate Mary Ann Love. They alleged that th e amend ment of D elegation R ule 3 with re spect to the allocation of the vote among the members of the Delegation was intended to preserve democratic control and leadership o f the deleg ation, (petition er s applicatio n for writ of certiorari in No. 116 at 5), and to dilute [the petitioners ] votes in violation of the Equal Protection Clause guaranteeing one person one vote mandated by the Supreme Court of the United States. (petitioner s application for writ of certiorari in No. 116 at 5). The respondent filed a Motion to Dismiss/Opposition to Request for Preliminary Injunction, arguing that, pursuant to Vander Linden v. Hodges, 193 F.3d 268 (4 th Cir. 1999) and DeJulio v. Georg ia, 290 F.3d 1291 (11th Cir. 2002), the Delegation s activities were not substantial enough to constitute governmental functions and, therefore, did not trigger the protection afforded by the one-person/one-vote standard.5 4 42 U.S.C. §1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured b y the Constitutio n and law s, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . The 14 th Amen dment of the United States Co nstitution read s in pertinent pa rt: 5 Section 1. All persons born or naturalized in the United States, and 4 Following an expedited hearing and, relying on Vander Linden and DeJulio, the Circuit Court issued a ruling from the bench, granting the respondent s Motion to Dismiss. The court reaso ned that the County D elegation d id not exerc ise either general governmental powers, or final legislative power so as to require apportionment consistent with the C onstitutional one-person/one-vote requirement of the 14 th Amen dment. 6 The petition ers noted an appeal to th e Court of Special Appeals and, subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law w hich shall abridge the privileges or immunities of citizens of the United States; nor shall any state d eprive an y pers on of life , liberty, or prop erty, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vo te at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the membe rs of the legis lature thereo f, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United S tates, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the propo rtion which the numb er of such male citizens shall bear to the whole numb er of m ale citize ns twe nty-one yea rs of ag e in suc h state. 6 In the Circuit C ourt, the respo ndent inclu ded in her M otion to Dismiss and Answer to the Preliminary Injunction the following procedural and jurisdictional arguments for dismissing the petitioners action: the suit was mooted by the House s subsequent adoption of Rule 19A ; because only Delegate Love was sued, the suit lacked necessary parties; the injunctive relief was n ot justiciable as a political question; the respondent was protected by legislative immunity; and there was no basis for the granting of a preliminary injunction. She argu es that, by incorp orating her m emorand um of law into his opinion, the trial judge implicitly adopted th ese other rea sons as ba ses for the d ismissal. The responde nt persists in her reliance on these non substantive arguments and offers one additional one, that the petitioners did not file a notice of appeal from the final order of the Circuit Court. She explains: 5 simultaneo usly, filed in this C ourt a petition for th e issuance o f the writ of certiorari. The petition presented a single question: Did the Circuit Court err in determining a County delegation does not perform governmental fu nctions that invoked the F ourteenth Ame ndment s principle of one person one vote? We granted the petition before there were proceedings in the Court of Special Appeals, see McMillan v. Love, 372 Md. 763, 816 A.2d 111 (2003), and set the case in for argumen t on an exp edited basis. F ollowing argument, the Court issued an order affirming the judgment of the Circuit Court, with the reasons to be set forth in an opinion to follow. We now give our reasons. In the case sub judice, the petitioners argue that the actions of the county delegation On January 21st, the Petitioners noted an appeal to the Court of Special Appeals. Later that day, the Judge signed an order dismissing the action, which was filed January 22nd . It would ap pear that [p etitioners] did n ot file a new notice of appeal after entry of the order on January 22 nd . However, after their payment of filing fees, the Clerk of Court apparently redocketed the previo usly filed n otice of appea l on Feb ruary 3, 20 03. We address this prematurity arg ument, sinc e it is jurisdictional. Maryland Rule 8-602 (d) provides: (d) Judgment entere d after notice filed. A notice of appeal filed after the announcement or signing by the trial court of a ruling, decision or order, or judgment but before entry of the ruling, decision, order, or judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docke t. The petitioners noted their appeal a day before the final Order of dismissal was filed, but after the court had announced the judgment in open court and signed a HEARING SHEET ... AS ORDER OF COUR T. Pursuant to Maryland Rule 8-602(d), we shall treat the petitioner s notice of appeal as filed on the same day as, but after, the entry on the doc ket, of the ju dgme nt. Md. Rule 8-602(d). We shall assume, but not decide, that the other issues raised by the respon dent shou ld be resolved favorably to the petitioners. 6 violated their equal p rotection righ ts guarantee d by the one-p erson/one-vote requirement and the 14th Amendment to the United States Constitution. This is so, they say, because the County Delegation does perform significant governmental functions. In particular, the petitioners ass ert: [T]he err[or] in the circuit court s view of a county delegation is its failure to recognize that local legislation bills may never be voted upon unless they are favorably vie wed by the d elegation and sent to the floor by the delegation. Thus, the importance of controlling the County delegation by political fiat and m anipulation, i.e., the party whic h controls th e chair controls local matters, clearly a governmental function. For if otherwise, there is much to do about nothing in this case. The above notwithstanding, one might question, as did the [petitione rs] in this matter, w hy the Coun ty Executive and the Counc il visit the Cou nty delegation a nd presen t what is referred to as their wish list. Again a demonstration of the governmental function served by the delegation in the form of controlling the agenda and calendar of bills and their introduction or failure of introduction on the floor for what is nothing more than a stamp of approval by the entire house on a local law . They point out, in addition, that the recommendations of county delegations and their members are sought with respect to appointments to, among others, community college boards of trustees, liqu or boards, sp ecial citizens b oards, the co unty board o f election supervisors and the county board of education, some of which are state agencies and/or receive state funds. C ounty board s, moreov er, they note, also lo bby for fun ds for police and educational and recreational facilities. Although conceding that the delegations in the General Assembly may not be embodied with the enorm ous pow ers of those exercised in Vander Linden, the petitione rs empha size that the co urt in Vander Linden acknowledged that less extensive governmen tal func tions co uld trigg er the on e perso n, one v ote rule. 7 As a result, becau se the District 2 1 memb ers represen t a ma rked ly smaller population than the other coun ty districts, giving them a full vote d oes not ref lect the requirement of proportionate representation required by the 14th Amen dment. The respondent urges the Court to affirm the judgment of the Circuit Court. She denies that the delegation s activities constitute governmental functions, which trigger the protection of the one-person/one-vote standard. Although acknowledging that [t]hrough the doctrine of local courtesy, [local legislation is] ordinarily approved by the full General Assembly, the respondent points out that this is not invariably true : in 2001, of the 7 bills sponsored by the Anne Arundel Delegation only 3 passed. In 2002, of 10 Delegation bills, only 4 passed. ... Seven of those 17 bills were State bond bills, which are public general measures, not local legislation. ... A major reason for this dearth of bills is that Anne Arundel is a char ter hom e rule co unty wh ere the C ounty C ouncil e nacts lo cal law s. She also notes that [l]egislation approved by a county delegation typically is also consid ered by sta nding c omm ittees an d must be app roved b y both H ouses. II. One-V ote This Court has consistently enunciated the rule that the Equal Protection Clause requires that a State make an honest and good faith effort to co nstruct districts, in b oth houses of its legislature, as nearly of equal population as is practicable. In re Legislative Districting of the State , 370 Md. 312, 379, 805 A.2d 292, 332 n.38 (2002) (quoting 8 Reynolds v. Sims, 377 U.S. 533, 577, 84 S. Ct. 1362, 1390, 12 L. Ed. 2d 503 , 546 (1964)); DuBo is v. College Park, 293 M d. 676, 6 84-85 , 410 A .2d 577 , 582-8 3 (198 0). The Supreme Court, in Hadley v. Jun ior College Dis t. Of Me tro. Kansa s City, 397 U.S. 50, 54, 90 S. Ct. 791, 794, 25 L. Ed. 45, 50 (1970), enunciated the rationale for appo rtioning legislative bodies based upon the general population, when it stated: the right to vote in an election is protected by the United States Constitution against dilution or debasement. While the particular offices involved in these cases have varie d, in each ca se a constan t factor is the d ecision of th e government to have citizens participate individually by ballot in the selection of certa in peop le who carry out g overnm ental fu nctions . Id. Further, the one-person/one-vote requirement of the Fourteenth Amendment extends to local government and imposes the same standard of proportionality to local government officia ls. See Mo ntgo mery Cou nty Council v. Garrott, 243 Md. 634, 639, 222 A.2d 164, 16 5 (199 6). See also DuBois v. C ollege Park, 293 Md. at 680, 447 A.2d at 840 (holding that the one-person/one-vote standard extend[s] to elected local government units exercising substantial governmental authority ). To that end, the Supreme Court has held that whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opp ortunity to participate in that election, and when members of an elected body are cho sen from separate distric ts, each district must be established on a ba sis that w ill insure, a s far as p racticab le, that equal numbers of voters can vote for proportionally equal numbers of officials. 9 Hadley v. Junio r Colleg e Dist. o f Me tro. Kansas City, 397 U.S. at 54, 90 S. Ct. at 794, 25 L. Ed. 2 d at 50- 51 (19 70). Therefore, under the rationale enum erated by this C ourt and the Suprem e Court in Hadley, the touchstone for determining w hether loca l governm ent officials a re subject to the one-person/one-vote requirement turns on two distinct factors: 1) that the governmental official was popularly elected; and 2) that the government official performed governmental functions. Id. 397 U.S. at 56, 90 S. Ct. 795, 25 L. Ed. 2d at 51; Vander Linden v. Hodges, 193 F.3d 268, 27 3 (4 th Cir. 1999) . See also DeJulio v . Georgia , 290 F.3d 1291, 1295 (11th Cir. 200 2). There is no dispute that the members of the Anne Aru ndel County delegation are popularly elected, each member of the delegation was elected to the Maryland General Assemb ly in the 2002 statewide general election by the applicable voters. We are, therefore, left to consider only whether the actions of the Anne Aru ndel County delegation constitu te gov ernme ntal fun ctions. This Court has not had occasion to consider the issue of whether the actions of county delegations constitute governmental functions. That issue has been addressed by the 4th and 11 th Circuit C ourts of Appe al, how ever. In Vander Linden v. Hodges, supra, individuals elected to the South C arolina State legislature, constituted the local delegation for the county from which they were elected. Orig inall y, the boundaries for each South Carolina district existed completely within one 10 of South Carolina s counties. 193 F.3d 268 at 271. After the Supreme Court enunciated the one-person/one-vote rule in Reynolds v. Sims, 377 U.S . 533, 84 S . Ct. 1362, 12 L. Ed. 2d 506 (1964), the South Carolina legislative districts were re-drawn producing legislative districts that sometimes crossed county lines. Id. As a result, legislators were often elected to represen t constituents in multiple cou nties and tho se legislators au tomatically became members of any local delegation for any county which lay partially within their districts. Id. Under S outh Caro lina law, the members of the county delegations had one vote for any delegation decision regardless of the number of constituents the legislator represe nted w ithin the relevan t county. Id. The plaintiffs, South Carolina voters, filed suit against the Governor of Sou th Carolina, the South Carolina legislature, the Speaker of the House and other state officials, alleging that the South Carolina county delegat ion vot ing system , inter alia, diluted the voting power of Sou th Caro lina vote rs from more p opulou s areas. Id. 193 F.3d at 272. Specific ally, the petitioners maintained that the allocation of one vote to each member of the delegation without reg ard to the number of residents in ea ch district rend ered their votes less effective and violated the one-person/one-vote requirement of the 14th Amen dment, the Voting Rights Act of 1965 and the Civil R ights A ct of 19 57. Id. The District C ourt reje cted the voters c laims. Relying, in part, on Sailors v. Board of Educ., 387 U.S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1 967) (hold ing that the one-person/one-vote requirement did not apply to an 11 appointed county school boa rd), the District C ourt held tha t the mem bers of the South Carolina county delegations were appointed, and not popularly elected,7 193 F. 3d at 273, and that the delegation voting sch eme wa s not constitu tionally deficient. The 4 th Circuit C ourt of Appe als reve rsed. Vander Linden, 193 F.3d at 281. The court first held that the District Court erred in its determination that the South Carolina county delega tion me mbers were n ot popu larly electe d. Id. at 274. In so determinin g, the court relied on the Supreme Court s holding in Board o f Estimate v . Morris, 489 U.S. 688, 694, 109 S. Ct. 1433, 1438, 103 L. Ed. 2d 717, 727 (1989) (holding that members of a New York Board of Estimates who are not independently elected to the Board of Estimates but who become members [of the Board] as a matter of law upon their various elections ... constituted a popu larly elected bod y to which the one perso n, one vote requirement applied ). Having determined that the South Carolina delegations were popularly elected, the Vander Linden court turned to the question of whether the South Carolina delegation performed sufficient governmental requirement of the 14th Ame ndme nt. functions to trigger the on e-person/o ne-vote It note d, in that regard, that the South Carolina delegations played a critical role in the governance of [the state] counties for more than a century..., id. at 270, and that, ...for generations legislative delegations of the General 7 The District Court fo und that, because legislators autom atically became membe rs of the county delegations upon their elections to the South Carolina State Legislature, they were not popularly elected as required to invoke the protection of the oneperson /one-v ote rule. Vander Linden v. Hodges, 193 F.3d 268, 27 3 (4 th Cir. 1999). 12 Assemb ly controlled virtually every aspect of local government. Id. (citation omitted). The Court h eld that, in light of t he num erous fiscal, re gulator y and app ointive f unction s, id. at 277, assigned to the county delegation, it clearly performed governmental functions to which the one-person/one-vote requirement of the 14th Amen dment ap plied. Id. Particula rly, the court pointed out that the South Carolina delegation was sta tutorily empo wered to perfo rm a gre at man y fiscal an d regul atory fun ctions, in cluding , inter alia: (a) making and/or recommending appointments to boards and commissions; (b) approving and/or recommending the expenditure of money allocated by the South Carolina General Assembly for highways, parks, recreation, tourism, and other matters; (c) approving the budgets of local school districts; (d) initiating referenda regarding the budgetary powers and the election of governing bodies for a special purpose in public service districts; (e) approving the reimbursement of expenses for county planning commissioners; (f) approvin g county plan ning com mission co ntracts with a rchitects, engineers, and other consultants; (g) altering or dividing school districts of counties; (h) reducing existing special school levies in counties and school districts; (i) submitting grant applications for planning, development and renovating park an d recrea tion fac ilities. Id. at 276-77.8 With regard to these numerous governmental functions, the court concluded: Given the a rray of state sta tutes emp owe ring the d eleg ation s to p erfo rm fiscal, reg ulato ry, and appointive functions and the parties stipulation that the delegations do perform such functions, we have little difficulty concluding that the legislative delegations exercise governmental functions Id. at 277-278. 8 The sta te stipula ted that th e coun ty delegat ion per forme d these functio ns. 13 Vander Linden comports with the Supreme Court holding in Hadley, supra, that when popularly-elected state district representatives perform important governmental functions within the districts and ... these powers are general enough and have a sufficient impact throughout the district, id. 397 U.S. at 53-54, 90 S. Ct. at 794, 25 L. Ed. 2d at 49 qualified voter[s] ... ha[ve] a constitutional right to have [their] v ote[s] cou nted with substantially the same weight as that of any other voter... . Id. 397 U .S. at 53, 90 S. Ct. at 793, 25 L. Ed. 2 d at 49. In Hadley, the appellants, residents and taxpayers of the Kansas City School District filed suit seeking a declaratory judgment that the statutory formula for electing the state Junior College Board of Tru stees diluted the voting pow er of the residents of mo re populous school districts in violation of the 14th Amen dment an d the one-p erson/ one -vote standard. Id. 397 U.S. at 51-52, 90 S. Ct. at 793, 25 L. Ed. 2 d at 48. Th e appellants collectively represented one of eight school districts that comprised the Junior College District of Metropolitan Kansas, id. 397 U .S. at 51, 9 0 S. Ct. a t 792, 25 L. Ed. 2d at 48, the trustees of which were to be elected based upon the apportionment among the separate school districts on the basis of school enumeration defined as the number of persons between the ages of six and 20 years, who reside in each district. Id. 397 U.S. at 51, 90 S. Ct. at 793, 25 L. Ed. 2d at 48 (citing Mo. Rev. Stat. §§ 178.800, 178.820 (Cum. Supp. 1967)). Based on this statutory voting scheme, in light of the population estimates, three trustees, or 50% of the board of trustees we re elected to re present app roximately 14 60% of the reside nts. This plan, argued the appellants, d iluted their vo ting pow er in violation of the E qual Pr otection Clause . Id. 397 U.S. at 52, 90 S. Ct. at 793, 25 L. E d. 2d at 49. The Supreme Court of Missouri upheld the trial court s dismissal of the case, reasoning that the Junior College Board of Trustees was not a ... unit of local government having general governmental powers over th e entire g eograp hic area served by the bo dy. Hadley v. Junior College D ist., 432 S.W.2d 328, 334 (Mo. 1968) (citing Avery v. Midland County, 390 U .S. 474 , 483, 88 S. Ct. 1114, 1119, 20 L. Ed. 2d 45, 53 (1968)). Further, the Missouri Supreme Court distinguished the purpose of the Board of Trustees from that of other popularly-elec ted mun icipal corporations holding that the Junior College Board of Trustees was an instrumentality of the state created for one special purpose and with one single function - education. Id. at 333. Therefore, held the court, it was doubtful that the one -person /one-v ote stan dard ap plied. Id. The Supreme Court did not agree. Holding that the Missouri statutory voting scheme violated the o ne-person /one-vote ru le in violation of the plaintiff/ a ppellants righ ts under the 14th Ame ndme nt, it reve rsed. Id. 397 U.S. at 52, 90 S. Ct. at 793. 25 L. Ed. 2d at 48. Specifically, its holding was [A]s a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when memb ers of a n electe d body a re chos en from separa te districts , each district must be established on a basis that will insure, as far as practicable 15 that equal numbers of voters can vote for proportionally equal numbers of officia ls. Id. at 56, 90 S. Ct. at 795, 25 L. Ed. 2d at 50. In so holding, it rejected the determ ination that the Junior College Trustees constituted a board elected for the single special purpose of education and, thu s, was not re quired, und er the one-p erson/one -vote standard, to reflec t demo graphi c propo rtionality. Id. 397 U.S. at 54, 90 S. Ct. at 795, 25 L. Ed. 2d at 50. I t exp laine d tha t in th at ca se, th e trustees we re po pula rly elected, id. at 56, 90 S. Ct. at 795, 25 L. Ed. 2d at 50-51, and that the popularly-elected junior college trustees performed sufficient governmental functions to invoke o ne-person /one-vote protection: they were giv en extensiv e responsib ilities over the operation of a state junior college, i.e. the trustees were empowered to levy and collect taxes, issue bonds, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire pro perty by condemnation, and in g eneral manage the operations of the junior college. Id. This laun dry list of responsibilities delegated to the college trustees, the Court observed, show that the [board of] trustees perform important governmental functions within the districts ¦ and have sufficient impact ¦ to require its compliance under the one-person/one-vote standard of the 14 th Ame ndme nt. Id. 397 U.S. at 54, 90 S. Ct. 791 at 794, 25 L. Ed. 2d at 45. On the other hand, in DeJulio v . Georgia , supra, 290 F. 3d 1291, a case factually similar to the case a t bar, Plaintiff v oters filed su it under 42 U.S.C. § 1983 against the State and the Gove rnor of Georg ia, in his official capacity, alleging inter alia, that the 16 process for enacting local legislation violated the one-person/one-vote standard . Id. at 1294. Relying on the reasoning in Vander Linden, the Plaintiffs a rgued that th e Georg ia county delegations performed such substantial governmental functions and have such a signific ant imp act as to r equire p roportio nal repr esentati on. In DeJulio, the Georgia delegations were prim arily responsible for recommending and referring legislation that impacted upon their respective lo calities. Id. 290 F.3d at 1293-94. The delegations ref erred bills aff ecting local m atters to standin g comm ittees in the Georgia House and Senate, which, in turn, presented them to the legislative body for discussion and vo te. Thes e local b ills usua lly receive d loca l courtes y , id., and, as long as the local legislation received the requisite numbe r of votes f rom mem bers of the county delegation, the Georgia Legislature normally passed the legislation without contest on the rationale that the local delegation possessed superior judgment about purely local matters. Id. The ultimate decision, ho wever, to contest, deny, or approve any legislation referred or recommended by a county deleg ation was within the e xclusive power of the General Ass emb ly. The Court of Appeals for the 11th Circuit held that the referra l of local legislation was not a gove rnmental f unction, the d ecision w hether to en act the proposed bills being exclusively within the power of the state legislature, whose members were elected in accord with th e one-p erson/o ne-vot e stand ard. Id. at 1296. While acknowledging that most bills referred by the delegations were approv ed with out con test as a local co urtesy, 17 id., the court observed that the approval was neither codified, nor required ¦the discretionary deference to local courtesy when either the House or Senate addressed local legislation. Id. The DeJulio court distinguished the powers of the Georgia delegations from those in Vander Linden: A reading of the statutes at issue in Vander Linden shows that South Carolina s local legislative delegations performed local governmental functions either in lieu of or in concert with local governments, depending on the situation. The statutes the Fourth Circuit cited in Vander Linden do not limit the role of South Carolina s local legislative dele gations to consideration of local legis lation. They inste ad broad ly define the role of South Carolina s local legislative delegations in overseeing and approving local government s general activities. Indeed most of these sta tutes explicitly provide that the local legislative delegation, not the entire General Ass emb ly, is th e fin al au thority. In contrast, no final g overnm ental autho rity is granted to the Georgia General Assemb ly s local delegatio ns. The G eorgia Co nstitution exp licitly provides that the G ener al Assem bly as a who le, not specific local delegations, is the legislative a uthority for G eorgia s co unties and municipalities. Id. at 1296 (quoting DeJulio v . Georgia , 127 F. Supp. 2d 1 274, 1296-97 (N .D. Ga. 2001). The petitioners argue that, under Vander Linden, this court should interpret the legislative functions of the Anne Arundel county delegation as sufficiently governmental to require the application of the one-person/one-vote standard. In addition to referring local bills, the petitioners point out that the delegation recommends appointments for certain civic boards and committees and lobbies for funds. They concede, as we have seen, that these activities do not rise to the level of involvement at which the South Carolina 18 county delegations engaged in such activities. Nevertheless, the petitioners point out that the Vander Linden court did not enunciate a bright line test for determining what constitutes sufficient governmental action. In the absence of such a test, they maintain , this Court may conclude that the Anne Arundel County Delegation performed sufficient governmental functions to invoke the one-perso n/one-vo te standard e ven thoug h the level of its activities are not identical to, or as extensive as those in which the South Carolina county delegation was engaged or performed. The petitioners submit that the responsibilities allocated to the Anne Arundel County delegation meet the threshold of governmental function and significant impact and that this Court should so hold. The juxtaposition of Vander Linden and DeJulio is instructive. It instructs that it is only when a county delegation is invested with great power over local county affairs that it will be determ ined to hav e engage d in gover nmental f unctions to the extent that proportion ate represe ntation i s require d, Vander Linden, 193 F.3d at 295-96; being empowered only to ref er or rec omm end sim ply does n ot suff ice. DeJulio, 290 F.3d at 1296. To be sure , Vander Linden does not enumerate a bright line test for whe n the duties of a county delegation will amount to governmental action and this Court is not constrained to apply the facts of that case strictly to the circumstances sub judice. It is instructive, we think, not only to consider the number of governmental activities the Anne Arundel County delegation perfo rms but to consider w hether by performing those duties, it exercises sufficient control over local governance as to constitute governmental 19 functions . As stated above, the rationale for requiring the one-person/one-vote standard is to ensure that voters are proportion ately represented and that their interests are adequate ly considered by the Le gislature . If not fo r the on e-perso n/one- vote req uireme nt, districts could be drawn in such a fashion that the interests of the few would wield equal, if not greater, strength than those of the rest of the po pulation. Therefore, to determine whether the power of the Anne Arundel County delegation meets the threshold for one-person/onevote, we must inquire whether their power and actions are general enough and have suffici ent imp act on the resid ents. The primary function of the Anne Arundel County delegation is to refer and review legislation of local impact and recommend individuals for local boards and committees. Like DeJulio, the bills referred by the local delegation go to a standing co mmittee w ithin the General Assembly, which in turn, presents the bill for consideration before the legislative body. The petitioners contend that this referral pow er is substantia l because it is through this exclusive referral process that bills affecting the county reach, or do not reach, the Ge neral A ssemb ly agend a. In both , Vander Linden and Hadley, the govern mental fu nctions inclu ded statutorily authorized final legislative action. More importantly, the county delegation in Vander Linden and the Board of Trustees in Hadley 20 were authorized to oversee and make independent decisions about numerous matters that directly impacted local life. This active role created th e subst antia l imp act on th e loc al co mmunities re quired by Hadley to invoke the one -person /one-v ote requ iremen t. Conversely, the only stated role of the Anne Arundel County delegation is to refer and recommend. In the form of the local delegation, the group does not directly control any aspect of local life. While it does control, to som e exten t, what le gislation it refers to the Ge neral A ssemb ly, by its own admission, the delegation is not the exclusive method for presenting local laws within the General Assemb ly. According ly, the actions of th e delegation do not m eet the thresh old to invoke the one-person/one-vote standard required by the 14th Amen dment. 21
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