Jones v. Anne Arundel County
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County Council enacted a bill providing that Appellant forfeited his councilmanic position, concluding that Appellant had moved his residence from his councilmanic district to a correctional facility in South Carolina after having been convicted of failing to file a federal tax return. Appellant challenged the authority of the County Council to expel him as a member based upon its interpretation of the term "residence" in the County Charter as a "temporary place of abode." The circuit court granted summary judgment for the County and County Council. The Court of Appeals reversed, holding that "residence" in the Charter embodies the notion of domicile, such that Appellant did not move his residence by virtue of his five-month incarceration.
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Dar yl Jones v. A nne Aru ndel Cou nty, Maryland, et a l., No. 32, September Term, 2012. Opinion by Battaglia, J. COUNTY GOVERNMENT EXPRESS POWERS ACT, SECTION 5(S) OF ARTICLE 25A, MARYLAND CODE (1957, 2011 REPL. VOL.) ANNE ARUNDEL COUNTY COUNCIL AUTHORITY TO REMOVE A COUNCILMEMBER FOR CHANGE OF RESIDENCE Dar yl Jones, a member of the Anne Arunde l County Co uncil, was c onvicted f or failing to f ile a federal tax return and sentenced to 5 months incarceration in a federal correctional facility in South Carolina. The remaining members of the Anne Arundel County Council enacted a bill to declare Jones s seat vacant under S ection 202 (c) of the A nne Aru ndel Cou nty Charter, which p rovides that a cou ncilmem ber s seat sha ll be vacated if he mo ve[s] his residence from the councilmanic district in which he resided at the time of his election. The Court of Appea ls held that the County Co uncil did not hav e the autho rity to remove Jones, under Section 5(s) of the Express Powers Act, Article 25A, Maryland Code (1957, 2011 Repl. Vol.), which provides that the County may pass all ordinances . . . as may be deemed expedient in main taining t he pea ce, goo d gove rnmen t, health a nd we lfare of the cou nty. Section 5(S) provided the County with the power to enact public loca l laws, applying to all people within the County and the bill, which applied to Jones alone, was not a local law but a special law. COUNTY GOVERNMENT ANNE ARUNDEL COUNTY CHARTER QUALIFICATIONS OF COUNCILMEMBERS MEANING OF RESIDENCE UNDER SECTION 202(C) DOMICILE Section 202(c) of the Anne Arundel County Charter provides that a councilmember s seat shall be vacated if he move[s] his residence from the councilmanic district in which he resided at the time of his election. Consistent with longstanding jurisprudence interpreting constitutional, statutory and charter provisions, the C ourt of Appeals held that residence under Section 202(c) means domicile, or an individual s permanent legal home. Thus, the Court held that a councilmembe r, whose d omicile rem ained in his c ouncilma nic district wh ile he was incarcerated in South Carolina, did not move his residence, a nd thereby did not vacate his seat. EQUITABLE DEFENSES CLEAN HANDS DOCTRINE The clean hands doctrine did not bar a councilmember from bringing an action against the Anne Arunde l County and the Ann e Arund el County C ouncil where th e basis for his claim, which was the County Council s interpretation of residence under Section 202(c) of the Anne Arundel County Charter, did not relate to the improper conduct alleged by the County and Coun ty Coun cil. IN THE COURT OF APPEALS OF MARYLAND No. 32 September Term, 2012 DARYL JONES v. ANNE ARUNDEL COUNTY, MA RYL AND , et al. Bell, C.J. Harrell Battaglia Adkins Barbera McD onald Raker, Irma S. (Retired, specially assigned), JJ. Opinion by Battaglia, J. Harrell, Ad kins and B arbera, JJ., disse nt. Filed: July 1, 2013 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, 53 8, 27 A .3d 175 , 180 (2 011), an d mere ly requires actua l physical p resenc e, Bainum v. Kalen, 272 M d. 490, 496, 325 A.2d 392, 395 (1974), while domicile is the particular permanent home of an indiv idual, to which p lace he has , whenev er he is abse nt, the intention of returning. Shenton v. Abbott, 178 Md. 526, 530, 15 A.2d 9 06, 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 o rganizations[.] Blount v. Boston, 351 Md. 360, 367-68, 718 A.2d 1111, 1115 (1998). An individual may have severa l abode s, but he or she m ay have b ut one d omicile . Shenton, 178 Md. at 530, 15 A.2d a t 908. The section of the Anne Arundel Coun ty Charter at issue provides: (c) Change of Residence. If any mem ber of the C ounty Counc il during his term of office shall move his residence from the councilm anic district in which h e resided at th e time of h is 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 counc ilmanic district m ade du ring his t erm. Based upon this provision, the Anne Arundel County Council, Appellee, enacted a bill that provided that Daryl Jon es, Appe llant, forfeited his elected co uncilman ic 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, Sectio n 5(S), Artic le 25A of the Maryland Code1 and that the County Council properly interpreted residence 1 Section 5(S) of Article 2 5A, M aryland C ode (19 57, 201 1 Rep l. Vol.) provides: The following enumerated express powers a re granted to and conferred upon any county or counties which h ereafter form a charter under the provisions of Article XI-A of the Con stitution, that is to s ay: (S) Amendment of County Code To pass any ordinance facilitating the amendment of the county charter by vote of the electors of the county and agreeable to Article XI-A of the Constitution. The foregoing or other enum eration of p owers in th is article shall not be h eld to limit the p ower of the county co uncil, in addition thereto, to pass all ordinances, resolutions or bylaws, not inconsisten t with the pro visions of th is article or the laws of the State, as may be proper in executing and enforcing any o f the powers enumerated in this section or elsewhere in this article, as well as such ordinances as may be deemed expedient (continued...) 2 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 M d. 62, 46 A .3d 404 (2 012). Jone s presents tw o question s for our co nsideration: 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 Coun cilmemb er to be remov ed from o ffice on th is ground and local law with respect to the County Executive and Councilmem bers called to active military duty allows a vacancy to be declare d only if the elec ted 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 f or 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 Baltim ore City C harter m eans d omicile . 1 (...continued) in maintaining the peace, good government, hea lth and welfare of th e cou nty. Provided, that the powers herein granted shall only be exercised to the extent that the same are not provided for by public general law[.] All subsequent references to the Express Powers Act shall be to Section 5 of Article 25A, Marylan d Cod e (1957 , 2011 R epl. Vo l.). 3 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 (2 012), 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 Counc il who no w represe nts 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 P owers 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-mon th incarceratio n. We fin ally shall hold that the clean hands doctrine does not bar Jones s claim. In 2006 an d 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 fed eral cor rectiona l facility in S outh C arolina. 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 w ould be vacated, 4 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 2 Bill 85-11 p rovided: AN EMERGENCY ORDIN ANCE concerning: County Council Vacanc y in Councilm anic District I o f Anne Arunde l County FOR the p urpo se of decl aring the existenc e of a vaca ncy in Coun cilman ic Distric t I of A nne A rundel Coun ty. WHEREAS Counc ilman Da ryl D. Jones w as elected in 2006 to a four-year term as the Councilman for Councilmanic District I and reelected to a second four-year term in 2010; and WHEREAS the second term fo r Councilma n Jones w ould ordinarily end in 2014; and WHEREAS Councilman Jones has been convicted of a misdemeanor and sentenced to a five-month term in a federal correctional facility schedule d to begin no later than January 23, 2012; and WHEREAS Section 404 of the Charter for Anne Arundel County contains a provision that allows a super majority of the County Council to declare the position of the County Executive to be vacan t if the Cou nty Executive is convicted of certain crimes; and WHEREAS there is no similar provision in the County s Charter relating to the removal of a Councilmember convicted of a crime; and WHEREAS Section 201 of the County s Charter requires each member of the County Council to reside in the Councilman ic District during his full term of office; and (continued...) 5 2 (...continued) WHEREAS Section 202(c) of the Charter provides that if a member of th e Co unty Council moves his residence from the Counc ilmanic District, his office shall be f orthwith v acated; and WHEREAS the County Attorney for Anne Arundel County has advised the County Council that Councilman Jones s office as councilmember shall be forthw ith vacated as a matter of law on the date that Councilman Jones begins residence in a federal correctional facility that is located outside of Counc ilmanic District I because residence as used in Section 202(c) of the Charter doe s not refer to a member s domicile and instead has its ordinary connotation of actually living within the district; and WHEREAS the County Attorney for Anne Arundel County has advised the Coun ty Council that it must fill Councilman Jones s seat in accordance with the vacancy provisions contained in Section 205(c) of the Charter; and WHEREAS, Section 20 5(c) of the C harter man dates that the Counc il fill the vacancy within 30 days after the vacancy occurs; now therefore, SECTION 1. Be it enacted by the County Council of Anne Arundel County, Maryland, That the County Council declares the existence of a vacancy in Councilmanic District I of Anne Arundel County on the date that Councilman Jones reports to a correctional facility located outside of Councilmanic District I, with the vacancy to be filled in accordance with Section 205 of the Ch arter fo r Ann e Arun del Co unty. SECTION 2. And be it further enacted, That this O rdinance is hereby declared to be an emergency ordinance and necessary for the imm edia te preser vatio n of the p ublic pea ce, h ealth , safety, welfare, and property and being passed by the affirmative vote of five members of the County Council, the same shall take (continued...) 6 Januar y 17, 201 2. On January 4, 2012, Jones filed a three-count Complaint for Declaratory, Injunctive, and Other Relief in the Circuit Cou rt for Anne Arundel County. In Count One, Jones sought a declaratory judgment that (A) Councilman Jones temporary absence from C ouncilma nic District I does not constitute a change in residence under Section 202 (c) of the Anne 2 (...continued) effect from th e date it b ecom es law. Resolution 65-11, which also sought to declare Jones s seat vacant, contained language that largely mirrored the language of of Bill 85-11, except that it also provided that Section 202(c) would re quire a cou ncilmem ber to ma intain both h is or her legal domicile and also general place of abode within the Councilmanic District he or she represents[.] It also provided , in place of S ections 1 an d 2 of B ill 85-11, the fo llowing: Resolved by the County Council of Anne Arundel County, Maryland, That the County Council finds as a matter of law that Cou ncilm an D aryl Jones of Cou ncilmanic D istrict I shall be in violation of the requirements of the Anne Arund el County Charter, Section 202(c) on the date he begins his period of incarceration in a federal correctional facility outside his district for vio lations o f fede ral law. Be it Further Resolved by the County Council of Anne Arundel County, Maryland, that the Cou nty Counc il declares that a vacancy will exist in Councilmanic District I of Anne Arundel County on the date that Councilman Jones reports to a correctional facility located ou tside of Co uncilman ic District I, with the vacan cy to be filled in accordance with Section 205 of the Charter for An ne Arundel C ounty; and be it further Resolved that a copy of this Resolution be sent to the County Execu tive. Resolu tion 65 -11 w as with drawn when Bill 85- 11 wa s adop ted. 7 Arundel County Charter and (B) his office as a Councilman does not become vacant by virtue of the te mpora ry absenc e. Counts Two and Three reiterated the substance of Count One, and includ ed reques ts 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 Co uncil, with Jones abstaining, voted to adopt Bill 85-11. Peter I. Smith was later appointed to fill the vaca ncy for the Firs t Councilm anic District. Thereafter, on January 25, 2011, Jones filed a Mo tion for Summ ary 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 C ounty and County Co uncil also filed a Motion for Summary Judgment as to all counts, arguing that the removal of Jones from his council seat was a nonjusticiab le political question and, non ethe less, that t he C ounty Council was authorized to remove Jones pursuant to Section 5(Q) of the Express Powers Act, which provides that the County Counc il may enact local laws to govern the conduct and actions of a ll such coun ty 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 ad opted thereunder. In answerin g Jones s su mmary judg ment mo tion, the Co unty and Co unty Coun cil raised the clean hands defense to Jones s allegations, contending that Jones committed fraud perpetrated upon the voters of the First Councilmanic D istrict of Ann e Arund el County [because he] delibera tely withheld informatio n about his criminal behavior and pending plea 8 agreement with the United States Attorney be cause he k new that s uch inform ation wou ld have a materia l effec t on the e lection h eld on N ovem ber 2, 20 10. 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 ar gument th at its authority to remove Jones was deriv ed from S ection 5(Q ), which pr ovides the C ounty with the power to enact local laws designed . . . to provide for penalties, including removal from office, for violation of an y such law s or the regu lations adop ted thereun der, becau se this provision merely delegate[s] to the County Council the power to enact local laws. The judge, nonetheless, determined that the removal wa s authorized by the Gene ral Welfare Clause of the Express Powers Act, Section 5(S), which provides that the Ac t shall not limit the County s power to pass all ordinances . . . as may be deemed expedient in maintaining the peace, good go vernment, health and welfare of the c ounty, and base d on a nee d to avoid vacancies on the County Co uncil that w ould deadloc k votes reg arding im portant tasks in front of [the Council] when it holds its legislative session in May. In so doing, th e court con cluded tha t the Coun ty Council acte d within its authority because Jones move[d] his residence, under Section 202(c) of the Ann e Arund el County Charter, when he reported to the correctional facility in South Caro lina, even tho ugh his domicile remained in the First Councilmanic District, because residence equates to a place of abode. T hus, the Circ uit Court denied Jones s Motion for Summary Judgment, which sought a declaratory judgment, and granted the County and County Council s Motion for 9 Summ ary Judg ment a s to all co unts. Before us, Jones challenges as error the Circuit Court s conclusion that the Co unty Counc il 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 Coun ty Counc il 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 Co uncil counter that the removal of a councilmember, for the failure to meet the q ualifications o f his or her off ice, 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 th e Expres s Powe rs Act, which provides th e Coun ty with the sole authority to enact local laws designed . . . to govern the conduct and action s 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 que stion, the Co unty Coun cil s action was taken pursuant to Section 5(Q) of the Express Powers Act, as opposed to the provision that the Circuit C ourt 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 Counse l to 10 the Charter Board, the drafters of the original Prop osed Anne A rundel County Cha rter, which stated that the purpose of Section 202(c) was to require[] that each councilmanic district shall be represe nted in the C ouncil by a m ember w ho actually resides there in during h is full term. Actually resides, they contend, means the place of abode where the councilmember sleeps and is physically present. As a threshold matter, the C ounty and C ounty Cou ncil contend that under the political question doctrine, the C ourt must abstain from intervening in the removal of a councilmemb er. 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 actio ns of all su ch co unty o fficers in the performance of their public dutie s, and to provide for penalties, including removal from office, for violation of any such laws or the regulations adopted the reunder. The Circuit Cou rt rejected this very argument and concluded that Section 5(Q)(1) m erely 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 electe d branch of government and thus should not be heard in . . . court. James R . Ma y, AEP v. Connecticut and the Future of the Political 11 Question Doctrine, 121 Y ale L.J. Online 127 ( 2011), available at http://yalelawjou rnal.org/201 1/09/13/m ay.html; see also Nixon v. United States, 506 U.S. 224, 252 5 3, 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 Governm ent, and deriving in large part from prudential concerns about the respect we owe the political departments. (Internal citations and q uotation marks om itted)). The existence of politics in a case, however, does not define whether a case involves a political q uestion . 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 th is controve rsy [involving the congre ssional auth ority to veto a determination that an individual should not be deported] may, in a sense, be termed politica l. 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 coor dinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the 12 potentiality of embarr a ssme nt f r om m ultif a r ious pronouncements by various departments on one question. In a case c lose to p oint, 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. Pow ell 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 adjudica te the qualific ations of its m embers. P owell acknowledged that Section 5 committed to the House of Representatives the duty to judge the qualification s of its membe rs, but coun tered that it em powere d Cong ress 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 specif ically 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 3 Section 5 o f Article I of the United States Co nstitution prov ides, in pertinent pa rt: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Q uorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent M embers, in such Manner, and under such Penalties as each House may provide. 13 Appea ls for the District of Columbia Circuit affirmed, the Supreme Court interpreted the House s textually demonstrable constitutional commitment to adjudicate the qualifications of its membe rs to be limited to the stand ing qualific ations expressly prescribed by the Cons titution, 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 po wer to ex pel Pow ell. The Co urt conclud ed, similar to its an alysis 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 qualific ations. Id. We have had occasion to consider whether a political question is present in a c ase 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 Delegate s seat from Anne A rundel Co unty. While Lamb appeared to have one more vo te than Hammond, the latter was declared the winner after he learned that some absentee b allots had not been counted by the Board of C anvassers and filed an action seeking declaratory and injunctive relief, and the Circuit Court, ove r Lamb s objection, ordered that these absentee 14 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 demo nstrable constitutional commitment to judge the qualifications and elections of its mem bers under Section 19 of Article III o f the Ma ryland Cons titution, which provides: Each House s hall be judg e 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 proceed ings, punish a memb er for disord erly 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 re jected L amb s argum ent. Lamb, 308 M d. at 304 , 518 A .2d at 10 66. 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 o f this State, we c ontinued, d id 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 10 59 (emp hasis in original), quoting Maryland Code (1957), A rticle 33, Sectio n 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 15 the Circ uit Cou rt s judg ment. The instant removal of Jones is akin to the re moval of Congre ssman P owell in Powell v. McCormack, in which the Supreme Court did not abstain from reaching the merits based upon the United States Co nstitution. 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 w ith 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 ap plied; courts w ill 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 o f its members qualifications, be cause there just is no commitment rendering the County Council the sole arbiter of its members qualifications. We conclude, thus, that the issue of Jones s removal, based on his qualifications for office, is not a political question. Turning now to the merits, the Circuit Court held that Section 5(S) of the Express Powers Act, known as the General Welfare Clause, provided the County Council with the authority to remove Jones from his elected seat, as an exercise of its police power. Section 16 5(S) prov ides, in pertine nt part: The foregoing or other enu meration o f powe rs in this article shall not be h eld to limit the p ower of the county co uncil, in addition thereto, to pass all ordinances, resolutions or bylaws, not inconsistent with the provisions of this article or the laws of the State, as may be proper in executing and enforcing any of the powers enumerated in this sectio n or elsew here in this article, as well as such ordinances as may be deemed expedient in maintaining the peace, g ood gov ernment, health and welfare of th e cou nty. Jones argues that Section 5(S) only gives the County Council power to adopt local laws, and that Bill 85-11 is not legislative in nature because it affects Jones and Jones alone and is not a new law of general application that sets forth a n ew plan or policy. The Express Pow ers Act, we explained in dicta in McCory Corporation v. Fowler, 319 Md. 12, 16-17, 570 A.2d 8 34, 835 (1 990), wa s enacted p ursuant to th e Hom e Rule Amendment to transfer the General Assembly s power to enact many types of county pu blic local laws : Article XI-A was proposed by Ch. 416 of the Laws of Maryland of 1914 and ratified by the vo ters on Novem ber 2, 1915. The Article, known as the Home Rule Amendment, enabled counties, which chose to adopt a home rule charter, to achieve a significant degree of political self -determina tion. Its purpose was to transfer the General Assembly s power to enact many types of county public local laws to the A rt. XI-A home ru le counties. See generally, e.g., Bd. of Election Laws v. Talbot County , 316 M d. 332, 344 , 558 A.2d 724 (198 8); Griffith v. Wakefield, 298 M d. 381, 384 , 470 A.2d 345 (198 4); Town of Forest Heights v. Frank, 291 Md. 331, 342, 435 A.2d 425 (1981); Cheeks v. Cedlair Corp., 287 Md. 595, 597-598, 415 A.2d 255 (19 80). *** 17 Sections 1 and 1A of Article XI-A emp ower Baltimore City and the counties of M aryland to adopt a charter form of local governm ent. Section 2 directs the G eneral As sembly to provide a grant of express powers for charter hom e rule counties. The General Assembly followed that directive and enacted the Express Powers Act by Ch. 456 of the Laws of Maryland of 1918, codified a s Code (1957 , 1987 Repl.Vo l.), Art. 25A. Section 3 of Article XI-A provides (emphasis supplied): From and after the adoption of a charter b y the City of Baltimore , or any Coun ty of this State, as hereinbefore provided, the M ayor of Baltimore and City Council of the City of Baltimore or the County Council of said County, subject to the Constitution and Public Ge neral Laws of this State, shall have full pow er to enact local laws of said city or county . . . upon all matters covered by the express pow ers granted as abov e provi ded . . . . Article XI-A does not constitute a grant of a bsolute autonomy to local governments. Ritchmo unt Partnership v. Board, 283 Md. 48, 56, 388 A.2d 523, 529 (1978 ). This Court s decisions and the above-quoted passage make it clear that the Home Rule A mendm ent limits the . . . Coun ty Council to enacting local laws on matters covered by the Express Pow ers Act. Local law s, in this respec t, refer to any laws that apply to all persons within the territorial limits prescribed by the Act. Prince George s County v. B & O. R.R. Co., 113 Md. 179, 186, 77 A. 433 , 435 (1 910) (c itation an d intern al quota tion ma rks om itted). The rub of the present c ase involve s whethe r Bill 85-11 p ertaining to Jo nes is really a local law or a special law. Special laws relate[] to particular persons or things of a class, as distinguished from a general law which applies to all persons or thing s of a cla ss, 18 id. at 183, 77 A . at 434, and are enacted for the relie f of partic ular named parties, or providing for individual cases. Monta gue v. State , 54 Md. 481, 49 0 (1880). Bill 85-11 expressly applies only to Jones and so by its very terms is a special law. Although the Circuit Court determined that the County Council exercised its police power, to transform a law that applied on ly to Jones into a lo cal law, w hich applie s to all people in Anne Arundel County, the Bill remained a special law by virtue of its lack of breadth, and the exe rcise of the Co unty Co uncil s p olice au thority doe s not ex pand its scope. The enactment of a special law is prohibited for any case, for which provision has been made, by an existing General Law. Marylan d Con stitution A rticle 3, S ection 3 3. If the General Assembly cannot enact a special law when a general law applies, then under the Express Powers Act, Anne Arundel County cannot be empowered to enact a special law where an applicab le local law e xists. Section 2 02(c) affe cted residency qualifications of councilmemb ers at the time Bill 85-11 was enacted. The County Council, therefore, lacked the authority under Section 5(S) Express Powers Act to enact Bill 85-11 to remove Jones. Turning now to the centerpiece of the present controversy, members of the Anne Arundel County Council are required under Section 201(a) to reside in the councilmanic district that they represent, for six months prior to the election until the end of the term of office: (a) Residence R equiremen t. There sh all be a Co unty Counc il of Anne A rundel Co unty composed of seven mem bers, each one of whom, at the time of his election and for six months immedia tely prior thereto a nd during his full term of office, shall 19 reside in a different o ne of the se ven coun cilmanic dis tricts described in Section 206 of this Article. A second residency requirement, a qualification to run for office in Section 202(a), requires that each councilmember shall have resided in the County for at least one year im mediately before the election: (a) In Gen eral. In addition to the requirement of residence as provided in Section 201(a) of this Article, each member of the County Counc il shall be a qualified voter of the County and not less than twenty-five years of age at the time of his election and shall have resided within the County for a period of one year immediately preceding this election. Section 202(c), which provides the fodder for the present case, provides: (c) Change of Residence. If any mem ber of the C ounty Counc il 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 bounda ry lines of his co uncilman ic district m ade du ring his t erm. The Circuit Court concluded that residence in Section 202(c) meant a place of abode , as diffe rentiated from d omicile . We di sagree . For over one hundred years, we con sistently have equ ated reside nce to domicile in constitutional, statutory, and charter provisions, unless a contrary intent be shown: From Thomas v. Warner, 83 Md. 14, 20, 34 A. 830 (1896), and Howard v. Skinner, 87 Md. 556, 559, 40 A. 379 (1898), until the prese nt, this Court has consistently held that the words reside or resident in a constitutional provision or statute delinea ting righ ts, duties , obligati ons, priv ileges, et c., would be construed to mean domicile unless a contrary intent 20 be shown. Thus, our predecessors stated in Howard v. Skinner, supra, 87 Md. at 559 [40 A. 379]: Residence, as contemplated by the framers of our Constitution, for political or voting purposes, means a place of fixe d present d omicile. See also, e.g., Garcia v . Angulo , 335 Md. 475, 477, 644 A.2d 498, 499 (1994) ( re sident of this S tate in the [statute] . . . means a d omiciliary of M aryland ); Wamsley v. Wamsley, 333 Md. 454, 458, 635 A.2d 13 22, 1324 (1994) ( W e have he ld consistently that the words reside or resident in a constitutional provision or statute delineating rights, duties, obligations, privileges, etc. would be construed to mean domicile unless a co ntrary intent is show n ); Dorf v. Skolnik, 280 Md. 101, 116, 371 A.2d 1094, 1102 (1977) ( the words reside or resident [ with regard to members of a party central committee] mean do micile ); Hawk s v. Gottsch all, 241 Md. 147, 149, 215 A.2d 745, 746 (1966) ( a resident of this State as used in the [statute] . . . means a person who has acquired a domiciliary status in the S tate of M aryland ); Maddy v. Jones, 230 Md. 172, 178 -179, 186 A.2d 482, 485 (1962) ( the Maryland decisions have given the term residence , for political or voting purposes, the legal significance of domic ile ); Gallagher v. Bd. of Elections, 219 Md. 192, 207, 148 A.2d 390, 398-399 (1959) (with respect to the requirement in the Baltimore City Charter th at a candidate for Mayor be a resident of Baltimore City for ten years preceding the election, the Court concluded that the framers of the Charter intended the residence required . . . to be the equivalent of a present, fixed domicile and that it does not mean an actual and physical residence ); Rasin v. Leaverton, 181 Md. 91, 93, 28 A.2d 612, 613 (1942) ( The requirement in the Constitution of residence for political or voting purposes is one of a place of fixed, present domicile ); Wagner v. Scurlock, 166 Md. 284, 291, 170 A. 539, 542 (1934) (residence in statute m eans domicile); Howard v. Skinner, 87 Md. 556, 559, 40 A. 379, 380 (1898) ( Residence, as contemplated by the framers of our Constitution, for political or voting purposes, means a place of fixe d present d omicile ). Blount v. Boston, 351 Md. 360, 365-66, 718 A.2d 1111, 1114 (1998), quoting Bainum v. 21 Kalen, 272 Md. 490, 496, 325 A.2d 392, 395-96 (1974). We have interpreted domicile as the norm in myriad and va ried circ umstan ces, inclu ding vo ting, Howard v. Skinner, 87 Md. 556, 559, 40 A. 379 , 380 (1 898), el igibility to ru n for p ublic of fice, Dorf v. Sko lnik, 280 Md. 101, 116, 371 A.2d 1094, 1102 (1977), divorce, Wamsley v. Wamsley, 333 Md. 454, 458, 635 A.2d 1322, 1323- 24 (19 94), pro bate, Shenton v . Abbott, 178 Md. 526, 530, 15 A.2d 906, 908 (1940 ), and sta te incom e taxatio n, Comptroller v. Haskin , 298 Md. 681, 690, 472 A.2d 70, 75 (19 84). Only where the legislative enactment expressly reflects that residence should be defined as place of abode have we deviated from the domiciliary analysis. In Boer v. University Specialty Hospital, 421 Md. 529, 27 A.3d 175 (2011), for example, we were asked to interpret residence in Section 8-104(c) of the Estates and Trusts Article, Maryland Code (1974, 2011 R epl. Vol.), 4 which p ermits a cred itor to file a claim, prio r to the appointment 4 Section 8-104(c) of the Estates and Trusts Article, Maryland Code (1974, 2011 R epl. Vol.) pro vides, in pertin ent part: Filing with register. The cla imant ma y file a verified written statement of the claim , substantially in the f orm con tained in this subsection. If the claim is filed prior to the appointment of the personal representative, the claimant may file his claim with the register in the county in wh ich the dece dent was domiciled or in any county in which he resided on the date of his d eath or in which real property or a leasehold interest in real property of the decedent is located. If the claim is filed after the appointment of the personal re presentative , the claiman t shall file his claim with the register of the county in which probate proceedings are being conducted and shall deliver or mail a copy of the (continued...) 22 of a personal representative, in the county of (1) the de cedent s domicile, (2) the dece dent s residence on the date of his or her death, or (3) the location of the dec edent s real p roperty or leasehold interest. We determined that residence could not mean domicile because domicile already had been referenced in another part of t he statu te as an a lternativ e. Id. at 537, 27 A.3d a t 180. In Cathey v . Board o f Review, D epartme nt of Health and Mental Hygiene, 422 Md. 597, 31 A.3d 94 (2011 ), we interpre ted the term resident in a regulation that limited eligibility for Developmental Disability Administration funding,5 in a situation involving a developm entally disabled child, who lived half of the year with her father in Maryland and the other half with her mother in New Jersey. We interpreted the fact that the child was not a domiciliary of Maryland as not dispositive, because the regulation clearly contemplated 4 (...continued) statement to the personal representative. 5 The regulation at issue in Cathey v . Board o f Review, D epartme nt of Health and Mental Hygiene, 422 Md. 597 , 31 A.3d 94 (20 11) was CO MAR 10.22.12.03(B)(27 ), which p rovides: (27) Resident means an individual who: (a) Demonstrates that that individual is living in the State voluntarily with an intent to remain on a permanent basis, including children with parents or guardians who reside out of the State; (b) Resides out-of-State but whose parents or guardians are residents of Maryland; or (c) Is a migran t worker and, while in the State, needs medical care and is not receiving assistance from any other state or political jurisdiction. 23 out-of-state individuals f or the reme dial purpos e of prote ct[ing] indiv iduals with developmental disability in this State. Id. at 607, 31 A.3d at 1 00 (emphasis in origina l), quoting Maryland Code (1982, 2009 Repl. Vol.), Section 7-102 of the Health-General Article. In Best Drywall, Inc. v. Berry, 108 Md. App. 381, 672 A.2d 116 (1996), the Court of Special Appea ls considere d wheth er a vacation home was a residence under Section 9104(f)(3) of the Real Property Article, Maryland Code (1974 , 1996 Repl. Vo l.),6 which provided that a mechanic s lien of a subcontractor against a single family dwelling being erected on the land of the owner for his own residence could not exceed the amount owed by the homeowner to the general contractor. The homeowners in that case did not owe the general contractor any payments, but the subcontractor, who had not been paid for labor and materials, argued that a mechanic s lien could apply to the vacation home because it was secondary to the domicile owned in New Jersey. 108 Md. App. at 384, 672 A.2d at 118. The intermediate appellate court explained that Section 9-104(f)(3) of the Real Prop erty Article was protective of homeowners by shift[ing] responsibility for insuring payment of a 6 Section 9-104(f)(3) of the Real Property Article, Maryland Code (1974, 1996 Repl. Vo l.), provided: (3) Notwithstanding any other provision of this section to the contrary, the lien of the sub contractor a gainst a sing le family dwelling being erected on the land of the owner for his own residence shall not exceed the amount by which the owner is indebted under the contract at the time the notice is given. 24 subcontractor from th e own er of the dwellin g to the p rime co ntractor , i.e., to limit the subcontractor s ability to lien the sing le family residence. Id. at 394, 672 A.2 d at 123. T his general protective purpose for the homeowner lead the court to construe the term residence to includ e a non -domic iliary hom e. Id. at 395, 672 A.2d at 123. The County and County Council seek succor in this regard from the legislative history of Section 202(c). In 1963, the Proposed Anne Arundel County Charter was drafted by the Anne Arundel County Charter Board ( Charter Board ) and released to the public for consideration, along with Notes of the Reporter and Counse l to the Cha rter Board. B ennett Crain, Jr., Reporter and Counsel to the Anne Arundel County Charter Board, Notes to the Proposed Home Rule Charter of Anne Arundel County (1963). The Reporter s Note comme nts that Section 202(c) requires that each councilmanic district shall be represented in the Council by a member who actually resides therein during his full term. Id. at 73. Actually resides, the C ounty Cou ncil conten ds, demo nstrates an inte nt to require the councilmember s physical presence in his or her district and, thus, residence should be construed as a place of abode, not domicile. The interpretation of the Reporter s Note must be construed in the context of the larger framework of the Charter Board s wholesale review of residency requirements for councilmembers. The residency requirements review was of extant provisions that included Sections 2-14 and 2-15 of the Anne Arundel County Code (1957), which provided the qualifications for county commissioners, then the governing body of the Coun ty. See id. at 25 72. The phrase actually resided appeared in Section 2-14, which required that a person must hav e actually reside d in the C ounty for at leas t 10 years: A person to be eligible to the office of county commissioner shall have actually resided in the co unty for a t least ten years[.] Section 2-15 provided that candid ates for the o ffice of co unty commiss ioner be sele cted in district primary elections; to run in the primary, an individual had to be a resident of that district at the time of the primary election,7 but there was no residency requirement during the county commissioner s term of office. When the Anne Arunde l County Ch arter was d rafted in 1963 a nd ado pted in 1 964, district residence, as a qualification of office, was provided in Section 2 01(a): Th ere shall be a County Council of Anne Arundel County composed of seven members, each of whom, at the time of his election and for tw o years imme diately prior thereto and during his full term 7 Section 2-15 of the Anne Arundel County Code (1957) provided, in pertinent part: [T]he names of the persons who file their names for the position of county com missioner, in a ccordanc e with the General primary election law, shall be placed by the supervisors of elections in the county, only upo n the ballot in the district where the candidate resides, and the candidate who receives the greatest number of votes in the district where he resides at the prim ary election shall be certified to by the supervisors of elections as the nominee of the political party to which he belongs, and the name of such nominee shall be placed on the official ballot to be used in the gen eral elec tion. 26 of office , shall res ide in a d ifferen t one of the sev en cou ncilma nic distric ts. 8 Section 202(a) provided the qualifications to run for office: In addition to the requirement of residence as provided in Section 201(a) of this Article, eac h memb er of the C ounty Cou ncil . . . shall have resided w ithin the Co unty for a period of fou r years imm ediately p recedin g this ele ction. 9 Section 202(c) an d these relate d provision s of the A nne Aru ndel County Charter extended the residency qualification from candidacy to incumbency. The purpose of this district residence requirement was clearly representational, a guarantee that the Charter Board understood as absent from the earlier electoral scheme. Anne Arundel County Charter Board, Report to the Voters of Anne Arun del Co unty, at xv i (1963 ). District residence, the Charter Board explained, would give the voters of the County the maximum degree of district representatio n possible [ and] insure representatio n on the C ouncil for e ach section of the County, with its unique problems and interests . . . . The guarantee of district representation does not exist under the present form of government. Id. (emphas is in original). Thus, t he Reporter s Note to S ection 202 (c), in comm enting that the council member actually reside[] in the district during his full term, is a reference to the previous County Code s requireme nt that a cand idate have actually resided in th e Coun ty prior to 8 Section 201(a) of the An ne Arundel County Ch arter now provides th at a council member shall reside in the district that he or she represents at the time of his election and for six mo nths imm ediately prior there to and during his full term of office . . . . Section 201(a) of the A nne A rundel Coun ty Charte r (2005 ). 9 Section 202(a) of the Anne Aru ndel Cou nty Charter no w require s that a coun cil member shall have resided within the County for a period of one year immedia tely preced ing this e lection. Section 202(a) of the A nne A rundel Coun ty Charte r (2005 ). 27 the election. [A]ctually resides does not, therefore, refer to place of abo de. Neither the express language of Section 202(c), nor its legislative purpose, thus, demonstrates any intent to vary the jurispru dential n orm tha t the term residen ce is do micile. The County and County Council, though, state that our holding in Gallagher v. Board of Elections, 219 Md. 192, 203, 148 A.2d 390, 396 (1959 ), warrants a different conclusion. Gallagher involved th e eligibility of Go vernor T heodore R. McK eldin to run for mayor of Baltimore City after havin g lived in A nnapolis during his tenure in office. Section 7 of the Baltimore City Charter required that a candidate for mayor must be a resident of B altimore City for ten years immediately prior to the election. The allegation was that Governor McK eldin did not meet the residency requirement of Section 7, because he had been residing in Annap olis during h is eight years in of fice and th ereby had m oved his d omicile to Annapolis, pursuant to Section 21 of Article II of the Maryland Constitution, which requires that the Governor shall reside at the seat of government. We interpreted reside under Section 21 of Article II to mean temporary actual place of abode, id. at 205, 148 A.2d at 397, based upon the fact that the Governor was compelled to live in Anna polis du ring his t enure. We further noted that this conclusion was consistent with the myriad of cases which hold that a change in residence or abode to e nable a person to perform the duties and functions of a civil office not of life tenure, whether elective or appointive, does not, of itself, constitute a change of domicile, and not contravened by constitutional debates and proc eedings, which w e noted as indicating a des ire 28 for the Gov ernor to be available at a ll reasonab le times in Annapolis. Id. at 203, 148 A.2d at 396. We, then, concluded that the residency requirement in Section 7 o f the Baltimore City Charter referred to domicile, in line with our longstanding jurisprudence and consistent with the purpose o f the Cha rter provision , to ensure tha t a candidate reasonab ly be expected to be familiar with the business and government thereof. Id. at 207, 148 A.2d at 399. We determined that Governor McKeldin had not removed his domicile to Annapolis during his tenure in office and was eligible to run for m ayor of Baltim ore City, becau se he con tinually owne d a hom e in Ba ltimore C ity and inte nded to return th ere afte r his gov ernorsh ip. Acc ordingly, we hold that residence mean s domicile under Se ction 202(c). Therefore, Jones did not move his residence to the correctional facility in South Carolina, because, as the Circuit Court concluded, it is undisputed that his domicile remained in the First Co uncilm anic D istrict. The final issue before us pertains to whether Jones is barred from bringing an action challenging the Coun ty Council s determination that he vacated his seat by the clean hands doctrine, which is a doctrine . . . intended to protect the courts from having to endorse or reward inequitable conduct. Adams v. Manown, 328 Md. 463, 475, 615 A.2d 611, 616 (1992) (citations omitted). It is only when the plaintiff s improper conduct is the source, or part of the source, of his equitable claim, that he is to be barred bec ause of this conduct. What is material is not that the plaintiff s hands are dirty, but that he d irties them in acquiring the right he now asserts. Id. at 463, 476, 615 A.2d at 617, quoting D. Dobbs, 29 Reme dies § 2 .4, at 46 ( 1973) . Jones s improper conduct, as alleged by the County Council, relates to concealing from voters during the 2010 election that he knew that he was being investigated for having failed to file one or more federal income tax returns. Jones s claim of having been improperly ousted is derived from the County Council s interpretation of the residency requirement in Section 202(c) of the Anne Arundel County Charter. Ergo, the allegations of failure to disclose are not the source of the claim that Jones was unlawfully removed from office . Our consideration of the County Council s clean hands defense is appropriate, although the dissent challenges the sufficiency of the factual findings. The Circu it Court found that the County Council removed Jones as a result of Bill 85-11, under which a vacancy was declared because of Jones s incarceration in South Carolina, while the basis of the clean hands defense, articulated by the County Council in its A mended Respon se to Jones s Motion for Summary Judgment, was that Jones withheld information about his criminal behavior and pending plea agreement with the United States Attorney from the voters of the First Counc ilmanic District of Anne Arundel County prior to the 2010 election. The juxtaposition of the purpose of Bill 85-11 with the County Council s assertio n in its response to the motion for summary judgment regarding the basis for its clean hands affirmative defense e stablishes tha t Jones s claim is not negated by the County s allegation. In conclusion, we hold that the Anne Arundel County Council did not have the 30 authority, under the Express Powers Act, to remove Jones from his seat as elected councilmember for the First Councilmanic District, and that Jones did not mov e his residence under Section 202(c) because his domicile r ema ined in that dis trict. Fina lly, Jones s claim is not barred by the clean hands doctrine.10 JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR ENTRY OF A DECLARATORY JUDGMENT IN ACCORDANCE WITH THIS OPINION. COS TS T O BE PAID BY A PPE LLE ES. 10 In remandin g this case to the Circuit Court for A nne Arunde l County for entry of a declaratory judgment consistent with this opinion, we do not consider any other relief sought by Jones, which is a matter for the Circ uit Cou rt to con sider. See Md. Code (1973, 2013 Repl. Vol.), Section 3-412 of the Courts & Judicial Proceedings Article ( Further relief based on a declarato ry judgment or decree m ay be granted if necessary or prope r. ). 31 IN THE COURT OF APPEALS OF MARYLAND No. 32 September Term, 2012 DARYL JONES v. ANNE ARUNDEL COUNTY, MARYLAND, et al. Bell, C.J. Harrell Battaglia Adkins Barbera McD onald Raker, Irma S. (Retired, Specia lly Assign ed), JJ. Dissenting Opinion by Adkins, J. which Harrell and Barbera, JJ., join. Filed: July 1, 2013 Section 202(c) of the Anne Arundel County Charter provides that, if a councilmember move[s] his residenc e from the councilm anic district in which h e resided at th e time of h is election, his office shall be forthwith vacated. The central issue, therefore, is whether Jones move[d] his residence when he began to serve his prison sentence in South Carolina. The Majority bases its interpretation of the term residence on the theory that, unless a contrary intent is shown , the term res idence n ecessarily means domicile. See Maj. Slip Op. at 20. As a r esult, it is more than happy to acc ept Jones s default p osition that this Court must assume that his reside nce refe rs to his dom icile. The M ajority brushes aside argumen ts that it should examine the context of the Charter, ignoring direct evidence that the drafters intended th at, within Se ction 202(c), the term residence would mean actual residen ce. The Meaning of Residence Depends on Context Black s Law Dictionary defines the word residence as [t]he place where one actually lives, as distinguished from a domicile. Black s Law Dictionary 1423 (Bryan A. Garner et al. eds., 9th ed . 2009). It goe s on to explain that, Residence usu[ally] just means bodily presence as an inhabitant in a given place; domicile usu[ally] requires bodily presence plus an intention to make the place one s home. Id. The Majority and countless judicial opinions state, however, that residence means domicile, unless a contrary intent be show n. See, e.g., Bainum v. Kalen, 272 Md. 490, 496, 325 A.2d 392, 396 (1974). Indeed, as the Majo rity points out, we have stated in an earlier case that [f]rom Thomas v. Warner, 83 Md. 14, 20, 34 A. 830 (1896), and Howard v. Skinner, 87 Md. 556, 559, 40 A . 379 (1898), until the present, th is Court ha s consistently he ld that the w ords reside or resident in a constitution al provision or statute delineating rights, duties, o bligatio ns, privil eges, etc ., would be construed to mean domicile unless a contrary intent be shown. Id. Upon a closer look at the cases that equated residence with domicile, how ever, it becomes clear that although in those cases the specific circumstances may have justified that broad statement as applied to that particular set of facts those cases did not pu rport to command a firmly fi xed rul e for all f uture ca ses invo lving th e term residen ce. 1 For instance, in Thomas and Howard, the Court discussed residence in the context of voter registration only. 83 Md. at 18 21, 34 A. at 830 31; 87 Md. at 559, 40 A. at 380 81. And, in Bainum, we held that the term reside meant domiciled, only as used in A rticle III, Section 9 of the Maryland Constitution, which established eligibility to run for a seat in the General Ass emb ly. 272 Md. at 496, 325 A.2d at 39 5 96; see also Blount v. Boston, 351 Md. 360, 366, 718 A.2d 1111, 1114 (1998) (qualification while serving as a member of General 1 This is not a phen omenon particular to Maryland. As long ago as 1924, one scholar observed: Possibly a hundred cases can be found where courts have said that residence and domicile were synonymous and a much larger number can be produced in which that proposition is denied. But this curious c ontradiction is more ap parent than real for it will be found on examination that in the first class of cases the particular circumstances justified the statement as applied to that state of facts but afforded no basis for a general assertion. Kossu th Ken t Kenn an, Residenc e and D omicile, 8 Marq. L. Rev . 222, 222 (1924). 2 Assembly); Dorf v. Skolnik, 280 Md. 101, 116, 371 A.2d 1094, 1102 (1977) (eligibility for office of delega te in the Ge neral Asse mbly); Hawk s v. Gottsch all, 241 M d. 147, 149, 215 A.2d 745, 746 (1966) (eligibility to file a claim against the former Unsatisfied Claim and Judgment Fund); Rasin v. Leaverton, 181 M d. 91, 92 94, 28 A.2d 612, 613 14 (1942) (eligibility to run for office of State s attorne y); Shenton v . Abbott, 178 Md. 526, 530, 15 A.2d 906, 908 (1940) (esta te probate); Harrison v. Harrison, 117 Md. 607, 612, 84 A. 57, 58 (1912) (determination of venue for filing a divorce). In all those cases, we arrived at the conclusion that residence meant domicile only after considerin g the conte xt in which the word residence was used. Our opinion in Gallagher v. Board of Elections provides an excellent illustration of the importance of context in interpreting the words reside and residence. 219 Md. 192, 202, 148 A.2 d 390, 39 5 (1959). T hat case offers an interesting interplay between two residence provisions: (1) contained with in the Baltim ore City Cha rter, and (2) fo und in Article II, Section 21 of the Maryland Constitution. The Baltimore City Charter provision required that a candid ate for the m ayor reside in Baltimore City within the ten-year period preceding the elec tion. Id. at 196, 148 A.2d at 392. In turn, Article II, Section 21 of the Maryland Constitution requires the Gov ernor to res ide at the seat o f govern ment in Annapolis. Id. at 201, 148 A.2d at 395 (quotation marks om itted) (quoting Md. C onst. art. II, § 21). The meaning of these two provisions clashed when former Governor Theodore R. McK eldin registered to run for the mayor of Baltimore City, and his certificate of candidacy 3 was challenged because, for some time during the ten-year period preceding the election, he lived in A nnapo lis. Id. at 196 97, 201 , 148 A .2d at 39 2, 395. Confronted with these two provisions, we acknowledged that the words reside and residence are susce ptible of different meanings and called them legal legerdemains of no small importance. Id. at 202, 148 A.2d at 395 (citation and quotation marks omitted). That is so becau se the wo rds reside and reside nce are o ften used to signify different things and are known to bear different shades of meaning according to the context. Id. (citations and quotation marks omitted). Thus, we stated, the term residence may mean something more than domicil: a domicil, namely, at which the party actually dw ells. On the o ther hand, it may mean something less than domicil: a dwe lling-place adopted for the time being, but without such an intention of permanent abode as to create a domicil there. . . . As used in a statute, the word may mean a domicil; or it may mean a dwelling-place, which lacks the leg al requirem ents of do micil. Id. (citation and qu otation m arks om itted). Acc ordingly, in interpreting the meaning of the words reside in the Baltimore City Charter and Article II of the Constitution, we emphasized the importance of the context and the purpose of the [instruments] in which they are found. Id., 148 A.2d at 396. Guided by the purpose of the charter provision, we rejected the appellants view that, as used in the Baltimore City Cha rter, the word residen t . . . means a resident in fact and in actuality as distinguished from one s domicile. Id. at 205, 148 A.2d at 397. We observed that the framers of the Charter intended to set up . . . a qualification for any candidate f or Mayor a 4 requirement that would reasonably assure the electorate that a candidate for such office would be familiar with the business and governmental affairs of the City. Id. at 205 06, 148 A.2d at 397 98. But, if an actual and physical residence fo r the ten consecutive years prior to an election w ere intende d, there wo uld be few w ho wou ld be eligible to seek th e offic e. Id. at 207, 148 A.2d at 399. Thus, we concluded that the framers of the Charter intended the residence required by Section 7 to be the equivalent of a present, fixed domicile, not actual re sidenc e or plac e of ab ode. Id., 148 A.2d at 398. We reached the opposite conclusion in the context and the purpose of Article II, Section 21, and w e held that there the term reside meant the governor s temporary actual place of abode during his in cumben cy in that offic e. Id. at 205, 148 A.2d at 397. We reasoned that [b]y requiring the Governor to live in Annapolis during his term of office, the framers of the Constitution were merely seeking to insure that the Chief Executive would be available at all reasonable times in Annapolis, and to prevent the establishment of a de facto seat of government in the governor s home town. Id. at 203, 148 A.2d at 396. Actual residence, as opposed to domicile, was also at issue in Boer v. Universit y Specialty Hospital, where we examined the word reside in Section 8-104(c) of the Estates and Trusts Article. 421 M d. 529, 531, 27 A .3d 175, 176 (2011). That statute permitted a creditor to file a claim with the register of wills in a county: (1) where the decedent was domiciled, (2) where the deced ent resided at the time o f his death, or (3) where the decedent s real pro perty or a le asehol d interes t in real p roperty w as locate d. Id. We held 5 that, under the plain meaning of the statute, residence was to be read to retain its meaning as a place where the decedent actually live[d], distinct from the word domicile. Id. at 538, 27 A.3d at 180 (alterations in original). Thus, although the decedent s domicile was at her home in C atonsville in Baltimore County, for the purposes of Section 8-104(c), at the time of her death she resided at the U niversity S pecialty H ospital in Baltim ore City. Id. at 538, 540, 27 A.3d at 180, 182. Likewise, in Cathey v. Board of Review, Department of Health and Mental Hygiene, we held that under the applicable provision of the Code of Maryland Regulations ( COM AR ), residence was not synonymous with domicile. 422 Md. 597, 600, 31 A.3d 94, 95 (2011). The regulation in question provided that, in order to be eligible for Developmental Disability Administration services, an individual must be a resident of Marylan d. Id. at 601, 31 A .3d at 96. Pe titioner, who lived with her mother in New Jersey for two weeks a month and w ith her father in Maryland fo r the remain ing two weeks a month, was d enied s ervices on the r esiden ce grou nds. Id. at 599, 602, 31 A.3d at 95, 97. When the Petitioner appealed, the Administrative Law Judge equated the term residence with domicile, which finding was adopted by the Secretary and affirmed by the Board of Review. Id. at 602 03, 31 A.3 d at 97. We reviewed the purpose of the underlying statute, however, and reached a different conclusion, finding it inappropriate to use the restrictive domicile analysis to determine residence under COMAR 10.22.12.03.B(27). Id. at 609, 31 A.3d at 101. Rather, we held that [a] better way to advance the remedy here is to use 6 a concept previously explained by this Court, defining residence as the place where one actually lives. Id. (quoting Boer, 421 Md. at 537 , 540, 27 A.3d at 18 0, 182). Our intermediate appellate court followed the same context-based approach in Best Drywall, Inc. v. Berry, 108 Md. A pp. 381, 672 A .2d 116 (1996). In that cas e, the word residence appeared in Section 9-104(f)(3) of the Real Property Article of the Maryland Annotated Code, w hich proh ibited placem ent of me chanic s lien s on a sing le family dwelling being erected on the la nd of th e own er for h is own residen ce. Id. at 383, 672 A.2d at 117 (quotation marks omitted). The owners in that case were residents of New Jersey but planned to use a ho me in O cean P ines, M aryland a s their va cation h ome. Id. at 383 84, 672 A.2d at 117 18 . Relying on th e legislative intent, the Court refused to treat the w ord residence as synonymou s with do micile in tha t context, stating that the legis lature s intent in using the word residence in § 9-104(f)(3) of the mechan ic s lien law was contrary to equating it with the term domicile. Id. at 393, 672 A.2d at 122. The Court of Special Appea ls reasoned that § 9-104(f)(3) clearly has as its purpose an intent to shift re sponsibility for insuring payment of a subcontractor from the owner of the dwelling to the prime contractor, i.e., to limit the subcontractor s ability to lien the single family residence. Id. at 394, 672 A.2d at 123. The Court added: had the legislature intended to distinguish between a primary and a secondary residence in parsing out the protection afforded by the statutory limitation on a subcon tractor s ability to lien a single fam ily dwelling, it wo uld have explicitly done so. Id. at 395, 672 A.2d at 123. 7 The divergent views in these cases, equating the word s reside nce a nd do micile, on the one hand, and distinguishing them, on the o ther, demonstrate that there is no defa ult position with re spect to the me aning o f the w ords re side o r reside nce. 2 Thus, to decipher the correct meaning of these w ords, they mu st be constru ed in acco rdance w ith the context and the purpose of the con stitution, charter, sta tute or instru ment in which they are f ound. Gallagher, 219 Md. at 202, 148 A.2d at 396. Therefore, in this case, in order to determine what the word residence means in Section 202(c) of the Anne Arunde l County Ch arter, this Court should have examined the context and the purpose of that provision. The Context and Purpose of Section 202(c) An examination of Section 202(c) and its legislative history shows there is direct evidence that the drafters of the Cha rter intended the term residence in Section 2 02(c) to mea n ac tual r esidence evid ence which th e Majority fails to s ufficien tly exp lain a way. The history of the Anne Arundel County Charter is well-documented. As the needs of the county grew, several members of the House of Delegates encouraged citizens to form a comm ittee to petition fo r a charter fo rm of go vernmen t. Bennett Crain, Government Under the Charter, in Anne Arundel County: A Bicentennial History 1649-1977, 216 (James 2 In his treatise on R esidence a nd Dom icile, Kossuth Kent K ennan attributed this diversity of opinion . . . in regard to th e meaning of the wo rd in differe nt connec tions to two main reasons. Kenn an, Residenc e and D omicile § 6 (1934). First, statutory sources refer almost invariably to residence and rarely mention domicile, thus leaving it to the courts to determine the extent to which the words are synonymous or otherwise. Id. Second, questions of residence are constantly arising in relation to a great variety of subjects such as attachment, voting, divorce, taxation, jurisdiction, . . . etc. Id. 8 C. Bradfor d ed., 1977 ). That effo rt was succ essful: a committee was formed, and a charter board, whose duty would be to prepare a county charter, was elected during the 1962 genera l election . Id. The Charter Board consisted of five members and had a Reporter a nd Lega l Counse l. Id.; see also R eport to the V oters of An ne Arun del Coun ty, in Proposed Charter for Anne Arundel County, M aryland xiii (196 3). The B oard met re gularly over a six-month period, in the end producing a propo sed cha rter. Cra in, Government Under the Charter, at 216; see generally Charter of Anne Arundel County Maryland, in Proposed Charter for Anne Arundel Cou nty, Maryland (1963). Section 202(c) was part of this original Charter and was ratified by the vo ters in 19 64. See Charter of Anne Arundel County Maryland at 2. When the proposed Charter was released to the public for consideration, it was accompanied by a Report prepared by the Board and Reporter s and Counsel s Notes. The Report provided an outline of some of the major provisions of the Charter and . . . some of the views formulated by the Cha rter Board during the course of its studies. Report to the Voters of Anne A rundel C ounty, at xiii xiv. The Notes represented the Reporter and Counsel s com men t upo n eac h sec tion of th e Ch arter , man y of them actually written contemporaneously with the disc ussion of e ach section leading to th e Charter a s finally presented. Bennett C rain, Notes to the Proposed Home Rule Charter of Anne Arundel County , in Proposed Ch arter for Anne A rundel County, Ma ryland 69 (1963). Both the Report and the Notes mentioned the words reside and residence. With 9 respect to a councilman s residence, the Report explained: The proposed Charter establishes a seven member legislative body, each of whom must resid e in a separa te councilm anic district of the County, and each of whom is elected by all the voters of the Co unty. 3 Report to the Voters o f Anne A rundel C ounty, at xv. The N otes elaborated on this residence requireme nt, stating that the Board believes that the members of the Council should be both nominated and elected County-wide with the safeguard providing that each area of the County shall be guaranteed a representative residing in that ar ea. Cr ain, Notes to the Proposed Home Rule Charter, at 72. In expandin g upon th e term resid ence as sp ecifically used in Section 202(c) the exact provision we are interpreting in this case the Notes explained: This section requires that each cou ncilmanic d istrict shall be represented in the Counc il by a member who actually resides therein during his full term. Id. at 73 (emp hasis 3 The Bo ard believe d that [t]he election of Councilmen b y the voters of the entire Cou nty, but subject to a d istrict residence requirement, will give the voters of the County the maximum degree of district representation possible under present law. It will insure representation on th e Co uncil for each section o f the Cou nty, with its unique problems and interests, but at the same time the Counc il will have County-wide responsibility and accou ntability for its deliberations and actions. The guarantee of district representation does not exist under the present form of governm ent. Report to the Voter s of Anne A rundel C ounty, in Proposed Charter for A nne Aru ndel County, Maryland xvi (1963 ). 10 added). Thus, the legislative history provides us with the exa ct meaning of the w ord residence as it is use d in Sec tion 20 2(c). The meaning of the phrase actually resides is clear. The American Herita ge Diction ary defines the word a ctually as [i]n f act; in reali ty. The American Heritage Dictionary of the English Language 18 (4th ed. 2006). Black s Law Dictionary defines the word actual as [e]xisting in fact; real, and contrasts it to the wor d constru ctive, wh ich mean s [l]egally imputed; existing by virtue of legal fiction though not necessarily in fact. Black s Law Dictionary at 40, 356. T hus, there is only one way to read the phrase actually resides the councilm ember m ust in fact live in the councilmanic district he represents, not that he ma y live elsewhere but have th e intent to return at some point in the future. The Majority, however, gives short s hrift to this Re porter s No te. Rather, it attem pts to explain a way the Note s e xpress requ irement of actually residin g in the cou ncilmanic district by announcing that the Note was merely referring to the language used in the preCharter 1957 Anne Arundel County Code. Specifically, the Majority focuses on Sections 214 and 2-15 in the 1957 Code, which concerned qualifications for runnin g for offic e. Maj. Slip Op. at 25 26. Section 2-14 pro vided that, befo re a person could run for Cou nty Commissione r, he shall have actually resided in the county for at least ten years. Under Section 2-15, in primary elections, candidates for County Commissioner could be placed only on the b allot of th eir local d istrict. 11 The Majority com pares these two sectio ns to Section 201(a) in the 196 4 Charter, which refers to a councilmem ber s residence in the councilmanic district not only at the time of his election and for two years immedia tely prior thereto, b ut also dur ing his full term of office . Based on this additional qualification in Section 201(a), the Majo rity maintains that Section 202(c) and these related provisions of the Anne Arundel County Charter extended the residency qua lification from candidac y to incumbe ncy. Maj. S lip Op. at 27 (emphas is added). For reasons unclear to me, the Majority apparently believes this establishes that the actually reside language in the Rep orter s Note is a referen ce to the pre vious Co unty Code s requirement that a candidate have actually resided in the County prior to the election. Id. at 28. This reasoning defies logic. It makes no sense that the Note written in 1963, designed to accompany a specific section of the new Charter to be presented to the voters, and with the purpose of explaining the new provisions of the Charter would somehow be translated as describing the old 1957 Code, which was about to be extinct, and which it never even mentions. Also, by its own language, the Note cannot be discussing the 1957 Code because the Note s peaks of a councilm ember ac tually residing in th e district during his full term. Crain , Notes to the Proposed Home Rule Charter, at 73 (emp hasis added). As the Majority admits, under the 1957 Code, there was no residency requirement during the county commissioner s term of office. Maj. Slip Op. at 26. The only residency requirement in the 1957 Code pertained to a c andidate s res iden cy prior to the election. The residency 12 requireme nt during the full term was in troduc ed for the f irst time in the C harter. Moreover, the Majo rity s entire effort to f ind the me aning of S ection 202(c) with in the old 1957 Code is misguide d. The M ajority acknowledges that the change from the 1957 Code to the 1964 Charter w as a wh olesale review, but even this is an understatement. In drafting the Charter, the drafters did not revise the 1957 Code; they created a completely new form of government. Thus, the Majority s attempts to neatly line up Sections 2-14 and 2-15 of the old Code w ith Sections 201 and 2 02 of the new Charter are unconvincing. Section 202(c) is a brand new provision, which appeared for the first time in the new 1964 Charter. There is simply n o sectio n of the old 195 7 Cod e to com pare it to . Just as uncon vincing is the Majority s rejection of the actually reside language in the Note, utilizing a statement by the Charter Board that referred to the 1957 Code in a complete ly different context. Namely, the Majority relies on the Report to the Voters of Anne Arundel County, in which the Charter Board, referring to the 1957 Code, explained that [t]he guarantee of district representation does not exist under the present form of governmen t. Maj. Slip. O p. at 27 (bold emphas is added) (c itation and q uotation marks omitted). Based so lely on this statem ent, the M ajority decides that the R eporter s N ote to Section 202(c) which is contained in an entirely different document must also be referring to the old 1957 Code. This conclusion is unfounded.4 4 I submit that the Charter Board s elaborations on the direct representation, as giv[ing] the voters of the County the maximum degree of distric t represe ntation p ossible, Maj. Slip. Op. at 27 (bold em phasis added) (citation and q uotation marks om itted), directly 13 The Majority is left w ith a vast logical leap between its reliance on the old Code and its attempt to explain away the Reporter s Note to Section 202(c) which it is unable to traverse. The answer to the question before this Court lies not in the 1957 Code, but in the docume nts explaining the thoughts of the drafters of the Charter when Section 202(c) was first created specifically, the Reporter s and Counsel s Notes. 5 As explained above, these notes were written contemporaneously with the discussion of each section leading to the C harter and attempt to clarify the purpose and scope of each section . Crain, Notes to the Proposed Home Rule Charter, at 69. The Notes were meant to serve as a running commentary on the thoughts and conclusions of the men who were support an interpretation of the term residence like that in the Reporter s Note. The best way of guaranteeing that each district is represented by a memb er residing in th e district is to require that e ach mem ber actua lly reside in the dis trict. If only domic ile is required, then a member may establish his domicile inside the district, but move his actual residence outside of the district and continue to live outside of the district for his entire term. This does not provide the district with the maximum amount of direct district representation, nor does it guarantee that each district be directly represented by a memb er residing in th e district. 5 We have found a reporter and counsel s notes to be a reliable source of legislative intent on other occasio ns. For instance, in Yorkda le Corp. v. P owell, one of the issues befo re us was the time when certain legislation became effective. 237 Md. 121, 128 29, 205 A.2d 269, 273 (1964). Like here, the Notes in that case were contemporaneous comment on the discussions and deliberation of a charter board in that case, the Baltimore County Charter Board. Id. at 129 30, 205 A.2d at 274 (quotation marks omitted). Relying on those Notes, we held that the legislation at issue became effective forty-five days after its enactment: The Notes remove any doubt, if the Charter provisions themselves left any, that the end of the forty-five day period was to be the equivalent of June 1 in the State legislativ e plan . . . . Id. at 130, 205 A.2d at 274. We also consu lted a charter s reporter s no tes for guid ance in Murray v. Director of Planning, 217 Md. 381, 386 89, 143 A.2d 85, 87 8 9 (1958); Renz v. Bonfield Holding Co., 223 Md. 34, 48, 161 A.2d 436, 439 (1960); and City of Annapolis v. Anne A rundel C ounty, 347 Md. 1, 5 n.4, 69 8 A.2d 523, 52 4 n.4 (1997). 14 elected to stud y and revise the County government. Id. at 70. The Reporter and Counsel envisioned that [t]h e notes may also , in appropriate cases, serve an additional useful purpose to the Bench and the Bar in interpreting the Charter itself. Id. The Reporter s Note accompanying Section 202(c) specifically provides that each councilmanic district shall be represented in the Cou ncil by a member who actually resides therein d uring h is full term . Id. at 73 (emphasis added). The Majority, as I have exp lained, has n o valid rebu ff to this Reporter s Note. In this case, we were tasked with discovering the legislative intent behind the words move his residenc e, as used in Section 20 2(c). In this effort, we could not have asked for a more clear pronouncement of the meaning of the word residence than a statement in the Reporter and Counsel s Notes, and particularly the specific Note accompanying Section 202(c) itself, that residence means actually resides. Thus, I would agree with the Council s interpretation of the term residence. The Council s Application of the Term to Jones s Situation While this Court indeed owes no deference to the Council s interpretation of the word reside nce, see Talbot Cnty. v. Miles Point Prop., LLC, 415 Md. 372, 384, 2 A.3d 344, 351 (2010), the Council s application of that interpretation to Jones was a mixed question of law and fact, Charles Cnty. Dep t of Soc. Servs. v. Vann, 382 Md. 286, 296, 855 A.2d 313, 319 (2004), subject to review for substantial evidence, Montgomery Cnty. v. Butler, 417 Md. 271, 284 8 5, 9 A.3 d 824, 8 32 (20 10). 15 The substantial evidence standard of review calls both for appellate deference and for appellate discipline. It matters not whether we think the circumstances constituted [a particular finding], so long as there was s ome su bstantia l basis s uppor ting it. See Tochterman v. Balt. Cnty., 163 Md. App. 385, 40 6, 880 A .2d 111 8, 1130 (2005 ). If such substantial evidence exists, even if we w ould no t have re ached the sam e conc lusions . . . based on all of the evidence, we must affirm. Id. at 409, 880 A.2d at 1132 (citation omitted ). Applyin g this de ferentia l test, I would hold that, when Jones did not step foot in the First Councilmanic D istrict (or Anne Arund el County for that matter) for five months, the Counc il had substa ntial evidenc e before it to conclude that Jones s actual residence was not in th e First C ouncilm anic D istrict dur ing that t ime. Clean Hands Doctrine I would a ffirm the C ircuit Court s grant of summary judgment in favor of the Coun cil and thereby would not reach the Council s defense of unclean hands. Y et, given the Majority s cursory re jection o f the C ouncil s clean hands argum ent, I am moved to address this topic . The Majority is certainly correct in stating that the doc trine of unc lean hand s will only bar a plaintiff from recovering when the plaintiff s improper conduct is the source, or part of the source, o f his equitab le claim. M aj. Slip Op. a t 29 (citation and quotation marks omitted). What the Majority fails to acknowledge, however, is that [t]he clean hands 16 doctrine is one resting in the sound discretion of the court. Space Aero Products Co. v. R. E. Darling Co., 238 M d. 93, 120, 2 08 A.2d 74, 88 (19 65). Cou rts are not req uired to app ly this doctrine, but rather have discretion to do so to ensure that they do not endorse o r reward inequitable conduct. Adams v. Manown, 328 Md. 463 , 475, 615 A.2d 6 11, 616 (1992). Therefore, this Court must review a trial court s decision of whether to apply the clean hands defense under an abuse o f discre tion stan dard. Space Aero Produc ts, 238 Md. at 120, 208 A.2d at 88 ; Hicks v. Gilbert, 135 Md. A pp. 394, 401, 762 A .2d 986, 990 (200 0). In this case, the Circuit C ourt granted summa ry judgment f or the Cou ncil based o n its holding that Jones had moved his reside nce. As a r esult, the cou rt made no findings as to whether it should apply the doctrine of clean hands, whether Jones s conduct was fraudule nt, illegal, or inequitable, or whether there w as a sufficient nexus be tween Jones s alleged improp er cond uct and the relief he seek s in this c ase. See Hlista v. Altevogt, 239 Md. 43, 48, 210 A.2d 153, 156 (1965). Without these findings, we have nothing to review for abuse o f discre tion. Th e Maj ority, howe ver, reached the merits of this issue, holding that regardless of any facts which the trial court could find on remand it would be an abuse of discretion for the trial court to apply the doctrine of clean hands in th is case. Not only is such a holding inappropriate without the trial court s first deciding the issue , but it is not su pporte d by the f acts. See Maj. S lip Op. a t 30. I ex plain. The Majority holds that Jones s alleged improper conduct (failure to disclose his legal troubles to the electorate) is not related to this litigation because the allegations of failure 17 to disclose are not the sou rce of the c laim that Jon es was un lawfully remov ed from office . Id. In so concluding, the Majority attempts to restrict Jones s claim to his having been improper ly ousted from the Co uncil. Id. But Jones s ouster c laim is nothing more than the vehicle by which Jones seeks to enforce his ultimate right to be on the Council, which he claims title to as the winne r of the electio n for the F irst Counc ilmanic D istrict seat. In this regard, the question is not necessarily limited to considering whether Jones dirtied his hands in being ousted from the Council. The Circuit Court may also consider whether Jones dirtied his hands in winning the councilman s seat, which he now claims to have a right to retain. In answering this question, the trial court could certainly find facts that link Jones s failure to disclose the investigation and his ongoing plea negotiations with the United States Attorney to his acquiring of the First Councilmanic District seat. For example, the Coun cil argues before this Court that Jones (1) had been in negotiations about a plea b argain for a period of six to ten months prior to the November 2, 2010 election; (2) won the election by a relatively small margin of 914 votes; and (3) signed his plea agreement on November 8, 201 0 only s ix da ys after the election. If the trial court found these facts to be true, then it could find that Jones in tended to w ithhold highly material facts from the public, and that he would not have won the election had he disclosed his criminal conduct. Under these facts, the trial court may co nclude tha t Jones direc tly dirtied his hands in acquiring the First Counc ilmanic District seat the right he now seeks to keep. A further connection between Jones s unclean hands and the ouster is that the five-month absence from his district was a 18 direct and foreseeable consequence of his criminal conduct that he withheld from the voters. Certainl y, we cannot say at this stage as the Majority inappropriately does that a trial court would abuse its discretion in applying the clean hands doctrine to this case. Conclusion In its refusal to pro perly examin e the contex t of Section 202(c), the M ajority fails to apply its own test that depends on the absence of co ntrary intent. It ignores the Reporter s Note to Section 2 02(c), wh ich specifica lly states that a councilmember must actually reside in the d istric t. Ins tead , the M ajority cre ative ly constructs its own contradictory legislative history by combining irrelevant provisions of the 1957 Code with irrelevant provisions of the 1964 Charte r. Ultimately, the M ajority cannot ge t around the fact that the N ote express ly defines residence within Section 202(c) as meaning ac tual resid ence. By ignoring this, the Majority has created a test, u nder wh ich th e term residen ce w ill he reinafte r alw ays mean domicile, regardless of what the context or contrary intent may show. Properly defining the term residence to mean actual residence under the circumstances, I would hold that the Council had sufficient supporting evidence before it to conclude that, when Jones began to serve his sentence in South Carolina, he no longer actually resided in the First Councilmanic District within the meaning of S ection 202(c). Thus, I would affirm the Circuit Court s grant of summary judgment in favor of the Coun cil and against Jones. Judge Harrell and Jud ge Barbe ra have au thorized m e to state they join in this 19 dissenting opinion. 20
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