philips v. bot of mont. college

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IN THE

Court of Special Appeals of Maryland

September Term 2011

Docket No. 01319

RECEIVED

M A Y 0 7 1 0 1 1ICHAEL LEE PHILIPS,

et al.,

Plaintiffs and Appellants,

vs.

BOARD OF TRUSTEES OF

MONTGOMERY COLLEGE,

Defendant and Appellee.

On Appeal from the Circuit Court

Of Montgomery County, Judge MarielsaA. Bernard

BRIEF OF APPELLANTS

Paul J. Orfanedes

Judicial Watch, Inc.425 Third Street, S.W. Suite 800

Washington, D.C. 20024

(202) 646-5172

[email protected]

mailto:[email protected]




TABLE OF CONTENTS

STATEM ENT OF TIIE CASE 1

QUESTION PRESENTED 2

STATEMENT OF THE FACTS 2

STANDARD OF REVIEW 6

.ARGUMENT 6

1. Plaintiffs' Complaint Properly Invokes the Long-Standing Right of

Maryland Taxpayers to Challenge Illegal or Ultra ViresActs of

Maryland Pub lic O ffic ia ls , N ot Any R ig hts o r C laim s Under Federal

L aw , the M aryland C ode, or M aryland Regulations 7

II. The Circuit COUlt Erred by Importing Federal Standards Regarding

Priv a te R ights of Actions into a Maryland Taxpayer Lawsuit 17

Ill. Plaintiffs Have Stated a Claim for Injunctive Relief 19

C·ONCLUSION 20

CERTIFICATE OF COMPLIANCE 22

CERTIPIC·ATE OF SER_VICE 23

APPENDIX 24
















































TABLE OF CASES

Cases

Alexander v . Sandoval,532 ·U .S . :275 .(2001) " 1 " 7 , . 1 8

Baker v.Montgoil1ery County, .

20] Md ..App. 642 (20] 1) _ _ 8

Baltimore v. Gill,31 Md. 375 (1869) 7. 8, 13

Boitnott v. Mayor of Baltimore,

356 Md ..226 (1999) 8 - , 15-

Bey.v. Moorish. Science Temple,

362 Md. 339 (2:001) " 19

Burgio and Campofelice, Inc. v.N. Y . State Dep It of Labor

107 F. 3d 1o o o (2nd Cir, 1997) " 12

Castle Farms Dairy Stores, Inc. v. Lexington MarkeiAuth.,

193 Md. 472 '( 1949) - 8, 20

Citizens Planning and Housing Ass 'n v. County Exec. ,

273 _Md. 333 (1974) - - - 8 ,.15

County Exec. a/Prince George's County v . Doe.

300 Md. 445 (1984) , 10

First Nat'lBank v. Taylor ,

907 F..2d 775 (8th Cir. 199'0 ) 12

Frothingham v Mellon

262 U.S. ·447 (1923) .._ - " ] 8

Gabe.lli Global MultimediaTrust, inc. v. Western Inv., LLC,

700 F. Supp.Zd 748(D . Md. 2010) 18

Gordon v. Baltimore,

258 Md. '682 -(197'0 ) ,. , '_" '''. ' ._ - - 8 •. 15

II




















































































Hanlon v. Levin,

1 68 Me l. 6 74 (1935) 1.5

Horace M ann League v . E d. o f Public W orks,242 Md. 645 (1966) 12

I ll. A ss In o f Mort. Brokers v . O ffice o f B an ks a nd R ea lE sta te

308 ~.3d 762 (7th eir. 2001) 12

Indep. Living Ctr. of S . Ca. Inc. v. Shewry,

543 F.3d 1050 (9th Cir. 2008) 12

Inl et As soc s. v. Assa teague H ouse C ondo . Ass 'n,

3.13Md. 413 (1988) 15

James v. Anderson 281 Md. 137 (1977) 15

Konig y . Bal timore , 126 Md. 606 (1915) 15

League a/Women Voters v: Blackwell,

340 F. Supp.2d 823 (N. D. Ohio 2004) 12

Ma yo r o f B altim ore v. Emplo yers> A sso c. of M aryland, Inc. ~

162 Md 124 (1932) " 15

McKaig v. Cumberland,

208 Md. 95: (1955) " 14, 15

Miller v. County Commissioners of Carroll County,

226 Md. 105 (1961) 14

Murray v. Comptroller of the Treasury,

241 Md. 383 (1966) 11. 12

Painter v .. Mattfeldt,119Md. 466 (1913) 12

Peter v. Prettyman,

.6 2 Md. S{;6 (1884) 14

111











































































P ressm an v. B arnes. .... - . , .

2 09 M :d ., 544 {1956) " , 13

Pressman v , D'Alesandro,211 Md. 50 (1956) ,," " 13, 14

P. R. Tel. Co. v"Municipality of Guayanilla,

450 F.3d 9 (Ist Cir., 2006) , , , , , 12

Qwest C orp. v. C ity o f Santa ' F e,

380 F'.3d 1258 (10th Cir. 2004) 12

ReichsFord R d. Jo int V enture v. State Rds. Comm '17,, ,

388 Md..5.00 (2005) " " " , "" 6

Renshaw v .Urace,

1 55 Md ,. 2 94 (1928) - _ 14

S ou thwe stem B ell Tel., L.P. v. CityofHeuston,

529 F.Jd 257 (5th Cil".2008) 12

St. Thomas - St. John Hotel and Tourism Ass 'nv. Virgin Islands

218 F3d 232 (3d Cir, 2000) ,".'.' " '.' 12

Sugarloef Citizens A sso c; In c. v , Gudis,

319 Md. 585 (19-90) " " , - J6

T hom as v. H ow ard C ounty ,

.261Md. 422 (1971) - " " ,..9,. IS ,

Toll v, Moreno ,

284 M d. 425 (1-979) , _ " " ".5

Valle v . Pressman,

'229 Md. 5.91 (1962) ." ; _ 14

Vil iageof Westfield v . W e lc h. ' s,

170 FJd 116 (2nd Cir, 1999) , 12

Weller v Mueller>

12'0 Md. 63'3 (1913) , " " " J4

IV
























































































Western Air Lines, Inc v. Port Authority of New York and New Jersey

817 F. 2d 222 (Znd Cir. ] 987) 18

120 W. Fayette St., LLLP v. Mayor of Baltimore,407 Md. 253 (2009) 1 6, 2 0

120 W . Fayette St., LLLP v . Mayor of Baltimore,

2012 Md. LEXIB 25.5 (April 27,2012) ] 6, 17

Constitutional Provisions

Md. Canst. Decl, Rights, art. 2 " 13

U.S. Const., art. VI c1. 2 11

Statutes, Rules, and ReguJations

Md. Code Ann., Educ. § 16-310 5, 7, 11

Md. Code Regs. § 13B.07.02.03 5 : , 11

Md. Code Regs. § 13B.07.02.03(c) ~ " 7

8 U.S.C. § 1621 7. 10, 11 ]3

8U.S.C. § 1621(d) 4

2011 Md. Laws, ch. 191 5

MisceHaneous

91 Op, Att'y Gen. Md. 92 · 5

v















































STATEMENT OF THE CASE

In this taxpayer action, Montgomery County taxpayers Michael Lee Philips,

Patricia Fenati, and David Drake ("Plaintiffs") invoke the longstanding, common law

right of Maryland taxpayers to bring suit to enjoin illegal and ultra vires acts of Maryland

public officials. Specifically, Plaintiffs challenge the policy of Defendant Board of

Trustees of Montgomery College ("Defendant") of allowing recent graduates of

Montgomery County public high schools the public benefit of paying reduced, in-county

tuition at Montgomery College regardless of their lawful place of residence or status as

unlawfully present aliens. Plaintiffs' lawsuit alleges that Defendant's policy is illegal and

ultra vires under both federal law and Maryland law. Plaintiffs' lawsuit also alleges that

Defendant's illegal and ultra vires tuition policy has caused and will continue to cause

taxpayers to suffer pecuniary injury.

The Circuit Court for Montgomery County ("Circuit Court") dismissed Plaintiffs'

lawsuit in a ruling that seriously erodes the rights of Maryland taxpayers to challenge

illegal and ultra vires acts of Maryland public officials. In contravention of more than

150 years of precedent, the Circuit Court held that taxpayers must possess a "private right

of action" in addition to their rights as taxpayers in order to enjoin unlawful or ultra vires

acts of Maryland public officials that cause injury to the public fisc. In so holding, the

Circuit Court confused taxpayers' longstanding common law right to challenge public

officials' illegal or ultra vires acts with the provisions of law that make the officials'

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conduct unlawful or ultra vires. Consequently, the judgment of the Circuit Court must be

vacated and this matter must be remanded for further proceedings.

QUESTION PRESENTED

Whether taxpayers invoking the longstanding common law right of Maryland

taxpayers to challenge illegal or ultra vires acts of Maryland public officials that are

likely to cause pecuniary injury also must possess a separate "private right of action" in

order to be entitled to declaratory or injunctive relief.

STATEMENT OF THE FACTS

Plaintiffs are taxpayers and long-time residents of Montgomery County. Record

Extract ("E_") at 12. Defendant is the governing body of Montgomery College, a

public community college located in Montgomery County, Maryland. Id. As

Montgomery College's governing body, Defendant is empowered to exercise general

control over the college and to adopt reasonable and lawful rules, regulations, and

policies for the operation of the college. Id.

As a public community college, Montgomery College relies primarily on

appropriations of state and county tax dollars, as well as student tuition and fees, for its

revenue. E 13. Appropriations of state and county tax dollars account for approximately

one half of Montgomery College's revenue. Id. By contrast, tuition and fees paid by

students constitute less than a quarter of the college's revenue. Id.

Under Maryland law, the tuition charged to a student who attends a community

college in Maryland is determined by the student's place of residence. Id. Students who

are residents of the county or counties supporting the community college at which they

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are enrolled are charged an in-county rate. E 14. Students who are residents of the State

of Maryland, but reside outside the county or counties supporting the community college

at which they are enrolled, are charged an in-state rate. Jd. Students who reside outside

the State of Maryland are charged an out-of-state rate. Jd.

Ithas been the long-standing policy of Defendant to provide reduced, in-county

tuition to all recent graduates of Montgomery County public high schools. Jd . Students

who have graduated from a Montgomery County public high school within three years of

enrolling at Montgomery College are not required to prove lawful residence in

Montgomery County to receive the reduced, in-county tuition rate. Jd. Until late 2010,

this policy had never been put in writing. Id.

On November 15, 2010, the Board adopted a resolution incorporating its long-

standing, unwritten policy into College Policy 45003. Specifically, Defendant adopted

Resolution No. 10-11-086 "to clarify and confirm tuition and fees practices previously

authorized by the Board but not contained in the present public policies on tuition." Jd.

College Policy 45003 sets forth three categories of tuition rates: a "C Rate,"

which corresponds to the lowest, "in-county" rate, an "S Rate," which corresponds to a

mid-level, "in-state" rate, and an "OS Rate," which corresponds to the highest, "out-of-

state" rate. E 15. Pursuant to College Policy 45003, students who graduate from

Montgomery County public high schools within three years of enrolling at Montgomery

College will be charged the "C Rate" without being required to prove that they are lawful

residents of Montgomery County. E 16-17.

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Both the prior, unwritten version of the policy and the recently-adopted, written

version have had the effect of providing a public benefit -- reduced, in-county tuition -- to

unlawfully present aliens who graduate from a Montgomery County public high school.

E 17. On information and belief, it was and is the intent of Defendant in establishing the

policy to provide this public benefit to unlawfully present aliens who graduate from

Montgomery County public high schools. Id. In fact, Montgomery College has admitted

repeatedly that Defendant's long-standing policy enables unlawfully present aliens to pay

the lowest, in-county tuition rate. Id. In its audited financial statements for Fiscal Years

2007,2008, and 2009, Montgomery College stated: "[T]he Montgomery College policy

is applicable to all persons, equally, and includes all citizens as well as undocumented

aliens .... " Id. Moreover, Montgomery College spokesperson Brett Eaton was quoted

in the October 29,2010 edition of the Montgomery County Gazette as stating, "We do

not give in-state tuition to illegal immigrants, with the exception of recent [Montgomery

County public high school] graduates." Id.

Under Title 8, Section 1621 of the U.S. Code, unlawfully present aliens are

ineligible for state or local public benefits, including post-secondary education benefits

such as reduced tuition, unless a state has enacted a law affirmatively providing for such

eligibility. E 16 and E 24; see also 8 U.S.C. § 1621(d). At the time Plaintiffs filed suit,

the State of Maryland had not enacted a law affirmatively providing that unlawfully

present aliens are eligible to receive the public benefit of reduced, in-state or in-county

tuition at public institutions of higher education, including community colleges such as

Montgomery College. E 46. Consequently, Plaintiffs allege that Defendant's

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longstanding policy of allowing recent graduates of Montgomery County public high

schools the public benefit of paying reduced, in-county tuition without requiring them to

prove that they are lawful residents of Montgomery County constitutes an illegal and

ultra vires act under Title 8, Section 1621 of the U.S. Code.l E 24-25.

In addition, Maryland law requires that tuition be based on a student's lawful place

of residence, not where he or she graduated from high school. Subject to certain

exceptions not relevant here, Section 16-310 of the Maryland Education Code and

Section 13B.07.02.03 of the Code of Maryland Regulations ("COMAR") require

Montgomery College to charge out-of-state tuition to any student who attends a

community college in the State of Maryland and is not a resident of the State.' E 23.

Thus, Plaintiffs also allege that Defendant's tuition policy constitutes an illegal and ultra

vires act under Section 16-310 of the Education Code and Section 13B.07.02.03 of

COMAR. E 23-24.

Plaintiffs further allege that Defendant's illegal and ultra vires policy has caused

and is causing substantial, pecuniary loss to taxpayers in Montgomery County and the

State of Maryland. E 17. By providing reduced, in-county tuition to all students who

graduate from Montgomery County public high schools without requiring them to

Although the State of Maryland subsequently enacted such a law (see 2011 Md.

Laws, ch. 191), the new law has been stayed pending the outcome of a referendum in

November 2012 and, if defeated, may never go into effect.

2Under Maryland law, unlawfully present aliens lack the legal capacity to establish

legal domicile, and therefore residence, in the State of Maryland. Toll v.Moreno, 284

Md. 425, 442-43 (1979); 91 Op. Att'y Gen. Md. 92, 96.

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provide proof of lawful residence in Montgomery County, Montgomery College is failing

to collect revenue that, under federal and state law, it is required to collect. E 17-18.

Plaintiffs allege that, as a result of Defendant's illegal and ultra vires policy,

Montgomery College failed to collect approximately $7,940,374 in tuition fees in the four

academic years between 2007 and 2010, causing substantial pecuniary losses to

taxpayers. E 17-22. Plaintiffs allege that, because taxpayers in Montgomery County and

the State of Maryland subsidize the cost of attending Montgomery College, Montgomery

County and Maryland taxpayers also have been required and are being required to make

up the resulting lost revenue through increased appropriations of tax dollars and, in

particular, increased appropriations of county tax dollars. E 18.

STANDARD OF REVIEW

The granting of a motion to dismiss is reviewed de novo. Reichs Ford Rd. Joint

Venture v. State Rds. Comm 'n, 388 Md. 500, 509 (2005). The reviewing court examines

whether the complaint, assuming all well-pleaded facts and reasonable inferences drawn

therefrom in a light most favorable to the pleader, states a legally sufficient cause of

action. Id. Dismissal is proper only if the complaint would fail to provide the plaintiff

with a judicial remedy. Id.

ARGUMENT

The Circuit Court dismissed Plaintiffs' lawsuit by erroneously concluding that

Plaintiffs were required to demonstrate the existence of private rights of action under

federal law and Maryland law in order to prevail on their taxpayer claim. Because

Maryland law imposes no such requirement on taxpayers seeking to enjoin illegal or ultra

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vires acts of Maryland public officials that are likely to cause pecuniary loss, the Circuit

Court's dismissal of Plaintiffs' Complaint was erroneous. Therefore, the Circuit Court's

ruling must be vacated and this case must be remanded for further proceedings.

I. Plaintiffs' Complaint Properly Invokes the Long-Standing Right of

Maryland Taxpayers to Challenge Illegal or Ultra Vires Acts 'of

Maryland Public Officials, Not Any Rights or Claims Under Federal

Law, the Maryland Code, or Maryland Regulations.

The Circuit Court dismissed Plaintiffs' Complaint after finding that no private

right of action exists under Title 8, Section 1621 of the U.S. Code, and that neither

Section 16-310 of the Maryland Education Code nor Section 13.B.07.02.03(c) of

COMAR contain private rights of action. But Plaintiffs did not bring suit under these

provrsions.

For over 150 years, the Maryland common law has authorized Maryland taxpayer

to bring suit to enjoin illegal and ultra vires acts of Maryland public officials where those

acts are reasonably likely to result in pecuniary loss. In a landmark case in 1869, the

Court of Appeals explained that,

[i]n this state the Courts have always maintained with jealous vigilance the

restraints and limitations imposed by law upon the exercise of power by

municipal and other corporations; and have not hesitated to exercise their

rightful jurisdiction for the purpose of restraining them within the limits of

their lawful authority, and of protecting the citizen from the consequence of

their unauthorized or illegal acts.

Baltimore v. Gill, 31 Md. 375, 395 (1869). Numerous subsequent cases -- indeed, the

Court of Appeals has described them as a "profusion of cases" -- have upheld this long-

standing right of Maryland taxpayers:

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From this decision [Baltimore v. GilT]and the long line of Maryland cases

following in its wake, the principle has become established that a taxpayer

may invoke the aid of a court of equity to restrain the action of a public

official or an administrative agency when such action is illegal or ultra

vires, and may injuriously affect the taxpayer's rights and property.

Citizens Planning and Housing Ass 'n v. County Exec., 273 Md. 333, 339 (1974).

The requirements for such claims are quite modest. In what has been called

"[p]erhaps the most liberal application of the test" (see Gordon v. Baltimore, 258 Md.

682, 688 (1970)), taxpayers who challenged the constitutionality of a statute enacted to

aid in the reconstruction of Baltimore's Lexington Market were found to have stated a

claim for taxpayer relief simply because the allegedly unlawful reconstruction project

was likely to cause the City of Baltimore to incur unspecified expenses:

If the Act is unconstitutional, the project is unlawful, and even though the

City would not be obligated for the project, it presumably would incur

some expense or loss in extricating itself and its property. As taxpayers,

therefore, plaintiffs are entitled to sue to enjoin such an unlawful project.

Castle Farms Dairy Stores, Inc. v. Lexington Market Auth., 193 Md. 472, 482, 67 A.2d

490, 493 (1949). This Court recently reaffirmed that "Maryland has gone rather far in

sustaining the standing of taxpayers to challenge ... alleged illegal and ultra vires actions

of public officials." Baker v.Montgomery County, 201 Md. App. 642, 679 n.27 (2011),

quoting Boitnott v.Mayor a/Baltimore, 356 Md. 226,234 (1999).

Plaintiffs' taxpayer challenge to Defendant's tuition policy is on all fours with this

longstanding Maryland precedent. Plaintiffs allege that they are taxpayers and residents

of Montgomery County, that Defendant's tuition policy is illegal and ultra vires, and that

the illegal and ultra vires policy has caused and is causing pecuniary harm to Plaintiffs

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and their fellow taxpayers. Plaintiffs' claim is closely analogous to the claim in Thomas

v.Howard County, 261 Md. 422 (1971), in which the Court of Appeals reversed the

dismissal-of a taxpayer action challenging Howard County's allegedly illegal and ultra

vires failure to collect certain permit fees required under the Howard County Code, which

resulted in a loss of revenue. Like the failure to collect the permit fees in Thomas,

Defendant is failing to collect out-of-state tuition fees from recent graduates of

Montgomery County public high schools who either cannot or do not demonstrate that

they are lawful residents of Montgomery County. Not only is Defendant's illegal and

ultra vires tuition policy reasonably likely to cause pecuniary harm to taxpayers in

Montgomery County and throughout the State of Maryland, but Plaintiffs expressly

alleged that it has caused and is causing such harm, and will continue to do so unless the

policy is stopped. E 17-E 23. It already has caused Montgomery College to fail to

collect approximately $7,940,374 in tuition fees in the four academic years between 2007

and 2010. Id. Nothing more is required of Plaintiffs to state a taxpayer claim under

Maryland law.

Until the Circuit Court's ruling, no Maryland court had required that a Maryland

taxpayer seeking to enjoin an illegal and ultra vires act by a Maryland public official had

to demonstrate the existence of a separate, "private right of action" in order to state a

claim for taxpayer relief. The Circuit Court confused two distinct concepts: the long-

established right of Maryland taxpayers to challenge the illegal and ultra vires acts of a

Maryland public official and the underlying provision of law that allegedly makes the

official's act illegal or ultra vires. Indeed, in its ruling, the Circuit Court wrote, "It has

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long been settled that when an action is brought in a state court to enforce rights or

claims under federal law, the Supremacy Clause of the United States Constitution

requires that federal law and policy be applied by the state court." E 76 (emphasis added)

(internal quotations omittedj.:'

Plaintiffs do not seek to "enforce rights or claims under federal law." Nor do they

seek to enforce rights under any Maryland statute or regulation. They seek to enforce

their rights as taxpayer under Maryland common law, and longstanding Maryland

common law plainly gives taxpayers the right to challenge the acts of Maryland public

officials when those acts are illegal and ultra vires, irrespective of the existence of any

"private right of action" in the underlying law that makes the public officials' act illegal

or ultra vires. It is the illegal and ultra vires nature of the public official's act that is the

focus of a taxpayer claim, not the source or substance of the underlying provision of law

that makes the public official's act illegal or ultra vires.

In this particular case, the underlying provisions of law that make Defendant's

policy illegal and ultra vires are a federal law and two Maryland laws. The federal law

prohibits the provision of public benefits -- including reduced, taxpayer subsidized

college tuition -- to unlawfully present aliens. 8 U.S.C. § 1621. The Maryland laws

require that the rate of tuition paid by a student attending a Maryland public institution of

higher education be based on the student's lawful place of residence, not the high school

The case quoted by the Circuit Court, County Exec. of Prince George's County v.

Doe, 300 Md. 445, 454 (1984), was not a taxpayer case.

3

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from which the student graduated. See Md. Code Ann., Educ. § 16-310; Md. Code Regs.

§ 13B.07.02.03.

Itis irrelevant whether the source of the underlying provision oflaw is a federal,

state, or local law or whether the provision allows a "private right of action." The

provision at issue in Murray v. Comptroller a/Treasury, 241 Md. 383, 392 (1966), for

example, was the U.S. Constitution. Atheist activist and Maryland taxpayer Madalyn

Murray O'Hair and another taxpayer-plaintiff invoked their rights as taxpayers to

challenge Maryland's property tax exemption for places of worship, asserting that the

exemption violated the First and Fourteenth Amendments. The defendants argued that,

because the source of the underlying provision of law was federal law, not state law, Ms.

Murray and her co-plaintiff had no right to challenge the exemption in a taxpayer action

in a Maryland state court. The Court of Appeal soundly rejected the defendants'

argument:

When the validity of a state statute is attacked in a state court, it is the duty

of that court to determine all the constitutional issues involved, federal as

well as state. Ifthe statute is held valid under the state law, but invalid

under the federal constitution, the state court must give the complainants

the relief they pray.

Id. at 392. The Court of Appeals did not require that Ms. Murray and her co-plaintiff

demonstrate the existence of a "private right of action" under the First and Fourteenth

Amendments in order to state a claim for taxpayer relief.4 The Court of Appeals

4Of course, the Supremacy Clause of the U.S. Constitution, U.S. Const., art. VI, cl.

2, makes federal law the supreme law of the land. Plaintiffs' claim that Defendant's

tuition policy violates a federal statute, 8 U.S.C. § 1621, in effect is a claim that the

policy violates the Supremacy Clause of the U.S. Constitution. It is well-established, if

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continued, "[i]fthey have standing under the law of Maryland to bring the suit, it is

irrelevant that the result might have been different had the action been instituted, in a

federal court." Id.; see also Horace Mann League v. Bd. of Public Works, 242 Md. 645

(l966) (taxpayer action to enjoin state payments to private colleges with religious

affiliations under the First Amendment).

The underlying source of law at issue in Painter v.Mattfeldt, 119 Md. 466 (19l3)

was a provision of the Maryland Constitution. Taxpayers brought suit against Baltimore

County officials to enjoin them from selling bonds or assessing taxes under a statute

enacted by the General Assembly that created a "Good Roads Commission" and

authorized the construction and improvement of public roads, highways, and bridges in

the county. The taxpayer-plaintiffs claimed that the statute violated the "One Subject"

rule of article II, section 29 of the Maryland Constitution. The Court of Appeals declared

the statute unconstitutional and directed that the injunction requested by the taxpayer-

plaintiffs be issued. Id. at 480. Like in Murray, the taxpayer-plaintiffs in Painter were

not "universally affirmed," that private parties may seek injunctive relief under the

Supremacy Clause even without the existence of a separate federal statutory right or

private right of action. See, e.g., Indep. Living Ctr. ofS. Ca., Inc. v. Shewry, 543 F.3d

1050,1058-59 (9th Cir. 2008); Southwestern Bell Tel., L.P. v. City of Houston, 529 F.3d

257,262 (5th Cir. 2008); P. R. Tel. Co. v. Municipality ofGuayanilla, 450 F.3d 9, 15 (lstCir. 2006); Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1266 (lOth Cir. 2004); Ill.

Ass'n of Mort. Brokers v. Office of Banks and Real Estate, 308 F.3d 762,765 (7th Cir.

2002); St. Thomas - St. John Hotel and Tourism Ass 'n v. Virgin Islands, 218 F.3d 232,

241 (3d Cir. 2000); Village ofWestfieldv. Welch's, 170 F.3d 116,124 n.4 (2d Cir. 1999);

Burgio and Campofelice, Inc. v. N.Y State Dep 't of Labor, 107 F.3d 1000,1005-07 (2nd

Cir. 1997); First Nat 'IBank v. Taylor, 907 F.2d 775, 776 n.3 (8th Cir. 1990); League of

Women Voters v. Blackwell, 340 F. Supp.2d 823, 827-28 (N. D. Ohio 2004).

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not required to demonstrate that they possessed a "private right of action" under the "One

Subject" rule in order to be entitled to relief.

Similarly, the taxpayer-plaintiffs inBaltimore v. Gill, supra, also were not

required to demonstrate that they possessed a "private right of action" under a debt-

limiting provision of the Maryland Constitution of 1867 in order to enjoin the Mayor and

City Council of Baltimore from issuing bonds to aid in the construction of a railroad

without the approval of the General Assembly and a majority of the City'S voters. Gill,

31 Md. at 387,393-95. Taxpayer-plaintiffs have successfully challenged other acts of

Maryland public officials that were illegal or ultra vires under the Maryland Constitution

without demonstrating that they possessed a "private right of action" under the particular

provision at issue.' See, e.g., Pressman v. D'Alesandro, 211 Md. 50 (1956).

The underlying provision of law at issue in Pressman v. Barnes, 209 Md. 544

(1956) was a section of the Motor Vehicle Law of Maryland (now part of the Maryland

Transportation Code) limiting the authority of municipalities to regulate the speed of

vehicles on certain municipal streets. When taxpayers sued the City of Baltimore's

Director of Traffic for spending "many thousands of dollars of the City'S revenues"

erecting speed limit signs on such streets, the Court of Appeals declared, "[T]he

conclusion is irresistible that the City has no power to regulate the speed of vehicles on

any street which is a part of the State or Federal highway system or an extension thereof"

5The Maryland Constitution has its own Supremacy Clause. Md. Const. Dec1.

Rights, art. 2. Plaintiffs' challenge to Defendant's tuition policy under 8 U.S.C. § 1621

also constitutes a challenge to the policy under Maryland law, and in particular, the

Supremacy Clause of the Maryland Constitution.

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and directed that an injunction be issued to "restrain the Director of Traffic from setting

the speed limits on such highways." Id. at 551, 560. The taxpayer-plaintiffs in Pressman

were not required to demonstrate that they possessed a "private right of action" under the

state motor vehicle law in order to be entitled to an injunction against the Director of

Traffic.

The underlying provisions of law at issue in Valle v. Pressman, 229 Md. 591

(1962) were several Maryland statutes governing nominations for elected public office.

The taxpayer-plaintiffs in Valle successfully challenged the nomination of a candidate for

State's Attorney of Baltimore on the grounds that the nomination failed to comply with

the statutory provisions governing nominations. The taxpayer-plaintiffs alleged

irreparable harm, including waste of taxpayer funds in printing illegal ballots and holding

an illegal election. Id. at 594. None of the taxpayer-plaintiffs was required to

demonstrate the existence of a private right of action under the respective statutory

provisions. Taxpayer-plaintiffs have successfully challenged other acts of Maryland

public officials, or at least stated a claim for taxpayer relief against Maryland public

officials, on the grounds that the officials' acts were illegal or ultra vires under various

Maryland statutes without demonstrating the existence of a "private right of action" under

a particular statute. See, e.g., Peter v. Prettyman, 62 Md. 566 (1884); Weller v.Mueller,

120 Md. 633 (1913); Renshaw v. Grace, 155 Md. 294 (1928); McKaig v. Cumberland,

208 Md. 95 (1955); Miller v. County Commissioners of Carroll County, 226 Md. 105

(1961 ).

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County and municipal charters, codes, and ordinances often served as underlying

provisions of law in taxpayer-plaintiffs challenges to the illegal and ultra vires acts of

government officials without any requirement that the taxpayer-plaintiffs demonstrate the

existence of a "private right of action" under the respective charter, code, or ordinance.

The taxpayer-plaintiff in James v. Anderson, 281 Md. 137 (1977) was not required to

demonstrate that he possessed a private right of action under the Harford County Charter,

which limited transfers of funds budgeted and appropriated by the county council, or

under the County's Annual Budget and Appropriations Ordinance, which budgeted and

appropriated a specific amount of funds to renovate and enlarge the county's existing

courthouse, in order to challenge the County Executive's use of these same funds to build

an entirely new courthouse. Id. at 141-42, 148-S1 . The taxpayer-plaintiff in James

nonetheless succeeded in obtaining an injunction restraining the County Executive from

expending the funds for a new courthouse. James, 281 Md. at lSI.

Additional examples of such cases have abounded over nearly a century. See, e.g.,

Konig v. Baltimore, 126 Md. 606 (191S) (Baltimore City Charter); Mayor of Baltimore v.

Employers' Assoc. of Maryland, Inc., 162 Md 124 (1932) (Baltimore City Charter and

Code); Hanlon v. Levin, 168 Md. 674 (193S) (Baltimore City Charter); McKaig v.Mayor

of Cumberland, 208 Md. 95 (1955) (Cumberland City Charter); Gordon v. Baltimore, 2S8

Md. 682 (1970); Thomas v. Howard County, 261 Md. 422 (1971) (Howard County

Code); Citizens Planning and Housing Ass 'n v. County Executive, 273 Md. 333 (1974)

(Baltimore County Charter); Inlet Assocs.v. Assategue House Condo. Ass 'n, 313 Md.

413 (1988) (Ocean City Charter); Boitnott v.Mayor of Baltimore, 356 Md. 226 (1999)

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(Baltimore City Charter and City Code); 120 W Fayette St., LLLP v. Mayor of Baltimore,

407 Md. 253 (2009) (same).

Finally, Chief Judge Bell, writing in dissent and joined by two of his colleagues,

recently addressed the precise question presented here -- whether taxpayers challenging

the illegal or ultra vires acts of public officials must possess a separate "private right of

action" in order to be entitled to relief -- and concluded that the answer was no:

Standing also is not defeated by the "no private cause of action" clauses in

§§ 5A-325 and 5A-326 of the State Finance and Procurement Article. In

Baker v. Montgomery County, 201 Md. App. 642, 678-79, 30 A.3d 267,

289 (2011), the Court of Special Appeals held there was no private cause of

action implicit in § 21-809 of the Transportation Article of the Maryland

Code ... The court made sure to specify, however, that, had the petitioners

alleged standing as taxpayer plaintiffs, which they did not, the outcome

would have been different based on the language of Boitnott [v. Mayor of

Baltimore, 356 Md. 226 (1999)]. Baker, 201 Md. App. at 679, n.27, 30

A.3d at 289 n.27. The lack of aprivate cause of action contained in the

statute did not negate taxpayer standing. In [Sugarloaf Citizens Assoc.,

Inc. v. Gudis, 319 Md. 585 (1990)], we reached the same conclusion ....

120 W Fayette St., LLLP v. Mayor of Baltimore, 2012 Md. LEXIS 255, **79-80 (April

27,2012) (Bell, C.J., dissenting) (emphasis added). Chief Judge Bell continued:

In Gudis, we did not specify exactly what type of ultra vires action by a

public official a taxpayer could sue to restrain; in fact, this Court has never

drawn any strict lines. Rather, taxpayer standing protects taxpayers

potentially affected by the adverse public decisions, decisions that impact

their homes and livelihoods, by granting taxpayers authority to challenge

acts of public officials that are outside of their authority, even when another

public official, such as an Attorney General, is empowered to bring thelawsuit, but fails, for whatever reason to do so.

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Id. at *82.6 Thus, Chief Judge Bell's dissent not only refutes the Circuit Court's ruling

that a taxpayer-plaintiff must have a "private right of action" in order to state a claim for

taxpayer relief, but it also refutes the Circuit Court's assertion that Maryland taxpayers

are powerless to act when public officials charged with enforcing the law -- such as the

Secretary of Homeland Security or the members of the Maryland Higher Education

Commission -- fail or refuse to remedy an illegal or ultra vires act of a Maryland

government official. See E at 78 and 81. Both Chief Judge Bell and more than 150 years

of Maryland precedent clearly demonstrate otherwise.

In sum, Plaintiffs' Complaint plainly states a claim for taxpayer relief against

Defendant for its illegal and ultra vires tuition policy. As Chief Judge Bell and more

than 150 years of Maryland precedent confirm, Plaintiffs were not required to

demonstrate the existence of a separate and distinct "private right of action" in order to

state a claim for taxpayer relief.

II. The Circuit Court Erred by Importing Federal Standards Regarding

Private Rights of Actions into a Maryland Taxpayer Lawsuit.

The Circuit Court's reliance on Alexander v. Sandoval, 532 U.S. 275 (2001) and

other federal cases regarding private rights of action was erroneous. As an initial matter,

Maryland law has long been far more generous than federal law in allowing taxpayers to

6 The question before the Court of Appeals in the recent 120 W Fayette St., LLLP

ruling was not whether taxpayers must possess a private right of action in order to enjoin

an illegal or ultra vires act by a government official, but whether the plaintiff in that case

could obtain declaratory relief interpreting and enforcing the terms of a memorandum of

agreement between the Maryland Historical Trust and the City of Baltimore. 2012 Md.

LEXIS 255 at * 16. The majority answered that question in the negative and affirmed the

dismissal of the plaintiffs complaint. The majority's ruling thus is readily

distinguishable from the facts of Plaintiffs' claims here.

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challenge the illegal or ultra vires acts of public officials. Federal law generally frowns

upon taxpayer lawsuits. This reluctance to allow taxpayer lawsuits dates at least to

Frothingham v.Mellon, 262 U.S. 447, 487 (1923), in which the U.S. Supreme Court

stated:

If one taxpayer may champion and litigate such a cause, then every other

taxpayer may do [the] same, not only in respect of the statute here under

review but also in respect of every other appropriation act and statute

whose administration requires the outlay of public money, and whose

validity may be questioned. The bare suggestion of such a result, with its

attendant inconveniences, goes far to sustain the conclusion which we have

reached, that a suit of this character cannot be maintained.

The Circuit Court's application of the federal standards set forth in Sandoval to Plaintiffs

taxpayer action was misplaced, particularly in light of Maryland law's long history

taxpayer lawsuits.

The Sandoval test declared that parties cannot enforce acts of Congress in federal

court unless Congress has fashioned a private remedy for such private parties. Sandoval,

532 U.S. at 286. Federal courts in Maryland obviously must apply the Sandoval test.

One such case cited by the Circuit Court was Gabelli Global Multimedia Trust, Inc. v.

Western Inv., LLC, 700 F. Supp. 2d 748 (D. Md. 2010). Sandoval is silent about state

courts, however, and it is silent about state taxpayer actions in state courts in particular.

While the application of the Sandoval test may be proper in actions in which private

parties seek to assert federal rights and federal claims in federal courts, it is not proper in

actions in which Maryland taxpayers seek to assert their Maryland common law right to

challenge the illegal or ultra vires acts of Maryland public officials in Maryland state

courts. Nothing in Sandoval prevents Maryland courts from analyzing whether an act of

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a Maryland public official is illegal or ultra vires under any applicable law. Nor does

Sandoval require that Maryland state courts overturn more than 150 years of Maryland

precedent allowing Maryland taxpayers to sue to enjoin the illegal or ultra vires actions

of Maryland public officials without demonstrating the existence of a separate "private

right of action."

III. Plaintiffs Have Stated a Claim for Injunctive Relief.

The Circuit Court "did not address the issue of whether Plaintiffs have failed to

allege the elements necessary for an award of injunctive relief," but "note] d] that the

Complaint did not identify the requisite elements for an award of injunctive relief." E 82.

Plaintiffs respectfully disagree.

In order to be awarded injunctive relief, a plaintiff must demonstrate that "it will

sustain substantial, irreparable injury as a result of the alleged wrongful conduct." Bey v.

Moorish Science Temple, 362 Md. 339, 355 (2001). "Such injury, however, need not be

beyond all possibility of compensation in damages, nor need it be very great." Id.

(internal quotations omitted). "Rather, irreparable injury is suffered whenever monetary

damages are difficult to ascertain or are otherwise inadequate." Id. "As ordinarily

understood, an injury is irreparable, within the law of injunctions, where it is of such a

character that a fair and reasonable redress may not be had in a court of law, so that to

refuse the injunction would be a denial of justice." Id. at 356. "[I]n other words, where,

from the nature of the act, or from the circumstances surrounding the person injured, or

from the financial condition of the person committing it, it cannot be readily, adequately,

and completely compensated for with money." Id.

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It is obvious from the allegations of Plaintiffs' Complaint that "fair and reasonable

redress" will not be had in a court oflaw. An award of damages will not repair the injury

that Defendant's illegal and ultra vires tuition policy has caused and is causing to the

public fisc. As a public body, Defendant depends on public funding. Requiring

Defendant to pay an award of damages out of public funds would not provide any redress

to taxpayers at all. The "taxpayer" nature of this action and the circumstances

surrounding it make it clear that no adequate remedy is available at law. Indeed, the

nature of such challenges is why Maryland law makes injunctive relief available to

taxpayers. See, e.g., Castle Farms Dairy Stores, Inc., 193 Md. at 482 ("As taxpayers ...

plaintiffs are entitled to sue to enjoin ... an unlawful project").

Regardless, Plaintiffs' Complaint expressly pleads that "taxpayers in Montgomery

County and the State of Maryland, including Plaintiffs, are suffering pecuniary injury and

will continue to suffer such injury unless and until Defendant's policy is enjoined." E 24-

25. Plaintiffs' Complaint also expressly pleads that Plaintiffs have no adequate remedy at

law. Id. Especially in light of the well-established admonition that, when considering

motions to dismiss courts are "required to assume the truth of all of the well-pled facts in

the complaint ... and the reasonable inferences drawn from them, in a light most

favorable to the non-moving party" (see 120 W Fayette St., LLLP, 407 Md. at 261

(internal quotation omitted)), Plaintiffs' Complaint is more than sufficient to state a claim

for injunctive relief in this taxpayer challenge to Defendant's illegal and ultra vires

tuition policy.

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IV. CONCLUSION

For the for going reasons, Plaintiffs respectfully request that th e COlU·t reverse the

trial court's opinion dismissing the complaint and remand to the trial COUl1 for further

proceedings.

Dated: May 7,2012 Respectfully submitted

JUDICIALWATCH INC.

Paul J. Orfanedes

Mel. B ar N o. 9112190026

Julie B. Axelrod

(Not A Member of the Maryland Bar)

Suite 800

425 Third Street, S.W.

Washington, DC 20024

Tel: (202) 64p-5172

Fax: (202) 646-5199

Attorneys for Plaintiffs

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CERTIFICATE OF COMPLIANCE

1 certify that this brief complies with all requirements of Mary land Rule 8-112, R-

503 and 8-504. The brief has been prepared in a ]3-point, p ropo rt iona lly spaced Times

New Roman f011t with 2.0 spacing between lines, pursuant to Rule 8-112(c).

Paul J. Orfanedes

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CERTIFICATE OF SERVICE

Lhereby certify that on this 7th day of May 2012, I caused two true and correct

copies of the foregoing BRIEF OF APPELLANTS to be served, via first-class U.S. mail,

postage prepaid, on the following:

Michael. .Hays

Dow Lohnes PLLC

1200 New Hampshire Avenue N.W.

S uite 8 00

Washington, DC 20036-6.802

Clyde H. Sorrell

General Counsel

Montgomery College

900 Hungerford Drive Room 355

Rockville, MD 2085:0

Paul J. Orfanedes

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APPENDIX

8 V.S.C § 1621 c 25

Md. Education Code Ann § 16-310 27

Code of Maryland Regulations l3B. 07.02.03 , 31

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philips v. bot of mont. college

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