McMillan v. Love

BELL, C.J. In this case, we are asked to determine whether a county delegation consisting of publicly-elected members of the Maryland General Assembly House of Delegates performs governmental functions sufficient to trigger the one-person/one-vote requirement of the 14th Amendment to the United States Constitution. I. The relevant facts of this case are undisputed. County delegations, 1 consisting of members of the General Assembly ⁵⁵⁴ whose districts lie within, or partially within, one of Maryland’s counties, play an important role in the enactment of local legislation. House of Delegates Rule 19A provides that, during the 90-day legislative session, which begins each January, county delegations serve as “select committees” with responsibility for considering bills and resolutions of a strictly local nature or which amend a particular Code of Public Local Laws and have no statewide implications.

The delegations also lobby for funds and recommend individuals for certain civic boards and committees. 2 The House of Delegates Rule 19A prescribes the voting rights of the state delegations. It provides, in relevant part: “(b)(1) Except as provided by paragraph (2) of this subsection, each delegate who represents any portion of a county has one vote in the county delegation in which the district lies. “(2) After' an opportunity for all delegates to be heard, a majority of delegation members present and voting may elect to allocate nonresident delegates less than one full vote. The vote may not be less than one-third of a vote.” Rule 19A, thus, is the default rule and requires that, unless the Delegation votes otherwise with respect to nonresident Delegation members, all Delegation members are entitled to one vote each. The Anne Arundel Delegation has enacted rules to govern its actions.

Delegation Rule 3 governs the allocation of votes to each delegation member. When this controversy arose, the Anne Arundel County Delegation consisted of 12 members who represented the 6 districts of which the County was comprised. Three of the members of the delegation were from District 21, the boundaries of which are within both Anne Arundel County and Prince George’s County. Because only a small portion of District 21 is in Anne Arundel County, those ⁵⁵⁵ Delegation members represented significantly fewer citizens than did the delegates representing districts entirely, or more substantially, within the County’s borders. 3 On April 5, 2002, by a majority vote of the Anne Arundel County Delegation, the 21st District representatives were allotted one-third of a vote each.

After the April 5, 2002 vote, Rule 3 read: “3. Voting — Subject to the limitations herein, all members are eligible to vote on any and all issues brought before the Delegation unless, under the rules of the House, a member excuses himself or herself. Each member who represents a legislative district completely within the boundaries of Anne Arundel County is entitled to one vote. Of this group, only members who are present may vote.

Members who represent a legislative district which is not completely within the boundaries of Anne Arundel County form a group and are collectively entitled to one vote. This vote may be cast by any one of the district’s members who is present at a meeting. The Chairman shall vote on all issues brought before the delegation.” With this vote allocation, the delegation was majority Democrat. In November, 2002, petitioners Herbert McMillan and Donald Dwyer, both members of the Republican party, were elected to the Maryland House of Delegates, to represent districts within Anne Arundel County.

The petitioners replaced two Democrats and, thus, with their election, given the rules in effect with respect to the vote allocation in the Anne Arundel County Delegation, the Delegation would be majority Republican. On December 2, 2002, after the General Assembly election results were certified, but before the start of the 2003 legislative session, when the newly elected members would be sworn, the Delegation, as it was then constituted, including the outgo ⁵⁵⁶ ing members of the Delegation and excluding the newly elected members, met and amended Delegation Rule 3. By that amendment, each delegation member, including the delegation members from District 21, was allocated one vote, which assured that the Democrats retained the majority in the Delegation. The newly elected members of the General Assembly and future Delegation members protested their exclusion from this Delegation meeting and vote.

On January 3, 2003, the petitioners filed in the Circuit Court for Anne Arundel County a Verified Complaint for Declaratory and Injunctive Relief under 42 U.S.C. § 1983 4 against the Chair of the Anne Arundel County Delegation, respondent, Delegate Mary Ann Love. They alleged that the amendment of Delegation Rule 3 with respect to the allocation of the vote among the members of the Delegation was intended “to preserve democratic control and leadership of the delegation,” (petitioner’s application for writ of certiorari in No. 116 at 5), and “to dilute [the petitioners’] votes in violation of the Equal Protection Clause guaranteeing one person one vote mandated by the Supreme Court of the United States.” (petitioner’s application for writ of certiorari in No. 116 at 5). The respondent filed a Motion to Dismiss/Opposition to Request for Preliminary Injunction, arguing that, pursuant to Vander Linden v. Hodges, 193 F.3d 268 (4th Cir.1999) and DeJulio v. Georgia, 290 F.3d 1291 (11th Cir.2002), the Delegation’s activities were not substantial enough to constitute governmental functions and, therefore, did not trigger the protection afforded by the one-person/one-vote standard. 5 ⁵⁵⁷ Following an expedited hearing and, relying on Vander Linden and DeJulio, the Circuit Court issued a ruling from the bench, granting the respondent’s Motion to Dismiss. The court reasoned that the County Delegation did not exercise either “general” governmental powers, or “final” legislative power so as to require apportionment consistent with the Constitutional one-person/one-vote requirement of the 14th Amendment. 6 The petitioners noted an appeal to the Court of ⁵⁵⁸ Special Appeals and, simultaneously, filed in this Court a petition for the issuance of the writ of certiorari.

The petition presented a single question: “Did the Circuit Court err in determining a County delegation does not perform governmental functions that invoked the Fourteenth Amendment’s principle of one person one vote?” We granted the petition before there were proceedings in the Court of Special Appeals, see McMillan v. Love, 372 Md. 763 , 816 A.2d 111 (2003), and set the case in for argument on an expedited basis. Following argument, the Court issued an order affirming the judgment of the Circuit Court, with the reasons to be set forth in an opinion to follow. We now give our reasons. In the case sub judice, the petitioners argue that the actions of the county delegation violated their equal protection rights guaranteed by the one-person/one-vote requirement and the 14th Amendment to the United States Constitution.

This is so, they say, because the County Delegation does perform significant governmental functions. In particular, the petitioners assert: “[T]he err[or] in the circuit court’s view of a county delegation is its failure to recognize that local legislation bills may ⁵⁵⁹ never be voted upon unless they are favorably viewed by the delegation and sent to the floor by the delegation. Thus, the importance of controlling the County delegation by political fiat and manipulation, i.e., the party which controls the chair controls local matters, clearly a governmental function. For if otherwise, there is much to do about nothing in this case.

The above notwithstanding, one might question, as did the [petitioners] in this matter, why the County Executive and the Council visit the County delegation and present what is referred to as their ‘wish list.’ Again a demonstration of the governmental function served by the delegation in the form of controlling the agenda and calendar of bills and their introduction or failure of introduction on the floor for what is nothing more than a stamp of approval by the entire house on a local law.” They point out, in addition, that the recommendations of county delegations and their members are sought with respect to appointments to, among others, community college boards of trustees, liquor boards, special citizens boards, the county board of election supervisors and the county board of education, some of which are state agencies and/or receive state funds. County boards, moreover, they note, also lobby for funds for police and educational and recreational facilities. Although conceding that the delegations in the General Assembly “may not be embodied with the enormous powers of those exercised in Vander Linden,” the petitioners emphasize that the court in Vander Linden acknowledged that less extensive governmental functions could trigger the one person, one vote rule. As a result, because the District 21 members represent a markedly smaller population than the other county districts, giving them a full vote does not reflect the requirement of proportionate representation required by the 14th Amendment.

The respondent urges the Court to affirm the judgment of the Circuit Court. She denies that the delegation’s activities constitute “governmental functions,” which trigger the protection of the one-person/one-vote standard. Although acknowledging that “[t]hrough the doctrine of ‘local courtesy,’ [local legislation is] ordinarily approved by the full General Assem ⁵⁶⁰ bly,” the respondent points out that “this is not invariably true”: “in 2001, of the 7 bills sponsored by the Anne Arundel Delegation only 3 passed. In 2002, of 10 Delegation bills, only 4 passed----Seven of those 17 bills were State bond bills, which are public general measures, not local legislation----A major reason for this dearth of bills is that Anne Arundel is a charter home rule county where the County Council enacts local laws.” She also notes that “[ljegislation approved by a county delegation typically is also considered by standing committees and must be approved by both Houses.” II.

One-Vote This Court has consistently enunciated the rule that “the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.” In re Legislative Districting of the State, 370 Md. 312, 379 , 805 A.2d 292 , 332 n. 38 (2002) (quoting Reynolds v. Sims, 377 U.S. 533, 577 , 84 S.Ct. 1362, 1390 , 12 L.Ed.2d 506, 546 (1964)); DuBois v. College Park, 286 Md. 677, 684-85 , 410 A.2d 577, 582-83 (1980). The Supreme Court, in Hadley v. Junior College Dist. Of Metro. Kansas City, 397 U.S. 50, 54 , 90 S.Ct. 791, 794 , 25 L.Ed.2d 45, 50 (1970), enunciated the rationale for apportioning legislative bodies based upon the general population, when it stated: “the right to vote in an election is protected by the United States Constitution against dilution or debasement.

While the particular offices involved in these cases have varied, in each case a constant factor is the decision of the government to have citizens participate individually by ballot in the selection of certain people who carry out governmental functions.” Id. Further, the one-person/one-vote requirement of the Fourteenth Amendment extends to local government and im ⁵⁶¹ poses the same standard of proportionality to local government officials. See Montgomery County Council v. Garrott, 243 Md. 634, 639 , 222 A.2d 164, 165 (1966). See also DuBois v. College Park, 293 Md. at 680, 447 A.2d at 840 (holding that the one-person/one-vote standard “extend[s] to elected local government units exercising substantial governmental authority”).

To that end, the Supreme Court has held that “whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” Hadley v. Junior College Dist. of Metro Kansas City, 397 U.S. at 54 , 90 S.Ct. at 794 , 25 L.Ed.2d at 50-51 (1970). Therefore, under the rationale enumerated by this Court and the Supreme Court in Hadley , the touchstone for determining whether local government officials are subject to the one-person/one-vote requirement turns on two distinct factors: 1) that the governmental official was popularly elected; and 2) that the government official performed “governmental functions.” Id., 397 U.S. at 56 , 90 S.Ct. at 795 , 25 L.Ed.2d at 51 ; Vander Linden v. Hodges, 193 F.3d 268, 273 (4th Cir.1999). See also DeJulio v. Georgia, 290 F.3d 1291 , 1295 (11th Cir.2002). There is no dispute that the members of the Anne Arundel County delegation are popularly elected, each member of the delegation was elected to the Maryland General Assembly in the 2002 statewide general election by the applicable voters.

We are, therefore, left to consider only whether the actions of the Anne Arundel County delegation constitute “governmental functions.” ⁵⁶² This Court has not had occasion to consider the issue of whether the actions of county delegations constitute “governmental functions.” That issue has been addressed by the 4th and 11th Circuit Courts of Appeal, however. In Vander Linden v. Hodges, supra, individuals elected to the South Carolina State legislature, constituted the local delegation for the county from which they were elected. Originally, the boundaries for each South Carolina district existed completely within one of South Carolina’s counties. 193 F.3d 268 at 271 . After the Supreme Court enunciated the “one-person/one-vote” rule in Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964), the South Carolina legislative districts were re-drawn producing legislative districts that sometimes crossed county lines.

Id. As a result, legislators were often elected to represent constituents in multiple counties and those legislators automatically became members of any local delegation for any county which lay partially within their districts. Id. Under South Carolina law, the members of the county delegations had one vote for any delegation decision regardless of the number of constituents the legislator represented within the relevant county.

Id. The plaintiffs, South Carolina voters, filed suit against the Governor of South Carolina, the South Carolina legislature, the Speaker of the House and other state officials, alleging that the South Carolina county delegation voting system, inter alia, diluted the voting power of South Carolina voters from more populous areas. Id., 193 F.3d at 272 . Specifically, the petitioners maintained that the allocation of one vote to each member of the delegation without regard to the number of residents in each district rendered their votes less effective and violated the one-person/one-vote requirement of the 14th Amendment, the Voting Rights Act of 1965 and the Civil Rights Act of 1957.

Id. The District Court rejected the voters’ claims. Relying, in part, on Sailors v. Board of Educ., 387 U.S. 105 , 87 S.Ct. 1549 , 18 L.Ed.2d 650 (1967) (holding that the one-person/one-vote requirement did not apply to an appointed ⁵⁶³ county school board), the District Court held that the members of the South Carolina county delegations were appointed, and not popularly elected, 7 193 F.3d at 273 , and that the delegation voting scheme was not constitutionally deficient. The 4th Circuit Court of Appeals reversed.

Vander Linden, 193 F.3d at 281 . The court first held that the District Court erred in its determination that the South Carolina county delegation members were not popularly elected. Id. at 274 . In so determining, the court relied on the Supreme Court’s holding in Board of Estimate v. Morris, 489 U.S. 688, 694 , 109 S.Ct. 1433, 1438 , 103 L.Ed.2d 717, 727 (1989) (holding that members of a New York Board of Estimates who are not independently elected to the Board of Estimates but who “become members [of the Board] as a matter of law upon their various elections ... constituted a popularly elected body to which the one person, one vote requirement applied”).

Having determined that the South Carolina delegations were popularly elected, the Vander Linden court turned to the question of whether the South Carolina delegation performed sufficient governmental functions to trigger the one-person/one-vote requirement of the 14th Amendment. It noted, in that regard, that the South Carolina delegations “played a critical role in the governance of [the state] counties for more than a century ...id. at 270, and that, “ ‘... for generations legislative delegations of the General Assembly controlled virtually every aspect of local government.’ ” Id. (citation omitted). The Court held that, in light of the numerous “fiscal, regulatory and appointive functions,” id. at 277, assigned to the county delegation, it clearly performed governmental functions to which the one-person/one-vote requirement of the 14th Amendment applied.

Id. Particularly, the court pointed out that the South Carolina delegation was ⁵⁶⁴ statutorily empowered to perform a great many fiscal and regulatory functions, including, inter alia: “(a) making and/or recommending appointments to boards and commissions; “(b) approving and/or recommending the expenditure of money allocated by the South Carolina General Assembly for highways, parks, recreation, tourism, and other matters; “(c) approving the budgets of local school districts; “(d) initiating referenda regarding the budgetary powers and the election of governing bodies for a special purpose in public service districts; “(e) approving the reimbursement of expenses for county planning commissioners; “(f) approving county planning commission contracts with architects, engineers, and other consultants; “(g) altering or dividing school districts of counties; “(h) reducing existing special school levies in counties and school districts; “(i) submitting grant applications for planning, development and renovating park and recreation facilities.” Id. at