Jones v. Anne Arundel County

BATTAGLIA, J.

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 where one sleeps, Boer v. University Specialty Hospital, 421 Md. 529, 538, 27 A.3d 175, 180 (2011), and merely requires “actual physical presence,” Bainum v. Kalen, 272 Md. 490, 496, 325 A.2d 392, 395 (1974), while domicile is the particular permanent home of an individual, “to which place he has, whenever he is absent, the intention of returning.” Shenton v. Abbott, 178 Md. 526, 530, 15 A.2d 906, 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 organizations^]” Blount v. Boston, 351 Md. 360, 367-68, 718 A.2d 1111, 1115 (1998). An individual may have several abodes, but he or she may have but one domicile. Shenton, 178 Md. at 530, 15 A.2d at 908.

The section of the Anne Arundel County Charter at issue provides:

(c) Change of Residence. If any member of the County Council 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 boundary lines of his councilmanic district made during his term.

Based upon this provision, the Anne Arundel County Council, Appellee, enacted a bill that provided that Daryl Jones, Appellant, forfeited his elected councilmanic 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, Section 5(S), Article 25A of the Maryland Code¹ and that the County Council properly interpreted “residence” 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 Md. 62, 46 A.3d 404 (2012). Jones presents two questions for our consideration:

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 Councilmember to be removed from office on this ground and local law with respect to the County Executive and Councilmembers called to active military duty allows a vacancy to be declared only if the elected 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 for 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 100 years that a residency requirement in the context of qualifications for political office means “domicile” and, specifically, that a similar residency requirement in the Baltimore City Charter means “domicile.”

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 (2012), 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 Council who now represents 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 Powers Act, 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-month incarceration. We finally shall hold that the clean hands doctrine does not bar Jones’s claim.

In 2006 and 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 federal correctional facility in South Carolina.

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 would be vacated, 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 Council-manic District I.”² The Bill and Resolution were scheduled to be considered by the County Council on January 17, 2012.

On January 4, 2012, Jones filed a three-count Complaint for Declaratory, Injunctive, and Other Relief in the Circuit Court for Anne Arundel County. In Count One, Jones sought a declaratory judgment that “(A) Councilman Jones’ temporary absence from Councilmanic District I does not constitute a change in residence under Section 202(c) of the Anne Arundel County Charter and (B) his office as a Councilman does not become vacant by virtue of the temporary absence.” Counts Two and Three reiterated the substance of Count One, and included requests 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 Council, with Jones abstaining, voted to adopt Bill 85-11. Peter I. Smith was later appointed to fill the vacancy for the First Councilmanic District.

Thereafter, on January 25, 2011, Jones filed a Motion for Summary 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 County and County Council also filed a Motion for Summary Judgment as to all counts, arguing that the removal of Jones from his council seat was a nonjusticiable political question and, nonetheless, that the County Council was authorized to remove Jones pursuant to Section 5(Q) of the Express Powers Act, which provides that the County Council may enact local laws “to govern the conduct and actions 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.” In answering Jones’s summary judgment motion, the County and County Council raised the “clean hands” defense to Jones’s allegations, contending that Jones committed “fraud perpetrated upon the voters of the First Councilmanic District of Anne Arundel County [because he] deliberately withheld information about his criminal behavior and pending plea agreement with the United States Attorney because he knew that such information would have a material effect on the election held on November 2, 2010.”

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 argument that its authority to remove Jones was derived from Section 5(Q), which provides the County with the power to “enact local laws designed ... to provide for penalties, including removal from office, for violation of any such laws or the regulations adopted thereunder,” because this provision “merely delegate[s] to the County Council the power to enact local laws.” The judge, nonetheless, determined that the removal was authorized by the General Welfare Clause of the Express Powers Act, Section 5(S), which provides that the Act shall not limit the County’s power “to pass all ordinances ... as may be deemed expedient in maintaining the peace, good government, health and welfare of the county,” and based on a need to avoid vacancies on the County Council that would “deadlock” votes regarding “important tasks in front of [the Council] when it holds its legislative session in May.”

In so doing, the court concluded that the County Council acted within its authority because Jones “move[d] his residence,” under Section 202(c) of the Anne Arundel County Charter, when he reported to the correctional facility in South Carolina, even though his domicile remained in the First Councilmanic District, because “residence” equates to a place of abode. Thus, the Circuit Court denied Jones’s Motion for Summary Judgment, which sought a declaratory judgment, and granted the County and County Council’s Motion for Summary Judgment as to all counts.

Before us, Jones challenges as error the Circuit Court’s conclusion that the County Council 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 County Council 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 Council counter that the removal of a councilmember, for the failure to meet the qualifications of his or her office, 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 the Express Powers Act, which provides the County with the sole authority to “enact local laws designed ... to govern the conduct and actions 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 contend that, if not a political question, the County Council’s action was taken pursuant to Section 5(Q) of the Express Powers Act, as opposed to the provision that the Circuit Court 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 Counsel to the Charter Board, the drafters of the original Proposed Anne Arundel County Charter, which stated that the purpose of Section 202(c) was to “require[] that each councilmanic district shall be represented in the Council by a member who actually resides therein during his full term.” “Actually resides,” they contend, means the place of abode where the councilmember sleeps and is physically present.

As a threshold matter, the County and County Council contend that under the political question doctrine, the Court must abstain from intervening in the removal of a councilmember. 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 actions 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.

The Circuit Court rejected this very argument and concluded that Section 5(Q)(1) “merely delegated] 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 elected branch of government and thus should not be heard in ... court.” James R. May, AEP v. Connecticut and the Future of the Political Question Doctrine, 121 Yale L.J. Online 127 (2011), available at http://yalelawjournal.org/2011/09/13/may.html; see also Nixon v. United States, 506 U.S. 224, 252-53, 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 Government, and deriving in large part from prudential concerns about the respect we owe the political departments.” (Internal citations and quotation marks omitted)).

The existence of politics in a case, however, does not define whether a case involves a political question. 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 this controversy [involving the congressional authority to veto a determination that an individual should not be deported] may, in a sense, be termed ‘political.’ 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 coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

In a case close to point, 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. Powell 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 adjudicate the qualifications of its members. Powell acknowledged that Section 5 committed to the House of Representatives the duty to judge the qualifications of its members, but countered that it empowered Congress 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 House specifically 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 Appeals for the District of Columbia Circuit affirmed, the Supreme Court interpreted the House’s “textually demonstrable constitutional commitment” to adjudicate the qualifications of its members to be limited to the “standing qualifications expressly prescribed by the Constitution,” 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 power to expel Powell. The Court concluded, similar to its analysis 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 qualifications. Id.

We have had occasion to consider whether a political question is present in a case 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 Delegates seat from Anne Arundel County. While Lamb appeared to have one more vote than Hammond, the latter was declared the winner after he learned that some absentee ballots had not been counted by the Board of Canvassers and filed an action seeking declaratory and injunctive relief, and the Circuit Court, over Lamb’s objection, ordered that these absentee 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 demonstrable constitutional commitment” to judge the qualifications and elections of its members under Section 19 of Article III of the Maryland Constitution, which provides:

Each House shall be judge 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 own proceedings, punish a member for disorderly 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 rejected Lamb’s argument. Lamb, 308 Md. at 304, 518 A.2d at 1066.

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 of this State, we continued, did 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 1059 (emphasis in original), quoting Maryland Code (1957), Article 33, Section 27-10. We proceeded, 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 the Circuit Court’s judgment.

The instant removal of Jones is akin to the removal of Congressman Powell in Powell v. McCormack, in which the Supreme Court did not abstain from reaching the merits based upon the United States Constitution. Both Section 5 of Article I of the U.S. Constitution and Section 19 of Article III of the Maryland Constitution provide legislative bodies with 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 applied; courts will 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 of its members’ qualifications, because 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 5(S) provides, in pertinent part:

The foregoing or other enumeration of powers in this article shall not be held to limit the power of the county council, 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 section or elsewhere in this article, as well as such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county.

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 ‘new plan or policy.’ ”

The Express Powers Act, we explained in dicta in McCrory Corporation v. Fowler, 319 Md. 12, 16-17, 570 A.2d 834, 835 (1990), was enacted pursuant to the Home Rule Amendment “to transfer the General Assembly’s power to enact many types of county public local laws”:

Article XI-A was proposed by Ch. 416 of the Laws of Maryland of 1914 and ratified by the voters on November 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-determination. Its purpose was to transfer the General Assembly’s power to enact many types of county public local laws to the Art. XI-A home rule counties. See generally, e.g., Bd. of Election Laws v. Talbot County, 316 Md. 332, 344, 558 A.2d 724 (1988); Griffith v. Wakefield, 298 Md. 381, 384, 470 A.2d 345 (1984); 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 (1980).

Sections 1 and 1A of Article XI-A empower Baltimore City and the counties of Maryland to adopt a charter form of local government. Section 2 directs the General Assembly to provide a grant of express powers for charter home 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 as Code (1957, 1987 RepLVol.), Art. 25A. Section 3 of Article XI-A provides (emphasis supplied):

“From and after the adoption of a charter by the City of Baltimore, or any County of this State, as hereinbefore provided, the Mayor of Baltimore and City Council of the City of Baltimore or the County Council of said County, subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said city or county ... upon all matters covered by the express powers granted as above provided.... ”

Article XI-A “does not constitute a grant of absolute autonomy to local governments.” Ritchmount 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 Amendment limits the ... County Council to enacting “local laws” on matters covered by the Express Powers Act.

Local laws, in this respect, 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 (1910) (citation and internal quotation marks omitted).

The rub of the present case involves whether Bill 85-11 pertaining to Jones 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 things of a class,” id. at 183, 77 A. at 434, and are enacted “for the relief of particular named parties, or providing for individual cases.” Montague v. State, 54 Md. 481, 490 (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 only to Jones into a local law, which applies to all people in Anne Arundel County, the Bill remained a special law by virtue of its lack of breadth, and the exercise of the County Council’s police authority does not expand its scope.

The enactment of a special law is prohibited “for any case, for which provision has been made, by an existing General Law.” Maryland Constitution Article 3, Section 33. 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 applicable local law exists. Section 202(c) affected residency qualifications of councilmembers 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 Requirement. There shall be a County Council of Anne Arundel County composed of seven members, each one of whom, at the time of his election and for six months immediately prior thereto and during his full term of office, shall reside in a different one of the seven councilmanic districts 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 immediately before the election:

(a) In General. In addition to the requirement of residence as provided in Section 201(a) of this Article, each member of the County Council 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 member of the County Council 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 boundary lines of his councilmanic district made during his term.

The Circuit Court concluded that “residence” in Section 202(c) meant a place of abode, as differentiated from domicile. We disagree.

For over one hundred years, we consistently have equated “residence” to domicile in constitutional, statutory, and charter provisions, unless a contrary intent be shown:

“From Thomas v. Warner, 88 Md. 14, 20, 34 A. 830 (1896), and Howard v. Skinner, 87 Md. 556, 559, 40 A. 379 (1898), until the present, this Court has consistently held 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 contrary intent 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 fixed present domicile.’ ”

See also, e.g., Garcia v. Angulo, 335 Md. 475, 477, 644 A.2d 498, 499 (1994) (“ ‘resident of this State’ in the [statute] ... means a domiciliary of Maryland”); Wamsley v. Wamsley, 333 Md. 454, 458, 635 A.2d 1322, 1324 (1994) (“We have held 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 contrary intent is shown’ ”); 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 ‘domicile’ ”); Hawks v. Gottschall, 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 State of Maryland”); 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 ‘domicile’ ”); 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 that 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 means 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 fixed present domicile ”).

Blount v. Boston, 351 Md. 360, 365-66, 718 A.2d 1111, 1114 (1998), quoting Bainum v. Kalen, 272 Md. 490, 496, 325 A.2d 392, 395-96 (1974). We have interpreted domicile as the norm in myriad and varied circumstances, including voting, Howard v. Skinner, 87 Md. 556, 559, 40 A. 379, 380 (1898), eligibility to run for public office, Dorf v. Skolnik, 280 Md. 101, 116, 371 A.2d 1094, 1102 (1977), divorce, Wamsley v. Wamsley, 333 Md. 454, 458, 635 A.2d 1322, 1323-24 (1994), probate, Shenton v. Abbott, 178 Md. 526, 530, 15 A.2d 906, 908 (1940), and state income taxation, Comptroller v. Haskin, 298 Md. 681, 690, 472 A.2d 70, 75 (1984).

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 Repl.Vol.),⁴ which permits a creditor to file a claim, prior to the appointment of a personal representative, in the county of (1) the decedent’s domicile, (2) the decedent’s residence on the date of his or her death, or (3) the location of the decedent’s real property or leasehold interest. We determined that residence could not mean domicile because domicile already had been referenced in another part of the statute as an alternative. Id. at 537, 27 A.3d at 180.

In Cathey v. Board of Review, Department of Health and Mental Hygiene, 422 Md. 597, 31 A.3d 94 (2011), we interpreted the term “resident” in a regulation that limited eligibility for Developmental Disability Administration funding,⁵ in a situation involving a developmentally 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 out-of-state individuals for the remedial purpose of “protect[ing] individuals with developmental disability in this State.” Id. at 607, 31 A.3d at 100 (emphasis in original), 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 Appeals considered whether a vacation home was a “residence” under Section 9-104(f)(3) of the Real Property Article, Maryland Code (1974, 1996 Repl.Vol.),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 hen could apply to the vacation home because it was secondary to the domicile owned in New Jersey. 108 Md.App. at 884, 672 A.2d at 118. The intermediate appellate court explained that Section 9—104(f)(3) of the Real Property Article was protective of homeowners by “shift[ing] responsibility for insuring payment of a subcontractor from the owner of the dwelling to the prime contractor, ie., to limit the subcontractor’s ability to hen the single family residence.” Id. at 394, 672 A.2d at 123. This general protective purpose for the homeowner lead the court to construe the term “residence” to include a non-domiciliary home. 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 Counsel to the Charter Board. Bennett 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 comments 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 County Council contends, demonstrates an intent 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 County. See id. at 72. The phrase “actually resided” appeared in Section 2-14, which required that a person must have “actually resided” in the County for at least 10 years:

A person to be eligible to the office of county commissioner shall have actually resided in the county for at least ten years[.]

Section 2-15 provided that candidates for the office of county commissioner be selected 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 Arundel County Charter was drafted in 1963 and adopted in 1964, district residence, as a qualification of office, was provided in Section 201(a): “There shall be a County Council of Anne Arundel County composed of seven members, each of whom, at the time of his election and for two years immediately prior thereto and during his full term of office, shall reside in a different one of the seven councilmanic districts.”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, each member of the County Council ... shall have resided within the County for a period of four years immediately preceding this election.”⁹

Section 202(c) and these related provisions of the Anne Arundel 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 Arundel County, at xvi (1963). District residence, the Charter Board explained, would “give the voters of the County the maximum degree of district representation possible [and] insure representation on the Council for each 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. (emphasis in original). Thus, the Reporter’s Note to Section 202(c), in commenting that the council member “actually reside[ ]” in the district “during his full term,” is a reference to the previous County Code’s requirement that a candidate “have actually resided” in the County prior to the election. “[A]ctually resides” does not, therefore, refer to “place of abode.” Neither the express language of Section 202(c), nor its legislative purpose, thus, demonstrates any intent to vary the jurisprudential norm that the term residence is domicile.

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 the eligibility of Governor Theodore R. McKeldin to run for mayor of Baltimore City after having lived in Annapolis during his tenure in office. Section 7 of the Baltimore City Charter required that a candidate for mayor must be a resident of Baltimore City for ten years immediately prior to the election. The allegation was that Governor McKeldin did not meet the residency requirement of Section 7, because he had been residing in Annapolis during his eight years in office and thereby had moved his domicile 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 Annapolis during his tenure. We further noted that this conclusion was consistent with “the myriad of cases which hold that a change in residence or abode to enable 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 proceedings, which we noted as indicating a desire for the Governor to “be available at all reasonable times in Annapolis.” Id. at 203, 148 A.2d at 396. We, then, concluded that the residency requirement in Section 7 of the Baltimore City Charter referred to domicile, in line with our longstanding jurisprudence and consistent with the purpose of the Charter provision, to ensure that a candidate “reasonably 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 mayor of Baltimore City, because he continually owned a home in Baltimore City and intended to return there after his governorship.

Accordingly, we hold that “residence” means domicile under Section 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 Councilmanic District.

The final issue before us pertains to whether Jones is barred from bringing an action challenging the County 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 plaintiffs improper conduct is the source, or part of the source, of his equitable claim, that he is to be barred because of this conduct. ‘What is material is not that the plaintiffs hands are dirty, but that he dirties them in acquiring the right he now asserts.’ ” Id. at 463, 476, 615 A.2d at 617, quoting D. Dobbs, Remedies § 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 Circuit 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 Amended Response 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 Councilmanic District of Anne Arundel County prior to the 2010 election. The juxtaposition of the purpose of Bill 85-11 with the County Council’s assertion in its response to the motion for summary judgment regarding the basis for its clean hands affirmative defense establishes that 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 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 “move his residence” under Section 202(c) because his domicile remained in that district. Finally, 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. COSTS TO BE PAID BY APPELLEES.

1 . Section 5(S) of Article 25A, Maryland Code (1957, 2011 Repl.Vol.) provides:

The following enumerated express powers are granted to and conferred upon any county or counties which hereafter form a charter under the provisions of Article XI-A of the Constitution, that is to say:

(S) Amendment of Country 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 enumeration of powers in this article shall not be held to limit the power of the county council, 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 section or elsewhere in this article, as well as such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county.

Provided, that the powers herein granted shall only be exercised to the extent that the same are not provided for by public general law[J

All subsequent references to the Express Powers Act shall be to Section 5 of Article 25A, Maryland Code (1957, 2011 Repl.Vol.).

2 . Bill 85-11 provided:

AN EMERGENCY ORDINANCE concerning: County Council Vacancy in Councilmanic District I of Anne Arundel County

FOR the purpose of declaring the existence of a vacancy in Council-manic District I of Anne Arundel County.

WHEREAS Councilman Daryl D. Jones was 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 for Councilman Jones would 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 scheduled 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 vacant if the County 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 Councilmanic District during his full term of office; and

WHEREAS Section 202(c) of the Charter provides that if a member of the County Council moves his residence from the Councilmanic District, “his office shall be forthwith vacated;” and

WHEREAS the County Attorney for Anne Arundel County has advised the County Council that Councilman Jones’s office as councilmember shall be "forthwith vacated as a matter of law” on the date that Councilman Jones begins “residence” in a federal correctional facility that is located outside of Councilmanic District I because "residence” as used in Section 202(c) of the Charter "does 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 County 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 205(c) of the Charter mandates that the Council 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 Charter for Anne Arundel County.

SECTION 2. And be it further enacted, That this Ordinance is hereby declared to be an emergency ordinance and necessary for the immediate preservation of the public peace, health, safety, welfare, and property and being passed by the affirmative vote of five members of the County Council, the same shall take effect from the date it becomes law.

Resolution 65-11, which also sought to declare Jones's seat vacant, contained language that largely mirrored the language of Bill 85-11, except that it also provided that Section 202(c) would require a council-member to "maintain both his or her legal domicile and also general place of abode within the Councilmanic District he or she represents!.]” It also provided, in place of Sections 1 and 2 of Bill 85-11, the following;

Resolved by the County Council of Anne Arundel County, Maryland, That the County Council finds as a matter of law that Councilman Daryl Jones of Councilmanic District I shall be in violation of the requirements of the Anne Arundel County Charter, Section 202(c) on the date he begins his period of incarceration in a federal correctional facility outside his district for violations of federal law.

Be it Further Resolved by the County Council of Anne Arundel County, Maryland, that the County Council 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 outside of Councilmanic District I, with the vacancy to be filled in accordance with Section 205 of the Charter for Anne Arundel County; and be it further

Resolved that a copy of this Resolution be sent to the County Executive.

Resolution 65-11 was withdrawn when Bill 85-11 was adopted.

3 . Section 5 of Article I of the United States Constitution provides, in pertinent part:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

4 . Section 8-104(c) of the Estates and Trusts Article, Maryland Code (1974, 2011 Repl.Vol.) provides, in pertinent part:

Filing with register. — The claimant may file a verified written statement of the claim, substantially in the form contained 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 which the decedent was domiciled or in any county in which he resided on the date of his death 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 representative, the claimant 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 statement to the personal representative.

5 . The regulation at issue in Cathey v. Board of Review, Department of Health and Mental Hygiene, 422 Md. 597, 31 A.3d 94 (2011) was COMAR 10.22.12.03(B)(27), which provides:

(27) "Resident" means an individual who:

(a) Demonstrates that tha1 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 migrant worker and, while in the State, needs medical care and is not receiving assistance from any other state or political jurisdiction.

6 . Section 9-104(f)(3) of the Real Property Article, Maryland Code (1974, 1996 Repl.Vol.), provided:

(3) Notwithstanding any other provision of this section to the contrary, the lien of the subcontractor against a single 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.

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 commissioner, in accordance with the General primary election law, shall be placed by the supervisors of elections in the county, only upon 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 primary 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 general election.

8 . Section 201(a) of the Anne Arundel County Charter now provides that a council member shall reside in the district that he or she represents “at the time of his election and for six months immediately prior thereto and during his full term of office....” Section 201(a) of the Anne Arundel County Charter (2005).

9 . Section 202(a) of the Anne Arundel County Charter now requires that a council member "shall have resided within the County for a period of one year immediately preceding this election.” Section 202(a) of the Anne Arundel County Charter (2005).

10 . In remanding this case to the Circuit Court for Anne Arundel 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 Circuit Court to consider. See Md.Code (1973, 2013 Repl.Vol.), Section 3-412 of the Courts & Judicial Proceedings Article (“Further relief based on a declaratory judgment or decree may be granted if necessary or proper.”).