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Herbert McMillan v. Delegate Mary Ann Love No. 116, September Term, 2002 HEAD NOTE S: 14 TH A MENDMENT, O NE-PERSON/O NE-VOTE, M ARYLAND G ENERAL A SSEMBLY , C OUNTY D ELEGATIONS, V OTE DILUTION, GOVERNMENTAL FUNCTIONS County delegations, for which the primary responsibilities are to refer and recommend legislation to the General A ssembly of purely local impact, do no t perform sufficient governmental functions to invoke the one-person/one-vote standard mandated by the 14th Ame ndme nt of the United States C onstitutio n.

Circuit Co urt for An ne Arun del Coun ty Case N o: C-20 03-86 019.I.J

IN THE COURT OF APPEALS OF MARYLAND No. 116 September Term, 2002 _________________________________ Herbert M cMillan e t al. v. Delegate Mary Ann Love _________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Rodowsky, Lawrence F. (Retired, spe cially assigned) JJ. _________________________________ Opinion by Bell, C.J. _________________________________

Filed: February 17, 2004

In this case, we are asked to d etermine whether a county delegation consisting of publicly-elected members of the Maryland General Assembly House of Delegates performs governmental fu nctions sufficient to trigger the one-person/one-vote requirement of the 14th Amendment to the United States Constitution.

I. The relevant facts of this case are undisputed. County delegations,1 consisting of

members of the General Assembly whose districts lie within, or partially within, one of Maryland's counties, play an important role in the enactment of local legislation. House of Delegates Rule 19A provides that, during the 90-day legislative session, which begins each January, county delegations serve as "select committees" with responsibility for considering bills and resolutions of a strictly local nature or which amend a particular Code of Public Local Laws and have no statewide implications. The delegations also lobby for funds and recommend individuals for certain civic boards and committees.2 The House of Delegates Rule 19A prescribes the voting rights of the state delegation s. It provides, in r elevant par t: "(b)(1) Except as provide d by paragrap h (2) of this su bsection, ea ch delega te The delegations are required to consist of a minimum of three (3) members. Under House of Delegates Rule 19 (a), if a delegation consists of less than three members, the Speaker may appoint additional members from other counties. 2 The Delegation recommends appointments to community colleges, boards of trustees, liquor boards, special citizens boards and the county board of election supervisors. They also lobby for funds for police and educational and recreational facilities.
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who represents any portion of a county has one vote in the county delegation in which the district lies. "(2) After an opportunity for all delegates to be heard, a majority of delegation members present and voting may elect to allocate nonresident delegates less than one full vote. The vote may not be less than one-third of a vote." Rule 19A, thus, is the default rule an d requires that, unless the Deleg ation votes otherw ise with respect to nonresident Delegation m embers, all D elegation m embers ar e entitled to one vo te each . The Anne A rundel D elegation has enacted rules to govern its actions. Delegation Rule 3 governs the allocation of votes to each delegation member. When this controversy arose, the Anne Arundel County Delegation consisted of 12 members who represented the 6 districts of which the County was comprised. Three of the members of the delegation were from Dist rict 2 1, the boundaries o f wh ich a re w ithin both Ann e Ar undel Co unty a nd Prince George's County. Because only a small portion of District 21 is in Anne Arundel Cou nty, those Delegation members represented significantly fewer citizens than did the delegates representing districts entirely, or more substantially, within the County's borders.3 On A pril 5 , 200 2, by a majo rity vo te of the A nne Aru ndel County D elegation,

the 21 st District representatives were allotted one-third of a vote each. After the April 5, 2002 vote, Rule 3 read:

Compare District 21, representing 24,227 people with District 30, representing 117,102 residents, District 31 representing 115, 256 residents, District 32, representing 118, 319 residents, D istrict 33A, rep resenting 7 6,116 resid ents. and D istrict B representing 38,636 residents.
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"3. Voting - Subject to th e limitations he rein, all mem bers are eligib le to vote on any and all issues brought before the Delegation unless, under the rules of the House, a member excuses himself or herself. Each member who represents a legislative district completely within the boundaries of Anne Arundel County is entitled to one vote. Of this group, only members who are present may vote. Members who represent a legislative district which is not complete ly within the boundaries of Anne Arundel County form a group and are colle ctive ly enti tled t o one vote. This v ote m ay be cas t by any one of the district's members who is present at a meeting. The Chairman shall vote on all issues brought before the delegation." With this vo te allocation, the delegation was ma jority Democ rat. In November, 2002, petitioners Herbert McMillan and Donald Dwyer, both members of the Re publican party, w ere elected to the Marylan d Hous e of Dele gates, to represent districts within A nne Aru ndel Cou nty. The petition ers replaced two De mocrats and, thus, w ith their election , given the ru les in effect w ith respect to the vote allocation in the An ne Aru ndel C ounty D elegatio n, the D elegatio n wou ld be m ajority Re publica n.

On December 2, 2002, after the General Assembly election results were certified, but before the start of the 2003 legislative session, when th e newly electe d memb ers would be sworn, the Delegation, as it was then constituted, including the outgoing members of the Delegation and excluding the newly elected members, met and amended Delegation Rule 3. By that a mend ment, each dele gation membe r, including the delegation me mbers from District 21, was allocated one vote, which assured that the Democrats retained the majority in the Delegation. The newly elected members of the General Assembly and future Delegation members protested their exclusion from this Delegation meeting and vote.

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On Januar y 3, 2003 , the petitioners filed in the Circuit Court for Anne Arundel County a Verified Complaint for Declaratory and Injunctive Relief under 42 U.S.C.

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