IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND MICHAEL LEE PHILIPS, et al., Plaintiffs, vs.

BOARD OF TRUSTEES OF MONTGOMERY COLLEGE, Defendant.
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Case No. 342882V

PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT'S TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiffs, in Opposition State a Claim. I. INTRODUCTION. Defendant (~Defendant") make. U.S.C. Board of Trustees moves to dismiss of Montgomery College by counsel, respectfully Motion

MOTION

submit this Response for Failure to

to Defendant's

to Dismiss

claims that Plaintiffs

do not

Plaintiffs
§

do not assert private

rights of action under 8

1621, Md. Code. Ann. Educ. § 16-310, or COMAR § Nor do they argue that private under these provisions. rights of action Plaintiffs to In

13.B.07.02.03.

should be implied

Rather,

invoke the well-established challenge illegal

right of Maryland

taxpayers

or ultra vires acts of public Plaintiffs

officials.

this particular policy

instance,

allege that Defendant's of Montgomery County public

of allowing

recent graduates

high schools to pay the lowest, Montgomery residence Defendant College violates without

in-county

rate of tuition

at

having to prove their legal place of law and federal law. Because

both Maryland

failed to challenge

Plaintiffs'

right to bring such an does not properly motion must be

action or allege that Plaintiffs' state a claim for taxpayer denied. II. STATEMENT OF FACTS. Plaintiffs Montgomery governing located are taxpayers Complaint relief,

Complaint

Defendant's

and long-time at ~~ 1-3. College,

residents

of

County.

Defendant

is the college

body of Montgomery

a public

community
As

in Montgomery College's

County, Maryland. governing

Id. at ~ 4.

Montgomery exercise

body, Defendant

is empowered

to

general

control

over the college

and to adopt and policies for the

reasonable operation

and lawful rules, regulations, of the college. community Id. college,

As a public primarily

Montgomery

College

relies as

on appropriations

of state and county tax dollars,

well as student tuition Appropriations approximately contrast, a quarter

and fees, for its revenue.

Id. at ~ 7. for Id. By

of state and county tax dollars one half of Montgomery College's

account revenue.

tuition

and fees paid by students revenue. Id.

constitute

less than

of the college's

-2-

By law, the tuition community college

charged to a student who attends is determined Students

a

in Maryland

by the student's who are residents college Id. of

place of residence.

Id. at ~ 8. supporting

the county or counties they are enrolled who are residents

the community rate.

at which Students

are charged

an in-county

of the State of Maryland, supporting

but reside outside college Id. at which

the county or counties they are enrolled who reside outside state rate. Contrary standing Id.

the community rate.

are charged

an in-state

Students an out-of-

the State of Maryland

are charged

to Maryland

law, however, to provide

it has been the longreduced, in-county high

policy

of Defendant

tuition to all recent schools regardless Students

graduates

of Montgomery

County public

of their place of residence. from a Montgomery

Id. at ~ 9. high are

who have graduated

County public College

school within not required in-county

three years of enrolling to prove residency rate. Id.

at Montgomery

status to receive the reduced, this policy had

tuition

Until recently, Id.

never been put in writing. On November Montgomery

15, 2010, Defendant ("Board") adopted unwritten policy

Board of Trustees a resolution into College adopted

of

College

incorporating Policy 45003. No. 10-

its long-standing, Id. at 10.

Specifically,

Defendant

Resolution

11-086 "to clarify

and confirm

tuition -3-

and fees practices

previously present

authorized

by the Board but not contained on tuition.u Id.

in the

public policies Policy

College rates:

45003 sets forth three categories corresponds corresponds to the lowest, to a mid-level,

of tuition "in-countyU "in-stateU "outto

a "c Rate," which

rate, an "S Rate," which

rate, and an "OS Rate," which corresponds of-stateU College rate.

to the highest,

Id. at ~~ 12, 21, 23, 25, and 27. students who graduate

Pursuant

Policy 45003,

from a Montgomery at of

County public high school within Montgomery whether College

three years of enrolling the

will be charged residents

"c

RateU regardless County.

they are lawful

of Montgomery

Id. at

~~ 9 and 12. Both the prior, recently-adopted, providing unlawfully public a public present unwritten version of the policy and the

written benefit

version

have had the effect of in-county tuition -- to County it to

-- reduced,

aliens who graduate Id. at ~ 16.

from a Montgomery

high school.

On information in establishing present

and belief, the policy aliens who Id. at ~ that

was and is the intent of Defendant provide graduate 17. this public benefit

to unlawfully

from Montgomery

County public College

high schools.

In fact, Montgomery Board's

has admitted policy enables

repeatedly unlawfully rate.

Defendant present at ~ 18.

long-standing

aliens to pay the lowest, In its audited financial

in-county

tuition

Id.

statements

for Fiscal Years

-4-

2007, 2008, and 2009, Montgomery Montgomery College policy

College

stated:

"[T]he equally, .

is applicable

to all persons, aliens

and includes

all citizens

as well as undocumented College

"

Id.

Moreover,

Montgomery

spokesperson

Brett Eaton

was quoted

in the October as stating,

29, 2010 edition

of the Montgomery tuition to

County Gazette illegal

"We do not give in-state of recent

immigrants,

with the exception graduates."

[Montgomery

County public

high school]

Id. at ~ 19. aliens generally including are

Under federal ineligible secondary

law, unlawfully

present

for state or local public education benefits

benefits,

post-

such as reduced

tuition,

unless a

state has enacted eligibility. enacted aliens public

a law affirmatively

providing

for such has never present at

Id. at ~ 14.

The State of Maryland providing

a law affirmatively are eligible institutions

that unlawfully in-county including

to receive of higher

reduced, education,

tuition

community The Maryland in 2003, Id.

colleges

such as Montgomery attempted Robert

College.

Id. at ~ 15.

General Assembly but then-Governor Defendant substantial,

to enact such a provision

L. Erlich vetoed

the measure. is causing

Board's

long-standing

policy

pecuniary

loss to taxpayers Id. at ~ 20.

in Montgomery By providing

County reduced,

and the State of Maryland. in-county County tuition

to all students

who graduate

from Montgomery or

public

high schools,

regardless -5-

of their residence

status failing

as unlawfully to collect

present

aliens, Montgomery

College

is

revenue Id.

that, by state and federal law, it is Because taxpayers in Montgomery the cost of

required County

to collect.

and the State of Maryland present County required aliens

are subsidizing Montgomery

unlawfully Montgomery are being increased increased

attending

College, and

and Maryland

taxpayers

have been required

to make up the resulting of tax dollars

lost revenue through

appropriations appropriations

and, in particular, Id. see also that, as a

of county tax dollars. Plaintiffs Montgomery

id. at ~~ 30, 32, 34, and 36. result collect of Defendant's approximately policy,

estimate College

failed to

$7,940,374

in tuition

in the four academic pecuniary

years between losses

2007 and 2010, causing

substantial

to taxpayers.

Id. at ~~ 22, 24, 26, and 28.

III. ARGUMENT. A. Plaintiffs' Complaint Invokes the Long-Standing Right of Maryland Taxpayers to Challenge Illegal or u~tra Vires Acts of Public Officials, Not Any Private Causes of Action Under Federal Law, the Maryland Code, or Maryland Regulations. simply misconstrues Plaintiffs' Complaint. It

Defendant asserts under create 310.

that Congress
§

did not create a private

right of action did not

8 U.S.C.

1621, and that the Maryland

legislature

a private

right of action under Md. Code Ann. Educ. § 16that there is no private Defendant's -6~ right of action is

It also asserts

under COMAR § 13.B.07.02.03(c).

analysis

irrelevant,

however,

because

Plaintiffs

have not claimed that rights

any of these provisions of action. injured Instead,

authorize

them to bring private

Plaintiffs

assert that their status as

taxpayers

entitles

them to bring this action. Maryland law authorizes

Long-standing taxpayer-plaintiffs

and well-established

to bring suit to enjoin officials

illegal and ultra

vires acts of public likely to result tuition policy

where those acts are reasonably loss or an increase in taxes. The

in pecuniary

Plaintiffs

have challenged,

and which Defendant

has acknowledged, that has resulted College

is an illegal and ultra vires act by Defendant in substantial pecuniary losses to Montgomery

and to Maryland

and Montgomery

County taxpayers. explained

In a landmark that,

case in 1869, the Court of Appeals

[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. Mayor (1869) and City Council ("Baltimore of Baltimore v. Gill, 31 Md. 375, 395

v. Gill").

The Court not only found that the them the the City of them from

taxpayers relief

were entitled

to relief, but it granted an injunction against

they sought, namely and its officers

Baltimore

and agents restraining

-

7-

borrowing 394-95.

money to assist

in the building

of a railroad.

Id. at

Numerous has described long-standing

subsequent

cases -- indeed,

the Court of Appeals

them as a "profusion right of taxpayers:

of cases" -- have upheld this

From this decision [Baltimore v. Gill] 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. 681, 684 (1974). The requirement that there

333, 339, 329 A.2d be an "injury" interpreted challenged

to taxpayers'

rights and property

"has been

to require results

a showing that the action being loss or an increase in taxes." of

in a pecuniary Street,

Id.; 120 West Fayette Baltimore, Gordon

LLLP v. Mayor 964 A.2d

and City Council (2009);

407 Md. 253, 267-69, and City Council (1970).

662, 670-71

v. Mayor

of Baltimore, Moreover,

258 Md. 682, 687need loss

90, 267 A.2d

98, 101-03

"the taxpayer

not demonstrate or increased potential." Ass'n,

that, necessarily,

there will be pecuniary existence

taxes, but only the reasonable Inlet Assocs. v. Assateague

of that

House Condominium (1988) (emphasis

313 Md. 413, 442-43,

545 A.2d 1296, 1311 Street,

original);

see also 120 West Fayette

LLLP, 407 Md. at

-8-

269, 964 A.2d at 671 (allowing taxpayer the alleged illegal

action to proceed

where cause

and ultra vires act "may potentially harm or an increase of taxpayers in taxes") .

[the taxpayer]

pecuniary required

The showing has been called test"

is quite modest. application

In what of the who

"[p]erhaps

the most liberal

(Gordon, 258 Md. at 688, 267 A.2d at 101), taxpayers the constitutionality of Baltimore's of a statute Lexington enacted

challenged

to aid in

the reconstruction

Market

were found to standing

have stated a claim under the doctrine simply because of Baltimore the reconstruction

of taxpayer

project

would cause the City

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, Md. 472, 482, 67 A.2d Court of Appeals Inc. v. Lexington (1949). Market Auth., 193

490, 493

Likewise

in Gordon, the

upheld

a taxpayer

action to enjoin the transfer library to Baltimore's of the allegedly

of books from the Peabody Enoch Pratt Free Library

Institute's because

the expenses

illegal

and ultra vires transfer taxpayers.

were to be borne by City of

Baltimore

258 Md. at 689-90, 267 A.2d at 102. County, 261 Md. sustained

Particularly 422, 276 A.2d

salient here is Thomas v. Howard

49 (1971), in which the Court of Appeals

-

9-

a claim by taxpayers illegal Plumbing fees.

challenging

Howard County's to enforce failure

allegedly

and ultra vires failure

the Howard County to collect permitting have

Code and the accompanying

The Court in Thomas noted, far in sustaining illegal

"We and our predecessors of taxpayers to

gone rather challenge

the standing

the alleged

and ultra vires actions

of public

officials." collect County's graduates unable County. certain County

261 Md. at 432, 276 A.2d at 54.

The failure to

permitting

fees in Thomas is not unlike Montgomery out-of-state tuition from recent

failure to collect of Montgomery

County public

high schools who are residents policy of Montgomery reasonably

to prove that they are lawful Not only is Defendants' to cause pecuniary and throughout so.

tuition

harm to taxpayers

in Montgomery but it demonstrably

the State of Maryland,

is doing

Complaint

at ~~ 22, 24, 26, 28, and 29-37. to assert or imply private rights of

Rather than seeking action under 8 U.S.C. COMAR § 13.B.07.02.03., provisions vires.
§

1621, Md. Code. Ann. Educ. § 16-310, or however, Plaintiffs policy assert illegal that these and ultra

make Defendant's

tuition

Plaintiffs

do not need a "private

right of action" under relief.

these provisions The taxpayers private

in order to state a claim for taxpayer

in Baltimore

v. Gill did not need to assert a constitution expenditures in order at

right of action

under the Maryland

to proceed

with their claim that the public - 10 -

issue were illegal the taxpayers need to assert County Charter

and ultra vires. Planning

31 Md. at 387. and Housing

Likewise,

in Citizens a private

Ass'n did not

right of action under the Baltimore with their claim that public initiated scheme. an illegal and 273 Md. at 334. right of action

in order to proceed allegedly

officials

in that matter

ultra vires government Nor did the taxpayers under the charitable century Peabody philanthropist Institute.

reorganization in Gordon

claim a private

trust

instrument Peabody

by which nineteenthdonated his library to the

George

258 Md. at 686-90, 267 A.2d at 101-02. in Thomas did not claim a private County Plumbing right

Similarly,

the taxpayers

of action under the Howard restrain fees. county officials

Code in seeking to permitting 281 did

from failing to collect Finally,

261 Md. at 430-31. 377 A.2d

in James v. Anderson,

Md. 137, 149-51,

865, 871-72

(1977), the taxpayers County

not claim a private Charter, county vires. but instead

right of action under the Harford invoked the charter

to demonstrate was illegal

that the

executive's Again,

use of bond proceeds

and ultra

the provisions

of Maryland

and federal law cited tuition policy anything

by Plaintiffs illegal more.

in their Complaint

make Defendant's

and ultra vires.

They need not have alleged

In this regard, 376 F. Supp.2d 1022

Defendant's

citations

to Day v. Sebelius, (10th

(D. Kan. 2005), - 11

aff'd, 500 F.3d 1127

Cir. 2007) and Martinez 2006 WL 2974303 aff'd,

v. Regents

of the Univ. of California,

(No. CV 05-2064)

(Cal. Super. Oct. 4, 2006),

83 Cal. Rptr. 3d 518

(2008), rev'd on other grounds, 241 Neither Day nor Martinez sought

P.3d 855

(2010) are inapposite. of taxpayers officials.

to invoke the rights vires acts of public resident public students

to enjoin

illegal or ultra in Day were nonat Kansas

The plaintiffs

and parents

of non-resident residents

students

universities,

not Kansas

or Kansas taxpayers. paying nonand colleges, By contrast, to

Similarly, resident

the plaintiffs

in Martinez public

were students universities taxpayers.

tuition

at California

not California Plaintiffs enjoin

residents

or California invoked

in this action illegal

their rights as taxpayers policy

Defendant's

and ultra vires tuition

specifically plaintiffs satisfies B.

in order to avoid the shortcomings in Day and Martinez. Their Complaint

of the more than

the requirements

for a taxpayer

action. Them

Plaintiffs Have Pled Ample Facts Entitling to An Award of Injunctive Relief. argument that Plaintiffs

Defendant's irreparable understood, injunctions, reasonable refuse

have failed to plead "As ordinarily the law of that a fair and

injury also is not well-founded. an injury where is irreparable, within

it is of such a character

redress may not be had in a court of law, so that to would be a denial of justice." Bey v.

the injunction

- 12 -

Moorish A.2d

Science

Temple of America,

Inc., 362 Md. 339, 356, 765 from the nature the person

132, 140 (2001).

"[IJn other words, where, surrounding

of the act, or from the circumstances injured, or from the financial

condition

of the person and completely

committing compensated

it, it cannot be readily, for with money." Id.

adequately,

It is obvious

from the allegations redress"

of Plaintiffs'

Complaint

that "fair and reasonable law (as opposed

will not be had in a court of and that money will not for the harm that is causing to

to a court of equity)

compensate Defendant's the public

them or their fellow taxpayers illegal fisc.

and ultra vires tuition policy nature

The "taxpayer"

of this action and the

circumstances remedy

surrounding

it also make it clear that no adequate Indeed, the nature law makes injunctive of such relief available Inc., 193 are

is available

at law.

challenges

is why Maryland See, e.g.,

to taxpayers.

Castle Farms Dairy Stores, ("As taxpayers. . an unlawful

Md. at 482, 67 A.2d at 493 entitled to sue to enjoin

. plaintiffs project");

Ruark v.

Int'l Union of Operating 797, 802

Engineers,

157 Md. 576, 589, 146 A. since Baltimore v. Gill the

(1929) (noting that decisions maintained whenever

"have consistently

the rule, and have sanctioned it appeared that the taxpayer .") .

relief by injunction complaining would

sustain

a pecuniary

loss.

- 13 ~

Regardless, ntaxpayers including continue policy

Plaintiffs'

Complaint

expressly

pleads

that

in Montgomery Plaintiffs,

County and the State of Maryland, pecuniary injury and will

are suffering

to suffer such injury unless Complaint

and until Defendant's Defendant's Even standing

is enjoined." ignores

at !! 41 and 48. completely.

argument

these allegations

alone, they would be more than sufficient injunctive expressly relief. In addition, however,

to plead a claim for Plaintiffs also have
Id. at

pled that they have no adequate

remedy at law.

!! 42 and 49.
constitute

While the former set of allegations allegations of irreparable have properly

certainly it is

sufficient

injury,

all the more clear that Plaintiffs for injunctive considered admonition nrequired

stated a claim are

relief when the former set of allegations

with the latter set and the well-established that, in considering motions to dismiss, courts are facts in

to assume the truth of all of the well-pled . and the reasonable inferences

the complaint

drawn from party." 120

them, in a light most favorable West Fayette

to the non-moving

Street, LLLP, 407 Md. at 261, 964 A.2d at 666 omitted) . Plaintiffs' Complaint goes to great

(internal quotation Moreover, lengths illegal

although

to describe

the pecuniary

losses caused by Defendants' case law recognizes that

and ultra vires tuition

policy,

n[t]he extent

to which a taxpayer

is capable of detailing

the

- 14 -

damage anticipated be rather limited " Citizens

from an illegal

and ultra vires act . filed.

. may

at the time the suit is initially and Housing Ass'n,

Planning

273 Md. at 344, 329 of pleading set forth

A.2d at 687.

"It is not necessary

for the purposes

that the amount of the loss of revenue "

be specifically

Thomas, 261 Md. at 431, 276 A.2d at 54 (emphasis "The details of the loss of revenue like the details are

original) .

of the amount of taxes paid by the individual matters Id.

plaintiffs

of proof as and when the case is tried on its merits." allegations are more than sufficient in this taxpayer policy. to support to

Plaintiffs'

their claim for injunctive Defendant's IV. illegal

relief

challenge

and ultra vires tuition

CONCLUSION. For the foregoing reasons, Plaintiffs respectfully request

that Defendant's Dated: April

motion 5, 2011

to dismiss

be denied. submitted, INC.

Respectfully JUDICIAL

WATCH,

Md. Bar No. 9112190026 Julie B. Axelrod (Not A Member of the Maryland Suite 800 425 Third Street, S.W. Washington, DC 20024 Tel: (202) 646-5172 Fax: (202) 646-5199 Attorneys - 15 for Plaintiffs

Bar)

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND MICHAEL et al., LEE PHILIPS,
) ) )

Plaintiffs, vs. BOARD OF TRUSTEES OF MONTGOMERY COLLEGE, Defendant.
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) ) ) } ) )' ) )

Case No. 342882V

[PROPOSED] ORDER Upon consideration Memorandum Plaintiffs' of Defendant's Motion to Dismiss and

of Points and Authorities response thereto,

in Support thereof, reply, and the entire , 2011, by

Defendant's day of

record herein, the Circuit

it is this

-------------------Maryland, to Dismiss

Court for Montgomery that Defendant's

County,

ORDERED, DENIED.

Motion

shall be

Circuit Judge Montgomery County, Maryland

Copies to: Counsel of Record

CERTIFICATE

OF SERVICE

I hereby certify that on this 5th day of April, 2011, I caused a true and correct copy of the foregoing PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and [PROPOSED] ORDER to be served, via first-class U.S. mail, postage prepaid, on the following:

Michael D. Hays Dow Lohnes PLLC 1200 New Hampshire Avenue, Suite 800 Washington, DC 20036-6802

N.W.

Clyde H. Sorrell General Counsel Montgomery College 900 Hungerford Drive, Room 355 Rockville, MD 20850

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