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Judicial Watch • Brief of Appellees – Phillips, et. al v. Board of Trustees Montgomery College

Brief of Appellees – Phillips, et. al v. Board of Trustees Montgomery College

Brief of Appellees – Phillips, et. al v. Board of Trustees Montgomery College

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THE
COURT APPEALS MARYLAND
September Term 2012
________________
Docket No.
________________
MICHAEL LEE PHILIPS, al.,
Appellants,
vs.
BOARD TRUSTEES
MONTGOMERY COLLEGE,
Appellee.
___________________________
Appeal from the Circuit Court for Montgomery County
The Honorable Judge Marielsa Bernard
___________________________
BRIEF APPELLEE
___________________________
Clyde Sorrell (Bar No. 7794143045)
General Counsel
Montgomery College
900 Hungerford Drive, Room 355
Rockville, 20850
Tel: (240) 567-5271
Rocky.Sorrell@montgomerycollege.edu
Dated: June 2012
Michael Hays (Bar No. 910104)
Dow Lohnes PLLC
1200 New Hampshire Ave., N.W.
Suite 800
Washington, 20036-6802
Tel: (202) 776-2711
Fax: (202) 776-4711
mhays@dowlohnes.com
Counsel for Defendant Board
Trustees Montgomery College
TABLE CONTENTS
TABLE AUTHORITIES .............................................................................................. iii
COUNTER-STATEMENT THE CASE .......................................................................
COUNTER-STATEMENT QUESTIONS PRESENTED ............................................
Appellants Federal Claim ............................................................................
Appellants State Law Claim ........................................................................
Appellants Injunctive Claim ........................................................................
COUNTER-STATEMENT FACTS..............................................................................
Background Montgomery College. ..........................................................
College Policy 45003. ...................................................................................
The Circuit Court Decision. .......................................................................
STANDARD REVIEW .................................................................................................
ARGUMENT.......................................................................................................................
The Circuit Court Correctly Held That Appellants Claimed
Violation Federal And State Statutory Law Without The
Requisite Private Right Action. ...............................................................
The Circuit Court Correctly Found That Appellants Not
Satisfy The Federal Private Right Action Requirement
With Respect Their Federal Claim. .......................................................
Maryland Courts Apply Federal Law Attempts
Enforce Federal Statutes, Requiring That Plaintiff
Possess Federal Private Right Action. ....................................
The Circuit Court Correctly Held That Appellants
Cannot Meet The Requirements Under Federal Law
For Establishing Private Right Action Under U.S.C. 1621. ...............................................................................
TABLE CONTENTS (cont
The Circuit Court Correctly Found That Appellants Cannot
Assert Violation Md. Code Ann. Educ. 16-310 And
COMAR 13B.07.02.03.............................................................................
Appellants Must Have Private Right Action
Prosecute The Instant Alleged State Statutory
Violation ...........................................................................................
The Circuit Court Correctly Held That Appellants Did
Not Have The Right Enforce Md. Code Ann. Educ.
 16-310 COMAR 13B.07.02.03. ............................................
Both Appellants State And Federal Claims Were Properly
Dismissed Because Appellants Have Failed Allege The
Requisite Elements For The Award Injunctive Relief ...........................
CONCLUSION .................................................................................................................
PERTINENT STATUTES ................................................................................................
TABLE AUTHORITIES
CASES
120 Fayette St., LLLP Mayor and City Counsel Balt.,
407 Md. 253, 964 A.2d 662 (2009) ........................................................................
120 Fayette St., LLLP Mayor Balt.,
No. 81, 2012 1448471 (Md. Apr. 27, 2012) ............................................ passim
Alexander Sandoval, 532 U.S. 275 (2001) ............................................................. passim
Amalgamated Cas. Ins. Co. Helms,
239 Md. 529, 212 A.2d 311 (1965) ........................................................................
Associated Builders Contractors, Inc. Balt. Metro. Chapter Connor, Supp. 440 (D. Md. 1999) .........................................................................
Astra USA, Inc. Santa Clara Cnty., 563 U.S. ---, 131 S.Ct. 1342 (2011) .....................
Baltimore Retail Liquor Package Stores Ass Inc. Kerngood,
171 Md. 426, 189 209 (1937) ............................................................................
Benson State, 389 Md. 615, 887 A.2d 525 (2005) ........................................................
Blumhorst Jewish Family Servs. L.A., Cal. Rptr. 3d. 474 (Cal. Ct. App. 2005) ............................................................
Broughton Lumber Co. Yeutter, 939 F.2d 1547
(Fed. Cir. 1991) ......................................................................................................
Chance Kulla, No. CV000160537S, 2001 686905
(Conn. Super. Ct. May 24, 2001) ...........................................................................
Chapman Houston Welfare Rights Org., 441 U.S. 600 (1979) .....................................
Citizens Planning and Hous. Ass Cnty. Exec. Balt. Co.,
273 Md. 333, 329 A.2d 681 (1974) ........................................................................
City Balt. Gill, Md. 375 (1869) ............................................................................
City Boerne Flores, 521 U.S. 507 (1997) ..................................................................
Cohen Frey Son, Inc., 193 Md. 285, A.2d 784 (1949) .........................................
iii
TABLE AUTHORITIES (cont
Cort Ash, 422 U.S. (1975) .................................................................................. 36,
Coster Dep Pers., Md. App. 523, 373 A.2d 1287
(Md. Ct. Spec. App. 1977) .....................................................................................
County Exec. Prince George Cnty. Doe,
300 Md. 445, 479 A.2d 352 (1984) ................................................................. passim
County Hawai Ala Loop Homeowners, 235 P.3d 1103
(Haw. 2010) ...................................................................................................... 11,
Cyprus Amax Coal Co. U.S., 205 F.3d 1369 (Fed. Cir. 2000) ......................................
Davis Burke, 179 U.S. 399 (1900) .................................................................................
Davis Passman, 442 U.S. 228 (1979) ..................................................................... passim
Day Sebelius, 376 Supp. 1022 (D. Kan. 2005)............................................... 21,
Day Sebelius, 500 F.3d 1127 (10th Cir. 2007) ..............................................................
Dennis Higgins, 498 U.S. 439 (1991)............................................................................
Doe Chao, 435 F.3d 492 (4th Cir. 2006) ................................................................. 11,
Douglas Indep. Living Ctr. Cal., Inc., 132 Ct. 1204
(U.S. Feb. 22, 2012) ...............................................................................................
Ehrlich Perez, 394 Md. 691, 908 A.2d 1220 (2006) ............................................... 38,
Fitzgerald State, 384 Md. 484, 864 A.2d 1006 (2004) .................................................
Former Special Project Emps. Ass City Norfolk,
909 F.2d (4th Cir. 1990) ....................................................................................
Gabelli Global Multimedia Trust Inc. Inv. LLC,
700 Supp. 748 (D. Md. 2010) ................................................................ passim
Garcia Bd. Trustees Cal. State Univ., Cal. Rptr. 724 (Cal. Ct. App. 2005) .............................................................
Golden State Transit Corp. City L.A., 493 U.S. 103 (1989) .....................................
TABLE AUTHORITIES (cont
Great Lakes Consortium Mich., 480 Supp. 977
(W.D. Mich. 2007) ........................................................................................... 15,
Hamilton Verdow, 287 Md. 544, 414 A.2d 914 (1980).................................................
Harris State, 331 Md. 137, 626 A.2d 946 (1993) .........................................................
Hayes State, 183 Md. App. 742, 963 A.2d 271
(Md. Ct. Spec. App. 2009) .....................................................................................
Horace Mann League U.S., Inc. Bd. Pub. Works,
242 Md. 645, 220 A.2d (1966) .................................................................... 17,
Hudes Vytra Health Plans Long Island, Inc.,
724 N.Y.S.2d 278 (N.Y. Sup. Ct. 2001)........................................................... 11, Adoption/Guardianship No. 2633 the Cir. Ct. for Washington Cnty.,
101 Md. App. 274, 646 A.2d 1036 (1994) ............................................................. Longo, 144 B.R. 305 (Bankr. Md. 1992) ............................................................. Medtronic, Inc. Sprint Fidelis Leads Prods. Liab. Litig.,
592 Supp. 1147 (D. Minn. 2009) .................................................................. Miller, 124 App 152 (4th Cir. 2005) ........................................................... 20,
Inlet Assocs. Assateague House Condo. Ass
313 Md. 413, 545 A.2d 1296 (1988) ......................................................................
Magan Med. Mut. Liab. Ins. Soc. Md., 331 Md. 535,
629 A.2d 626 (1993)...............................................................................................
Martinez Regents the Univ. Cal., No. 05-2064, 2006 2974303
(Cal. Super. Ct. Oct. 2006), aff Cal. Rptr. 518 (Cal. Ct. App. 2008),
rev other grounds, 241 P.3d 855 (Cal. 2010) ................................................
Maryland State Bd. Elections Libertarian Party Md.,
No. 79, 2012 1813114 (Md. May 21, 2012) ...................................................
McKaig Cumberland, 208 Md. 95, 116 A.2d 384 (1955) ....................................... 31,
Miller Cnty. Comm Carroll Cnty.,
226 Md. 105, 172 A.2d 867 (1961) ........................................................................
TABLE AUTHORITIES (cont
Mitchell Walters, Civil Action No. 10-1061 (SRC),
2010 3614210 (D.N.J. Sept. 2010) ..............................................................
Murray Comptroller Treasury, 241 Md. 383, 216 A.2d 897 (1966) .................. 17,
N.J. State League Master Plumbers, Inc. N.J. Natural Gas Co.,
No. A-1182-09T3, 2010 3720301
(N.J. Super. Ct. App. Div. Sept. 24, 2010) .............................................................
Nicholson Air Servs., Inc. Bd. Cnty. Comm Allegany Cnty.,
120 Md. App. 47, 706 A.2d 124 (Md. Ct. Spec. App. 1998) ..................... 14, 15,
Pace State, 195 Md. App. 32, A.3d 1121
(Md. Ct. Spec. App. 2010) ......................................................................... 13, 15,
Painter Mattfeldt, 119 Md. 466, 413 (1913) .......................................................
Peter Prettyman, Md. 566 (1884) ....................................................................... 31,
Pressman Barnes, 209 Md. 544, 121 A.2d 816 (1956) ........................................... 31,
Pressman Alesandro, 211 Md. 50, 125 A.2d (1956) ............................................
Price State Haw., 764 F.2d 623 (9th Cir. 1985) ........................................................
Renshaw Grace, 155 Md. 294, 142 (1928) ..........................................................
Silkworth Ryder Truck Rental, Inc., Md. App. 264, 520 A.2d 1124,
(Md. Ct. Spec. App. 1987) ............................................................................... 30,
Tallahatchie Valley Elec. Power Ass Miss. Propane Gas Ass Inc.,
812 So. 912 (Miss. 2002) ..................................................................................
Thomas Howard Cnty., 261 Md. 422, 276 A.2d (1971) ...........................................
Thrasher Homecomings Fin. Network, Inc.,
154 Md. App. 77, 838 A.2d 392 (Md. Ct. Spec. App. 2003) ........................... 28,
TABLE AUTHORITIES (cont
Three Lower Counties Cmty. Health Servs., Inc. Md. Dept. Health Mental Hygiene, Civil Action Nos. WMN-10-2488,
AMD-05-1280, 2011 3740781 (D. Md. Aug. 23, 2011) .................................
Valle Pressman, 229 Md. 591, 185 A.2d 368 (1962) .............................................. 31,
Vuki Super. Ct. Orange Cnty.,
117 Cal. Rptr. (Cal. Ct. App. 2010) .............................................................
Wal Mart Stores, Inc. Holmes, 416 Md. 346, A.3d (2010) ............................ passim
Walburn Lockheed Martin Util. Servs., Inc.,
No. 2:09-CV-288, 2010 1253601 (S.D. Ohio Mar. 30, 2010) ........................
Walton Mariner Health Md., Inc.,
391 Md. 643, 894 A.2d 584 (2006) .................................................................. 28,
Weller Mueller, 120 Md. 633, 1045 (1913) ................................................... 31,
Willow Tree Learning Ctr., Inc. Prince George Cnty., Md., Md. App. 508, 584 A.2d 157 (Md. Ct. Spec. App. 1991) .................................
Worsham Ehrlich, 181 Md. App. 711, 957 A.2d 161
(Md. Ct. Spec. App. 2008) ............................................................................... 28,
STATUTES, RULES, AND REGULATIONS U.S.C. 1103 ....................................................................................................................8, 22, U.S.C. 1621 ...................................................................................................................... passim U.S.C. 1623 ........................................................................................................................21, U.S.C. 1751 seq. .................................................................................................... U.S.C. 2000d-1 .......................................................................................................... U.S.C. 2201 seq. .................................................................................................... U.S.C. 2210 ...............................................................................................................
vii
TABLE AUTHORITIES (cont
Md. Code Ann. Educ. 11-107 .........................................................................................
Md. Code Ann. Educ. 16-103 .....................................................................................
Md. Code Ann. Educ. 16-310 .................................................................................. passim
COMAR 13B.07.02.03 ............................................................................................ passim
Md. Rule 8-131 ..................................................................................................................
ADDITIONAL AUTHORITIES Am. Jur. Constitutional Law 100 ......................................................................... Am. Jur. Constitutional Law 104 .........................................................................
Md. Law Encyclopedia, Injunctions (2011) ..............................................................
viii
COUNTER-STATEMENT THE CASE their Opening Brief, Appellants essentially concede, the Circuit Court held,
that the three provisions federal and state law1 that they allege Appellee the Board
Trustees Montgomery College Montgomery College Board Board violates
not confer private right action them. Nor Appellants challenge the Circuit
Court conclusion that private right action can implied their behalf. Instead,
Appellants sole argument that they not need private right action with respect
either their federal state law claims because they allegedly have taxpayer standing 
under Maryland law. the Circuit Court correctly concluded, Appellants argument misguided,
ignores the fundamental distinction and very different functions served standing and
private rights action, and contrary well-established case law. First, the United
States Supreme Court explained Davis Passman, 442 U.S. 228 (1979), standing 
serves purposes separate and distinct from those private right action. The
standing inquiry addresses whether plaintiff has suffered injury sufficient give the
plaintiff personal stake the litigation. the other hand, whether plaintiff has
cause action depends not the quality extent her injury, but whether the
class litigants which [plaintiff] member may use the courts enforce the right issue. Id. 239 n.18. Thus, definitionally, plaintiff must possess both standing and cause action.
See Compl. Count Violation Federal Law U.S.C. 1621 14-15 (Record
Extract 24-25); Compl. Count Violation Maryland Law Md. Code Ann.
Educ. 16-310 and COMAR 13B.07.02.03) 13-14 23-24).
Second, with respect their federal claim, the Circuit Court properly rejected
Appellants assertion that their alleged Maryland taxpayer standing (which the
Montgomery County Board disputes) suffices allow them pursue alleged
violation U.S.C. 1621. the Circuit Court recognized, Appellants argument
plainly violates the Supremacy Clause the United States Constitution and voluminous
precedent holding that federal law must applied determine rights asserted under
federal statutes. See Cir. Ct. Op. and Order, August 16, 2011 Opinion 76).
this Court has held: has long been settled that when action brought state court
enforce rights claims under federal law, the Supremacy Clause the
United States Constitution requires that federal law and policy applied the state court.
County Exec. Prince George Cnty. Doe, 300 Md. 445, 454, 479 A.2d 352, 357
(1984) (emphasis added) (citation omitted). Under federal law, only Congress can grant
the right enforce federal statute, and neither state nor federal courts can grant citizens
the right enforce federal law when Congress has not done so. Under the applicable
federal test, private plaintiff can enforce only statutes that both expressly have rightscreating language and provide for private remedy. Alexander Sandoval, 532 U.S.
275, 276, 286 (2001). Here, the Circuit Court correctly found that Appellants cannot
meet this standard, and appeal Appellants not even attempt establish otherwise.
Third, with respect their state law claim, Appellants assertion that the Board
seeking overturn more than 150 years Maryland precedent woefully misguided.
Appellants Br. 19. the contrary, the issue posed with respect Appellants state
law claim narrow and heretofore undecided one: whether Appellants can enforce
provision the Maryland Education Code whose enforcement the Maryland Legislature
has entrusted the Maryland Higher Education Commission MHEC The Circuit
Court correctly found that Appellants must have private right action pursue this
claim for alleged state statutory and derivative regulatory violation. Appellants simply
ignore this Court most recent pronouncement this issue, well numerous other
cases wherein Maryland courts have dismissed lawsuits because the requisite private
right action did not exist. Moreover, the Circuit Court also found, the Maryland
 taxpayer standing cases that Appellants cite not even remotely support entertaining lawsuit under the circumstances here. None involved claims against body similar
the Montgomery College Board and none sought assert claim under Maryland
Education Code any similar law. And critically, the cases Appellants cite did not
involve statute whose enforcement the Maryland Legislature had entrusted expert
agency. Indeed, Appellants not challenge the Circuit Court conclusion that the
Legislature created private right action for violation the statute regulation
identified their state law claim.
For these reasons, the Circuit Court judgment must affirmed. correctly held
that Appellants Complaint must dismissed for failure state claim.
COUNTER-STATEMENT QUESTIONS PRESENTED
Appellants Federal Claim
Whether the Circuit Court correctly concluded that federal law governed
Appellants ability prosecute claim for alleged violation federal law, U.S.C.
 1621, when this Court has specifically held when action brought state court enforce rights claims under federal law, the Supremacy Clause the United States
Constitution requires that federal law and policy applied the state court. County
Exec. Prince George Cnty., 300 Md. 454, 479 A.2d 357.
Whether the Circuit Court correctly concluded that under federal law,
Appellants could not prosecute their claim for violation U.S.C. 1621 when:
the United States Supreme Court has held that private plaintiffs can
enforce only statutes that have rights-creating language and provide
for private remedy, Sandoval, 532 U.S. 276, 286; U.S.C. 1621 has rights-creating language, and Congress entrusted
its enforcement the Secretary Homeland Security; and
Appellants fail challenge the Circuit Court rulings that they cannot
satisfy this governing standard and thus have private right action
under U.S.C. 1621.
Appellants State Law Claim
Whether the Circuit Court correctly concluded that Appellants could not
maintain their claim against the Board alleging violation Md. Code Ann. Educ. 16310 and COMAR 13B.07.02.03 solely the basis taxpayer standing when:
taxpayer standing and private rights action serve different functions
and have different requirements;
Appellants proposition that private right action never required
under state law where taxpayer standing exists contrary recent
precedent this Court and fails matter sound legal analysis,
well-established principles deference legislative intent, and policy
considerations counseling that the legislative scheme should honored.
Whether the Circuit Court correctly concluded that Appellants could not
prosecute their state law claim for violation Md. Code Ann. Educ. 16-310 and
COMAR 13B.07.02.03 when:
this Court has held that [w]here the legislature has intended create
private cause action for violations statute, has done
explicitly. Wal Mart Stores, Inc. Holmes, 416 Md. 346, 376 n.8,
A.3d 13, n.8 (2010);
the state law provisions issue contain rights-creating language, and
the Maryland Legislature entrusted enforcement these provisions
specialized expert agency, MHEC; and
Appellants fail challenge the Circuit Court ruling that they cannot
satisfy this governing standard and thus have private right action.
Appellants Injunctive Claim
Whether Appellants have properly pled the elements required state claim
for injunctive relief, when they have failed allege irreparable harm.
COUNTER-STATEMENT FACTS
Background Montgomery College.
Founded 1946, Montgomery College public college, currently serving over
60,000 students. statute, the Montgomery College Board exercise[s] general control
over Montgomery College, and empowered adopt reasonable rules, regulations,
bylaws carry out the provisions the various statutory provisions. Md. Code Ann.
Educ. 16-103(c). More specifically, with respect student tuition, the Maryland Code
grants the Montgomery College Board the discretion charge students reasonable
tuition and fees set with view making college education available all qualified
individuals low cost. Md. Code Ann. Educ. 16-103(j).
College Policy 45003.
Pursuant its statutory authority, the Montgomery College Board established
tuition policy, now embodied College Policy 45003. Compl. 14). That longstanding policy (id.) establishes three categories tuition rates, denominated the
Rate, Rate, and Rate. Compl. 15). The Rate the lowest rate,
followed the Rate, and then the Rate. 
Compl. 18).
The
Montgomery College Board, motivated its desire leverage public investment
county high school graduates and provide seamless educational path from grades
14, determined charge the Rate (the lowest rate) to, among others, graduate[s]
from Montgomery County Public School within the past three years. Compl. 15) (quoting College Policy 45003).
College Policy 45003 further provides that students attending Montgomery
College who not qualify for the Rate shall pay the Rate unless the President his her designee determines that the student Maryland resident from outside
The other categories students eligible for the Rate are Montgomery County
residents, regional students, and current students Montgomery County public school.
Compl. 15).
Montgomery County which case the student shall pay the Rate. Compl.
15) (quoting College Policy 45003). The Complaint alleges that the last few years
student tuition and fees have comprised roughly percent Montgomery College
total revenue. Compl. 31, 33, 35, 21-23).3
The Circuit Court Decision. January 20, 2011, Appellees filed Complaint asserting that College Policy
45003 violates federal and state law. The Board moved dismiss the Complaint for
failure state claim. its nine-page Opinion dated August 16, 2011, the Circuit Court
granted the Board motion with respect both Appellants federal and state claims.
With respect Appellants federal claim, based this Court opinion County
Executive Prince George County, 300 Md. 454, 479 A.2d 357, the Circuit Court
concluded that must apply federal law federal claims brought state court. The
Circuit Court thus found that that must apply federal law determine whether
Appellants could maintain action under U.S.C. 1621.
The Circuit Court, applying the Supreme Court Sandoval test, found that Section
1621 did not contain the rights-creating language required create private right
While not issue this appeal, the Board strongly disputes Appellants gratuitous
and unsupported contention that result the Policy Montgomery College has failed collect approximately $7,940,374 tuition fees the four academic years between
2007 and 2010. Appellants Br. That contention based the economically
flawed premise that the Policy were terminated and the students theretofore eligible
under the rate were required pay the much higher tuition that would then
effect (an increase approximately 160%), all the students previously paying the
reduced rate would continue attend and pay the increased tuition. This contention
violates basic economic theory elasticity demand. Indeed, determined its
expert below, Montgomery College would lose revenue the Policy terminated.
action. Further, the Circuit Court found that, pursuant U.S.C. 1103(a)(1), Congress
expressly entrusted enforcement U.S.C. 1621 the Secretary Homeland
Security, not private citizens, and that this legislative decision clearly takes
precedence over any argument taxpayer standing. 
The Circuit Court therefore
dismissed Appellants federal claim (Count II). Opinion 3-6 76-79).
With respect Appellants state claim alleging violation Md. Code Ann.
Educ. 16-310 and its enabling regulation (COMAR 13B.07.02.03), the Circuit Court
rejected Appellants argument that they did not need private cause action. The
Circuit Court found that none the cases Appellants cited support their taxpayer
standing argument alleged violation Maryland statute, let alone sought enforce
any portion Maryland Education Code. Opinion 79). Further, found that
Appellants taxpayer standing argument conflicts with recent pronouncement the
Maryland Court Appeals that [w]here the legislature has intended create private
cause action for violation statute, has done explicitly. Opinion 6-7 7980) (quoting Wal Mart Stores, 416 Md. 376 n.8, A.3d n.8).
The Circuit Court found that the Maryland Legislature had created private right action with respect Appellants alleged state claim:
[E]ven this Court had the power recognize common law taxpayerplaintiff claim for violation state statute, the Maryland legislature
existing statutory scheme entrusting enforcement Md. Code Ann. Educ.
Section 16-310 and COMAR Section 13.B.07.02.03 the Maryland
Higher Education Commission (MHEC) precludes the recognition any
common law individual right bring such claim.
Opinion 81). Finally, the Circuit Court found that neither the statute nor the
regulation has rights-creating language necessary create private right action. Id.
STANDARD REVIEW
The standard review appeal from the grant motion dismiss the
 legal correctness the Circuit Court decision. 120 Fayette St., LLLP Mayor
Baltimore, No. 81, 2012 1448471, n.11 (Md. Apr. 27, 2012).
ARGUMENT
The Circuit Court Correctly Held That Appellants Claimed
Violation Federal And State Statutory Law Without The
Requisite Private Right Action.
Recognizing that they cannot establish private right action for the provisions
the Board allegedly violated, Appellants attempt dodge the issue two respects, each which without merit. First, they disingenuously assert that they not seek
 enforce rights claims under federal law [or] under any Maryland statute
regulation, but rather that their taxpayer standing claim challenges the alleged illegal
conduct directly. Appellants Br. 10.4 This assertion is, course, distinction
without difference. act can only illegal violates provision law. any
event, Appellants own Complaint establishes that they have based their claims
alleged violations federal and state law. Appellants assertion the contrary belied the judicial admissions Appellants Complaint, which defines Count Violation Maryland Law Md. Code Ann. Educ. 16-310, al., defines Count
Appellants make this tortured contention effort avoid this Court very recent
holding 120 West Fayette Street, discussed infra Section C.1., which concluded that private party seeking enforce statutory provision needs private cause action.
 Violation Federal Law U.S.C. 1621, and asserts that Appellants have suffered
injury proximate result Defendant Board violation Maryland law and
federal law. Compl. 13, 13, 14)); id. 41, 24, 25). Appellants assertion further belied their own brief, which they claim that Defendant tuition policy
violates federal statute, U.S.C. 1621 Appellants Br. n.4. Finally, their
brief also acknowledges that the taxpayer standing principle upon which they base their
argument does not provide free-floating right correct any perceived injustice. Rather,
each the cases they cite addresses underlying provision law that the plaintiffs those cases alleged that the defendants violated. Appellants Br. 11, 13-15.
Second, Appellants attempt obfuscate the fundamental difference between
standing and private right action.
Specifically, Appellants assert that taxpayer
standing sufficient maintain their claims because allegedly the illegal and
ultra vires nature the public official act that the focus taxpayer [standing]
claim, not the source substance the underlying provision law that makes the
public official act illegal ultra vires. Appellants Br. 10. the Circuit Court
found, Appellants assertion misguided because improperly confuses the distinct
legal requirements standing, the one hand, and private right action, the other,
which serve very different purposes.
Federal and state courts throughout the nation have repeatedly recognized the
distinction between standing and private right action, and have held that plaintiff
requires both proceed with action.5 the United States Supreme Court explained Davis, 442 U.S. 228, contrasting the distinct, separate requirements for standing and
private right action:
The Court Appeals appeared confuse the question whether
petitioner had standing with the question whether she asserted proper
cause action. The nature petitioner injury relevant the
determination whether she has alleged such personal stake the
outcome the controversy And under the criteria have set out,
petitioner clearly has standing bring this suit. Whether petitioner has
asserted cause action, however, depends not the quality extent
her injury, but whether the class litigants which petitioner
member may use the courts enforce the right issue.
Id. 239 n.18 (emphasis added) (citation omitted). Similarly, the Supreme Court
Hawaii explained:
While the term standing sometimes used describe the private right
action inquiry the two inquiries involve distinct policy considerations
and distinct tests. The private right action inquiry focuses the
question whether any private party can sue enforce statute, while the
See, e.g., Davis, 442 U.S. 239-40 n.18 (discussed infra); Doe Chao, 435 F.3d 492,
500 (4th Cir. 2006) (private right action not connected the quality extent
injury, but instead concerns whether the plaintiff belongs class litigants that may
use the courts enforce right. (emphasis original); Hudes Vytra Health Plans
Long Island, Inc., 724 N.Y.S.2d 278, 282 (N.Y. Sup. Ct. 2001) (dismissing suit
enforce legislation even though certain plaintiffs had standing because the legislation
does not confer private right action upon plaintiffs N.J. State League Master
Plumbers, Inc. N.J. Natural Gas Co., No. A-1182-09T3, 2010 3720301, (N.J.
Super. Ct. App. Div. Sept. 24, 2010) (affirming trial court dismissal complaint the
ground that although [the plaintiffs] would probably have standing, there private
cause action enforce the provisions the Plumbing Law County Hawai
Ala Loop Homeowners, 235 P.3d 1103, 1118 (Haw. 2010) (discussed infra); Blumhorst
Jewish Family Servs. L.A., Cal. Rptr. 474, 480 (Cal. Ct. App. 2005) (finding
standing and private right action separate requirements action enforce
statute); Tallahatchie Valley Elec. Power Ass Miss. Propane Gas Ass Inc., 812 So. 912, 924 (Miss. 2002) whether MPGA has suffered legally cognizable injury
question separate from the question standing
standing inquiry focuses whether particular private party
appropriate plaintiff.
Ala Loop Homeowners, 235 P.3d 1118 n.20 (emphasis original) (citations omitted). recognition these separate and distinct requirements, numerous courts throughout
the country have recognized that plaintiff statute-based claim necessarily cannot
proceed unless has private right action.6
Thus, Appellants core contention that private right action never distinct
requirement for enforcing statute demonstrably false. established below, such
private right action required under both federal and state law for Appellants claims,
and such cause action exists.7
See, e.g., Mitchell Walters, Civil Action No. 10-1061 (SRC), 2010 3614210, (D.N.J. Sept. 2010) (finding claim must necessarily fail because the statute confers private right action Walburn Lockheed Martin Util. Servs., Inc., No. 2:09-CV288, 2010 1253601, (S.D. Ohio Mar. 30, 2010) (finding the plaintiffs federal
law claims necessarily fail because the federal statutes and regulations allegedly involved not include private right action Medtronic, Inc. Sprint Fidelis Leads
Prods. Liab. Litig., 592 Supp. 1147, 1161 (D. Minn. 2009) (finding the plaintiff
 claim necessarily fails because private right action exists under the FDCA Vuki Super. Ct. Orange Cnty., 117 Cal. Rptr. 86, (Cal. Ct. App. 2010) (finding any
claim based [Civil Code] sections 2923.52 and 2923.53 necessarily entails private
right action which the statutes not give Chance Kulla, No. CV000160537S,
2001 686905, (Conn. Super. Ct. May 24, 2001) (finding the plaintiff failed
allege legally sufficient cause action under CUIPA because that statute did not grant private cause action); Hudes, 724 N.Y.S.2d 282 (finding the plaintiffs claims
 fail[ed] because the legislation does not confer private right action upon
plaintiffs
The Circuit Court did not address the issue whether Appellants fact had taxpayer
standing. While thus unnecessary for the resolution this appeal, the Montgomery
College Board disputes Appellants contention that they have taxpayer standing. Indeed,
the Board expert, Dr. David Breneman, after considering number factors, such
the income derived from students who enrolled result the Policy, the marginal cost their attendance, and the elasticity demand associated with the 160% increase
tuition should the Policy terminated, concluded that far from imposing additional
The Circuit Court Correctly Found That Appellants Not
Satisfy The Federal Private Right Action Requirement With
Respect Their Federal Claim.
Maryland Courts Apply Federal Law Attempts
Enforce Federal Statutes, Requiring That Plaintiff
Possess Federal Private Right Action. the Circuit Court correctly found, Maryland courts must apply federal law
determine whether plaintiff can assert state court claim based violation
federal statute: has long been settled that when action brought state court
enforce rights claims under federal law, the Supremacy Clause the
United States Constitution requires that federal law and policy applied the state court.
County Exec. Prince George Cnty., 300 Md. 454, 479 A.2d 357 (emphasis
added) (quoted Opinion 76)).8 See also Pace State, 195 Md. App. 32, 46,
taxes Maryland and Montgomery County taxpayers, the Policy actually saves the
taxpayers great deal money each year. Def. Resp. Pls. Interrog. No. 16,
August 11, 2011. Numerous decisions have recognized that without such negative
economic impact, taxpayer standing does not exist. See, e.g., Baltimore Retail Liquor
Package Stores Ass Inc. Kerngood, 171 Md. 426, 189 209, 210 (1937) (finding
the plaintiffs lacked taxpayer standing because [i]n this instance, there levy
taxes outlay public money affect the petitioners taxpayers.
Adoption/Guardianship No. 2633 the Cir. Ct. for Washington Cnty, 101 Md. App. 274,
646 A.2d 1036 (1994) (same).
Appellants attempt distinguish County Executive arguing that was not
taxpayer case (Appellants Br. n.3) fails for least two reasons. First, Appellants 
purported distinction irrelevant. The Supremacy Clause the United States
Constitution applies all cases involving federal law; there exception for cases
where the plaintiff alleges taxpayer standing. Indeed, Appellants argument was
specifically rejected Garcia Board Trustees California State Univ., Cal.
Rptr. 724 (Cal. Ct. App. 2005), where the plaintiffs asserted that California taxpayer
standing statute gives California taxpayers standing bring cause action under
federal regulations. Id. 728. The court flatly rejected this assertion, finding that
taxpayer standing alone did not suffice and that plaintiffs claim must dismissed
A.3d 1121, 1129 (Md. Ct. Spec. App. 2010) (applying federal law determine whether
plaintiff can assert violation federal statute state court); Nicholson Air Servs., Inc. Bd. Cnty. Comm Allegany Cnty., 120 Md. App. 47, 83-84, 706 A.2d 124, 142
(Md. Ct. Spec. App. 1998) (same). abundantly clear under federal law that plaintiff must have private right
action enforce federal statute, including enforcement through injunctive relief such
Appellants seek.9 the Supreme Court stated Davis:
Statutory rights and obligations are established Congress, and
entirely appropriate for Congress, creating these rights and obligations, determine addition, who may enforce them and what manner.
Davis, 442 U.S. 241 (emphasis added). Thus, private rights action enforce
federal law must created Congress. Sandoval, 532 U.S. 286 (emphasis added)
(citations omitted).
Maryland courts have recognized this principle, and concluded that Congress
did not intend[] create private cause action with respect statute, then claim
because Congress did not intend give private party any substantive right cause action pursuant the regulations issue. Id. Second, not surprising that County
Executive not taxpayer standing case. There are Maryland state court cases
permitting plaintiff challenge violation federal statute solely through taxpayer
standing. Rather, plaintiff must have federal private right action so.
See, e.g., Sandoval, 532 U.S. 293 (holding private individuals could not sue enjoin state agency purported violation U.S.C. 2000d-1 because private right
action existed under that statute); Former Special Project Emps. Ass City Norfolk,
909 F.2d 89, (4th Cir. 1990) (affirming dismissal lawsuit seeking declaratory and
injunctive relief under the Model Cities Act because the court found that the Model
Cities Act did not create private cause action under the statute Price State
Haw., 764 F.2d 623, 631 (9th Cir. 1985) (dismissing the plaintiffs claim for injunctive
relief under the Admission Act because the [plaintiffs] cannot claim private cause
action under the Admission Act state court asserting violation the federal statute must dismissed. Pace, 195
Md. App. 46, A.3d 1129; see also Nicholson, 120 Md. App. 83-84, 706 A.2d
142 (dismissing claim for violation U.S.C. 2210 because statute conferred
private right action).
Accordingly, this case law establishes, and the Circuit Court found, there merit Appellants unsupported contention that not proper for state court
apply substantive federal law determine who the class litigants that Congress
intended able enforce federal statute.
Appellants Br. 18.
Indeed,
Appellants brief cites not single relevant Maryland case for this proposition, and
wholly fails distinguish the numerous cases that have held directly the contrary.
For example, Pace, the Maryland Court Special Appeals affirmed dismissal plaintiff claim asserting violation duties allegedly imposed the National
School Lunch Act, U.S.C. 1751 seq. (2006) NSLA The plaintiff, who had
suffered severe reaction meal served school lunch program, argued that the
NSLA imposed duty the Maryland State Department Education and the
Superintendent Schools take some action prevent schools from feeding allergic
students food containing allergens. 195 Md. App. 41, A.3d 1126.
The Pace Court rejected the plaintiff argument, finding that the plaintiff could
not enforce any duties imposed the statute, and analyzed the question under the federal
standard set forth Sandoval, i.e., whether Congress intended create both private
right and private remedy. Id. 46, A.3d 1129. Relying upon Great Lakes
Consortium Mich., 480 Supp. 977 (W.D. Mich. 2007), which addressed similar
issue, the Maryland Court Special Appeals stated: found one case which held another context that the NSLA does not
create private cause action [T]he central inquiry whether
Congress intended create, either expressly implication, private
cause action. The inquiry requires both that Congress intended
confer private right particular beneficiary, but also that Congress
intended confer private remedy. 
Pace, 195 Md. App. 46, A.3d 1129 (quoting Great Lakes Consortium, 480
Supp. 981) (internal citation omitted). Finding that the statute issue did not
confer private right remedy, the Court Special Appeals found private right
action, and thus privately-enforceable duty, that could form the basis for suit. Id.
52, A.3d 1132-33.
Similarly, Nicholson, the plaintiff asserted that suffered constitutional
deprivations based the Airport and Airway Improvement Act 1982, U.S.C.
 2201 seq., which specifically prevents discrimination airports that receive federal
funds. Nicholson, 120 Md. App. 83-84, 706 A.2d 142 (citation omitted).
dismissing the claim, the Maryland Court Special Appeals held:
Appellant fails cite any cases indicating that this statute gives rise
private cause action, and the case law indicates that does not. Because
appellant does not have private right action under U.S.C. 2210, its
claims regarding its air carrier service are without merit.
Id. (citations omitted).
Given the clear necessity federal private right action enforce federal
statute, Appellants argument that Maryland taxpayer standing alone suffices wholly
misguided. established above, federal law establishes clear distinction between the
separate requirements standing and private right action, and requires private right action for claims asserting statutory violations. See Chao, 435 F.3d 499 private
right action not connected the quality extent injury, but instead concerns
whether the plaintiff belongs class litigants that may use the courts enforce
right. (emphasis original) (citation omitted).
Thus, Appellants assertions
 pecuniary harm (Appellants Br. 8-9) cannot provide them with the private right
action the right invoke the power the courts that they need enforce Section
1621. Davis, 442 U.S. 239. Indeed, not one the taxpayer standing cases Appellants
rely upon applies Maryland taxpayer standing alleged violation federal
statutory law.
Finally, Appellants cite Murray Comptroller Treasury, 241 Md. 383, 216
A.2d 897 (1966) and Horace Mann League U.S., Inc. Board Public Works, 242
Md. 645, 220 A.2d (1966) for the proposition that irrelevant under federal law
 whether the provision allows private right action. 
Appellants Br. 11.
Appellants argue that each case this Court permitted the plaintiff maintain the action
for violation federal constitutional provisions even though there was private right
action. The Circuit Court properly rejected this contention. Opinion 77). Murray
and Horace Mann have relevance the issues before this Court. Each involved selfexecuting federal Constitutional provisions,10 not federal statutory provision like that issue this case.
Murray involved constitutional challenge Maryland statutory exemption from
state, county, and city taxation structures used exclusively for public worship. The
 Self-executing constitutional provisions are those under which private right
action will lie without legislation. See Davis Burke, 179 U.S. 399, 403 (1900). this
Court held addressing whether provision the Maryland Constitution was selfexecuting private right action for violation Article may lie because
self-executing constitutional provision. Whether constitutional provision self-executing, make enforceable judicially, issue
addressed the U.S. Supreme Court Davis Burke, 179 U.S. 399
The Supreme Court set forth the elements and characteristics selfexecuting constitutional provision.
Benson State, 389 Md. 615, 628, 887 A.2d 525, 532-33 (2005) (emphasis added). This
Court went quote the following language from Burke: supplies sufficient rule means which the right given may
enjoyed and protected, the duty imposed may enforced; and not
self-executing when merely indicates principles, without laying down
rules means which those principles may given the force
law self-executing only far susceptible execution. 
Burke, 179 U.S. 403 (citation omitted).11
plaintiff claimed that this exemption violated, among other things, the Equal Protection
clause the Fourteenth Amendment and the Establishment Clause the First
Amendment. Murray, 241 Md. 395-97, 216 A.2d 904-05. Horace Mann, the
plaintiff challenged state payments private colleges with religious affiliations the
grounds that the payments violated the First Amendment. Horace Mann, 242 Md.
651-52, 220 A.2d 53-54. The federal Constitutional provisions issue Murray and
Horace Mann are self-executing and thus provide private right action. See City
Boerne Flores, 521 U.S. 507, 524 (1997) (the first eight Amendments the
Constitution and the Fourteenth Amendment are self-executing
See generally Am. Jur. Const. Law 100, 104; Cyprus Amax Coal Co. U.S.,
205 F.3d 1369, 1374 (Fed. Cir. 2000) cause action based the Export Clause [of
United States Constitution] self-executing Broughton Lumber Co. Yeutter, 939
F.2d 1547, 1556 (Fed. Cir. 1991) the takings clause the Fifth Amendment selfexecuting the sense that there need other statutory authority for party assert right just compensation
Thus, Murray and Horace Mann simply stand for the well-established and
unremarkable proposition that plaintiff may assert cause action under certain selfexecuting federal Constitutional provisions state court. Those cases clearly not
stand for the proposition (directly contrary the Supreme Court authority noted above)
that private right action not required what Appellants seek here 
enforce federal statute, particularly one for which Congress has designated the
Secretary the Department Homeland Security the enforcing authority.
Accordingly, the Circuit Court correctly found that Appellants must demonstrate
that they have private right action under federal law sustain their claim for
violation U.S.C. 1621. demonstrated below, the Circuit Court correctly held
that Appellants have such private right action.
The Circuit Court Correctly Held That Appellants
Cannot Meet The Requirements Under Federal Law For
Establishing Private Right Action Under U.S.C.
 1621. appeal, Appellants not even attempt challenge the Circuit Court
conclusion that U.S.C. 1621 creates private right action. Indeed, Appellants cite cases whatsoever dealing with the enforcement federal statute state court.
demonstrated below, the Circuit Court conclusion that Appellants not possess
private cause action under U.S.C. 1621 correct.
The Circuit Court properly applied the relevant test established the Supreme
Court Sandoval, which holds that private rights action enforce federal law must created Congress. 
Sandoval, 532 U.S. 286 (emphasis added) (citations
omitted). Private plaintiffs can enforce only statutes that display[] intent create not
just private right but also private remedy. Id. the Circuit Court found:
Following this focus, Maryland federal courts have engaged two step
inquiry determine whether Congress intended create implied
private right action. First, the courts must determine whether the
language the statute contains rights-creating language. Gabelli Global
Multimedia Trust Inc. Western Inv. LLC, 700 Supp. 748, 754 (D.
Md. 2010) (quoting Sandoval, 532 U.S. 288). Next, the rightscreating language present, reviewing court must then inspect whether
 the statute remedial schemes entrust government agencies private
parties with primary responsibility for statutory enforcement. Gabelli, 700 Supp.2d 754. such, clear the Court that there must
rights-creating language well remedy for private party enforcement, there private right action.
Opinion 4-5 77-78). applying this test, the Circuit Court correctly concluded that U.S.C. 1621
does not contain the necessary rights-creating language. Gabelli, 700 Supp.
755. Such rights-creating language must explicitly confer right upon plaintiff. Miller, 124 App 152, 155 (4th Cir. 2005). their Opening Brief, Appellants
have identified such rights-creating language U.S.C. 1621 and there
none.12 Here, the statute provides part:
Notwithstanding any other provision law and except provided
subsections (b) and (d) this section, alien who not 
(1) qualified alien (as defined section 1641 this title),
(2) nonimmigrant under the Immigration and Nationality Act,
While not issue this appeal, the Board disputes that College Policy 45003
violates U.S.C. 1621. Among other things, the tuition rate the Policy addresses not State local public benefit within the meaning the statute.
(3) alien who paroled into the United States under section
212(d)(5) such Act for less than one year, not eligible for any State local public benefit (as defined subsection
(c) this section). U.S.C. 1621 (citations omitted).
This language does not explicitly confer right upon Appellants rather,
addresses the relationship between aliens and the States. Miller, 124 App
155. Indeed, the statute does not even mention taxpayers such Appellants. Since
U.S.C. 1621 not phrased terms the persons benefited, [it] create[s]
implication intent confer rights particular class persons. Gabelli, 700
Supp. 758 (citations omitted).
The court Day Sebelius, 376 Supp. 1022, 1037 (D. Kan. 2005), aff
500 F.3d 1127 (10th Cir. 2007) addressed similar issue with respect U.S.C. 1623.
That statute, while not issue here, like U.S.C. 1621 directed aliens and denies
aliens not lawfully the United States post-secondary education benefits under certain
circumstances. concluding that U.S.C. 1623 provided private right action,
the Day court explained:
There nothing 1623 the other immigration statutes that
demonstrates intent Congress create private right action.
pointed out the defendants, the focus 1623 illegal aliens, not
citizens. This focus aliens, rather than plaintiffs citizens general,
 creates implication intent confer rights [the plaintiffs]. 
Day, 376 Supp. 1037 (quoting Sandoval, 523 U.S. 290) (emphasis added).
affirming the district court conclusion that Section 1623 had rights-creating
language, the Tenth Circuit pointed out that does not provide that non-resident
citizen shall denied benefit afforded illegal alien Day, 500 F.3d 1139.
Thus, because Section 1621 similarly not phrased terms the persons benefited, 
[it] create[s] implication intent confer rights particular class
persons. Gabelli, 700 Supp. 758 (quoting Gonzaga Univ. Doe, 536 U.S. 273,
284 (2002) and Olmsted Pruco Life Ins. Co., 283 F.3d 429, 433 (2d Cir. 2002))
(citations omitted).
Second, [i]f rights-containing language present, reviewing court must then
inspect whether the statute remedial schemes entrust government agencies private
parties with primary responsibility for statutory enforcement. Gabelli, 700 Supp. 754. Here, the Circuit Court correctly found (Opinion 78)), Congress
 entrust[ed] government agencies, this case the Secretary Homeland Security, with
responsibility for statutory enforcement U.S.C. 1621, not Appellants. Gabelli,
700 Supp. 754. this regard, U.S.C. 1103(a)(1) provides:
The Secretary Homeland Security shall charged with the
administration and enforcement this chapter and all other laws relating
the immigration and naturalization aliens, except insofar this chapter such laws relate the powers, functions, and duties conferred upon the
President, Attorney General, the Secretary State, the officers the
Department State, diplomatic consular officers. U.S.C. 1103(a)(1) (emphasis added).
The Circuit Court correctly found that this provision clearly takes precedence
over any argument taxpayer standing. Opinion 79). the Supreme Court
held Sandoval, [t]he express provision one method enforcing substantive rule
suggests that Congress intended preclude others. Sandoval, 532 U.S. 290.
The Martinez court addressed the precise issue the effect U.S.C.
 1103(a)(1) entrusting enforcement immigration laws the Secretary Homeland
Security the existence private right action. Analyzing this issue, the court
dismissed Section 1621 claim, concluding that Congress did not intend create
private right action. Martinez Regents the Univ. Cal., No. 05-2064, 2006 2974303 (Cal. Super. Ct. Oct. 2006), aff Cal. Rptr. 518 (Cal. Ct. App.
2008), rev other grounds, 241 P.3d 855 (Cal. 2010). holding, the Martinez
court, citing U.S.C. 1103(a)(1), found that Congress designated the Secretary
Homeland Security, not private citizens, the person charge enforcing immigration
laws. Martinez, 2006 2974303, (emphasis added). Similarly, Day,
finding that Section 1623 provided private right action, the court stated:
[T]he court fails find any support that Congress intended create
private right action through the passage U.S.C. 1623. Congress
specifically designated the Secretary Homeland Security the
individual charge enforcing immigration laws.
Day, 376 Supp. 1036-37 (emphasis added). Based this extensive authority, apparent that Section 1621, like Section 1623, neither contains the requisite rightscreating language nor creates private remedy.13 last ditch effort avoid these well-established principles, Appellants halfheartedly assert footnote that their claim that Defendant tuition policy violates
federal statute, U.S.C. 1621, effect claim that the policy violates the
Any attempt distinguish Day and Martinez the grounds that those decisions were
not based taxpayer standing meritless. Those decisions held that private plaintiff
may enforce Section 1621 and similar immigration statutes because Congress did not
intend give them that right whether the private plaintiff had standing not.
Supremacy Clause the U.S. Constitution, pursuant which they assert plaintiffs can
seek injunctive relief. Appellants contend they can pursue such Supremacy Clause
claim even without the existence separate federal statutory right private right
action. Appellants Br. 11-12 n.4 (emphasis added).
This claim fails the outset because Appellants never pled such claim,
indeed, even mentioned the Supremacy Clause federal preemption anywhere their
Complaint. See Compl. 24) (asserting Count for Violation Federal Law U.S.C. 1621 fact, Appellants expressly disavowed that they were asserting
Supremacy Clause claim their papers before the Circuit Court.14
Appellants are
therefore foreclosed from asserting such claim appeal.15
Appellants first referenced the Supremacy Clause when they sought leave file
supplemental opposition Defendants motion dismiss after oral argument the
motion. Pls. Suppl. Resp. (claiming that Plaintiffs were, effect challenging the
constitutionality the policy under the Supremacy Clause the United States
Constitution The Board opposed Appellants motion belated and improper
 attempt transform their federal statutory claim into new federal constitutional claim avoid dismissal, noting that Appellants had never once asserted that [their federal
claim] was federal constitutional claim, either their Complaint, their opposition brief, oral argument. Board Opp their reply brief, the Appellants expressly
disavowed any constitutional claim (federal state), and represented the Circuit Court
that they were making such claim: Defendant opposition substantially
mischaracterizes Plaintiffs motion, asserting that Plaintiffs are attempting transform
their federal statutory claim into new federal constitutional claim. Plaintiffs are not
attempting change their claims make additional claims Reply 1-2
(emphasis added).
See, e.g., Maryland State Bd. Elections Libertarian Party Md., No. 79, 2012 1813114, *15-16 (Md. May 21, 2012) [W]e decline address constitutional
claims that were not raised in, decided by, the trial court. Fitzgerald State, 384
Md. 484, 505, 864 A.2d 1006, 1018 (2004) (same); Maryland Rule 8-131(a) (an appellate
court ordinarily will not consider any point question unless plainly appears the
record have been raised decided the trial court any event, Appellants waived contention contrary substantial case law,
which has concluded that the Supremacy Clause not source any federal rights. 
Chapman Houston Welfare Rights Org., 441 U.S. 600, 613 (1979).16 Moreover, the
recognition such claim would directly contrary Sandoval express holding that
 private rights action enforce federal law must created Congress. Sandoval,
532 U.S. 286 (emphasis added) (citations omitted). the Supreme Court recently
recognized another context, [t]he absence private right enforce the statutory obligations would rendered meaningless [private parties] could overcome that
obstacle simply recasting the theory under which their claims are brought. Astra
USA, Inc. Santa Clara Cnty., Cal., 563 U.S. ---, ---, 131 Ct. 1342, 1348 (2011).
Indeed, ruling permitting direct preemption claim where Congress has declined
provide private right action would negate Congressional intent and flood the state
courts with claims violation federal laws.
Accord, Dennis Higgins, 498 U.S. 439, 450 (1991) (contrasting, this regard, the
Supremacy Clause and the Commerce Clause); Golden State Transit Corp. City
L.A., 493 U.S. 103, 107 (1989) (holding that Supremacy Clause not source any
federal rights (internal citation omitted); Three Lower Counties Cmty. Health Servs., Inc. Md. Dept. Health Mental Hygiene, Civil Action Nos. WMN-10-2488, AMD-051280, 2011 3740781, (D. Md. Aug. 23, 2011) (the Supremacy Clause does not
 provide independent cause action. Associated Builders Contractors, Inc.
Baltimore Metro. Chapter Connor, Supp. 440, 444 (D. Md. 1999) [T]here independent cause action for Supremacy Clause violations. Appellants also
failed mention that the United States Supreme Court recently vacated and remanded
for further consideration the Ninth Circuit holding which they primarily rely for the
proposition that plaintiff could assert federal preemption claim under the Supremacy
Clause. See Douglas Indep. Living Ctr. Cal., Inc., 132 Ct. 1204, 1211 (2012).
Four Justices believed that remand was unnecessary that case given the Supreme
Court prior pronouncements recognizing the nature the Supremacy Clause because
 operates differently than other constitutional provisions, and thus could not support
independent cause action. Id. 1212 (Roberts, dissenting).
Accordingly, for all these reasons, Appellants have private right action and
the Circuit Court correctly dismissed their Section 1621 claim (Count II).17
The Circuit Court Correctly Found That Appellants Cannot
Assert Violation Md. Code Ann. Educ. 16-310 And
COMAR 13B.07.02.03.
Appellants Must Have Private Right Action
Prosecute The Instant Alleged State Statutory Violation.
The issue posed with respect Appellants state law claim narrow one:
whether Appellants can maintain action for alleged violations Md. Code Ann. Educ.
 16-310 and COMAR 13B.07.02.03. The Circuit Court correctly found that, given the
Maryland Legislature decision entrust enforcement these provisions
specialized expert state agency, MHEC, private parties such Appellants could not
enforce these provisions. Recent precedent this Court, sound legal analysis regarding
the distinction between standing and private rights action, well-established principles separation powers and deference legislative intent, and relevant policy
considerations all support the Circuit Court decision.
First, the recent majority decision 120 West Fayette Street, 2012 1448471,
establishes that taxpayers lack the necessary private right action enforce state
Appellants additional footnoted argument that their challenge the Board tuition
policy under U.S.C. 1621 also constitutes challenge the policy under Maryland
law, and particular, the Supremacy Clause the Maryland Constitution (Appellants 
Br. n.5) meritless. established above, Appellants disavowed any such claim
the Circuit Court and nowhere mentioned their Complaint. Moreover, the
Supremacy Clause the Maryland Constitution Declaration Rights tracks that the
United States Constitution, and thus Appellants argument fails for the same reasons
their federal Supremacy Clause argument. Appellants plainly cannot obtain broader
rights with respect federal law under the Maryland Constitution Supremacy Clause
than under the Supremacy Clause the U.S. Constitution itself.
statute regulation when recognizing such private right action would contrary
the Legislature intent. that case, the plaintiff-appellant filed action seeking
declaration that the terms contract (the Memorandum Understanding MOA
between the Maryland Historical Trust and Baltimore were illegal and ultra vires.18
Appellants cite the dissent contention that The lack private cause action
contained the statute did not negate taxpayer standing, id. *17, claiming that this
dissent refutes the Circuit Court ruling that taxpayer-plaintiff must have private
right action order state claim for taxpayer relief Appellants Br. 17.
However, Appellants simply ignore the majority decision, which the contrary
found that the taxpayer-plaintiffs could not assert their claims without private right
action. rejecting the dissent contention that the taxpayer-plaintiff could maintain the
lawsuit because was alleging, like Appellants here, violation state law, and
purportedly had taxpayer standing, the majority 120 West Fayette Street stated:
There are two flaws the dissent analysis. First, and foremost, 120 West
Fayette categorically barred from alleging violation 5A-326(a)(2).
Section 5A-326(h) explicitly prohibits private causes action for State
unit non-compliance with the Trust review, consultation and
cooperation historic preservation projects.
Id. n.13 (emphasis added). Thus, where taxpayer has private right action,
allegations taxpayer standing are insufficient and not prevent dismissal for failure
One the questions presented the petition was [w]hether [120 West Fayette] has
any basis assert private cause action challenging the Trust review and approval the proposed Superblock development under the MOA between the trust and the City. 
2012 144871 n.10. This Court consolidated that question and the other
question relating third party beneficiary rights into single question: Was the Circuit
Court correct dismissing 120 West Fayette complaint requesting declaratory
relief Id. *5. state claim. Here, the Maryland Legislature decision entrust MHEC and not
private parties with enforcement the provisions Appellants challenge demonstrates
the same legislative intent the private right action provisions issue 120
West Fayette Street.
Consistent with the Circuit Court conclusion that private right action
enforce statute only available where the Legislature indicates, numerous Maryland
cases have dismissed cases where the plaintiff had private right action. See Walton Mariner Health Md., Inc., 391 Md. 643, 672, 894 A.2d 584, 601 (2006) (refusing
recognize private right action when healthcare statute did not provide); Worsham
Ehrlich, 181 Md. App. 711, 728-31, 957 A.2d 161, 171-72 (Md. Ct. Spec. App. 2008)
(finding private right action implied under Telephone Consumer Protection Act and
Maryland counterpart); Thrasher Homecomings Fin. Network, Inc., 154 Md. App. 77,
85, 838 A.2d 392, 397 (Md. Ct. Spec. App. 2003) (dismissing challenge under Mortgage
Lender Law because law provided private right action); see also Magan Med.
Mut. Liab. Ins. Soc. Md., 331 Md. 535, 546 n4, 629 A.2d 626, 631 (1993) (Court
Appeals has been reluctant find implied grant private cause action
Indeed, this Court has recently adopted narrow view when such private right action for violation statute should recognized: Where the legislature has
intended create private cause action for violation statute, has done
explicitly. Wal Mart Stores, 416 Md. 376 n.8, A.3d n.8.
The conclusion the dissent 120 West Fayette Street also distinguishable from
the instant case because was addressing issues related purported land use
decision, unlike the attempt enforce statutory provisions issue the present case.
Second, demonstrated above, private rights action have distinct and separate
requirements from standing and serve different purpose. While the nature plaintiff
injury relevant the determination whether she has alleged sufficient personal
stake the outcome the controversy, whether plaintiff has asserted cause
action depends not the quality extent her injury, but whether the class
litigants which petitioner member may use the courts enforce the right issue. 
Davis, 442 U.S. 239 n.18. Thus, legally and definitionally nonsensical argue
that plaintiff seeking enforce statute need not member the class
litigants that may use the courts enforce the right issue. Id.
Third, where the plaintiff seeks enforce state statutory provision, principles
separation powers and comity with the Maryland Legislature present substantial
basis for honoring the legislative intent regarding who should empowered enforce
such state statute. Embracing this principle (as the Supreme Court did Davis), the
Maryland Court Special Appeals concluded:
The creation causes action arising out statutory schemes
regulations and inspections matter policy and should addressed, all, the Legislature.
Willow Tree Learning Ctr., Inc. Prince George Cnty., Md., Md. App. 508, 522,
584 A.2d 157, 164 (Md. Ct. Spec. App. 1991). See also Hamilton Verdow, 287 Md.
544, 556, 414 A.2d 914, 921 (1980) the principles behind the constitutional separation powers, Art. the Maryland Declaration Rights, place limits court power review interfere with the conclusions, acts decisions coordinate branch
government made within its own sphere authority.
Fourth, sound policy considerations also support deference the Legislature
decision entrust enforcement statute expert agency avoid potential
interference with the legislative scheme. See Silkworth Ryder Truck Rental, Inc.,
Md. App. 264, 270-271, 520 A.2d 1124, 1128 (Md. Ct. Spec. App. 1987) (denying
private right action because such action would emasculate the authority the
Commissioner and run directly contrary the clear intent the Legislature
Amalgamated Cas. Ins. Co. Helms, 239 Md. 529, 535, 212 A.2d 311, 315-16 (1965) [T]he cardinal rule statutory construction seek and carry out the true intention
the Legislature. Harris State, 331 Md. 137, 157, 626 A.2d 946, 956 (1993) (courts
are obliged follow the intent the Legislature applying statutes); Wal Mart
Stores, 416 Md. 362, A.3d 22-23 interpreting this statute, however, should
not exceed the intent the Legislature granting benefits the General Assembly never
intended create.
The taxpayer standing cases that Appellants cite supposed support their
position are inapposite and distinguishable multiple grounds.
First, and most
critically, none the defendants the decisions that Appellants cite (other than 120
West Fayette Street) asserted that the taxpayer-plaintiffs lacked the necessary private
rights action enforce the statute issue. Rather, the cases Appellants cite (most
which are over years old) merely recognized taxpayer standing and allowed the case
proceed with respect the claim issue, but the private right action issue presented
here was simply not addressed. Accordingly, the issue now squarely before this Court
was neither considered nor decided this Court those matters.
Second, none the purported statutory cases20 that Appellants cite involved any
provision for which enforcement was entrusted administrative agency with
specialized expertise,21 here MHEC.
Third, none the purported statutory cases Appellants cite involved Maryland
Education Code permitted claims against college trustees. Rather, Appellants cases
dealt with disputes going directly the power traditional government bodies, such
disputes between mayor, city council and commission their respective powers;22
the power County Commissioners create new government position;23 and the
See, e.g., Renshaw Grace, 155 Md. 294, 142 (1928); Miller Cnty. Comm Carroll Cnty., 226 Md. 105, 172 A.2d 867 (1961); McKaig Cumberland, 208 Md.
95, 116 A.2d 384 (1955); Valle Pressman, 229 Md. 591, 185 A.2d 368 (1962); Weller Mueller, 120 Md. 633, 1045 (1913); Pressman Barnes, 209 Md. 544, 121 A.2d
816 (1956); Peter Prettyman, Md. 566 (1884).
Only one the statutory cases Appellants cite involved statute directed
statewide administrative agency opposed local governmental bodies. See Weller,
120 Md. 633, 1045 (taxpayer lawsuit against state roads commission). But
Appellants reliance this nearly century-old decision misguided: unlike here, the
statute issue Weller provided the plaintiffs with right action against the state
roads commission. See id., 1047 (quoting statute that provided circuit courts
with original jurisdiction any cause action complaint which may bought any person aggrieved, for violation contemplated violation any the
provisions this subtitle
See, e.g., Renshaw, 155 Md. 294, 142 100 (addressing pending controversy over
the respective powers the mayor and council and the commission under
Maryland statute authorizing the town obtain firefighting equipment and facilities).
Miller, 226 Md. 114, 172 A.2d 871 (addressing power County Commissioners
for Carroll County appoint county administrative assistant where Maryland statute
imposed eligibility requirements the position, noting the closely related issue
 trying title public office accomplished through the remedy mandamus).
unlawful assumption power local government bodies.24 Indeed, two the cases
Appellants cite concluded that private cause action existed,25 thus supporting
Appellee position.
Finally, the remaining non-statutory cases Appellants cite fall into few well-trod
categories inapposite the present case because they not deal with violation state
statute enacted the Maryland Legislature whose enforcement the Maryland Legislature
entrusted expert agency and thus fail establish Appellants right maintain
action.26
McKaig, 208 Md. 294, 116 A.2d (taxpayer challenging allegedly illegal contract
between City Cumberland and State Roads Commission Charter provision the
ground that provisions the Maryland Code barred City from entering contract that
pledged anticipated revenues); Pressman Barnes, 209 Md. 544, 121 A.2d 816
(challenging statute authorizing local authorities regulate speed limits the basis
that was, among other things, both unlawful delegation power and contrary
Maryland statutory provision); Peter, Md. 576-77 (holding that the Maryland
Constitution and Code did not authorize court order directing the clerk the court
paid for recording services).
Valle, 229 Md. 591, 185 A.2d 368 (finding that taxpayers, party members and others
 stated cause action with respect allegations that the defendants violated the
statutory procedure for filling vacant nomination for State Attorney Baltimore);
Weller, 120 Md. 633, 1045 (challenging alleged anticipated illegal diversion
funds State Roads Commission from Baltimore County; applicable statute provided
that Circuit Courts had original jurisdiction any cause action complaint which
may bought any person aggrieved acts State Roads Commission
challenged lawsuit).
Appellants cases fall into the following categories inapposite the present case:
(a) alleged violations self-executing provisions the Maryland Constitution; see,
e.g., Painter Mattfeldt, 119 Md. 466, 413 (1913) (taxpayer suit alleging violation constitutional provision requiring act title accurately inform public act
contents); City Balt. Gill, Md. 375 (1869) (taxpayer suit alleging violation
constitutional provision barring City Baltimore from incurring certain debts without
approval legislature and voters); Pressman Alesandro, 211 Md. 50, 125 A.2d
(1956) (taxpayer suit alleging violation constitutional provision barring increase
Accordingly, Appellants assertion that the Board seeking overturn more
than 150 years Maryland precedent woefully misguided. Appellants Br. 19.
the contrary, established above, the issue this case narrow and heretofore
undecided one: whether Appellants can enforce provision the Maryland Education
Code even though the Maryland Legislature entrusted its enforcement MHEC. Indeed,
this Court may well have explicitly recognized private right action many the
cases Appellants cite had the question been raised, given the absence legislative intent entrust statute enforcement expert agency. However, those cases not
provide Appellants with the right proceed against the Montgomery College Board with
respect alleged violations Md. Code Ann. Educ. 16-310 and COMAR
 13B.07.02.03.
For these reasons, the Circuit Court correctly concluded that Appellants must have private right action enforce Md. Code Ann. Educ. 16-310 and COMAR
 13B.07.02.03.
public officer compensation during term office); (b) land use decisions; see, e.g.,
Inlet Assocs. Assateague House Condo. Ass 313 Md. 413, 545 A.2d 1296 (1988)
(alleging that conveyance public right-of-way violated city charter); 120 Fayette
St., LLLP Mayor and City Counsel Balt., 407 Md. 253, 964 A.2d 662 (2009)
(alleging that land disposition agreement violated city charter); Citizens Planning and
Hous. Ass Cnty. Exec. Baltimore Cnty., 273 Md. 333, 329 A.2d 681 (1974)
(alleging that changes zoning agency violated county charter); (c) alleged violation city county officials local codes charters; see, e.g., Thomas Howard Cnty.,
261 Md. 422, 276 A.2d (1971) (alleging county actions violated county plumbing
code). Appellants assertion that this case closely analogous Thomas
misguided. Thomas, registered journeymen plumbers brought action challenging
Howard County alleged failure follow its Plumbing Code the basis that, among
other things, the alleged failure would damage their business. Unlike this case,
Thomas there was expert agency (or federal official) charged with administration
enforcement the legal provisions the defendants purportedly violated.
The Circuit Court Correctly Held That Appellants Did
Not Have The Right Enforce Md. Code Ann. Educ.
 16-310 COMAR 13B.07.02.03.
The Circuit Court correctly held that Appellants did not have the right enforce
Md. Code Ann. Educ. 16-310 COMAR 13B.07.02.03. Opinion 7-8 80-81).
Again, Appellants not even attempt argue that they have such private right
action.
Section 16-310(a)(1) provides pertinent part:
Subject paragraphs (2), (3), (4), (5), and (6) this subsection and
subsection (f) this section, any student who attends community college this State and not resident this State shall pay, addition the
student tuition and fees payable county resident, out-of-state fee
.... addition, Section 16-310(b)(1) provides, subject certain exceptions, any student
who attends community college not supported the county which the student
resides shall pay out-of-county out-of region-fee Similarly, COMAR
 13B.07.02.03(c)(1)-(2) provides that out-of-state students, out-of-county, out
region students shall pay tuition accordance with Section 16-310(a)-(b).27
This Court most recent pronouncement the issue strongly suggests that
would apply strict test, similar that set forth Sandoval discussed above, requiring explicit grant such private right action the legislature recognize
The Board strongly disputes Appellants contention that Policy 45003 violates this
provision any way. Among other things, the Maryland Code gives the Board broad
discretion set tuition fees. See, e.g., Md. Code Ann. Educ. 16-103(j).
private right action.28 Appellants cannot meet this test with respect their state law
claim alleging violations Md. Code Ann. Educ. 16-310 and COMAR
 13B.07.02.03.
First, the Circuit Court correctly found, neither provision has any rightscreating language terms the person benefited, and thus they create
implication intent confer rights particular class persons. Opinion 81) (quoting Gabelli, 700 Supp. 758) (citations omitted). Under Sandoval,
this the key inquiry and compels the conclusion that there private right action.
Second, recognizing that the implication private right action would
inconsistent with the legislative scheme, which entrusted enforcement MHEC, the
Circuit Court held:
[E]ven this Court had the power recognize common law taxpayer
plaintiff claim for violation state statute, the Maryland legislature
existing statutory scheme entrusting enforcement Md. Code Ann. Educ.
Section 16-310 and COMAR Section 13.B.07.02.03 the Maryland
Higher Education Commission (MHEC) precludes the recognition any
common law individual right bring such claim.
Opinion 81).
See Wal Mart Stores, 416 Md. 376 n.8, A.3d n.8 Where the legislature has
intended create private cause action for violation statute, has done
explicitly. The instant case, like Sandoval, involves application for injunctive relief
based alleged regulatory violations. Moreover, other Maryland appellate decisions,
consistent with Sandoval, have routinely denied requests imply private right action
where the statute issue does not specifically provide for one. See, e.g., Walton, 391
Md. 672, 894 A.2d 601 (2006) (refusing recognize private right action when
statute did not provide); Worsham, 181 Md. App. 728-31, 957 A.2d 171-72 (Md.
Ct. Spec. App. 2008) (finding private right action implied under Telephone
Consumer Protection Act and Maryland counterpart); Thrasher, 154 Md. App. 85, 838
A.2d 397 (Md. Ct. Spec. App. 2003) (affirming dismissal individual challenge
under Maryland Mortgage Lender Law because law provided private right action).
The Circuit Court correctly based this conclusion upon two separate Maryland
statutory provisions: clear that the Maryland Legislature entrusted government agencies,
this case the MHEC, with the responsibility for statutory enforcement the
provisions relating financial aid. Gabelli, 700 Supp. 753; see
Md. Code Ann. Educ. 11-105(c) (charging MHEC with the responsibility assure that State funds for community colleges are spent prudently and accordance with State guidelines Further, Md. Code Ann. Educ. 11107 gives MHEC the express authority seek injunction other
judicial remedy for violations. The Court finds that would
inconsistent with this legislative scheme for the Plaintiffs able
proceed with private right action.
Opinion 81) (emphasis added) (citation omitted).29
Appellants also not dispute that they fail meet the somewhat more liberal
Cort Ash test.30 the unlikely event that that test applicable, Appellants state claim
would still fail for essentially the same reasons set forth above.31 Neither the statute nor
See also Longo, 144 B.R. 305, 308 (Bankr. Md. 1992) (MHEC regulate[s]
post-secondary institutions and has the power enforce requirements).
Cort Ash described the factors relevant determining whether private right
action exists follows: determining whether private remedy implicit statute not
expressly providing one, several factors are relevant. First, the plaintiff
 one the class for whose especial benefit the statute was enacted,
(emphasis supplied) that is, does the statute create right favor the
plaintiff? Second, there any indication legislative intent, explicit
implicit, either create such remedy deny one? Third,
consistent with the underlying purposes the legislative scheme imply
such remedy for the plaintiff?
Cort Ash, 422 U.S. 66, (1975) (internal citations and quotations omitted).
The Cort Ash test should not utilized because inconsistent with this Court
opinion Wal Mart, 416 Md. 376 n.8, A.3d n.8, which this Court stated
that: Where the legislature has intended create private cause action for violations statute, has done explicitly.
the regulation issue create[s] right favor the plaintiff. Cort Ash, 422 U.S. 78. Indeed, demonstrated above, there rights-creating language all, and
neither provision even references taxpayers.
Finally, inconsistent with the legislative intent provide Appellants with
private right action. [S]uch broad extension existing law unnecessary
properly implement the legislation, whose enforcement entrusted MHEC. Hayes
State, 183 Md. App. 742, 755, 963 A.2d 271, 279 (Md. Ct. Spec. App. 2009). Such
lawsuits would usurp the role MHEC and conflict with the discretion afforded
Maryland community colleges set their own tuition rates. See Silkworth, Md. App. 270-71, 520 A.2d 1128 (denying private right action because such action
would emasculate the authority the Commissioner and run directly contrary the
clear intent the Legislature
Indeed, there would meaningful way
distinguish this case from the myriad frivolous lawsuits that would surely filed parties objecting one another aspect the tuition policies any other
financial policy the state various institutions higher education. Hayes, 183 Md.
App. 754, 963 A.2d 278.
For these reasons, Appellants have private right action under Md. Code Ann.
Educ. 16-310 and COMAR 13B.07.02.03 and thus the Circuit Court properly
dismissed their Maryland law claim (Count for failure state claim.
Both Appellants State And Federal Claims Were Properly
Dismissed Because Appellants Have Failed Allege The
Requisite Elements For The Award Injunctive Relief.
Appellants contention that they have properly pled their request for injunctive
relief misguided. well established that [t]he complaint action for
injunction must set forth the essentials the plaintiff cause action [and] must
allege every material fact constituting the plaintiff case that the court can ascertain
whether there proper ground for the exercise the extraordinary power
injunction. Md. Law Encyclopedia, Injunctions (2011). Thus, plaintiff not
entitled injunctive relief [t]he allegations his bill [of complaint] d[o] not provide basis for injunctive relief. Coster Dep Pers., Md. App. 523, 527, 373 A.2d
1287, 1290 (Md. Ct. Spec. App. 1977) (finding allegations complaint failed state
basis for injunctive relief).
Here, the Circuit Court noted, Appellants have failed properly plead least
one essential element their claim: that they will suffer irreparable injury unless the
injunction granted. Ehrlich Perez, 394 Md. 691, 708, 908 A.2d 1220, 1230 (2006).
Appellants bare allegation that they have adequate remedy law does not suffice: has been stated many times this Court that the mere allegation bill complaint that irreparable damage will ensue not sufficient unless
facts are stated which will satisfy the Court that the apprehension well
founded.
Cohen Frey Son, Inc., 193 Md. 285, 291, A.2d 784, 786 (1949). Here, the
Complaint provides allegations supporting any assertion irreparable injury.
Accordingly, because the allegations Count and Count wholly fail meet
Appellants burden adducing facts necessary satisfy fthe injunctive] factors, both
counts the Complaint were properly dismissed for failure
state claim this
additional ground. Perez,394 Md. at708,908 A.2d at1230.
CONCLUSION
ryHEREFORE, Appellee respectfully requests that Appellants appeal denied
and that the Circuit Court decision and judgment affirmed.
Respectfully submitted,
CIy( Sorrell (Bar No. 7794143045)
General Counsel
Montgomery College
900 Hungerford Drive, Room 355
Rockville, 20850
Telephone: QaQ 567 -527
Rocky. orrell@montgomerycollege. edu
Dated: June7,2012
Michael Hays (Bar )fo. 910104)
Dow Lohnes PLLC
1200 New Hampshire Ave., N.W.
Suite 800
Washington, 20036-6802
Telephone (202) 6-27
Facsimile: (202) 6-47
mhays@dowlohnes.com
Counsel Defendant Board
Trustees Montgomery College
STATEMENT FONT TYPE AND SIZE
This brief was printed point Times New Roman Font.
Pertinent Statutes U.S.C. 1103 .................................................................................................................
Md. Code Ann. Educ. 11-105 .........................................................................................
Md. Code Ann. Educ. 11-107 ......................................................................................... U.S.C. 1103
(a) Secretary Homeland Security
(1) The Secretary Homeland Security shall charged with the administration
and enforcement this chapter and all other laws relating the immigration and
naturalization aliens, except insofar this chapter such laws relate the
powers, functions, and duties conferred upon the President, Attorney General, the
Secretary State, the officers the Department State, diplomatic
consular officers: Provided, however, That determination and ruling the
Attorney General with respect all questions law shall controlling.
(2) shall have control, direction, and supervision all employees and all the
files and records the Service.
(3) shall establish such regulations; prescribe such forms bond, reports,
entries, and other papers; issue such instructions; and perform such other acts
deems necessary for carrying out his authority under the provisions this chapter.
(4) may require authorize any employee the Service the Department
Justice perform exercise any the powers, privileges, duties conferred
imposed this chapter regulations issued thereunder upon any other employee the Service.
(5) shall have the power and duty control and guard the boundaries and
borders the United States against the illegal entry aliens and shall, his
discretion, appoint for that purpose such number employees the Service
him shall appear necessary and proper.
(6) authorized confer impose upon any employee the United States,
with the consent the head the Department other independent establishment
under whose jurisdiction the employee serving, any the powers, privileges,
duties conferred imposed this chapter regulations issued thereunder upon
officers employees the Service.
(7) may, with the concurrence the Secretary State, establish offices the
Service foreign countries; and, after consultation with the Secretary State,
may, whenever his judgment such action may necessary accomplish the
purposes this chapter, detail employees the Service for duty foreign
countries.
(8) After consultation with the Secretary State, the Attorney General may
authorize officers foreign country stationed preclearance facilities
the United States for the purpose ensuring that persons traveling from
through the United States that foreign country comply with that countrys
immigration and related laws.
(9) Those officers may exercise such authority and perform such duties United
States immigration officers are authorized exercise and perform that foreign
country under reciprocal agreement, and they shall enjoy such reasonable
privileges and immunities necessary for the performance their duties the
government their country extends United States immigration officers.
(10) the event the Attorney General determines that actual imminent mass
influx aliens arriving off the coast the United States, near land border,
presents urgent circumstances requiring immediate Federal response, the
Attorney General may authorize any State local law enforcement officer, with
the consent the head the department, agency, establishment under whose
jurisdiction the individual serving, perform exercise any the powers,
privileges, duties conferred imposed this chapter regulations issued
thereunder upon officers employees the Service.
(11) The Attorney General, support persons administrative detention
non-Federal institutions, authorized-(A) make payments from funds appropriated for the administration and
enforcement the laws relating immigration, naturalization, and alien
registration for necessary clothing, medical care, necessary guard hire, and
the housing, care, and security persons detained the Service pursuant Federal law under agreement with State political subdivision
State; and
(B) enter into cooperative agreement with any State, territory,
political subdivision thereof, for the necessary construction, physical
renovation, acquisition equipment, supplies materials required
establish acceptable conditions confinement and detention services
any State unit local government which agrees provide guaranteed
bed space for persons detained the Service.
(b) Land acquisition authority
(1) The Attorney General may contract for buy any interest land, including
temporary use rights, adjacent the vicinity international land border
when the Attorney General deems the land essential control and guard the
boundaries and borders the United States against any violation this chapter.
(2) The Attorney General may contract for buy any interest land identified
pursuant paragraph (1) soon the lawful owner that interest fixes price
for and the Attorney General considers that price reasonable.
(3) When the Attorney General and the lawful owner interest identified
pursuant paragraph (1) are unable agree upon reasonable price, the Attorney
General may commence condemnation proceedings pursuant section 3113
Title 40.
(4) The Attorney General may accept for the United States gift any interest
land identified pursuant paragraph (1).
(c) Commissioner; appointment
The Commissioner shall citizen the United States and shall appointed the
President, and with the advice and consent the Senate. shall charged with any
and all responsibilities and authority the administration the Service and this
chapter which are conferred upon the Attorney General may delegated him
the Attorney General which may prescribed the Attorney General. The
Commissioner may enter into cooperative agreements with State and local law
enforcement agencies for the purpose assisting the enforcement the immigration
laws.
(d) Statistical information system
(1) The Commissioner, consultation with interested academicians, government
agencies, and other parties, shall provide for system for collection and
dissemination, Congress and the public, information (not individually
identifiable form) useful evaluating the social, economic, environmental, and
demographic impact immigration laws.
(2) Such information shall include information the alien population the
United States, the rates naturalization and emigration resident aliens,
aliens who have been admitted, paroled, granted asylum, nonimmigrants
the United States (by occupation, basis for admission, and duration stay),
aliens who have not been admitted have been removed from the United States, the number applications filed and granted for cancellation removal, and the number aliens estimated present unlawfully the United States
each fiscal year.
(3) Such system shall provide for the collection and dissemination such
information not less often than annually.
(e) Annual report
(1) The Commissioner shall submit Congress annually report which contains
summary the information collected under subsection (d) this section and
analysis trends immigration and naturalization.
(2) Each annual report shall include information the number, and rate denial
administratively, applications for naturalization, for each district office the
Service and national origin group.
(f) Minimum number agents States
The Attorney General shall allocate each State not fewer than full-time active duty
agents the Immigration and Naturalization Service carry out the functions the
Service, order ensure the effective enforcement this chapter.
(g) Attorney General
(1) general
The Attorney General shall have such authorities and functions under this chapter
and all other laws relating the immigration and naturalization aliens were
exercised the Executive Office for Immigration Review, the Attorney
General with respect the Executive Office for Immigration Review, the day
before the effective date the Immigration Reform, Accountability and Security
Enhancement Act 2002.
(2) Powers
The Attorney General shall establish such regulations, prescribe such forms
bond, reports, entries, and other papers, issue such instructions, review such
administrative determinations immigration proceedings, delegate such
authority, and perform such other acts the Attorney General determines
necessary for carrying out this section.
(h) Repealed. Pub.L. 111-122, 2(a), Dec. 22, 2009, 123 Stat. 3480
Md. Code Ann. Educ. 11-105
(a) general. addition any other powers granted and duties imposed this title
and subject any restrictions imposed law, the Commission has the powers and
duties set forth this section.
(b) Coordination and supervision postsecondary education. -(1) The Commission shall coordinate the overall growth and development
postsecondary education the State.
(2) (i) consultation with the governing boards and agencies concerned with
postsecondary education the State, the Commission shall develop and periodically
update overall plan consistent with the Charter, known the State Plan for Higher
Education, that shall identify: The present and future needs for postsecondary education and research
throughout the State; The present and future capabilities the different institutions and segments
postsecondary education the State; and The long-range and short-range objectives and priorities for postsecondary
education and methods and guidelines for achieving and maintaining them.
(ii) The Commission shall ensure that the State Plan for Higher Education complies
with the States equal educational opportunity obligations under State and federal law,
including Title the Civil Rights Act.
(iii) developing the State Plan for Higher Education, the Commission shall
incorporate the goals and priorities for higher education identified this Division III and,
for the University System Maryland, including those identified 10-209 and 12106 this article.
(3) (i) The Commission shall submit the Governor and, subject 2-1246 the
State Government Article, the General Assembly quadrennial review the plan
July 2009, and July each fourth year thereafter.
(ii) The quadrennial review shall include report the status and needs
postsecondary education the State.
(4) the year immediately following the quadrennial review the State Plan for
Higher Education and accordance with Subtitle this title, the Commission shall
review, negotiate necessary, and approve the appropriate role, function, and mission
each public institution postsecondary education the State.
(5) (i) With respect the College Park campus the University Maryland, the
Commission shall direct the Board Regents the University Maryland develop
and implement plan for the enhancement that campus the States flagship campus
with programs and faculty nationally and internationally recognized for excellence
research and the advancement knowledge.
(ii) With respect the constituent institutions the University System Maryland the Baltimore region, the Commission shall direct the Board Regents the
University Maryland maintain and enhance coordinated Higher Education Center
for Research and Graduate and Professional Study the Baltimore area.
(iii) With respect Morgan State University, the Commission shall direct the Board Regents Morgan State University develop and implement plan for the
enhancement that institution the States public urban university with the appropriate
programs, faculty, and facilities.
(6) The Commission has statewide coordinating responsibility for the community
colleges and shall establish general policies for their operation.
(7) The Commission has authority approve regional higher education centers
operate the State and has statewide coordinating responsibility for regional higher
education centers.
(8) The Commission may distribute strategic incentive funds institution higher
education regional higher education center encourage attainment the goals and
priorities set forth the State Plan for Higher Education.
(c) Community colleges. With respect the community colleges, the Commission:
(1) May provide grants-in-aid for the planning new community colleges and new
programs existing community colleges;
(2) Shall administer programs State support and financial assistance for the
community colleges;
(3) Shall assist and represent the community colleges seeking and administering
federal moneys available them;
(4) May designate any community college instructional program statewide
regional program;
(5) Shall assure that courses and programs offered are within the scope the mission the community colleges;
(6) Shall assure that State funds for community colleges are spent prudently and
accordance with State guidelines;
(7) Shall provide centralized data processing assistance; and
(8) Shall coordinate relationships between the community colleges, the State and
county public school systems, and the private high schools to:
(i) Facilitate cooperation among them the guidance and admission students
the community colleges; and
(ii) Arrange for the most advantageous use facilities.
(d) Duties with respect regional higher education centers. -(1) (i) The Commission may approve regional higher education centers operate the
State; and
(ii) With respect the regional higher education centers, the Commission: May require submission strategic plans accordance with guidelines adopted the Commission; May provide grants regional higher education centers for ongoing operating
expenses and lease payments consistent with the State Plan for Higher Education and
the approved mission statements the regional higher education centers; Shall administer programs State support and financial assistance for the
regional higher education centers; Shall assure that courses and programs offered are within the scope the
approved missions the regional higher education centers and specifically satisfy the
criteria set forth 10-212(b) this article; and Except provided paragraph (2) this subsection, shall assure that State
funds for the regional higher education centers are spent prudently and accordance
with State guidelines.
(2) With respect the regional higher education centers administered the University
System Maryland, the University System Maryland shall assure that State funds for
the regional higher education centers are spent prudently and accordance with State
guidelines.
(e) Responsibility for federal programs and funding. -(1) The Commission the State Postsecondary Education Commission under Title XII the Higher Education Act 1965.
(2) The Commission the State approving agency for purpose