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Judicial Watch • Montgomery Motion to Dismiss

Montgomery Motion to Dismiss

Montgomery Motion to Dismiss

Page 1: Montgomery Motion to Dismiss


Number of Pages:17

Date Created:April 5, 2011

Date Uploaded to the Library:February 20, 2014

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vs. Case No. 342882V  


Plaintiffs, counsel, respectfully submit this Response Opposition Defendant's Motion Dismiss for Failure State Claim INTRODUCTION. 
Defendant Board Trustees Montgome College ("Defendant") moves dismiss claims that Plaintiffs not make. Plaintiffs not assert private rights action under 
U.S.C. 1621, Md. Code. Ann. Educ.  16-310, COMAR Nor they argue that private rights action should implied under these provisions Rather, Plaintiffs invoke the well-established right Maryland taxpayers challenge illegal ultra vires acts public officials. this particular instance, Plaintiffs allege that Defendant's policy allowing recent graduates Montgomery County public 
Montgomery College without having prove their legal place residence violates both Maryland law and federal law. Because Defendant failed challenge Plaintiffs' right bring such action allege that Plaintiffs' Complaint does not properly state claim for taxpayer relief, Defendant's motion must denied. 
Plaintiffs are 	taxpayers and long-time residents Complaint the
Montgomery County. 1-3. Defendant governing body Montgomery College, public community college 
located Montgomery County, Maryland. Id. Montgomery College's governing body, Defendant empowered exercise general control over the college and adopt reasonable and lawful rules, regulations, and policies for the operation the college. Id. public community college, Montgomery College relies primarily appropriations state and county tax dollars, well student tuition and fees, for its revenue. Id. Appropriations state and county tax dollars account for approximately one half Montgomery College's revenue. Id. contrast, tuition and fees paid students constitute less than quarter the college's revenue. Id. 
community college Maryland determined the student's place residence. Id. Students who are residents the county counties supporting the community college which they are enrolled are charged in-county rate. Id. Students who are residents the State Maryland, but reside outside the county counties supporting the community college which they are enrolled are charged in-state rate. Id. Students who reside outside the State Maryland are charged out-ofstate rate. Id. 
Contrary Maryland law, however, has been the longstanding policy Defendant provide reduced, in-county tuition all recent graduates Montgomery County public high schools regardless their place residence. Id. Students who have graduated from Montgomery County public high school within three years enrolling Montgomery College are not required prove residency status receive the reduced, in-county tuition rate. Id. Until recently, this policy had never been put writing. Id. November 15, 2010, Defendant Board Trustees Montgomery College ("Board") adopted resolution incorporating its long-standing, unwritten policy into College Policy 45003. Id. 10. Specifically, Defendant adopted Resolution No. 1011-086 "to clarify and confirm tuition and fees practices 
present public policies tuition. Id. 
College Policy 45003 sets forth three categories tuition rates: Rate," which corresponds the lowest, "in-county" rate, Rate," which corresponds mid-level, "in-state" rate, and "OS Rate," which corresponds the highest, "outof-state" rate. Id. ':II 12, 21, 23, 25, and 27. Pursuant College Policy 45003, students who graduate from Montgomery County public high school within three years enrolling Montgomery College will charged the Rate" regardless whether they are lawful residents Montgomery County. Id. ':11':11 and 12. 
Both the prior, unwritten version the policy and the recently-adopted, written version have had the effect providing public benefit --reduced, in-county tuition --to unlawfully present aliens who graduate from Montgomery County public high school. Id.  16. information and belief, was and the intent Defendant establishing the policy provide this public benefit unlawfully present aliens who graduate from Montgomery County public high schools. Id. ':II 
17. fact, Montgomery College has admitted repeatedly that Defendant Board's long-standing policy enables unlawfully present aliens pay the lowest, in-county tuition rate. Id. ':II 18. its audited financial statements for Fiscal Years 
Montgomery College policy applicable all persons, equally, and includes all citizens well undocumented aliens 

Id. Moreover, Montgomery College spokesperson Brett Eaton was quoted the October 29, 2010 edition the Montgomery County Gazette stating, "We not give in-state tuition illegal immigrants, with the exception recent (Montgomery County public high school] graduates." Id. 19. 
Under federal law, unlawfully present aliens generally are ineligible for state local public benefits, including postsecondary education benefits such reduced tuition, unless state has enacted law affirmatively providing for such eligibility. Id.  14. The State Maryland has never enacted law affirmatively providing that unlawfully present aliens are eligible receive reduced, in-county tuition public institutions higher education, including community colleges such Montgomery College. Id.  15. The Maryland General Assembly attempted enact such provision 2003, but then-Governor Robert Erlich vetoed the measure. Id. 
Defendant Board1s long-standing policy causing substantial, pecuniary loss taxpayers Montgomery County and the State Maryland. Id.  20. providing reduced, in-county tuition all students who graduate from Montgomery County public high schools, regardless their residence 
failing collect revenue that, state and federal law, required collect. Id. Because taxpayers Montgomery County and the State Maryland are subsidizing the cost unlawfully present aliens attending Montgomery College, Montgomery County and Maryland taxpayers have been required and are being required make the resulting lost revenue through increased appropriations tax dollars and, particular, increased appropriations county tax dollars. Id. see also id.  30, 32, 34, and 36. Plaintiffs estimate that, result Defendant's policy, Montgomery College failed collect approximately $7,940,374 tuition the four academic years between 2007 and 2010, causing substantial pecuniary losses taxpayers. Id.  22, 24, 26, and 28. 
III. 	ARGUMENT. 	Plaintiffs' Complaint Invokes the Long-Standing Right Maryland Taxpayers Challenge Illegal U1tra Vires Acts Public Officials, Not Any Private Causes Action Under Federal Law, the Maryland Code, Maryland Regulations. 
Defendant simply misconstrues Plaintiffs' Complaint. asserts that Congress did not create private right action under U.S.C.  1621, and that the Maryland legislature did not create private right action under Md. Code Ann. Educ. 
310. also asserts that there private right action under COMAR 13.B.07.02.03(c). Defendant's analysis 
any these provisions authorize them bring private rights action. Instead, Plaintiffs assert that their status 
injured taxpayers entitles them bring this action. 
Long-standing and well-established Maryland law authorizes taxpayer-plaintiffs bring suit enjoin illegal and ultra vires acts public officials where those acts are reasonably likely result pecuniary loss increase taxes. The tuition policy Plaintiffs have challenged, and which Defendant has acknowledged, illegal and ultra vires act Defendant that has resulted substantial pecuniary losses Montgomery College and Maryland and Montgomery County taxpayers. landmark case 1869, the Court Appeals explained that, [i]n this state the Courts have always maintained with jealous vigilance the restraints and limitations imposed law upon the exercise power municipal and other corporations; and have not hesitated exercise their rightful jurisdiction for the purpose restraining them within the limits their lawful authority, and protecting the citizen from the consequence their unauthorized illegal acts. Mayor and City Council Baltimore Gill, Md. 375, 395 
(1869) ("Baltimore Gill"}. The Court not only found that the taxpayers were entitled relief, but granted them the relief they sought, namely injunction against the City Baltimore and its officers and agents restraining them from 
Numerous subsequent cases --indeed, the Court Appeals 
has described them "profusion cases" --have upheld this 
long-standing right taxpayers; 
From this decision [Baltimore Gill] and the long line Maryland cases following its wake, the principle has become established that taxpayer may invoke the aid court equity restrain the action public official administrative agency when such action illegal ultra vires, and may injuriously affect the taxpayer's rights and property. 
Citizens Planning and Housing Ass'n County Exec., 273 Md. 333, 339, 329 A.2d 681, 684 (1974). The requirement that there "injury" taxpayers' rights and property "has been 
interpreted require showing that the action being 
challenged results pecuniary loss increase taxes." 
Id.; 120 West Fayette Street, LLLP Mayor and City Council Baltimore, 407 Md. 253, 267-69, 964 A.2d 662, 670-71 (2009); Gordon Mayor and City Council Baltimore, 258 Md. 682, 68790, 267 A.2d 98, 101-03 (1970). Moreover, "the taxpayer need not demonstrate that, necessarily, there will pecuniary loss increased taxes, but only the reasonable existence that potential." Inlet Assocs. Assateague House Condominium 
Ass'n, 313 Md. 413, 442-43, 545 A.2d 1296, 1311 (1988) (emphasis 
original); see also 120 West Fayette Street, LLLP, 407 Md. 
the alleged illegal and ultra vires act "may potentially cause 
[the taxpayer] pecuniary harm increase taxesa). 
The showing required taxpayers quite modest. what 
has been called "(p]erhaps the most liberal application the 
test" (Gordon, 258 Md. 688, 267 A.2d 101), taxpayers who 
challenged the constitutionality statute enacted aid 
the reconstruction Baltimore's Lexington Market were found 
have stated claim under the doctrine taxpayer standing 
simply because the reconstruction project would cause the City Baltimore incur unspecified expenses: the Act unconstitutional, the project 
unlawful, and even though the City would not 
obligated for the project, presumably would incur 
some expense loss extricating itself and its 
property. taxpayers, therefore, plaintiffs are 
entitled sue enjoin such unlawful project. 
Castle Farms Dairy Stores, Inc. Lexington Market Auth., 193 
Md. 472, 482, A.2d 490, 493 (1949). Likewise Gordon, the 
Court Appeals upheld taxpayer action enjoin the transfer books from the Peabody Institute's library Baltimore's 
Enoch Pratt Free Library because the expenses the allegedly 
illegal and ultra vires transfer were borne City 
Baltimore taxpayers. 258 Md. 689-90, 267 A.2d 102. 
Particularly salient here Thomas Howard County, 261 Md. 
422, 276 A.2d (1971), which the Court Appeals sustained 
illegal and ultra vires failure enforce the Howard County 
Plumbing Code and the accompanying failure collect permitting fees. The Court Thomas noted, "We and our predecessors have gone rather far sustaining the standing taxpayers challenge the alleged illegal and ultra vires actions public 
officials.u 261 Md. 432, 276 A.2d 54. The failure collect permitting fees Thomas not unlike Montgomery County's failure collect out-of-state tuition from recent graduates Montgomery County public high schools who are 
unable prove that they are lawful residents Montgomery County. Not only Defendants' tuition policy reasonably certain cause pecuniary harm taxpayers Montgomery County and throughout the State Maryland, but demonstrably doing so. Complaint  22, 24, 26, 28, and 29-37. 
Rather than seeking assert imply private rights action under U.S.C.  1621, Md. Code. Ann. Educ.  16-310, COMAR 13.B.07.02.03., however, Plaintiffs assert that these provisions make Defendant's tuition policy illegal and ultra vires. Plaintiffs not need "private right actionu under these provisions order state claim for taxpayer relief. The taxpayers Baltimore Gill did not need assert private right action under the Maryland constitution order proceed with their claim that the public expenditures 

the taxpayers Citizens Planning and Housing Ass'n did not need assert private right action under the Baltimore County Charter order proceed with their claim that public officials that matter allegedly initiated illegal and 
ultra vires government reorganization scheme. 273 Md. 334. Nor did the taxpayers Gordon claim private right action under the charitable trust instrument which nineteenthcentury philanthropist George Peabody donated his library the 
Peabody Institute. 258 Md. 686-90, 267 A.2d 101-02. Similarly, the taxpayers Thomas did not claim private right action under the Howard County Plumbing Code seeking restrain county officials from failing collect permitting fees. 261 Md. 430-31. Finally, James Anderson, 281 Md. 137, 149-51, 377 A.2d 865, 871-72 (1977), the taxpayers did not claim private right action under the Harford County Charter, but instead invoked the charter demonstrate that the county executive's use bond proceeds was illegal and ultra 
vires. Again, the provisions Maryland and federal law cited Plaintiffs their Complaint make Defendant's tuition policy illegal and ultra vires. They need not have alleged anything more. this regard, Defendant's citations Day Sebelius, 376 Supp.2d 1022 (D. Kan. 2005), aff'd, 500 F.3d 1127 (10th 
Cir. 2007) and Martinez Regents the Univ. California, 2006 2974303 (No. 05-2064) (Cal. Super. Oct. 2006), aff'd, Cal. Rptr. 518 (2008), rev'd other grounds, 241 
P.3d 855 (2010) are inapposite. Neither Day nor Martinez sought invoke the rights taxpayers enjoin illegal ultra vires acts public officials. The plaintiffs Day were nonresident students and parents non-resident students Kansas public universities, not Kansas residents Kansas taxpayers. 
Similarly, the plaintiffs Martinez were students paying nonresident tuition California public universities and colleges, not California residents California taxpayers. contrast, 
Plaintiffs this action invoked their rights taxpayers enjoin Defendant's illegal and ultra vires tuition policy specifically order avoid the shortcomings the plaintiffs Day and Martinez. Their Complaint more than satisfies the requirements for taxpayer action. 	Plaintiffs Have Pled Ample Facts Entitling Them Award Injunctive Relief. 
Defendant's argument that Plaintiffs have failed plead irreparable injury also not well-founded. "As ordinarily understood, injury irreparable, within the law injunctions, where such character that fair and reasonable redress may not had court law, that refuse the injunction would denial justice.n Bey 
A.2d 132, 140 (2001). "[I]n other words, where, from the nature the act, from the circumstances surrounding the person injured, from the financial condition the person committing it, cannot readily, adequately, and completely compensated for with money." Id. obvious from the allegations Plaintiffs' Complaint that "fair and reasonable redress" will not had court law (as opposed court equity) and that money will not compensate them their fellow taxpayers for the harm that Defendant's illegal and ultra vires tuition policy causing the public fisc. The "taxpayer" nature this action and the circumstances surrounding also make clear that adequate remedy available law. Indeed, the nature such challenges why Maryland law makes injunctive relief available taxpayers. See, e.g., Castle Farms Dairy Stores, Inc., 193 Md. 482, A.2d 493 ("As taxpayers ... plaintiffs are entitled sue enjoin unlawful project"); Ruark Int'l Union Operating Engineers, 157 Md. 576, 589, 146 797, 802 (1929) (noting that decisions since Baltimore Gill "have consistently maintained the rule, and have sanctioned the relief injunction whenever appeared that the taxpayer complaining would sustain pecuniary loss .n) 
Regardless, Plaintiffs' Complaint expressly pleads that "taxpayers Montgomery County and the State Maryland, including Plaintiffs, are suffering pecuniary injury and will continue suffer such injury unless and until Defendant's policy enjoined." Complaint and 48. Defendant's argument ignores these allegations completely. Even standing alone, they would more than sufficient plead claim for injunctive relief. addition, however, Plaintiffs also have expressly pled that they have adequate remedy law Id. and 49. While the former set allegations certainly constitute sufficient allegations irreparable injury, all the more clear that Plaintiffs have properly stated claim for injunctive relief when the former set allegations are considered with the latter set and the well-established admonition that, considering motions dismiss, courts are "required assume the truth all the well-pled facts the complaint 

and the reasonable inferences drawn from 
them, light most favorable the non-moving party." 120 
West Fayette Street, LLLP, 407 Md. 261, 964 A.2d 666 
(internal quotation omitted). 
Moreover, although Plaintiffs' Complaint goes great 
lengths describe the pecuniary losses caused Defendants' 
illegal and ultra vires tuition policy, case law recognizes that 
"[t]he extent which taxpayer capable detailing the 
damage anticipated from illegal and ultra vires act ... may rather limited the time the suit initially filed Planning and Housing Ass'n, 273 Md. 344, 329 

687. "It not necessary for the purposes pleading 
amount the loss revenue specifically set forth Thomas, 261 Md. 431, 276 A.2d (emphasis 

original). "The details the loss revenue like the details the amount taxes paid the individual plainti ffs are matters proof and when the case tried its merits." 
Id. Plaintiffs' allegations are more than sufficient suppo their claim for injunctive relief this taxpayer cha llenge Defendant's illegal and ultra vires tuition policy. 
For the foregoing reasons, Plaintiffs respectfully request that Defendant's motion dismiss denied. Dated April 2011 Respectfully submitted, 

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

Plaintiffs, vs. Case No. 342882V BOARD TRUSTEES 
Upon consideration Defendant's Motion Dismiss and Memorandum Points and Authorities Support thereof, Plaintiffs' response thereto, Defendant's reply, and the entire record herein, this day the Circuit Court for Montgomery County, Maryland, 
ORDERED, that Defendant's Motion Dismiss shall 
Circuit Judge Montgomery County, Maryland 
Copies to: 
Counsel Record hereby certify that this 5th day April, 2011, caused true and correct copy the foregoing PLAINTIFFS' RESPONSE OPPOSITION DEFENDANT'S MOTION DISMISS FOR FAILURE STATE CLAIM and [PROPOSED] ORDER served, via first-class U.S. mail, postage prepaid, the following: 
Michael Hays Dow Lohnes PLLC 
1200 New Hampshire Avenue, N.W. Suite 800 
Washington, 20036-6802 
Clyde Sorrell General Counsel Montgomery College 900 Hungerford Drive, Room 355 Rockville, 20850