Appendix — DuBois v. City of College Park

Supreme Court brief1983

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280 Md. 525, 375 A2d 1098

Renee NuBOIS et al.

CITY OF COLLECE PARK et al.

No. 135.

Court of Appeals of Maryland.

July 1, 1977.

ELDRIDGE, Judge.

This case vresents the ouestion of

whether an action for declaratory judg-

ment instituted by three registered

voters of the City of College Park, seek-

inp a declaration that the councilmanic

districts of the citv were unconstitu-

tionally annortioned, was pronerly dis-

missed on the ground that the nlaintiffs

were not ‘bona fide residents of College

Park and therefore lacked standing to

maintain the action.

The action was brought in the Circuit

Court for Prince George's County. It was

alleged that the nlaintiffs, Renee Dubois

and David Johnson, are students at the

University of Marvland, residents of Col-

lege Park, and registered to vote in citv

elections pursuant to the citv charter.

Later, Zacharv Kinnev, who was also alleged

to be a student at the University of Mary-

land, a resident of College "ark and a

registered voter of the citv, was added

as a narty plaintiff. The rlaintiffs

claimed that the 1979 College Park census

shows that the nresent councilmanic dis-

tricts, established in 1967, are unequal-

ly apnortioned and that the city, al-

thourh having had an adecuate onnortunitv

to so so, has failed to reannortion the

districts. It was alleped that, as a

result of this malapportionment, the

votes of the nlaintiffs and those similar-

ly situated are debased and they are de-

nrived of the equal nrotection of the laws

in violation of the Fourteenth Amendment

to the Constitution of the United States.

The action was brought by the plaintiffs

in their own behalf and on behalf of all

those University of Marvland students

similarly situated. The basis of the

plaintiffs' commlaint, as develoned at

trial, is that the ronulation ficures un-

on which the councilmanic districts are

apportioned exclude students residing on

the cammus of the University of Marvland

with the result that the two “student”

districts contain two to three times the

nopulation of the “non-student" districts.

The City of College Park, while con-

tending that the districts are constitu-

tionally apportioned on the basis of popu-

lation figures including only bona fide

residents of College Park, argued primari-

ly that the plaintiffs did not have stand-

ing to maintain the action and were not

proner representatives of the class which

they purported to renresent. Although the

city did not attempt to controvert the al-

Leget fon that the plaintiffs were duly re-

gistered voters of the City of College

Park, it did »resent evidence, over the

nlaintiffs' obiections, that the plaintiffs

actually resided in areas other than Col-

lege Park and therefore should not have

been allowed to register as voters of

College Park.

At the conclusion of the trial and

submission of legal meroranda, the trial

court dismissed the action for lack of

standing. The court reasoned that, under

the criteria set forth in Bainum v. Kalen,

272 Md. 490, 325 A.2d 392 (1974), none of

the nlaintiffs were actuallv domiciled in

College Park and therefore were not injur-

ed by the alleged malannortionrent. Addi-

tionallv, the court found that althouprh

two of the nlaintiffs, FKinnev and Johnson,

lived in districts which, "if their con-

tentions nrevail, are underrepresented,”

the third nlaintiff, Renee DuBois, lived

in a district which was overrenresented.

Therefore, the court found that even if

Renee DuBois were domiciled in College

Park, she should not be injured bv the

apportionment scheme and would not have

standing to challenge the city's dis-

tricting. Finally, the court held that

the suit could not he maintained as a

class action because the »lainti*fs, as

nonresidents, were not members of the

class they nrurported to represent: those

students of the University of Maryland

who are residents of College Park and

eligible to vote in city elections. The

circuit court did not consider the merits

of the case, i.e., whether the districts

were malanvortioned.

The plaintiffs took an anreal to the

Court of Special Avpeals,and this Court

issued a writ of certiorari to review the

case prior to any decision by the Court of

Svecial Anneals.

The plaintiffs contend that the fact

that they are dulv reristered to vote in

city elections vursuant to the College

Park charter is su*ficient to confer stand-

ing. Thev contend that the city cannot

challenge their status as qualified voters

in this vroceeding bv introducing evidence

that they are not residents of College

Park when the city has, in accordance

with the procedures set forth in the citv

charter, registered them as voters. Be-

cause standing in an action challenging

the constitutionality of apportionment o*

voting districts is premised unon the

plaintiffs’ status as registered voters,

and because the city did not deny, but in

fact admitted, that the plaintiffs are re-

gistered voters, the plaintiffs argue that

the circuit court should not have gone be-

hind the plaintiffs’ status as voters. It

is argued that a court must find that, at

this time, the plaintiffs have standing

to challenge the constitutionalitv of the

city's annortionment scheme. We agree.

In Baker v. Carr, 369 U.S. 186, 204-

208, 32 S.Ct. 691, 703, 7 L.Ed.2d 663

(1962), in determining whether voters have

standing to challenge the constitutionality

of apportionment of state legislative

districts, the Supreme Court stated that

the question of standing denends unon

whether the varty has “alleged such a ver-

sonal stake in the outcome of the contro-

versy as to assure that concrete adverse-

ness which sharnens the presentation of

issues upon which the Court so largely

derends for illumination of difficult con-

stitutional questions. Relying upon its

prior cases, the Court held that “voters”

who reside in allegedly malanpvortioned

legislative districts sustain a “legally

cognizable injury" and therefore have

standing to maintain an action challenging

the apnortionment scheme. In the instant

case, the city does not deny that the

plaintiffs are registered voters of the

City of Collese Park. As far as the re-

cord discloses, the citv never instituted

nroceedings to have the nlaintiffs' nanes

removed from the registration lists, and

the order in this case does not. and

indeed cannot, affect the status of the

plaintiffs as eligible voters. The

plaintiffs, therefore, are still register-

ed "voters," eligible to nvarticinate in

College Park elections and thus, in view

of Baker v. Carr, supra, would annear to

have standing to maintain this action.

Moreover, the city charter vrovides

procedures for the removal from the repis-

tration lists of those voters who were

either immpronrerly repistered or who sub-

seauently become ineligible. Although the

city has not affirmatively sought to have

the plaintiffs adjudicated as ineligible

to vote, it in essence argues that the

plaintiffs are not eligible to vote be-

cause they do not meet the residency re-

quirement cf Section 14 of the Citv of

College Park Charter. However, our prior

cases indicate that where a statutory

remedy is available to challenge the cuali-

fications of voters on the registration

lists, that statutory remedy is the ex-

clusive method for challenging the qua’ i-

fications of registered voters. The re-

gistration lists, in the absence of alle-

gations of fraud on the vart of election

officials, are conclusive evidence of the

qualifications of voters, and the qualifi-

cations of voters may not be challenged in

collateral proceedings. Lee v. Sec. of

State *: Mahoney, 251 Md. 134, 246 A.2d

562 (1968); Moore v. Bay, 149 Md, 286,

292-295, 131 A. 459 (1925).

In Lee v. Sec. of State & Mahoney,

supra, the nlaintiff challenged the right

of a candidate to run in a general election

as an independent. The challenge was bas-

ed unon the. contention that the Board of

Supervisors of Elections had impronerly

reovened the voter registration bool:s,

during which time the candidate changed

his party affiliation from Democrat to

"decline." To be eligible to run as an

independent, the candidate must be repis-

tered as a "decline." This Court apreed

that the Board, because of a misinternre-

tation of the election laws, had improner-

ly reopened the registration books and al-

lowed the candidate to change his party

affiliation. However, the Court refused

to declare the candidate ineligible de-

spite the improper voter registration and

affirmed the trial court's action dismiss-

ing the voter's challenge. The Court not-

ed that the election code set forth adminis-

trative and judicial nrocedures by which

the voter registration lists could be

challenged and that the plaintiff had fail-—

ed to follow these nrocedures. The Court

held that the statutory nrocedures vro-

vided the exclusive remedy for the correc-

tion of the voter registration lists. Ad-

ditionally, the plaintiff argued that the

statutory remedy need not be followed since

the purpose of the challenge was not to

correct the voter registration lists but

rather to have the candidate declared

ineligible to run as an independent. In

rejecting this argument, the Court point-

ed out that the eligibility of the candi-

date to run as an indenendent denended ur-

on his status as a registered "“indenendent"

voter, and that this could be raised onlv

pursuant to the statutory procedures, 251

Md. at 141, 246 A.2d 52.

In Moore v. Bay, supra, two unsuccess-

ful candidates in a runicinal election

challenged the validicy of that election

on the ground that some registered voters

varticinating in the election did not pos-

sess all of the qualifications recuired by

the city charter and therefore were not

legally oualified to vote. After stating

that the validity of the election turned

upon the question of the effect to be given

to the repistration lists, this Court held

that the election was valid because it was

the intent of the election laws "to make

the final registration lists of voters

conclusive evidence of those entitled to

vote at the ensuing municinal election."

Moore v. Bay, supra, 149 Md. at 296, 131

A, at 463. In reaching this conclusion,

the Court noted that the local election

law, which incorporated by reference con-

sistent provisions of the state election

laws, provided a commrehensive plan for

the maintenance of registration lists.

Thus, the local election law required that

the city clerk enter on the registration

lists only those applicants who satisfied

the clerk by proof, under oath, that they

met the qualifications of voters set forth

in the city charter. The registration

lists so comniled by the clerk were then

to be reviewed by citv officials and ‘any

person (who) should feel himself apprieved

by the action of the clerk in repistering

. the name of any person" could

obtain a hearing before the city council

to contest the registration. An appeal

from the determination of the city coun-

cil could be taken to the circuit court.

Additionally, the local law provided that

the penalties prescribed bv the general

election laws should anpvlv to ail munici-

pal elections. Id at 291, 294, 131 A.

459. This Court concluded that these were

sufficient vrocedures to insure the integ-

rity of the registration lists, and that

the election laws evidenced an intent that

the registration lists, compiled according

to these procedures, should be conclusive

evidence of qualified voters of the city.

The aualifications for voters of the

City of College Parl, and the procedures

for registering voters for citv elections

are found in Sections 12 through 17(A) of

of the city charter. These procedures are

similar to those involved in Moore v. Bav,

supra. Any person who is entitled to

land under the general election laws and

who "shall have his actual residence in

the City of College Park, in the sense that

he had no other residence elsewhere, for

the period of ninety (99) days next nre-

ceding a municipal election,” is entitled

to register if he satisfies the repister-

ing officer of these facts. Additionally,

applicants who are registered to vote else-

where in the State are required to file an

affidavit affirming, inter alia, their in-

tent to be members of the College Park

community Section 14 of the charter. Per-

sons registered pursuant to these provisions

"shall be qualified voters of the City of

College Park," Section 12 of the charter.

Additionally, Section 15 of the College

Park Charter provides that ‘(t)he proceed-

ings for the registration of voters and the

maintenance of registration lists ....

shall conform as nearly as may be nrossible

to the proceedings for the registration

of voters and the maintenance of registra-

tion lists under the general election laws

of this state." Under a provision of the

state general election law, Maryland Code

(1957, 1976 Repl. Vol.), Art. 33, Section

3-16, which is made applicable to College

Park elections by virtue of Section 15 of

the city charter, any voter may file with

the proper election officials “objections

to the registration of any person whom

such voter has reason to believe is not

eligible to vote." lNotice must be sent

tothe challenged voter, and a hearing

must be held on the challenge by the

election officials, with the presumption

being that the voter is properly regis-

tered, Section 3-16(c), (ay. An appeal

l. "(a) Who may file challenge or

application for correction of

may be taken from any action by the of-

ficials to the circuit court, Section 3-

21. Additionally, election officials

are to remove from the registration lists

the names of those voters whom they have

reason to believe have moved from the

election district after proper notice

to the voter, Section 3-17.

As in Moore v. Bay, supra, the pro-

visions found in the College Park Charter,

as well as those provisions of the gener-

al lection laws made applicable to Col-

lege Park elections, provide sufficient

list; when and where filed. Any

voter may file with the board

or with the board of registrv

objections to the registration of

of any nerson whom such voter has

reason to believe is not eligible

to vote, or a request for the addi-

tion of any person whose name

has been erroneously omitted

or dropped from the registra-

tion list of any such per-

cinct registration list or a

challenge of the right to vote

of a person named on such list

may be made by any qualified

voter at the office of the

Board on or before the Tuesday,

sixteen weeks preceding any

primary election.

"(b) Manner of mal-ing applica-

tion or challenge. Such appli-

cations or challenges shali be

made in the form rrovided bv

subsection (e) of this section

and the forms shall be provided

by the board for that purpose.

The voter shall state thereon,

u der oath and of his own per-

sonal knowledge, the reason for

—

the application or challenge.

Thereafter the voter so annly-

ing or chalienging shall be

reauired to anpear in person

at the time of the hearing on

the annlication or challenge

as provided for in subsection

(d) of this section and for

wilful failure to so appear

shall be subject to the penal-

ties provided for in Section

24-27 of this article.

"(c) Notice; voter may appear

in person or by counsel. Per-

sons whose right to register

has been challenged and nersons

whose names are alleged to have

been erroneously omitted or

dropped from the registration

lists shall be given written

notice, sent by mail, addressed

to the voter at the last address

given on his registration form.

Any voter so notified may ap-

pear in person or by counsel.

"(d) Hearing and action of

board on applications and chal-

lenges. The board of registry

shall sit for the purpose of

hearing applications for

changes in such registration

lists, or challenges of the

right to vote on such lists.

They shall meet on the Tuesday

fourteen weeks before an elec-

tion at such hours as the board

may designate. If all such

applications or challenges be

not determined on that day,

they shall sit during the same

hours on succeeding days until

all cases are heard and decided.

If it is not possible to hear

all such cases within two days,

the board may appoint one or

more boards of registry, each

consisting of two members of

opposite political parties,

to aid in hearing such appli-

cations or challenges at a

rate of compensation fixed as

provided in Section 2-6 of

this article. At the request

of either party, the board

shall issue subpoenas to wit-

nesses to appear at such

hearings, who shall be sworn

and examined. All cases shall

be decided immediately after

hearing. No voter as to whom

an application or a challenge

has been made shall be removed

from the registration lists

unless the application or chal-

lenge is substantiated by

affirmative proof. In the ab-

sence of such proof, the pre-

sumption shall be that the

voter as to whom the applica-

tion or challenge was made is

properly registered. If the

board is satisfied that the

person so challenged, omit-

ted or dronpned from the re-

gzistration lists has actually

moved to another vrecinct

and is presently residing

within that other precinct,

the board may transfer that

person to the registration

list of the precinct in

which he presently resides.

“(e) Form of challenge.

Objections to the registra-

tion of any person shall be

made on a form prescribed

safeguards to insure that only auali-

fied voters appear on the registration

lists, and to demonstrate the intent

of the election laws that the regis-

tration lists be deemed conclusive

evidence that those who are registered

are qualified voters. Moreover, a

specific statutory procedure has been

provided for correction of the regis-

tration lists. Generally, where a

special statutory remedy is provided,

that remedv is usually deemed exclu-

sive, and "the litigant must adopt

that (remedy) and must not by-pass

the administrative body or official,

by pursuing other remedies."

Schneider v. Pullen, 198 Md. 64, 68,

81 A2d 226, 228 (1951); accord,

by the State Administrative

Board of Election Laws."

Soley v. St. Comm'n on Fuman Rel., 277

Md. 521, 526, 356 A.2d 254 (1976);

Agrarian, Inc. v. Zoning Inspector, 262

Md. 329, 332, 277 A.2d 591 (1971); Lee

v. Sec. of State & Mahoney, supra. If

it is believed that the plaintiffs are

not qualified voters and should be re-

moved from the voter registration lists,

the procedures set forth in the election

laws should be followed. The city cannot,

by merely moving to dismiss for lack of

standing in this proceeding, contest the

fact that those registered according to

the city charter are not qualified voters.

See Lee v. Sec. of State & Mahoney, supra,

251 Md. at 141-142, 246 A.2d 562. We hold,

therefore, that the plaintiffs, as regis-

tered voters, having standing to maintain

the present action.

(8,9) The trial court also dismissed

the action as to Renee DuBois on the

alternative ground that, as a resident

of a councilmanic district which was

“overrepresented,” she had sustained no

injury and therefore lacked standing to

maintain this action. However, in view

of Swann v. Adams, 335 U.S. 440, 443,

87 S.Ct. 569, 17 L.Ed.2d 501 (1967),

where the Sunreme Court held that resi-

dents of a legislative district which

received consitutional treatment under

a redistricting plan had standing to

maintain an appeal, Ms. DuBois would an-

pear to have standing to maintain this

action. Moreover, Art III, Section 5

of the Maryland Constitution, although

not applicable to municipal legislative

bodies, does reflect a State policy that

any registered voter has a sufficient

interest in the apnortionment of electoral

districts to challenge the constitutional-

ity of a reapportionment scheme. Article

III, Section 5, expressly authorizes

“any registered voter" to petition this

Court to review the ‘legislative dis-

tricting plan for the General Assembly

of Maryland. We therefore hold that

Renee DuBois, as a registered voter of

College Park, has a sufficient interest

in the apportionment of that city's

councilmanic districts to have standing

to maintain this action.

(10) Finally, the trial court dis-

missed the class action on the ground

that since the plaintiffs were not resi-

dents of the City of College Park they

were not proper representatives of the

class of versons whom they purported to

represent. That class is composed of

»ersons who are inter alia, residents

of College Park and qualified to vote

in all city elections. It follows from

the fact that because the plaintiffs

are registered voters of the City of

College Park, they are, for voting pur-

poses, residents of the City of College

Park. Therefore, we hold that the

plaintiffs are proper representatives

of the class which they purport to repre-

sent.

Because we hold that the trial

court erred in dismissing this action,

both as to the plaintiffs individually

and as to the class action, we will

remand this case to the Circuit Court

for Prince George's County for considera-

tion of the merits. We wish to emphasize

that our holding in this case is limit-

ed to the question of whether the trial

court, in this action, properly consid-

ered evidence as to the plaintiffs'

status as residents of the City of Col-

lege Park where their status as regis-

tered voters had not been challenged

in a proper proceeding. We express no

opinion as to whether the plaintiffs

are domiciled in College Park, and

nothing contained herein should pre-

judice the rights of any parties in

any proceeding in which the plaintiffs'

registration in properly challenged.

JUDGMENT REVERSED AND CASE RE-

MANDED TO THE CIRCUIT COURT FOR PRINCE

GEORGE'S COUIITY FOR FURTHER PROCELD-

INGS NOT INCONSISTENT WITH THIS OPINION.

APPELLEES TO PAY COSTS.

286 Md. 677, 410 A2d 577

Renee DuBOIS et al.

CITY OF COLLEGE PARK et al.

No. 139.

Court of Appeals of Maryland.

Jan. 28, 19380.

ELDRIDGE, Judge.

The largest campus of the Univer-

sity of Marvland is located in the City

of College Park in Prince George's

County, Maryland. Pursuant to a court

order to reapnortion its councilmanic

districts, the City of College Parl

adopted a revised anpvortionment plan

that excluded from its population an-

portionment base a large segment of

students who lived in the University's

dormitories. The issue before us is

whether the circumstances of this case,

violated the equal protection of the

laws, and particularly the "one person

one vote" principle of Baker v. Carr,

369 U.S. 136, 32 S.Ct. 691, 7 L.Ed.2d

663 (1962); Reynolds v. Sims, 377 U.S.

533, 34 S.Ct. 1362, 12 L.fd.2d 596 (1964),

and their progeny.

The City of College Park is divided

into eight councilmanic districts, each

of which electsone councilman to the

City Council. The College Park cam-

pus of the University of “arvland is

largely contained in parts of the

third and fifth districts-often re-

ferred to as the “student” district.

All dormitories are within the third

and fifth districts. On the other

hand, some fraternity and sorority

houses, in which students also re-

side, are located in the second dis-

trict.

In connection with its apvortion-

ment plan adopted in 1967, the City

of College Park had to determine a

population annortionment base, from

which would be calculated the equal

number of persons that would be in-

cluded in each of its eight districts.

The City arrived at its annortionment

base by subtracting from its total

feceral census population, which includ-

ed all students physically residing in

the City of College Park, those students

who physically resided in dormitory facil-

ities at the University. +

1. Although all parties con-

sistencly refer to the exclud-

ed students as "on-campus' stu-

dents and other students as

“off-campus” students, it is

not entirely clear what was

meant by those terms. It

appears that the phrase "on-

campus" students refers to

those students who live in

dormitory facilities situat-

ed on property located with-

in the actual physical

boundaries of the University.

All "on-campus" students

Afier the 1970 federal census was

conducted, the City established a reap-

portionment committee. Although the

reapportionment committee. Although the

reapportionment committee developed

several different reapportionment plans,

none was adopted by the City, and it

continued to use the apportionment plan

of 1967.

In October 1975, three students

began the instant vroceedings by filing

a class action in the Circuit Court

for Prince George's County, alleging

that the 1970 census showed the council-

manic districts to be unequally apportion-

ed. The plaintiffs claimed that as a

result of this malanportionment, the

votes of the plaintiff class were un-

constitutionally diluted. The named

plaintiffs, Renee DuBois, David Johnson

and Zachary Kinney, were alleged to be

students of the City of College Park,

and registered to vote in City elections.

One of the plaintiffs lived in a dormi-

tory in the fifth district, one lived

in a fraternity house in the third

district, and one lived in a sorority

house in the second district. The class

represented by the named plaintiffs was

defined as those students at the Uni-

versity of Maryland who were residents

of the City of College Park and auali-

fied to vote in all City elections.

As develoned at trial, the basis

of the plaintiffs' claim was that on-

campus students were excluded from the

apportionment figure which was used to

determine the size of each councilmanic

district of the City. As a result,

according to the nlaintiffs, their in-

dividual votes were diluted because the

two councilmanic districts that include

the University of Maryland campus con-

tained two or three times the population

of the other six districts.

According to the evidence produced

at the trial, the total population of

College Park, as determined by the 1970

federal census, was 26, 156, which in-

cluded the students who lived within the

University's physical boundaries within

the third and fifth districts, as well

as students who lived elsewhere within

the City. Fowever, after internolating

the 1979 census figures into the eight

districts as they were constituted under

the 1967 apportionment plan, the City

calculated that its new apportionment

base would only be 17,517. Consistent

with the method that it employed with

the 1967 plan, the new apportionment

base was arrived at by excluding from

the 1970 census total population the

approximately 8,900 students, as deter-

mined by numbers supplied bv University

of Maryland officials, who resided in

dormitories within the physical boundaries

of the University.” The Mayor stated,

2. It is unclear whether this

8,000 student figure included

students who resided in fra-

ternity or sorority houses lo-

cated in the third district,

or whether is included students

who resided in private residences

in the third and fifth districts.

It is clear that the 8,000 fig-

ure did not embrace any students

who resided in districts other

than the third or fifth districts.

Therefore, the 8,000 figure did

not include these students who

resided in the fraternity and

sorority houses in the second

district.

There is, however, some indi-

cation in the record that the

8,900 figure included only

students who resided in the

dormitories, which are locat-

ed only in the third and

fifth districts. Thus, there

is an inference that students

who lived in the fraternities

and sororities in the third

district and private residences

in the third and fifth dis-

tricts were not included in

the 3,990 figure and that,

therefore, these students were

included by the City in the

population base for the third

and fifth districts.

would therefore be in the third

and fifth districts. It is

not completely clear whether

the term "on-campus" also in-

cludes those residing in frater-

nities or sororities in the

third district. The term "off-

cammus" students appears to re-

fer to students who live in pri-

vate residences or apartments,

presumably including private

residences in the third and fifth

districts, and not on property

physically located within the

University's boundaries. In

addition, all students living

outside of the third and fifth

districts are considered ‘off-

campus" students. Thus, a stu-

dent living in one of the fra-

ternity or sorority houses lo-

cated in the second district

would be deemed an ‘off-camn-

pus” student, just as if he

lived in private housing.

For the purposes of this opin-

ion, we will accept what ap-

pears to be the parties'

definitions of these terms.

Therefore, "on-campus" stu-

dents will refer to students

who live in University re-

sidence facilities located

within the boundaries cf the

University, which places

those students in the third

or fifth district. Off-cam-

pus” students will refer

to students who live in all

other districts within the

City, including those who

live in fraternities and

sororities in the second

district.

however, that the apportionment base

of 17,517 included all students who

resided in districts other than the

third and fifth, and this fact was

reiterated by counsel for the City at

a hearing before the circuit court.

Based unon the 17,517 population

figure, a verfectly apportioned plan

would have had 2,190 nersons in each

district. All parties agreed, however,

that if the students who resided within

the physical limits of the University

should have been included in the apn-

portionment base, then the City's

districts, even if changed to reflect

1970 population figures, would be mal-

apportioned. If the 3.812 students

living in University residence facilities

in the third district and the 4,635

students living in University residences

in the fixth district were added to

the population already included in these

districts under the 1967 nlan, as ad-

justed for the 1970 census, then the

total population within these districts

would be 5,843 and 6,996 resnectively.

These figures are far in excess of the

2,190 persons who would be in each of

the other districts.

At the close of the trial, the

circuit court concluded that none of

the named plaintiffs was domiciled in

College Park. Therefore, the court held

that the named plaintiffs lacked stand-

ing to maintain the action. In addi-

tion, because the named plaintiffs were

not deemed domiciliaries of the City,

they were held to be outside of the class

which they purnorted to represent. The

circuit court dismissed the action for

lack of standing.

The plaintiffs appealed to the Court

of Special Appeals, and this Court is-

sued a writ of certiorari prior to a

decision by the intermediate appellate

court. We held that the plaintiffs, as

registered voters of the City of College

Park, had standing to maintain a suit

challenging the City's apportionment.

DuBois v. City of College Part, 289 Md.

525, 375 A.2d 1098 (1977). Further, we

stated that the City, by moving to dis-

miss for lack of standing, could not

collaterally challenge whether the

plaintiffs were properly registered as

voters. Instead, we held that any

challenge by the City to the plaintiffs'

status as registered voters must be

made through the procedures prescribed

by statute and the City charter for

making such challenges. 289 Md. at 529,

533-534, 375 A.2d 1098. The case was

remanded to the circuit Court.

After further arguments were held,

the circuit court found that, in light

of the 1970 census, the deviation be-

tween the actual nopulation in each dis-

trict and the number of persons who

would constitute a properly apportioned

district, was too large. The court,

however, rejected the plaintiffs’ claim

that all on-campus students should also

be included in the City's apportionment

base. The circuit court reasoned that,

according to the princivles set forth

by this Court in Bainum v. Kalen, 272

Md. 490, 325 A.2d 392 (1974), an on-car-

pus student was presumed to be a domi-

ciliary of his former place of residence.

The court stated that a student could

overcome this presumption by registering

to vote in College Park, at which time

the student must affirm by oath that he

intended to remain a City domiciliary.

Therefore, the court held that eaual pro-

tection principles did not require the

inclusion of all on-campus students

in the apportionment base because this

would encompass transient nonresidents.

The court further held that, because

some of the students who resided within

the University's boundaries had overcome

the presumption of nonresidency by reg-

is*ering to vote in the City, the City

was required to include in its apportion-

ment base any student in the third or

fifth district who had registered to vote.

Moreover, the court noted that this in-

clusion of students who resided in the

third and fifth districts, and who had

registered to vote, would further in-

crease the cxisting malapportionment in

light of the 1970 census. The court:

then ordered the City to submit a new ap-

portionment plan, consistent with its

opinion, correcting the existing

malapportionment.

The City subsequently submitted a

revised apportionment plan which, all

parties agreed, conformed to the court's

order. A final judgment approving the

new plan was entered. The plaintiffs

again appealed, and this Court again

issued a writ of certiorari prior to a

decision by the Court of Special Appeals.

The primary issue on this apveal

is whether the approved apnortionment

plan, which in six districts included

all students in the population base, and

in two districts apparently included all

off-campus students but only those on-

campus students who had registered to

vote, violates equal protection of the

laws.” The plaintiffs contend that

3. The City also has raised

two arguments in a motion to

dismiss this apveal. First, it asserts

that the plaintiffs failed in the trial

court to present sufficient evidence

in support of their contention that

the revised apportionment plan is un-

constitutional. Second, the City

argues that the plaintiffs did not

exhaust their administrative remedies

because they did not oppose the new

vlan at a public hearing conducted as

part of the City Council's adontion

of the plan.

Preliminarily, we note that this

case is properly within this Court's

jurisdiction, and there are no viola-

tions of procedural requirements

alleged that would warrant dismissal

of the appeal. The two grounds urged

by the City, even if meritorious,

would not be grounds for dismissal.

Of course, an appellate court can

affirm a decision of a trial court on

any ground adequately shown by the

record, even if it was not the ground

relied on by the trial court, and

even if it was not raised by the

parties in the trial court. Robeson

v. State, 285 Md. 498, 502, 403 A.2d

122a (1979). If the record were

insufficient to show the invalidity

of the apportionment plan, or if

there were administrative remedies

which should have been exhausted,

these might be grounds for an af-

firmance. |

Nevertheless, in this case both

contentions by the City must fall on

their merits. The evidence at the

first trial, coupled with the tyne

of new plan mandated by the circuit

the circuit court erred in holding that

the City only had to include those on-

campus students who had registered to vote

instead of the entire on-campus student

nopulation. They argue that the inclusion

court's order and the representations

of the City’s counsel at the hearing

on the new plan, were counsel suffi-

client to present the equal protection

issue raised by the plaintiffs.

With respect to the plaintiffs’

asserted failure to exhaust their ad-

ministrative remedies, the action of

the City Council in adopting the re-

vised plan was a legislative action

and not a determination by an admin-

istrative agency. We are not aware

of any principle of law stating that

one affected by a legislative enact-

ment may not challenge the validity

of all off-campus students in the appor-

tionment base whether or not they are

registered to vote, while reauiring that

on-campus students must register to vote

in order to be included, creates an arbi-

trary classification.

The general principle governing leg-

islative apportionment is that there

“must be substantial ecuality of popula-

tion among the various districts, so that

the vote of any citizen is approximately

equal in weight to that of any other cit-

izen." Peynolds v. Sims, supra, 377 U.S.

at 579, 84 S.Ct. at 1390. See also St.

Adm, Bd. of Elect. Laws v. Calvert, 272

Md. 659, 327 A.2d 290 (1974), cert. de-

nied, 419 U.S. 1110, 95 S.Ct. 784, 42

L,Ed.2d 807 (1975).

of that enactment unless he had been

present and testified at the legislative

hearings.

4. The “one person one vote” prin-

ciple wasinitially apllied to state

legislatures and congressional dis-

tricts. Baker v. Carr, 369 U.S. 186,

682 S.Ct. 691, 7 L.Ed.2d 663 (1962);

Wesberry v. Sanders, 376 U.S. 1, 84

S.Ct. 526, 11 L.Ed. 2d 481 (1964);

Reynolds v. Sims, 377 U.S. 533, 34

§.Ct. 1362, 12 L.Ed.2d 506 (1964).

Since then, it has been extended to

the election of county and municipal

representatives where such govern-

ments exercise substantial govern-

mental powers. See, e.g., Abate v.

Mundt, 403 U.S. 182, 91 S.Ct. 1904,

29 L.Ed.2d 399 (1971); Hadley v.

Junior College District, 397 U.S. 50

90 S.Ct. 791, 25 L.Ed.2d 45 (1970);

Avery v. Midland County, 390 U.S.

474, 338 §.Ct. 1114, 20 L.Ed.2d 45

(1968); Montgomery County v. Garrott

243 Mf. 634, 222 A.2d 164 (1966).

According to College Park's charter,

Code of the City of College Park,

Art. XI (1965), the City does or may

exercise substantial governmental

authority. Therefore, the apportion-

ment of its councilmanic districts

is clearly within the scope of the

“one person one vote” principle.

Some differentiation among citizens with

respect to the weight of their vote may be

permissible it it related to "permissible

purposes of legislative apportionment” or

effected "a rational state policy," 377

U.S. at 565, 579, 84 S.Ct. 1362. MNever-

theless,

"if, even as a result of a clearly

rational state policy .. . popula-

tion is submerged as the controlling

consideration in the anportionment

of seats in the particular legis-

lative body, then the right of all

of the State's citizens to cast an

effective and adequatley weighted

vote would be unconstitutionally

impaired." (Id. at 581, 34 S.Ct.

at 1392.)

“oreover, in deciding reapnortion-

ment cases like the present one, class-

ifications having the effect of diluting

a verson’s right to vote are subject to

careful scrutiny. This was explained by

the Sunreme Court in Reynolds v. Sims,

supra, 377 U.S. at 561-562, 84 S.Ct. at

1381, as follows:

“While the result of a court deci-

sion in a state legislative appor-

tionment controversy may be to re-

quire the restructuring of the geo-

graphical distribution of seats in

a state legislature, the judicial

focus must be concentrated upon

ascertaining whether there has been

any discrimination against certain

of the State's citizens which con-

stitutes an impermissible impairment

of their constitutionally protected

right to vote. Like Skinner v. Ok-

lahoma, 316 U.S. 535, 62 S.Ct. 1110,

&6 L.Ed. 1655, such a case ‘touches

a sensitive and immortant area of

human rights,' and "involves one of

the basic civil rights of man,’

presenting questions of alleged

‘invidious discriminations .

against gourps or types of individ-

uals inviolation of the constitu-

tional guaranty of just and equal

laws.’ 316 U.S., at 536, 541, 63

§.Ct., at 1113. Undoubtedly, the

right of suffrage is a fundamental

matter in a free and democratic

society. Especially since the right

to exercise the franchise in a free

and unimpaired manner is preserva-

tive of other basic civil and pol-

tical rights, any alleged infringe-

ment of the right of citizens to

vote must be carefully and meticu-

lously scrutinized."

Abate v. Mundt, 403 U.S. 182, 185, 91 S.

Ct. 1904, 1906-1907, 29 L.Ed.2d 399

(1971); Mramer v. Union School District,

395 U.S. 621, 626-630, 89 S.Ct. 18386,

1889-1891, 23 L.Ed. 2d 583 (1969); 0.C.

Taxpayers v. Ocean City, 230 Md. 585, 594,

375 A.2d 541 (1977).

The City has attempted to justify its

exclusion from the apportionment base of

on-campus students who have not register-

ed to vote by arguing that these students

are transients and are not in fact res-

idents of College Park. The City accor-

dingly argues that to include these non-

residents would dilute the weight of the

votes of true residents of theCity who

would be expected to have a greater in-

terest in municipal affairs. In support

of tis argument, the City points to

language in Burns v. Richardson, 334 U.S.

73, 91-92, 86 S.Ct. 1236, 1296-1297, 16

L.Ed.2d 376 (1966), where the Suvreme

Court stated:

“We start with the pronosition that

the Equal Protection Clause does not

require the States to use total pop-

ulation figures derived from the fed-

eral census as the standard by which

this substantial population equiv-

alency is to be measured. Although

total population figures were in

fact the basis of comparison in .

(the case of Reynolds v. Sims) and

most of the others decided that day,

our discussion carefully left open

the auestion what population was

being referred to. At several

points, we discussed substantial

equivalence in terms of voter pop-

ulation or citizen population, mak-

ing no distinction between the

acceptability of such a test and a

test based on total population.

Indeed, in "MCA, Inc. v. Lomenzo,

377 U.S. 633, 84 S.Ct. 1418, 12

L.Ed. 2d 568 decided the same day,

we treated an apportionment based

upon United States citizen nopula-

tion as presenting problems no diff-

erent from apportionments using a

total population measure. Neither

in Reynolds v. Sims nor in any other

decision has this Court suggested

that the States are required to in-

clude alients, transients, short-

term or temporary residents, or per-

sons denied the vote for conviction

of crime, in the apportionment base

by which their legislators are dis-

tributed and against which comoli-

ance with Equal Protection Clause

is to be measured. The decision to

include or exclude any such group

involves choices about the nature of

representation with which we have

been shown no constitutionally

founded reason to interfere. Unless

a choice is one the Constitution

forbids, cf., e. g., Carrington v.

Rash, 380 U.S. 89, 85 S.Ct. 775, 13

L.Ed.2d 675, the resulting appor-

tionment base offends no constitu-

tional bar, and compliance with the

rule established in Reynolds v. Sims

is to be measured thereby.”

It is clear, however, that the City

could not invoke the theory that students

are generally transients, in order to deny

the right to vote to any student who in

fact met the voting qualifications of the

City Charter. tee Evans v. Cornman,

— as

5. The voting qualifications are

set forth in the City's charter.

Code of the City of College Park,

Sec. 14 (1965.) They are:

"Except as otherwise provided

herein, any person possessed

of all the qualifications

that are necessary to entitle

a person to exercise the right

to register as a voter of the

State of Maryland, under the

general election laws, shall be

a citizen of the United States

and at least eighteen (13)

years of age on or before

election day and shall have

his actual residence in the

City of College Parl., in the

sense that he had no other

residence elsewhere, for the

period of ninety (90) days

next preceding a municipal

election and shall satisfy the

Registering Officer of these

facts. Any applicant to reg-

ister who shall be registered

as a voter elsewhere in the

State of Maryland shall not be

permitted to register unless

there is filed with the Regis-

trarion Officer of said city

the apvlicant's following af-

firmative affidavit under oath:

A. Do you hereby affirm

your intent to be a member

of the City of College Park

community?

B. Are you presently regis-

tered to vote in a state ot-

her than Maryland, a county

other than Prince George's

or any other municipality,

and if so, will you cancel

that registration as soon as

practicable after this regis-

tration is completed?

C. Are you aware that when

you register in the City of

College Park, it will thence-

forth be presumed that your

residence is here for voting

purposes and that you will

have to overcome that pre-

sumption should you later

attempt to register in a

state or county or municipal-

ity other than Maryland,

Prince George's County the

City of College Park, respec-

tively, and do you accept

this fact? The word 'res-

idence’ for these purposes

means the affiant's primary

residence, the place where

he will be registered to vote,

where he presently resides,

and plans to reside, except

for short temporary absences,

as for example, a vacation

or hospitalization."

398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d

370 (1970); Carrington v. Rash, 380 U.S.

89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965);

Whately v. Clark, 482 F. 2d 1230 (5th

Cir. 1973), cert. denied, 415 U.S. 934,

94 S.Ct. 1449, 39 L.Ed,2d 492 (1974).

For example, the Supreme Court in Car-

rington v. Rash, supra, 380 U.S. at 93-

96, 85 S.Ct. 775, held that Texas could

not constitutionally deny military per-

sonnel the right to vote where such mil-

itary personnel had moved their residen-

ce to Texas after their entrance into the

military, if those persons otherwise met

the state's voter qualification require-

ments.

Not only is it impermissible to deny

the right to vote to students or service-

men who otherwise meet voter qualifica-

tions but a city may not dilute the votes

persons in a particular district by a

bold assertion that it is populated by a

large class of purported transients such

as students or servicement. Kirkpatrick

v. Preisler, 394 U.S. 526, 534-535, 89

$.Ct. 1225, 1230-1231, 22 L.Ed. 2d 519

(1969); Davis v. Mann, 377 U.S. 678, 691,

64 S$.Ct. 1441, 1448, 12 L.Ed.2d 609

(1964). See Egan v. Hammond, 502 P. 2d

S56 (Alaska 1972); In re Opinion of the

Justices, 111 N.H. 146, 276 A.2d $25

(1971); Tp. of Franklin, etc. v. Board of

Ed., etc,, 74 0.J. 345, 378 A.2d 218, 219

n. 2 (1977), cert. denied, 435 U.S. 950,

96 S.Ct. 1576, 55 L.Ed.2d 300 (19738);

Seaman v. Fedourich, 16 N.Y¥.2d 94, 262

i.¥.S.2d 444, 209 0.2.2d 778, 784 (1965).