Lawyers for an ousted Anne Arundel County councilman convicted of a federal tax charge will square off Monday with the county officials who showed him the door when Daryl D. Jones asks the state's highest court to return him to his elected office.
Jones' request — an appeal from a lower court that upheld his ouster — asks the Court of Appeals to erase a County Council measure that made him the first Anne Arundel council member removed from office by his colleagues.
If Jones wins, the councilman named to replace him could potentially be ordered to vacate the seat. A ruling for the county would keep Peter Smith in the job. The Marine reservist was chosen to fill Jones' seat after a much-criticized, lengthy council impasse and 108 rounds of votes.
Smith, a Severn Democrat like Jones, said he knew when he took the oath of office that his tenure might be cut short by a court ruling.
"I am going to support whatever decision the court makes," he said.
"Really, it's in the court's hands at this point," said Jerry Walker, a Gambrills Republican who serves as the council's vice chairman. He said the council warned candidates applying to fill the vacancy that the courts could reinstate Jones.
Councilman John Grasso, an outspoken Glen Burnie Republican, said if the court orders Jones reinstated, "I'll probably throw up."
Jones' case has mixed politics and law from the start. The Court of Appeals arguments are expected to focus on whether the council had the legal right to rid itself of a member, what it means to live in a council district, and whether Jones' complaint is moot because Smith has the job.
Convicted on a single tax charge, Jones was sentenced to five months in prison. He didn't resign from the council post. In a 6-0 vote, with Jones recusing himself, his colleagues declared his position vacant, saying he wouldn't be living in his district because he would be serving the prison term in South Carolina — a position expressed by the county attorney's office.
Jones challenged his removal, maintaining that no law existed for removing a council member and that although he would be in prison temporarily, he was a permanent resident of District 1. He lost, in a ruling that said the council could decide the qualifications of its members and gave him a tongue-lashing. Jones appealed.
Jones returned to District 1 from prison in June.
In legal briefs, Jones' lawyer said the county's interpretation of the residency requirement means that a council member who doesn't sleep every night in his district risks waking up to learn that he has forfeited his elected office.
That, said Linda Schuett, a former county attorney who represents Jones, "allows for political mischief."
Her brief called the reasoning that pushed Jones out of office "a thinly veiled attempt to concoct law to accomplish the county's goal of removing Jones from office without any law that allows for removal."
Jones could not be reached for comment.
The county wants Jones' case dismissed. With Smith the new officeholder, events have overtaken the case, officials contend in legal briefs.
County officials reasoned that in a federal prison, Jones wouldn't have been available to represent his District 1 constituents. In addition, the panel needs five votes to approve certain measures and four for others — but with one member absent, could find itself in 3-3 deadlocks.
Jones signed a conditional plea agreement Nov. 8, 2010, six days after his re-election to a second term, but was not charged until August 2011. He pleaded guilty to a misdemeanor charge of failing to file a 2005 return. The agreement said he would make $108,369 in tax payments and maintained that he didn't file 35 federal personal and payroll tax returns between 2002 and 2006.
Jones has said that family issues, including his mother's death, overwhelmed him.
Baltimore Sun reporter Erin Cox contributed to this article.