Smith v. County Commissioners

ADKINS, J.,

dissenting, in which BELL, C.J., and GREENE, J., join.

I respectfully dissent because I believe the majority opinion achieves a new low point in the unfortunate strain of unfair, “gotcha” jurisprudence which has entered our finality and administrative exhaustion case law. I agree with the majority that the Circuit Court should not have reviewed the County’s decision until after the State Commission proceeding was completed. I disagree, however, that we should dismiss this appeal. The majority concludes that the Petitioners should have filed a judicial review action at a later point in time, barely acknowledging the requirement in the local procedures that an appeal must be taken “within thirty (30) days after the [County’s] decisionf.]” See Kent County Growth Allocation Policy (adopted March 9, 1999). Because I would, instead, remand this case to the Circuit Court, I dissent.

“Stay” of a judicial review action as an alternative to dismissal.

The appropriate disposition of a prematurely filed review action depends, at least in part, on the reason that action is premature. The requirements of finality and administrative exhaustion serve two important purposes. First, these requirements screen out requests for judicial review of non-final agency decisions. Second, the requirements serve as an “ordering function,” delaying review of certain “final” agency decisions until other administrative processes have been exhausted. Although immediate judicial review of a decision is prohibited in both of these categories, distinguishing between the two is important when deciding how to dispose of the premature review action — i.e., whether to dismiss the case or grant a stay.

When the challenged administrative decision is a preliminary or non-final decision, dismissal is warranted. In these decisions, there is something incomplete in the challenged *721decision itself, which will later be superseded or subsumed in a looming, final agency decision. Any complaints that a party has with the preliminary decision may be raised in a challenge to the final agency decision, if they survive. The preliminary decision, then will never be subject to judicial review, and the court has no reason to retain jurisdiction.

For example, in Maryland Comm’n. on Human Relations (“MCHR”) v. Baltimore Gas & Electric Co., 296 Md. 46, 459 A.2d 205 (1983) (“BG & E”), the Maryland Commission on Human Relations’s Appeal Board determined that BG & E’s refusal to hire the spouse of an employee was discriminatory on the basis of marital status, but remanded to a hearing examiner to determine whether the discrimination was motivated by “business necessity,” and thus justified by Maryland law. See id. at 49, 459 A.2d at 208. BG & E appealed this order to the Circuit Court, and the case eventually reached this Court on the issue of finality. We held that the appeal was premature, and ordered dismissal of the judicial review action. Judicial review would instead lie from the ensuing administrative decision on business necessity, and any issue with the prior decision could be raised in that proceeding. Dismissal ensured that “the efficiency of the unconsummated administrative process is not undermined by premature judicial interruption.” Id. at 58, 459 A.2d at 213. See also Willis v. Montgomery County, 415 Md. 523, 535, 3 A.3d 448, 455-56 (2010) (dismissing judicial review action of agency’s refusal to refer a worker’s compensation case to fraud division; the County was later able to seek compensation for the alleged fraud through another agency proceeding, from which appeal would lie). Cf. Soley v. State Commission on Human Relations, 277 Md. 521, 526, 356 A.2d 254, 257 (1976) (dismissing declaratory judgment action alleging ultra vires actions by State Commission on Human Relations because any judicial review must lie from the administrative remedy, not in a declaratory judgment action).

In many cases, however, judicial review of an agency decision is premature only because other administrative remedies exist, and not because the decision is a preliminary or non-*722final decision. When judicial review of an agency decision is delayed to allow for exhaustion of administrative remedies, it is for practical considerations, and not because of a jurisdictional defect. See Hubbard, 305 Md. 774, 787, 506 A.2d 625, 631 (1986) (Failure to exhaust a primary administrative review remedy “does not ordinarily result in a trial court’s being deprived of fundamental jurisdiction^”); Towson Univ. v. Conte, 384 Md. 68, 122 n. 4, 862 A.2d 941, 972 n. 4 (2004) (Eldridge, J., dissenting) (“Exhaustion of a required administrative/judicial review remedy is ordinarily not a ‘jurisdictional’ matter or a ‘jurisdictional requirement’ under Maryland law.”).1

In these cases, the “exhaustion” requirement is a mere ordering function which, like a traffic cop, decides when the different avenues of review may proceed:

[Wjhere the General Assembly has provided an administrative remedy and there also exists an independent judicial remedy, and no statute coordinates the two or specifies which is primary, we have ordinarily construed the pertinent enactments to require that the administrative remedy be first invoked and followed.

*723Board of Educ. v. Hubbard, 305 Md. 774, 786, 506 A.2d 625, 630-31 (1986). See also Josephson v. City of Annapolis, 353 Md. 667, 675-677, 728 A.2d 690, 694-695 (1998) (“[T]he administrative remedy is intended to be primary” even where the Legislature has not “specified] that the administrative remedy is primary or exclusive.”). This “agencies first” rule promotes judicial efficiency and protects the exercise of agency expertise:

The decisions of an administrative agency are often of a discretionary nature, and frequently require an expertise which the agency can bring to bear in sifting the information presented to it. The agency should be afforded the initial opportunity to exercise that discretion and to apply that expertise. Furthermore, to permit interruption for purposes of judicial intervention at various stages of the administrative process might well undermine the very efficiency which the Legislature intended to achieve in the first instance. Lastly, the courts might be called upon to decide issues which perhaps would never arise if the prescribed administrative remedies were followed.

Soley v. State Commission on Human Relations, 277 Md. 521, 526, 356 A.2d 254, 257 (1976). See also Wilson, 286 Md. at 645, 409 A.2d at 717 (“[Wjhen the Legislature enacts a comprehensive remedial scheme in which a claim is to be determined by an administrative agency and reviewed in an administrative appeal before judicial review is available, it establishes, as public policy, that such a procedure produces the most efficient and effective results.”).

Accordingly, in some instances of premature appeal, we have ordered the Circuit Court to retain jurisdiction so as to allow the remaining administrative processes to run their course. For example, in an exhaustion case involving the Inmate Grievance Commission, we stated:

Although the circuit court in this case correctly held that McCullough was required to invoke and exhaust his remedy before the Inmate Grievance Commission before receiving an adjudication on the merits of his tort action, we do not believe that a dismissal of the tort action was the preferable *724order. Under circumstances like these, where a plaintiff has both an administrative remedy and an independent judicial action, and the administrative agency’s jurisdiction is deemed primary, it is appropriate for the trial court to retain, for a reasonable period of time, jurisdiction over the independent judicial action pending invocation and exhaustion of the administrative procedures.

McCullough v. Wittner, 314 Md. 602, 612-13, 552 A.2d 881, 886 (1989). See also Maryland Reclamation Assocs. v. Harford County, 342 Md. 476, 490-491, 677 A.2d 567, 574-575 (1996) (constitutional challenge to local zoning ordinance must await completion of two administrative zoning actions); State v. Md. BCA, 364 Md. 446, 773 A.2d 504 (2001) (“[T]he Circuit Court should have refrained from reaching the- issue at this stage, and should have stayed the declaratory judgment action pending a final decision by the Board of Contract Appeals.”); Board of Educ. for Dorchester County v. Hubbard, 305 Md. 774, 506 A.2d 625 (1986) (“Optionally the circuit courts, ... may in their discretion order that the status quo be maintained and may retain jurisdiction for a reasonable period to give the teachers an opportunity to exhaust their administrative remedies and obtain a final decision from the State Board of Education.”).

The “stay” remedy, as an alternate to dismissal, serves an important purpose. Administrative appeals and judicial reviews usually must be filed within specific mandatory time periods established by statute or rule of procedure. When a party is involved in complicated administrative proceedings, and also needs to seek judicial review, these filing deadlines may conflict, or the party may be practically unable to exhaust its remedies before the appeal deadline has passed. In order to protect its right to seek judicial review, therefore, the party may need to file a judicial review action prematurely. If the reviewing court then were to dismiss the review action, the party could be frozen out of its right to appeal.2 See, e.g., *725Mathirampuzha v. Potter, 548 F.3d 70, 84 (2nd Cir.2008) (dismissal, instead of issuing a stay, would create a “significant danger of unfair disadvantage here inasmuch as the plaintiffs claim is subject to a statute of limitations.”); Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 222-24, 86 S.Ct. 781, 787-88, 15 L.Ed.2d 709 (1966) (ordering stay, not dismissal, despite a failure to exhaust administrative remedies because the initial action was “subject to the Statute of Limitations and [is] likely to be barred by the time [of the final administrative decision.]”). As these cases demonstrate, the “stay” remedy serves to alleviate harsh outcomes when our finality and exhaustion requirements interface poorly with other procedural requirements in administrative appeals.

To be sure, the requirement that a party exhaust all administrative remedies can develop into an absolute bar requiring dismissal. This harsher treatment occurs, however, only when a party fails to take the steps required by our exhaustion principles. See, e.g., Public Service Comm’n. v. Wilson, 389 Md. 27, 882 A.2d 849 (2005). In Wilson, for example, an employee of the Public Service Commission (“PSC”) had been fired by the Chair of the PSC, and then reinstated after the Circuit Court for Baltimore City held that the Chair lacked the authority to fire her without a vote of the full PSC. After reinstatement, she was fired again, but this time by the required vote. By statute, an employee of the PSC could file “a written appeal of a disciplinary action with the head of the principal unity ... within 15 days after the employee receives notice[, and] ... on the grounds that the disciplinary action is illegal or unconstitutional.” Md.Code (1993, 2004 Repl.Vol.), § ll-113(b) of the State Personnel and Pensions Article. Wilson did not file an administrative appeal, “opting instead to *726file in the pending court action[.]” Wilson, 389 Md. at 40, 882 A.2d at 857. The Court held that this “choice” foreclosed any potential relief: because she “allowed the relevant time period to expire without following the statutory directive under § 11— 113[,]” she failed to satisfy the exhaustion requirement and was unable to “seek alternative redress in the Circuit Court.” Id. at 40, 882 A.2d at 857. Thus, the exhaustion requirement serves to deny relief for parties who sit on their rights to administrative review. Put differently, a party may not opt for judicial review by waiting out administrative review deadlines. See State Ret. & Pension Sys. of Md. v. Thompson, 368 Md. 53, 792 A.2d 277 (2002) (retiree’s failure to request a hearing to contest decision by State Retirement and Pension Board was a failure to exhaust administrative remedies); Md. Reclamation Assocs., 382 Md. at 361, 855 A.2d at 358 (commenting, in remand for further agency procedures, that “[f|ailure to prosecute variance applications within a reasonable time could result in dismissal[.]”).

To apply the above standards to the instant case, a careful examination of the “premature” appeal is required. The Growth Allocation process consists of two, distinct decisions, one at the local level and one at the state level. As all parties agree, the state and local decisions involve separate issues and involve separate evidence, though overlapping on the general standards of the State Critical Areas Act. The County decision is primarily concerned with the effect of the proposed growth allocation on local interests, while the State is concerned with the proposal’s effect on the statewide regulatory scheme and the overall health of the State’s water resources. For example, the State Commission will not determine whether the growth allocation will “expand and provide more diversity in the size, number, and type of businesses in Kent County or as a means to enhance and expand locally based tourism that relies upon the unique natural, cultural, and historic features and qualities of Kent County.”

The County’s decision is not subsumed by the State’s decision, and judicial review of that decision lies separately from judicial review of the State decision. Indeed, when exhaustion *727of administrative remedies has not been at issue, “[i]t [has] not [been] unusual for an aggrieved person to petition for judicial review of a local government’s decision on a program amendment (including a growth allocation) before the Critical Areas Commission has acted on the local government’s [submission].3 See Brief of Amicus Curiae Critical Area Commission for the Chesapeake and Atlantic Coastal Bays, 11 n. 8.

The County’s decision thus falls into the second category of decisions for which judicial review is delayed, rather than extinguished, by our exhaustion principles. If administrative exhaustion was the only procedural concern, then we could fairly require aggrieved parties to await the State decision before filing a judicial review action of the local decision.

In this case, however, review of a Kent County growth allocation decision is also subject to the procedural requirements of the Kent County Growth Allocation Policy, which specifies that “[a]ny aggrieved person with standing may within thirty (30) days after the [County’s] decision, appeal to *728the Circuit Court of Maryland.” Given the reality that the State Commission is highly unlikely to complete its review within 30 days, the Policy effectively requires a pre-exhaustion filing. This potential conflict is exactly the procedural problem which has led many courts to conclude that a stay is superior to a dismissal.

When our exhaustion requirement delays, rather than extinguishes, judicial review of an administrative decision, and that delay may interfere with a filing deadline, the stay remedy allows the party to protect its right to judicial review of the local decision. In this case, with the 30-day appeals deadline looming, the Petitioners were at risk of losing their right to judicial appeal of the local decision. We should, instead of dismissing this appeal, vacate the Circuit Court’s premature decision on the merits, and remand to that court for further proceedings. See Md. BCA, 364 Md. at 459, 773 A.2d at 512 (after Circuit Court reviewed the merits of an administrative action prior to exhaustion, this Court vacated that decision and remanded for further proceedings).

Rather than follow this common-sense approach, the majority dismisses the appeal and abrogates the Petitioners’ right to challenge the County’s decision. The majority justifies its dismissal with three problematic assertions: (1) that this case is distinguishable from MRA III, (2) that the Petitioners are instead like the disappointed litigant in Public Service Commission of Md. v. Wilson, 389 Md. 27, 882 A.2d 849 (2005), and (3) that the Petitioners abandoned their right to appeal by failing to appeal the Circuit Court’s dismissal of its action for judicial review of the State Commission decision.

The majority’s decision contradicts the approach adopted by the Court in MRA III, in which Judge Harrell explained:

When a litigant is entitled to bring two separate legal proceedings in an effort to obtain relief in a particular matter, when the litigant institutes the first of those proceedings and the case is pending in a trial court, and when the trial court is unable to decide the merits of that case because of primary jurisdiction or exhaustion principles *729associated with the second proceeding, the trial court ordinarily should stay the first proceeding for a reasonable period of time.

See MRA III, 882 Md. at 867, 855 A.2d at 362. Here, no one disagrees that Petitioners are “entitled to bring two separate legal proceedings in an effort to obtain relief’: a judicial review action of the County decision and an administrative challenge at the State level. The Petitioners “institute[d] the first of those proceedings and the case [was] pending in a trial court[.]” No one disagrees that “the trial court [was] unable to decide the merits of that case because of primary jurisdiction or exhaustion principles associated with the second proceeding^]” This case thus aligns with MRA III, and Petitioners are perfect candidates for a remand.

The majority makes only a half-hearted attempt to distinguish MRA III, stating:

This case is distinguished from Maryland Reclamation Associates v. Harford County, 382 Md. 348, 855 A.2d 351 (2004) (“MRA III ”)____The fact that MRA had two consecutive courses of action, neither of which MRA was constrained to pursue within a statutory time limitations period (unlike the 30 days to “appeal” the Petitioners had in the present case), was pivotal to this Court in fashioning the outcome in MRA III.

The majority thus concludes that the 30-day appeal limitation in this case requires a departure from the “stay” remedy of MRA III. I could not disagree more.

If anything, the 30-day window makes Petitioners better candidates for remand than the party in MRA III. In MRA III, the party was free to refile after exhaustion; here, without a remand, the Petitioners are time-prohibited from refiling any appeal of the County decision. This majority’s holding thus ignores one of the main purposes of the stay remedy — to allow a party facing deadlines (be it administrative deadlines or statutes of limitations) to protect its right to appeal by filing an action for judicial review prior to exhaustion.

*730The majority then concludes that “the Petitioners’ predicament may be likened to that of Chrys Wilson,” an administrative litigant whom this Court found had lost her right to further challenge an administrative decision. The similarities between the Petitioners and Ms. Wilson are scarce. To be sure, both were aggrieved at an administrative decision; in Wilson, Ms. Wilson was fired by the PSC, and here, the County granted a growth allocation. Both were required to pursue another administrative review: in Wilson, the statute required an aggrieved employee to file an administrative appeal, and here, the Petitioners had to contest the growth allocation in front of the State Commission.

But that is where the similarities cease. Ms. Wilson was required, by statute, to file an administrative grievance within 15 days. She failed to do so, and instead chose to file a judicial review action. In contrast, the Petitioners were required, by statute, to file a judicial review action within 30 days, which they did. Furthermore, while Ms. Wilson’s administrative remedy was never exhausted due to her failure, the Petitioners’ administrative remedy (the State Commission review) proceeded automatically and was duly completed. Wilson establishes that the administrative exhaustion requirement may become a bar to judicial review if not satisfied. But here, unlike Wilson, the required administrative proceeding was completed. Thus, none of the justifications for the dismissal in Wilson apply here.

Finally, the majority faults the Petitioners’ failure to appeal the Circuit Court’s dismissal of its action for judicial review of the State Commission decision:

Assuming that the Policy grants an “appeal” (petition for judicial review) from the Commission’s approval, arguably Petitioners had but a single statutory avenue of proceeding to pursue: a timely-filed petition for judicial review following the Commission’s action. Petitioners pursued such a remedy by filing a petition for judicial review in the Circuit Court for Anne Arundel County, which was transferred ultimately to the Circuit Court for Kent County. The Circuit Court agreed with the Commission’s conclusion that *731Petitioners’ petition for judicial review was not authorized because the Commission’s process and action was quasi-legislative and dismissed the case. Because the Court of Special Appeals has no record of an appeal being taken by Petitioners from this dismissal — a fact of which we take judicial notice — Petitioners abandoned the only “right” to judicial review arguably afforded by the Policy.

This conclusion is startling.

In the above passage, the majority considers the “single statutory avenue” of judicial review, under the policy, to be a judicial review action following the State Commission’s decision. Yet, in the same breath, the majority acknowledges that it is unsettled whether such an action is permissible: “The Circuit Court agreed with the Commission’s conclusion that Petitioners’ petition for judicial review was not authorized because the Commission’s process and action was quasi-legislative.” (emphasis added). Thus, while denying the Petitioners the avenue to go forward with their timely filed appeal from the County decision, it refrains from holding that Petitioner had any right to appeal from the State Commission. Moreover, the majority fails to address (1) whether the Petitioners could raise issues unique to the County decision in its challenge to the State decision, and (2) whether the Petitioners could have re-filed a separate challenge to the County decision, within 30 days of the State decision, even though this current appeal was pending. Thus, the majority decision leaves the law regarding judicial review of Growth Allocation requests in a muddled state.

At the same time, the majority applies the harshest standard to Petitioners — expecting that they be prescient. Under this harsh standard, Petitioners must have been able to correctly predict the following uncertainties: (1) that this Court, departing from MRA III and other cases, would not honor their timely effort to appeal from the County decision as called for under the Kent County Growth Allocation Policy, (2) that they had a right to judicial review of the State Critical Area Commission decision, (3) that they should raise all of the issues pertaining to the County decision in the possible appeal *732from the State Commission to the circuit court, and (4) that they had a right and obligation to appeal from the Circuit Court to the Court of Special Appeals, raising questions unique to this, earlier filed appeal from the County Growth Allocation decision, even though this appeal was pending.

The majority admits that my concerns may be “applicable and [make] a difference” in future cases, but concludes that it is useless to vacate and remand in this case, because the Circuit Court has already reached the merits. Perhaps, as the majority suggests, the Circuit Court would reach the same result on remand. I would risk this “pyrrhic victory” rather than unfairly deprive the Petitioners of their day in court. We should respect the efforts of lawyers in the trenches, who must discern the meaning of complicated and conflicting regulations. The principles of fairness and reasonable conduct demand this. Otherwise, by adopting unnecessarily harsh procedural rules and interpretations, we reinforce the “gotcha” approach that has descended upon our jurisprudence.

Petitioners took reasonable and diligent steps to preserve their right to have a court review the County’s decision. Accordingly, I would vacate the Circuit Court’s premature decision and remand to that court for further proceedings.

Chief Judge BELL and Judge GREENE have authorized me to state that they join this dissenting opinion.

. The pragmatic flexibility of the exhaustion rule is further demonstrated in Md.-Nat’l Capital Park & Planning Comm’n. v. Crawford, 307 Md. 1, 17-18, 511 A.2d 1079, 1087 (1986), a case representative of our procedural approach in an administrative exhaustion case. There, an employee at Maryland-National Capital Park and Planning Commission was aggrieved by a personnel decision. See id. at 7, 511 A.2d at 1081— 82. She initiated an administrative grievance and, while that was pending, filed a lawsuit in the Circuit Court for Prince George's County. See id. The court assumed jurisdiction over the matter while the administrative action was pending, and disposed of some preliminary, evidentiary matters in the case. After the administrative process was completed, the court held a trial on the merits regarding the initial decision. See id. at 8, 511 A.2d at 1082. Although the judicial action was filed "prematurely,” and the employee had not sought judicial review and consolidation of the second administrative decision, we approved of the court's approach, stating that "the court properly applied any exhaustion requirement in its handling of the case.” Id. at 16, 511 A.2d at 1087. Crawford thus demonstrates that administrative exhaustion is a common-sense requirement concerned with the ordering of appeal procedures, and not a jurisdictional prerequisite.

. A party could seek to protect aspects of its case other than its timeliness. In Crawford, for example, the litigant was concerned over *725potential alteration or influence of potential testimony, and sought preliminary injunctive relief from the Circuit Court before exhausting her administrative remedies. Crawford, 307 Md. at 8, 511 A.2d at 1082. If we had treated the exhaustion requirement as a jurisdictional prerequisite, and ordered dismissal of a case filed during the pendency of administrative exhaustion, the litigant in Crawford would have been unable to seek this type of evidentiary protection.

. The Critical Areas Commission offers the following examples:

[I]n the Four Seasons project growth allocation, separate actions were filed against the Queen Anne’s County Commissioners and the Critical Area Commission by Robert Foley and the Kent Island Defense League. In 2006, the Critical Area Commission denied a growth allocation for the Blackwater Resorts project, which had been approved by Dorchester County and the City of Cambridge. Aggrieved parties challenged the local governments' approvals of the growth allocation, and subsequently, the County and the developer challenged the Critical Area Commission's denial of the same growth allocation. In 2007, the AES LNG Corporation filed an action against Baltimore County when the County enacted an ordinance pertaining to LNG facilities in the Critical Area. AES Sparrows Point LNG, LLC v. Smith, 527 F.3d 120 (2008) cert. denied, [— U.S. -] 129 S.Ct. 310 [172 L.Ed.2d 153] (2008). While that case was pending in the United States Court of Appeals for the Fourth Circuit, the Critical Areas Commission approved the County's ordinance as an amendment to the critical area program. AES then filed an action for declaratory judgment against the Commission. AES Sparrows Point LNG, LLC et al. v. Critical Area Commission for the Chesapeake and Atlantic Coastal Bays et. al., No. 02-C07-123926, Cir. [Ct.] Anne Arundel County.

Brief of Amicus Curiae Critical Area Commission for the Chesapeake and Atlantic Coastal Bays at 11 n. 8.