Advances in Administrative Law

Volume XLIV • Number 3 May/June 2011

May 2011 Maryland Bar Journal 1 Published bimonthly by the Volume XLIV • Number 3 May/June 2011 Maryland State Bar Association, Inc. The Maryland Bar Center Aw a r d Wi n n i n g To p Nat i o n a l Stat e Ba r Ma g a z i n e 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878 Features (800) 492-1964 Advances in Administrative Law Website: www.msba.org Executive Director – Paul V. Carlin Editor – Janet Stidman Eveleth Maryland Public Information Act: Maxims, Myths Assistant to the Editor – Jason Zeisloft and Misunderstandings 4 By Robert N. McDonald Design – Jason Quick Should Courts Defer the Least When it Matters the Most? 12 Advertising Sales – Network Publications By Austin Schlick and Michael Steffen Subscriptions: MSBA members receive Separation of Powers Redux–Receded Scope the maryland bar journal as $20 of their dues payment goes to of Judicial Review 18 publication. Others, $42 per year. By Joel A. Smith Postmaster: Send address change to the maryland bar Judicial Review of Administrative Sanctions: journal, 520 W. Fayette St., Why Noland Should be Abandoned 24 Baltimore, MD 21201. By Arnold Rochvarg The Maryland Bar Journal welcomes articles on topics of interest to OAH’s Role in Foreclosure Mediation 28 Maryland attorneys. All manuscripts By Denise O. Shaffer must be original work, submitted for approval by the When Discretionary Agency Action Is Not So Discretionary 34 Special Committee on Editorial By Andrew H. Baida Advisory, and must conform to the Journal style guidelines, which are Dealing With Self-Represented Parties in Judicial available from the MSBA headquar- ters. The Special Committee reserves and Administrative Actions 38 the right to reject any manuscript By The Honorable Glenn T. Harrell, Jr. and Nicholas C. Stewart submitted for publication. Administrative Law: Rules to Results 44 Advertising: Advertising rates will be By Ralph S. Tyler and Karen Stakem Hornig furnished upon request. All advertising is subject to approval by the Gubernatorial Executive Orders: Legislative or Editorial Advisory Board. Executive Power? 48 Editorial Advisory Board By The Honorable Robert A. Zarnoch Elizabeth M. Kameen, Chair James B. Astrachan PBRC Instills New Pro Bono Culture 54 Courtney Blair By Janet Stidman Eveleth Ann Norman Bosse Marcella A. Holland Louise A. Lock Departments Victoria Henry Pepper Mary Langdon Preis Ethics Docket MSBA Officers (2010-2011) Propriety of Using Generic Name of State Administrative Agency President - Thomas D. Murphy as Trade Name 58 President-Elect - Henry E. Dugan Jr. Practice Tips Secretary - Michael J. Baxter Treasurer - John P. Kudel The Unsettling Process of Settlement 60 Attorney Grievance Commission The Client Grievance 61

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May 2011 Maryland Bar Journal 3 Maryland

InformationPublic Act: Maxims, Myths and Misunderstandings

By Robert N. McDonald

Those who have seen the movie Erin Brockovich may recall that its plot turns on a public records request. An attorney prosecuting a class action environmental suit against a California utility company is looking for information that will relate the utility’s activities to his clients’ illnesses. His assistant, Erin Brockovich, played by Julia Roberts, goes to an obscure water agency and requests access to certain public records. An eager young clerk, smitten by the charms of the requester, furnishes the records that turn out to be the key to the law suit’s success.

4 Maryland Bar Journal May 2011 May 2011 Maryland Bar Journal 5 In Maryland, no glamor is necessary to 2. As with all general rules, there a government record. The PIA thus access public records. As any attorney are exceptions. defers to other laws that prohibit dis- representing a state, county, or municipal There are many exceptions to the gen- closure of a particular record or par- agency can attest, the Maryland Public eral rule of disclosure – 43 specific ticular information. For example, the Information Act (“PIA”) provides any enumerated exceptions defined in the Juvenile Causes Act makes confidential member of the public with a broad right PIA with varying degrees of specific- many records relating to proceedings of access to agency records. The stat- ity and subject to various conditions involving children (Courts & Judicial ute, having now attained its 40th birth- – and several exceptions that simply Proceedings Article, §3-827, §3-8A-27). day, is codified in the Annotated Code incorporate privileges and confiden- The PIA is designed to respect that con- of Maryland, State Government Article tiality provisions already established fidentiality; such records would not be (“SG”), §10-611 et seq. When it was first in the common law, statute, or court available in response to a PIA request. enacted in 1970, it was drawn partly rule. In general, the exceptions appear Conversely, the sections of the PIA from the federal Freedom of Information designed to preserve legal privileges, that allow or mandate that an agency Act (“FOIA”) and partly from public safeguard personal and financial pri- withhold records from public access records statutes previously enacted in vacy, promote free competition, pro- each begin with the proviso “unless certain western states. Since then, the tect intellectual property, ensure the otherwise provided by law.” Thus, the Legislature has tweaked the PIA from integrity of investigations, and protect provisions of the PIA that might pre- time to time, though the basic structure public security. vent access to records bow to other of the statute has remained constant. Its Not surprisingly, exceptions protect laws that open those records to public provisions have been the subject of sev- the confidentiality of medical infor- inspection. For example, real property eral dozen appellate court decisions and mation, personal financial informa- assessment records that might other- Attorney General opinions. tion, personnel records of government wise be considered personal financial This article will state some basic employees, and privileged communi- information are open to public inspec- propositions about the PIA and sug- cations (e.g., executive privilege, attor- tion without charge (Tax-Property gest which are true (maxims), which ney-client privilege). Other exceptions Article, §2-211); certain police records are false (myths), and which are simply are less intuitively obvious or relate that might be covered by the investiga- misunderstandings of the statute. to narrower subjects. For example, tive records exception of the PIA are one exception concerns the location of available to criminal defendants under endangered species (SG §10-617(g)); the rules governing criminal discovery Maxims another protects photographic images (Maryland Rules 4-262, 4-263). 1. The general rule under the Public taken by traffic control signal monitor- Information Act is to disclose. ing systems (SG §10-616(o)). 4. It does not matter who you are or The PIA’s governing principle is that If an agency declines to provide why you want the records. “[a]ll persons are entitled to have access to a record, or to some informa- For the most part, the identity and access to information about the affairs tion in a record, it must identify the motive of the requester do not affect an of government and the official acts of exception that allows it to withhold agency’s response under the PIA. And public officials and employees.” SG that specific record or information. an agency cannot make disclosure of the §10-612(a). More concretely, “[e]xcept requester’s identity or motive a condi- as otherwise provided by law, a custo- 3. The PIA always defers to tion of responding to a PIA request. dian [of public records] shall permit a other law. There are a couple of minor qualifica- person ... to inspect any public record One of the exceptions to the PIA’s gen- tions to this maxim that can affect the at any reasonable time.” SG §10-613(a) eral rule of disclosure provides that “a content of the agency’s response. The (1). These sentiments are based on the custodian shall deny inspection of a PIA allows a person enhanced access to same insight that led Justice Brandeis public record ... if by law, [the record] records about himself or herself – in PIA to write in 1915 that “Sunlight is said is privileged or confidential” (SG §10- jargon, the “person in interest.” Thus, to be the best of disinfectants; electric 615(1)). This exception encompasses for certain records (e.g., medical records, light the most efficient policeman.” any other statute or common law rule student records, personnel and retire- that would preclude public access to ment records), the “person in interest”

6 Maryland Bar Journal May 2011 ments for government agencies. Of course, an agency should not know- ingly destroy a record that is the subject of a pending PIA request.

4. The PIA could not apply to a §501(c) (3) corporation because it would not be a government agency. The PIA applies to records of “units” and “instrumentalities” of State and local government (SG §10-611(g)). The appellate courts have not hesitated to hold that it applies to government instrumentalities that happen to be §501(c)(3) corporations. For example, in Baltimore Development Corp. v. Carmel Realty Associates, 395 Md. 299 (2006), the Court of Appeals held that the may have access when a member of the 2. A PIA request must be in writing. PIA applied to a nonprofit corporation general public would not. It is true that the statute appears to pre- formed to plan and implement devel- Also, the requester’s motive may be fer written requests, but it specifies no opment strategies in Baltimore City. In relevant when the agency is deciding particular format and allows agencies Andy’s Ice Cream, Inc. v. City of Salisbury, whether to waive the fee that it would to respond to oral requests (SG §10- 125 Md. App. 125, cert. denied, 353 Md. otherwise charge to cover the agency’s 614(a)). In practice, PIA requests range 473 (1999), the Court of Special Appeals costs in retrieving and copying records. from lengthy written lists that rival the held that a corporation formed to over- For example, a member of the news most overburdensome civil discovery see a municipal zoo was subject to the media who is requesting access to request to informal oral inquiries. The PIA. The extent to which the entity is records for journalistic purposes may Attorney General’s Office generally controlled by the government and the be eligible for a waiver of those charges advises agencies to obtain a PIA request extent to which it performs a govern- when a member of the general public in writing if the request is unusual or mental function are important factors who was seeking the records for his or complex, or if there is a potential for as to application of the Act. her own personal benefit would not. controversy over the timing or sub- In a few instances, the Legislature stance of the response to the request. has specified that an entity created With the advent of the Internet, agency by statute is either not a unit of gov- Myths websites now contain much informa- ernment or not subject to the PIA. 1. A PIA request must cite the PIA, tion previously accessible only through For example, the Legislature has speci- not FOIA. a written request or personal visit. As a fied that the Maryland Legal Services A healthy percentage of the requests result, many routine requests for access Corporation is not a unit or instrumen- received by state agencies for public to public records are now made and tality of the State (Human Services records cite FOIA and sometimes other fulfilled instantly online. Article, §11-202(c)). federal laws that have no application to state or local agencies. However, noth- 3. The PIA requires agencies to main- 5. An agency may not provide access ing in the PIA requires that the requester tain records for a certain period of time to records if it would invade some- cite the statute. A public records request to satisfy future PIA requests. one’s privacy. should be processed by an agency if The PIA itself does not state how Unlike FOIA, there is no general pri- the records sought are described with long an agency must retain a record. vacy exception to the PIA’s general rule reasonable specificity, regardless of the Other statutes, regulations, and poli- of disclosure. One of the initial sections accuracy of statutory reference. cies establish record retention require- of the PIA states that “unless an unwar-

8 Maryland Bar Journal May 2011 FOIA (e.g., confidential commercial infor- fusion with the PIA’s deadlines. There mation, investigative records). Maryland are a number of 10-day deadlines in the courts will rely on federal authority statute, but nothing in the PIA requires under FOIA in construing those excep- that an agency issue a denial within 10 tions (see, e.g., Stromberg Metal Works, days of the request. Inc. v. University of Maryland, 382 Md. Under the PIA, an agency must 151 (2004)). But some of the exceptions decide whether or not to grant a in the PIA are peculiar to Maryland law request for access to public records and have no analog in FOIA. In addition, “promptly, but not to exceed 30 days some of the exceptions in the Maryland after receiving the [request].” SG §10- statute are mandatory – i.e., they pro- 614(b). Agencies sometimes can decide hibit an agency from disclosing certain immediately whether to provide access records or information. FOIA does not to the requested records, sometimes ranted invasion of privacy of a person have mandatory exceptions. take weeks, and sometimes must seek ... would result, the [PIA] shall be con- an extension from the requester, as per- strued in favor of permitting inspec- 2. One can obtain answers to all sorts mitted by the PIA (SG §10-614(b)(4)). tion of a public record, with the least of questions about government activi- Once an agency has determined cost and least delay...” (SG §10-612(b)). ties simply by posing a question to a whether records are disclosable, it is to But this is not a specific exception to government agency under the PIA. advise the requester of that decision; the PIA’s mandate of public access Although it is called the “Public if the decision involves a denial of all to government records, but rather a Information Act,” the statute actually or part of the request, the agency has rule of construction for interpreting the concerns access to government records, another 10 days to provide a written exceptions that do appear in the stat- not to information per se. While the statement of the reasons for the denial ute. Many of the specific exceptions in statute defines “public record” broadly (SG §10-614(b)(3)). In practice, agencies the PIA are based on notions of privacy – “any documentary material ... made provide the reasons for a denial along (e.g., financial information of an indi- ... or received ... in connection with the with notice of the denial without using vidual, medical information, adoption transaction of public business” (SG §10- the additional 10 days. records) – a value that animates the 611(g)) – an agency’s obligation under There are two other 10-day deadlines application of these and other excep- the statute is to provide access to those in the statute: If an agency has records tions. But there is no general exception records, not to distill or analyze infor- responsive to a PIA request and no that allows an agency to withhold what mation that may be contained in its exceptions apply to those records, but it deems to be private information. records. Nor is an agency obligated to the agency believes that it would be create a new record in order to respond “substantially against the public inter- to a PIA request. A request under the est” to disclose them, the agency can Misunderstandings PIA should therefore be seeking access deny access but must file a petition in 1. The PIA is the Maryland analog to existing records, not answers to circuit court within 10 days of the deni- of FOIA, so everything I know about informational questions. Nevertheless, al asking the court to affirm its deci- FOIA applies also to the PIA. an agency may be willing to provide sion. (SG §10-619(b)). If the agency is Not quite. The two statutes are similar, a compilation of information when it not the custodian of the records sought but not identical or co-extensive. For simplifies the response for both the in a PIA request that it receives, the example, the PIA applies to units of agency and the requester. agency must, within 10 days, advise government in all three branches of the requester that it is not the custodian State and local government – execu- 3. If an agency is going to deny all and, if feasible, direct the requester to tive, judicial, and legislative – while or part of a PIA request, it must do the right agency (SG §10-614(a)(3)). FOIA applies only to federal executive so within 10 working days after it branch and independent agencies. receives the request; if it does not do so, 4. An agency can withhold records if it Some of the exceptions to disclosure it cannot deny access to the records. finds that disclosure would be against in the PIA parallel similar exceptions in This statement reflects a common con- the public interest.

10 Maryland Bar Journal May 2011 There is no general “public interest” exception to the general rule of disclosure. But for those categories of records for which the PIA grants an agency discretion (e.g., records of investigations by law enforcement agencies), the statute allows records to be withheld if the agency determines that disclosure would be “contrary to the public interest” (SG §10-618). Apart from those specific categories of records, an agency that wishes to resist disclosure on the basis of the public interest must obtain a court order to withhold the records (SG §10-619).

5. If a PIA request encompasses records or information that were provided to the agency by an individual or private entity, it would be a conflict of interest for the agency to contact the individual or entity about the request. Nothing in the statute forbids such contact. In fact, the Attorney General’s Office specifically recommends that agencies obtain the views of the individual or entity that provided the records or information if there is a possibility that they contain confidential commercial information or some other information protected from disclosure by law. Of course, the agency must ultimately make its own decision as to the application of any exception to public access. For those interested in a detailed understanding of the law, the Attorney General’s Office publishes the Public Information Act Manual, a summary of the statute and the case law construing it, which can be accessed online at http://www.oag.state.md.us/ Opengov/pia.htm.

Mr. McDonald is Chief Counsel, Opinions and Advice, for the Maryland Office of the Attorney General. He may be reached at [email protected].

May 2011 Maryland Bar Journal 11 12 Maryland Bar Journal May 2011 should courts defer the least when it matters the most? judicial deference to agencies on major issues

By Austin Schlick and Michael Steffen

In 2007, a few tech-savvy subscribers to Comcast’s Internet access service began to have trouble running peer-to-peer applications— computer software that allows Internet users efficiently to share videos and other large data files with each other. That discovery led to the filing of a complaint with the Federal Communications Commission. In 2008, the FCC found that Comcast was intentionally interfering with its customers’ peer-to-peer traffic and ordered Comcast to stop. Comcast appealed and, in a highly publicized decision, the U.S. Court of Appeals for the D.C. Circuit held that the Commission had not adequately grounded its assertion of authority over the cable company’s Internet access service in specific statutory language. 600 F.3d 642 (2010).

May 2011 Maryland Bar Journal 13 The FCC argued in the Comcast case deference that frames courts’ review Life Ins. Co. v. Insurance Comm’r of Md., that the federal Communications Act, of agencies’ statutory interpretations. 58 Md. App. 457, 473 (Md. Ct. Spec. as interpreted by the Supreme Court, Reviewing these doctrines and their App. 1984) (Wilner, J.). directs the Commission to set policy application, this article first suggests Still, the doctrine has made notable for new forms of interstate communica- that the “major questions canon” rests appearances in federal statutory inter- tions in order to fulfill the agency’s core on a frail legal foundation, and then pretation cases. First, in National Cable mandate of ensuring “rapid, efficient, discusses the relationship between leg- Television Ass’n v. United States, 415 Nation-wide, and world-wide wire islatures and administrative agencies U.S. 336 (1974), the Supreme Court and radio communication service.” 47 as it actually has developed. “avoid[ed] constitutional problems” U.S.C. § 151. The D.C. Circuit, though, under the nondelegation doctrine by believed this understanding would effectively excising a statutory provi- give the FCC “expansive” authority. The Nondelegation Doctrine sion that allowed the FCC to set fees for 600 F.3d at 658. The Comcast panel was The federal nondelegation doctrine cable television operators at any level uncomfortable with the prospect of an famously states that Congress may dictated by “public policy or interest.” administrative agency making impor- not delegate decision-making author- Id. at 340–42. tant policy decisions concerning the ity without providing “intelligible stan- Next, in Industrial Union Department Internet without express congressional dards” for the exercise of that authority. v. American Petroleum Institute (often direction. Id. at 655. The doctrine derives from Article I, § called The Benzene Case), the Supreme Similar concerns, some observers 1 of the U.S. Constitution, which vests Court held that the Occupational Safety have suggested, are motivating courts “[a]ll legislative Powers herein granted and Health Administration (OSHA) to insert a new “major questions canon” . . . in a Congress of the United States.” lacked authority to place stringent caps into administrative law. As two legal The Supreme Court’s first and only on worker exposure to a carcinogen. scholars have put it, the notion is “that invalidation of congressional enact- 448 U.S. 607, 615 (1980). The plurality courts should force Congress to speak ments under the nondelegation doc- inferred, despite congressional silence, clearly if it intends to delegate regula- trine came in two 1935 decisions: that before OSHA could require indus- tory authority over major political and Panama Refining Co. v. Ryan, 293 U.S. try to take costly preventative steps, it economic questions.” Jody Freeman & 388, which invalidated a section of the needed to find that the new standard Adrian Vermeule, Massachusetts v. EPA: National Industrial Recovery Act that was necessary to avoid “significant” From Politics to Expertise, 2007 Sup. Ct. authorized the President to prohibit harm. Id. at 615, 644. Rev. 51, 53. certain interstate oil shipments without Otherwise, the plurality reasoned, The proposed “major questions providing guidance on the exercise of “the statute would make such a sweep- canon” is inherently subjective and dif- that authority; and Schechter Poultry ing delegation of legislative power ficult to apply: a “major question,” after v. United States, 295 U.S. 495, which that it might be unconstitutional under all, is in the eye of the beholder. On the struck down the Act as a whole. As [Schechter Poultry and Panama Refining].” whole, moreover, the Supreme Court Cass Sunstein has said, the nondelega- Id. at 646. “A construction of the statute precedent from which the canon is said tion doctrine has had “one good year, that avoids this kind of open-ended to arise has emphasized that broad del- [and over] two hundred . . . bad years.” grant,” the plurality continued, “should egations to agencies are both common- Cass R. Sunstein, Is the Clean Air Act certainly be favored.” Id. place and necessary: The few cases to Unconstitutional?, 98 Mich. L. Rev. 303, Finally, 19 years later, the nondelega- apply a presumption against broad del- 330 (1999). tion doctrine reappeared when the D.C. egations stand out as idiosyncratic. In Maryland, the Court of Appeals’ Circuit invalidated the Environmental Under federal law (which Maryland nondelegation cases reflect a similar Protection Agency’s (EPA) interpreta- law largely tracks) the question of approach. “Though reaffirming the tion of a provision of the Clean Air Act how courts should interpret statutes principle, the Court of Appeals, in on the ground that, as interpreted by that define agency authority sits at the recent years, has been nearly as loath EPA, the Act would place so few con- intersection of two legal doctrines: (1) as the Supreme Court to apply it in straints on the agency’s power to regu- the constitutional nondelegation doc- such manner as actually to invalidate late air pollution that it would be an trine and (2) the doctrine of Chevron a legislative delegation.” Metropolitan unconstitutional delegation. American

14 Maryland Bar Journal May 2011 Trucking Ass’ns v. EPA, 175 F.3d 1027, agencies in numerous case[s]” (internal has suggested that the importance of a 1034 (1999). quotation marks omitted)). legal or policy issue could be relevant To the extent National Cable Television These decisions have narrowed—to when determining whether the intent Ass’n, The Benzene Case, and American the point of practically eliminating— of Congress to delegate authority on Trucking revived the nondelegation the circumstances in which statutory that issue is “clear.” doctrine as a rule of statutory inter- delegations of agency authority are The first case, MCI v. AT&T, involved pretation, however, that revival has constrained by nondelegation prin- the FCC’s decision to free all long been undercut by subsequent holdings ciples. In all but the most exceptional distance phone companies other than of the Supreme Court. In particular, situations, there is no serious question AT&T from filing tariffs, pursuant to the Court reversed the D.C. Circuit’s but that a broad delegation from the a provision of the Communications American Trucking decision, emphasiz- legislature is constitutional. Given this, Act that allowed the Commission to ing that “we have almost never felt the rationale of avoiding constitutional “modify” the Act’s tariff requirements. qualified to second-guess Congress doubt arising from nondelegation con- 512 U.S. 218 (1994). Striking down the regarding the permissible degree of cerns should rarely, if ever, influence Commission’s order, the Court held policy judgment that can be left to statutory construction. Nondelegation that complete elimination of tariff fil- those executing or applying the law.” doctrine, then, is not a sufficient foun- ing for those carriers constituted such Whitman v. American Trucking Ass’ns, dation for a “major questions canon.” a fundamental change of the Act’s 531 U.S. 457, 474–75 (2001) (internal regulatory scheme that it exceed- quotation marks omitted). ed Congress’s intent in authorizing The Court invoked Mistretta v. United Chevron “modif[ications].” States, which, nine years after The Let’s next consider whether Chevron Emphasizing that “[r]ate filings are Benzene Case, upheld Congress’s del- U.S.A., Inc. v. Natural Resources Defense . . . the essential characteristic of a rate- egation to an independent Sentencing Council, 467 U.S. 837 (1984), supports regulated industry,” the Court deemed Commission of “the power to promul- such a canon restricting agency author- it “highly unlikely that Congress would gate sentencing guidelines for every ity. Chevron holds that judges may not leave the determination of whether federal criminal offense.” 488 U.S. 361, upset a federal agency’s interpretation an industry will be entirely, or even 371 (1989). “[O]ur jurisprudence,” the of a statute it administers unless (1) substantially, rate-regulated to agen- Court wrote in Mistretta, “has been the contrary intent of the legislature cy discretion.” Id. at 231. The statu- driven by a practical understanding is “clear” or (2) the agency’s inter- tory “permission to ‘modify’ rate-filing that in our increasingly complex soci- pretation is not “reasonable.” Id. at requirements” was, in the Court’s view, ety, replete with ever changing and 842–44 (1984). (Although the Maryland too “subtle [a] device” to overcome more technical problems, Congress Court of Appeals has not expressly fol- the presumption against legislative simply cannot do its job absent an lowed Chevron, it has adopted a frame- approval of such a major change. Id. ability to delegate power under broad work that is similar in practice: “[A]n The Court applied a similar analysis general directives.” Id. at 372. administrative agency’s interpretation in FDA v. Brown & Williamson Tobacco This “practical” approach, the and application of the statute which Corp., 529 U.S. 120 (2000), where it found Court emphasized, had been followed the agency administers should ordi- an unambiguously expressed congres- “without deviation” since 1935, not- narily be given considerable weight sional intent to exclude cigarettes from withstanding the language of National by reviewing courts,” but “when a the FDA’s authority over “drugs” and Cable Television Ass’n and The Benzene statutory provision is entirely clear, “devices.” Although the Court seemed Case. Mistretta, 488 U.S. at 372–74; accord with no ambiguity whatsoever, admin- to accept that the plain language of the Department of Transp. v. Armacost, 311 istrative constructions, no matter how Food, Drug, and Cosmetic Act reached Md. 64, 72 (1987) (“[I]n order to facilitate well entrenched, are not given weight.” nicotine in cigarettes, it found that the administration of the laws as the Thanner Enterprises, LLC v. Baltimore the overall structure of the Act and complexity of governmental and eco- County, 414 Md. 265, 275–76 (2010).) various tobacco-related laws indicated nomic conditions increase,” the Court of The “major questions” cases involve Congress’s intent to withhold regula- Appeals has “upheld broad delegations step one of the Chevron test: In two tory authority. of legislative power to administrative prominent cases, the Supreme Court The Court emphasized the “extraor-

May 2011 Maryland Bar Journal 15 is the Congress or the Executive Branch that makes the relevant decision.” Id. at 190–91. Justice Breyer’s change of heart between his 1986 article and his Brown & Williamson dissent is noteworthy, and arguably highlights the inherent malle- ability of any “major questions canon.” More recently, in Massachusetts v. EPA, 549 U.S. 497 (2007), the Court itself drove home the same point by apparently abandoning the major- question rationales of MCI and Brown & Williamson. Resting heavily on Brown & Williamson, the Government argued in Massachusetts v. EPA that the Clean Air Act gave EPA no authority to regulate greenhouse gas emissions. EPA reasoned that “because imposing emis- sion limitations on greenhouse gases would have even greater economic and political repercussions than regulating tobacco, . . . it lacked the power to dinary” significance of the case and Despite the citation to his article do so. In essence, EPA concluded that “the breadth of the authority that the in Brown & Williamson, Justice Breyer climate change was so important that FDA has asserted.” Id. at 159, 160. actually dissented in the case. “[O]ne unless Congress spoke with exacting Citing MCI and a 1986 law review might claim,” Justice Breyer wrote in specificity, it could not have meant the article by Justice Breyer, the Court his dissenting opinion, “that courts, agency to address it.” 549 U.S. at 512 expressed “confiden[ce] that Congress when interpreting statutes, should (internal citation omitted). could not have intended to delegate a assume in close cases that a decision The Court disagreed. Distinguishing decision of such economic and politi- with enormous social consequences Brown & Williamson on the grounds cal significance [as regulating tobacco should be made by democratically that it involved the prospect of a total products] to an agency in so cryptic a elected Members of Congress rather ban on tobacco and that Congress fashion.” Id. than by unelected agency administra- had legislated more aggressively on Breyer’s article had argued that tors. If there is such a background tobacco than on greenhouse gas emis- Chevron should not be interpreted to canon of interpretation, however, I do sions, the Court made clear that the create an across-the-board presump- not believe it controls the outcome significance of the statutory question tion of deference to agencies. Instead, here.” 529 U.S. at 190 (internal quota- did not by itself create a presumption he suggested, courts’ deference should tions marks and citations omitted). against agency authority. Id. at 530–31. vary based on, among other things, the Breyer argued that precisely because Indeed, refusing to defer to the agen- importance of the statutory question of the significance of the FDA tobacco cy’s interpretation under Chevron, the at issue. Id. at 371–7. Breyer suggested policy at issue, the President would be Court found that the national import that “Congress is more likely to have held to account for it: “I do not believe of global warming debates didn’t even focused upon, and answered, major that an administrative agency decision create doubt as to Congress’s intent questions, while leaving interstitial of this magnitude—one that is impor- to bring greenhouse gases within the matters to . . . daily administration” by tant, conspicuous, and controversial— EPA’s ambit. agencies. Judicial Review of Questions of can escape the kind of public scrutiny Although it is too early to character- Law and Policy, 38 Admin. L. Rev. 363, that is essential in any democracy. And ize Massachusetts v. EPA as a definitive 370 (1986). such a review will take place whether it repudiation of the major-question logic

16 Maryland Bar Journal May 2011 of MCI and Brown & Williamson, at a creation in 1934. The Court empha- an ability to delegate power under minimum it demonstrates how uncer- sized in NBC that the Communications broad general directives.” Mistretta, tain and subjective the putative “major Act avoids “stereotyp[ing] the pow- 488 U.S. at 372. In the communications questions canon” is. Not only is the ers of the Commission to specif- area, for instance, the last major rewrite canon out of step with the develop- ic details,” for given the “new and of the federal Communications Act, ment of the nondelegation doctrine, it dynamic” character of the communica- the Telecommunications Act of 1996, is inconsistently applied as a principle tions field, any “itemized catalogue” of became law 14 years ago. of Chevron review. regulatory responsibilities would have The 1996 Act was a consensus pack- “frustrate[d] the purposes for which age backed by every major segment the [Act] was brought into being.” Id. of the communications industry, and Legislative Intent and at 219. Congress therefore gave the it still took successive sessions of Governing Well Commission “a comprehensive man- Congress five years to pass the bill. A final flaw in the “major questions date” by “defin[ing] broad areas for Since then, communications markets canon” is that it presumes as a general regulation and . . . establish[ing] stan- and technologies have undergone fun- rule that legislatures avoid delegating dards for judgment adequately related damental transformations. Think of big issues to administrative agencies. in their application to the problems to the differences between pagers and In the debates over the proper degree be solved.” Id. at 219, 220. the iPhone, between fax machines and of deference to agencies on “major” The Court of Appeals of Maryland has PDF files, and between VHS recorders questions of statutory interpretation, made similar observations about State and a TiVo. nearly everyone agrees that legisla- agencies. For example, in Department Yet, another major rewrite of the tive intent should be the touchstone. of Transportation v. Armacost, the court FCC’s core statute appears unlikely any And the fact is that elected officials emphasized “the breadth of the leg- time soon. This is the reality in which sometimes create agencies precisely to islative delegation” to the Maryland legislators and administrative agencies decide the hard, novel, and important Vehicle Administration under the operate, as courts should recognize. issues of the day with a nimbleness state’s Vehicle Emissions Inspection Across state and federal govern- unachievable by any legislature. Program, which reflected “the funda- ments, agency officials are trying to Justice Breyer’s dissent in Brown & mental policy decision to conform state fulfill their environmental, economic, Williamson reviews this history with with federal law” in a dynamic policy consumer-protection, and other mis- respect to the FDA’s creation in 1938. 529 environment. 311 Md. at 82. sions in rapidly changing technical and U.S. at 164–66. Likewise, Massachusetts So too, in Christ v. Maryland Dep’t business environments. Many of these v. EPA stresses the intentionally broad of Natural Resources, the court noted efforts—and particularly the ones that scope of that agency’s delegated author- that the “General Assembly broadly would come within the “major ques- ity: “While the Congresses that drafted granted to the Department the author- tions canon”—will be challenged in [EPA’s delegation of authority over air ity to adopt regulations governing the the courts. Of course, agencies must pollution] might not have appreciated ‘operations of any vessels’ which are obey the law. But often the law is the possibility that burning fossil fuels subject to the Act.” 335 Md. 427, 437 intentionally permissive, and in these could lead to global warming, they did (1994). It then catalogued “numerous instances, it will be important for both understand that without regulatory situations where the General Assembly the welfare of the public and the health flexibility, changing circumstances and has delegated similar broad power to of the law that courts respect the flex- scientific developments would soon an administrative agency.” Id. ible authority legislators have given render the Clean Air Act obsolete.” 549 Legislatures’ deliberately elastic administrative agencies to address U.S. at 532. Accordingly, they made delegations of authority to adminis- issues big and small. “an intentional effort to confer the flex- trative agencies arise from the “prac- Mr. Schlick is General Counsel of the ibility necessary to forestall such obso- tical understanding” recognized in Federal Communications Commission lescence.” Id. Mistretta: “[I]n our increasingly com- and a former Chief of Litigation in the National Broadcasting Co. v. United plex society, replete with ever changing Office of the Maryland Attorney General. Mr. Steffen is Special Counsel in the States, 319 U.S. 190 (1943), makes the and more technical problems, [a legis- Office of General Counsel of the Federal same point when discussing the FCC’s lature] simply cannot do its job absent Communications Commission.

May 2011 Maryland Bar Journal 17 18 Maryland Bar Journal May 2011 Separation of Powers Redux- Receded Scope of Judicial Review

By Joel A. Smith

aryland Aviation Admin. v. Noland, 386 Md. 556 (2005) has prompted debate about the proper scope of judicial review in contested cases Mdecided by government agencies. Noland is uncomfortably at odds with the separation of powers doctrine under Maryland law. The Court of Appeals has remarked in other opinions, “Our own cases have never interpreted the separation of powers doctrine embedded in Article 8 of the Maryland Declaration of Rights as imposing a complete separation between the branches of government.” Department of Transportation v. Armacost, 311 Md. 64, 80 (1987).

May 2011 Maryland Bar Journal 19 The Court wrote in Department of to, the separation of powers between a 89 (1981). Natural Resources v. Linchester, 274 Md. robust judiciary and an equally robust The principle of the separation of 211, 220 (1975), that within administra- executive, each to operate as a check powers has existed in Maryland law tive agencies there is “some mingling, and balance against the other branch since 1776 when it became a part of the blending and overlapping of the leg- of State government. To conceive of Maryland Constitution. It is based on islative, executive and judicial func- judicial review as limited in scope as the Maryland’s colonial experience. “[T] tions.” This overlap, the Court wrote, Court has in Noland requires the State he most glaring abuses of the colonial is permissible “as the separation of judiciary to recede from that expected government was the concentration in powers concept may constitutionally constitutional function. the hands of the governors of judicial encompass a sensible degree of elas- and legislative powers . . .; and it was ticity and should not be applied with against such abuses that this provision doctrinaire rigor.” Id. Separation of Powers was directed.” Magruder v. Swann, 25 Just as in civil actions, contested That the separation of powers is funda- Md. 173, 180 (1866). cases heard by administrative agencies mental in State government is beyond The power of government should require separate findings as to breach doubt. The Maryland Constitution pro- be divided to prevent any one branch and penalty. Noland narrowed judicial vides that legislative power is vested in from being able to use the power of review of the penalties imposed by the General Assembly (Article II, §§ 1, government in an arbitrary way. If the administrative agencies and the Office 27 to 30). Executive power is vested in business of government is to be con- of Administrative Hearings, saying that the governor (Article III, § 1). Judicial ducted rationally and fairly, it is the the separation of powers between the power is vested in the courts (Article responsibility of the judiciary to ensure Executive Branch and the Judiciary per- IV, § 1). as much. That point was too easily mits only limited review of “Executive” The separation of powers is set out in swept aside in Noland. decisions about penalties. The Noland Article 8 of the Maryland Declaration of The separation of powers means that decision relied on Sadler v. Dimensions Rights. (“That the Legislative, Executive one branch may not overstep essential Healthcare Corp., 378 Md. 509 (2003), and Judicial powers of Government functions of another. The courts may where the Court of Appeals had, in ought to be forever separate and dis- review a law to determine whether it the words of the Court, “emphasized tinct from each other; and no person is constitutional and in accord with that ‘judicial review of the actions of exercising the functions of one of said other law, but they may not determine an administrative agency is restricted Departments shall assume or discharge whether a law is necessary or prudent. primarily because of the fundamental the duties of any other.”). The separa- The courts may determine whether the doctrine of separation of powers as set tion of powers is acknowledged to be Governor has administered a law cor- forth in Article 8 of the Declaration of of “monumental” importance. But, it rectly, but they may not question his Rights of the Maryland Constitution.’” is not as much a boundary as a buffer political actions, such as his appoint- Noland, 378 Md. at 573 n.3. that is intended to create conflict. ment of officers. The concept that Noland claimed to “Although this doctrine is both fun- The courts have repeatedly and con- borrow from Sadler is that the Courts damental to our scheme of govern- sistently held that, beyond these lim- must tread lightly when sitting in ment and well known, we believe it ited exceptions, the judiciary has the review of Executive branch actions. important to recall that the “purpose power of judicial review. The role of The Court’s holding in Noland, howev- (of separating the exercise of the sov- the courts in regard to administra- er, is an expansive statement balanced ereign powers) was, not to avoid fric- tive agency functions “is to see that on a thin reed. tion, but, by means of the inevitable these responsibilities were properly Noland turns inside out an essen- friction incident to the distribution of empowered to the agency and have tial tenet of constitutional law. Judicial the governmental powers among three been performed within the confines of review is not subordinate to the doctrine departments, to save the people from the traditional standards of procedural of separation of powers. Judicial review autocracy.” Myers v. United States, 272 and substantive fair play.” Linchester, is in itself an expression of the doc- U.S. 52, 293 (1926) (Brandeis, J., dis- 274 Md. at 223. trine of separation of powers. Judicial senting), as quoted in Attorney Gen. of The General Assembly has the review arises out of, and it is essential Maryland v. Waldron, 289 Md. 683, 688- power to create agencies to administer

20 Maryland Bar Journal May 2011 Maryland’s laws and to define the scope of their authority. See Dal Maso v. Bd. of County Com’rs of Prince George’s County, 182 Md. 200 (1943). The Governor has wide latitude to direct the work of the agencies. See Maryland Classified Employees Ass’n, Inc. v. Schaefer, 325 Md. 19 (1991). Administrative agencies are distinguished as they hold and exercise the attributes of all three branches of State government, legislative (in rule making), executive (in administration of the law) and judicial (in hearing and deciding contested cases). See R. Oppenheimer, Administrative Law in Maryland, 2 Md.L.Rev. 185 (1938). The separation of powers apportions the separate roles of the three branches of government as they form, define and operate administrative agencies. The Courts, however, hold the exclu- sive power to review the acts of the two other branches of government.

Sadler v. Dimensions Healthcare Corp. Although Noland relies on Sadler v. Dimensions Healthcare Corp., 378 Md. 509 (2003), Sadler did not present a separation of powers issue, and it did not concern judicial review of a State government action. The dispute in Sadler was over a physician’s privileges to practice medicine in a private hospital. The question presented in Sadler was “the standard by which a circuit court should review . . . a decision of the Board of Directors of a privately owned hospital as to who should have staff privileges at the hospital.” Id. at 515. Dr. Sadler brought suit after her privileges were revoked by the hospital. Dr. Sadler alleged breach of contract and tortious interference with contract. The hospital urged deference to its internal review of physician staff privileges. Quite in passing, in obiter dictum, the

May 2011 Maryland Bar Journal 21 review would have applied. Sadler only and penalty, or between the penalty hints at why review of a government imposed in one case as opposed to action is treated differently than a pri- the penalty imposed in prior cases vate dispute. involving like facts, could be a basis If based on the action of a unit of for review. The Court found that an government, an administrative decision agency’s determination as to sanction as to staff privileges would be due was, at minimum, completely immune some degree of deference because one from judicial review as disproportion- must assume that government units use ate to the offense. “As long as an their authority rationally and fairly. The administrative sanction or decision proper functioning of administrative does not exceed an agency’s authority agencies requires their actions to be rea- … there can be no judicial reversal or soned and rationally based. Still, those modification of the decision based on government actions are subject to judi- disproportionality or abuse of discre- cial review. As Judge Robert Bell wrote tion, unless, under the facts of a par- in his dissenting opinion in Lussier v. ticular case, the disproportionality or Maryland Racing Commission, 343 Md. abuse of discretion was so extreme and 681, 702 (1996), in a contested case, “the egregious that the reviewing court can imposition of a penalty, such as a fine, properly deem the decision to be ‘arbi- is an adjudicatory matter,” and, “[p] trary or capricious.’” 369 Md. at 291. rinciples of due process, including pro- Judges Wilner and Harrell filed con- Court remarked that “judicial review of portionality, are applicable ….” curring opinions in King. Judge Wilner the actions of an administrative agency opined that there is no practical room is restricted primarily because of the for distinction between “abuse of dis- fundamental doctrine of separation of MTA v. King and cretion” and “arbitrariness.” Labeled powers as set forth in Article 8 of the MAA v. Noland either way, a disproportionate sanction Declaration of Rights of the Maryland MTA v. King, 369 Md. 274 (2002) set the could rise to the level of unlawful- Constitution.” Id. at 530. foundation for Noland. King was the ness when it “reaches the point of the Because in Dr. Sadler’s case, the first case in which the Court of Appeals decision exceeding the agency’s lawful hospital was a private entity and its clearly began to treat the “sanction” or authority or discretion and for that rea- decision was not that of an administra- “penalty” in an administrative deci- son, being arbitrary, capricious, or oth- tive agency, the Court found no reason sion on a contested case as a matter erwise unlawful.” Id. at 293. According to defer to the hospital’s internal deci- of independent Executive “discretion.” to Judge Harrell: “The Court’s opinion sion. The “traditional summary judg- King, a State employee, argued that his introduce[d] the specter of potentially ment doctrine” was applicable, and the termination was an abuse of discretion. divergent standards of judicial review action was “to be treated like any other The agency had a system of progressive based on its perception that the Court of breach of contract action.” Id. at 542. discipline with discretion to impose Special Appeals . . . may have reviewed Sadler did not consider or decide a harsher sanctions under appropriate [the agency’s] action based on an abuse separation of powers issue. Sadler did circumstances. The Court concluded of discretion standard.” Id. at 297. not concern constitutional functions that neither “disproportionality [n] In Noland, the Court digressed still of the three branches of government. or abuse of discretion” were grounds further from the traditional standards Sadler did not decide the scope of judi- for review. The State Administrative of judicial review. Noland held that cial review. Had the hospital been a Procedure Act, the Court noted, simply under the separation of powers doc- public institution, or had the contested does not list “abuse of discretion” as a trine, the discretion of an agency in staff privileges been suspect to action ground for disturbing an administra- choosing a sanction is on par with the of an administrative agency, the effect tive decision. Executive discretion invested in the of the Court’s opinion might well have The Court rejected the idea that dis- Governor, or an unreviewable, politi- been otherwise. The process of judicial proportionality between an offense cal act. The Court of Appeals, in an

22 Maryland Bar Journal May 2011 extended footnote, wrote that when discipline or sanction imposed was ‘dis- the law. As Judge Wilner’s noted in an agency official uses “judgment,” proportionate to the offense,’ or ‘dis- MTA v. King, a decision that embodies the official is exercising Executive proportionate to the misconduct,’ or “discretion” is not “immune from judi- Branch powers and utilizing discretion ‘disproportionate to the violation.’” The cial review.” 369 Md. at 293. that a court should not interfere with. Court went on: “judicial review of a law- An agency cannot act with such According to the Court: ful and authorized administrative disci- broad authority as to act without rea- when an agency or official in the plinary decision or sanction, ordinarily sons, or act in a manner that is plainly Executive Branch of Government within the discretion of the administra- unfair, arbitrary or without meaning- exercises “judgment,” the agency or tive agency, is more limited than judicial ful judicial review. The discretion to official is ordinarily performing a task review of either factual findings or legal sanction or penalize a party appearing which the Maryland Constitution conclusions.” Id. at 575. before an administrative agency must or statutes have assigned to the Noland remarked that “‘the courts be cabined within reasonable limits. The Executive Branch and not to the owe a higher level of deference to Courts cannot afford agency officials Judicial Branch. The phrase that functions specifically committed to the such wide ranging discretion that they a court “substitutes its judgment” agency’s discretion than they do to an may not be held to account, to state their for the judgment of the Executive agency’s legal conclusion or factual reasons, and to act fairly and rationally. Branch suggests that the court is finding.’” Id. at 575 (quoting Spencer v. Agency officials must utilize their power engaging in precisely the same type State Board of Pharmacy, 380 Md. 515, to discipline and sanction “within the of determination, and is performing 529-31 (2004)). confines of the traditional standards of a function, which has been assigned This “more limited” scope of judi- procedural and substantive fair play.” to the Executive. Nevertheless, for cial review permits a Maryland court Linchester, 274 Md. at 223. the court to perform the same func- to intervene only when a sanction is Noland holds that its limitation of tion as the Executive Branch would “so extreme and egregious” as to be judicial review “applies broadly” when not be consonant with the express arbitrary and capricious. Id. at 575-76. it is the penalty selected by an admin- separation of powers mandate set Under Noland, the discretion to pre- istrative agency that is at issue. Noland forth in Article 8 of the Maryland scribe a given penalty or sanction is also holds that “the agency need not jus- Declaration of Rights. See Sadler v. an Executive function that is largely tify its exercise of discretion by findings Dimensions, 378 Md. 509, 530, 836 immune from review by the judiciary. of fact or reasons articulating why the A.2d 655, 667-668 (2003), where agency decided upon particular disci- Judge Raker for the Court recently pline.” 386 Md. at 581. Noland is drawn emphasized that “judicial review of The Troubled Path on the premise that Executive Branch the actions of an administrative agen- After Noland officials enjoy a zone of “discretion” that cy is restricted primarily because of Noland runs against the grain of the is immune from judicial review. the fundamental doctrine of separa- separation of powers doctrine. The Under Noland, administrative agen- tion of powers as set forth in Article Courts have the Constitutional power cies may impose penalties without the 8 of the Declaration of Rights of the to ensure that administrative decisions need for justification. The penalties Maryland Constitution.” are rational in basis and within the imposed by administrative agencies bounds of “fair play.” See Linchester, affect untold numbers of Maryland 386 Md. at 573 n.3. 274 Md. at 223. That is good and cred- residents, daily. No function of gov- Noland concluded that there exists ible government. Citizens have every ernment that significant should be so a “limitation upon the judicial review right to expect that administrative enti- immune from substantive review. The authority of courts, with regard to a law- ties should explain the reasons for doctrine of separation of powers does ful and authorized sanction, imposed their actions, and that the actions are not demand or support that result. by an Executive Branch administrative rational, temperate, and fair. Mr. Smith has been practicing labor and agency, [which] applies broadly.” Id. at Judicial review should ensure that administrative law on behalf of public 577. The Court wrote: “the limitation an agency has acted fairly and ratio- and private sector labor organizations and upon the judicial review authority of nally, and plainly relied on its profes- nonprofits for 30 years. He may be reached at [email protected]. courts” precludes “argument that the sional and expert role in administering

May 2011 Maryland Bar Journal 23 Judicial Review of Administrative Sanctions: Why Noland Should Be Abandoned

By Arnold Rochvarg

In fulfilling their delegated statutory powers, administrative agencies not only determine whether a regulated party has violated a law within the regulatory authority of the agency, but also what sanction to impose. Indeed, in many cases, the only real issue in the case is the appropriate sanction. Unfortunately, the Court of Appeals in Maryland Aviation Administration v. Noland, 386 Md. 556, 873 A.2d 1145 (2005), held that an agency was not required to justify or articulate the basis of the sanction it imposed. Noland’s holding, in my opinion, is contrary to established principles of Administrative Law and is unsound as a matter of policy.

Findings and Judicial Review higher court can affirm for a reason dif- sions in contested cases must be accom- It is well established that when a court ferent than a reason relied upon by the panied by and based on clearly stated is reviewing an administrative agency lower court. When reviewing an agency findings of fact and conclusions of law. decision, the court can only affirm the decision, the court cannot supply its See, State Gov’t §10-221(b)(1). It is not agency for the same reasons relied upon own reasons why the agency should be sufficient for the agency decision to by the agency. See, United Steelworkers v. upheld. merely track the statutory language, Bethlehem Steel Corp., 298 Md. 665, 472 This principle of judicial review flows and then announce a bottom line con- A.2d 62 (1984). This differs from the role from another well established principle clusion. The Court of Appeals has stat- of a court when it is reviewing a lower in Administrative Law known as the ed that the “importance of clear, explicit court decision. In the latter situation, a “findings requirement.” Agency deci- administrative agency decisions cannot

24 Maryland Bar Journal May 2011 be overemphasized.” Fowler v. MVA, 394 although recognizing that a reviewing the alleged misconduct, but also why Md. 331, 906 A.2d 347 (2006). court cannot substitute its judgment for the agency decided upon the particular One of the main reasons why the that of the agency, wrote that “judicial sanction imposed. findings requirement is so central to review of a decision to fire an employee No petition for certiorari was filed Administrative Law is that it permits involves an examination of the agency’s with the Court of Appeals. Judge Joseph effective judicial review. As the Court rationale and conclusions.” The court Murphy’s opinion in Delambo became of Special Appeals wrote in Maryland then discussed the applicable COMAR accepted law in Maryland, and was Racing Commission v. Belotti, 130 Md. provisions which authorized the agency employed in many cases involving sanc- App. 23, 744 A.2d 558 (1999), “We must to impose different disciplinary sanctions of state employee and sanctions in know what a decision means before the tions ranging from reprimand to demo- other administrative cases. duty becomes ours to say whether it is tion, suspension, and removal. right or wrong.” Agency findings are The basis for each sanction was deemed so essential to judicial review, “quite different.” The court concluded Noland findings are required even if there is no that in Delambo’s case, the agency had Maryland Aviation Administration v. express statutory requirement for them. “failed adequately to articulate why Noland, like Delambo, involved the dis- See, Blackburn v. Board of Liquor License removal” was appropriate. The agency cipline of a state employee. Noland Commissioners for Baltimore City, 130 Md. had offered no indication in its deci- was a paramedic employed by the App. 614, 747 A.2d 725 (2000). sion that it had considered Delambo’s Maryland Aviation Administration. overall employment history, her past Noland’s misconduct was that he twice disciplinary record, her work habits, punched a prisoner who Noland was Delambo or her relations with fellow employees asked to transport on a stretcher to a The clearest expression by a Maryland and supervisors. The agency had not psychiatric hospital. Noland’s punches court of the need for an agency to explained why removal was the appro- were in response to the prisoner spit- provide findings and explain the basis priate sanction. The court’s conclusion ting on him and threatening to kill of the agency’s sanction is found in was that the agency ordered removal him. The initial administrative decision, Judge Joseph Murphy’s opinion for the because the agency could remove her. a proposed decision from the Office Court of Special Appeals in Maryland The court then wrote that for an agency of Administrative Hearings, was that State Retirement Agency v. Delambo, 109 to impose a valid sanction, the agency Noland be suspended. The final admin- Md. App. 683, 675 A.2d 1018 (1996). must give appropriate consideration istrative decision, however, made by the Delambo was a state employee who and make findings on certain relevant Secretary of the Department of Budget was subjected to a disciplinary hearing factors to ensure that the “punishment and Management, was that Noland be because she had without authorization fits the crime.” terminated from state employment. In released information about the hiring of The Court of Special Appeals in reaching this termination decision, the a new executive director of the agency Delambo continued that the circuit court Secretary had applied Delambo. In her prior to the formal hiring announce- had exceeded its judicial role by impos- application of Delambo, the Secretary ment. The end result of the administra- ing the alternative sanction of a suspen- wrote that although Noland’s job per- tive process was an order that Delambo sion. It is the agency’s duty to impose formance over the years was good, and be removed from state employment. sanctions, not a reviewing court. The Noland had a good attendance record, Delambo sought judicial review. proper role of the court is to review good work habits, and good relations At the circuit court level, the judge the agency’s sanction to determine if it with co-workers, the misconduct of the found that the agency decision to is arbitrary or capricious or otherwise two punches outweighed these miti- remove Delambo was not supported by invalid. A court cannot perform its func- gating factors. The Secretary cited tes- substantial evidence. As part of the cir- tion unless the agency prepares findings timony from an expert witness at the cuit court judge’s ruling, he reduced the justifying its sanction. The court thus OAH hearing that a paramedic striking sanction to an eighteen month suspen- remanded the matter to the agency. a patient was never warranted. sion without pay. The State appealed As part of its remand order, the court At the first level of judicial review, this decision to the Court of Special stated that the sanction must be accom- the circuit court reversed the Secretary’s Appeals. The Court of Special Appeals, panied by findings not only related to decision to terminate Noland. The cir-

May 2011 Maryland Bar Journal 25 cuit court judge held that the Secretary A.2d 1005 (2006), where a polluter tried Additionally, Noland should be aban- had given insufficient consideration to to challenge the sanction of a $40,000 doned because it threatens the quality of mitigating factors such as the fact that fine. Following Noland, the agency had agency decisionmaking. A quote from Noland was working at the request of made no findings relating to the amount the United States Supreme Court in the police at the time of the incident, of the fine, and had provided no expla- United States v. Merz, 376 U.S. 192 (1964), and that Noland’s conduct could be nation or reasons for the amount of the is appropriate here: “Laymen, like judg- construed to be in self-defense. The fine. Upon judicial review, the attor- es, will give more careful consideration State appealed to the Court of Special ney for Neutron argued that because to the problem if they are required to Appeals which likewise held that the ter- the agency had “presented absolutely state not only the end result of their mination sanction could not be upheld. no justification” for the amount of the inquiry, but the process by which they The Court of Special Appeals wrote that fine, it was impossible for the attorney reached it.” Noland invites criticism of although the Secretary had written that to argue, and for the court to review, the administrative process by lending she had applied Delambo, the Secretary’s whether the fine was arbitrary or capri- support to charges of bias, favoritism, decision was “not adequate to permit cious. The court upheld the fine cit- and ill-informed decisions. As Judge meaningful judicial review.” ing Noland for the proposition that the Harold Leventhal wrote in Greater The case then went to the Court of agency did not have to explain the basis Boston Television v. FCC, 444 F.2d 841 Appeals. The Court of Appeals used of its sanction. (D.C. Cir. 1970), cert. denied, 403 U.S. 923 Noland’s termination case to overrule Noland is also contrary to the weight (1971), a reviewing court should insist Delambo “in its entirety.” The court held of authority from the federal courts and that agency decisions include “reflective that an agency need not explain the the majority of state courts. Although findings” in order to enable the public basis of nor provide findings relevant this article cannot review all the cases “to repose confidence” in the adminis- to the sanction. The court wrote that an on this issue, I think it is most significant trative process. “agency need not justify its exercise of that the federal courts when review- discretion by findings of fact articulating federal government employee dis- ing why the agency decided upon the cipline cases engage in a Delambo type Conclusion particular discipline.” analysis. The Merit Systems Protection The Court of Appeals was wrong in Board (MSPB) is the federal agency Noland in reversing Delambo and hold- that adjudicates most federal employee ing that agencies need not provide any Noland Should be discipline cases. Federal courts when explanation or findings for the sanc- Abandoned reviewing MSPB sanctions employ fac- tions imposed on regulated parties. My opinion is that the Court of Appeals tors developed in Douglass v. Veteran’s Requiring Maryland agencies to pro- made the wrong decision in Noland. For Administration, 5 M.S.P.B. 313 (1981). The vide an explanation and formal findings several reasons, Maryland courts should Douglass factors include, inter alia, the for the sanction is consistent with judi- return to Delambo, and require agencies employee’s past work and disciplinary cial review of agency sanctions by the to provide adequate findings and justifi- history, the adequacy and effectiveness federal courts and most state courts, is cation for the sanction imposed. of alternative sanctions to deter similar consistent with the principle that courts Noland threatens the right to mean- misconduct by the employee and others can only affirm an agency decision for ingful judicial review. As discussed ear- in the future, mitigating factors such the reasons expressly relied upon by the lier, an agency can only be affirmed for as unusual job tensions or provocation agency, and promotes the legitimacy the reasons expressly relied upon by by others, and whether the sanction is and acceptance of administrative deci- the agency. If an agency is not required consistent with those imposed on oth- sionmaking. Maryland should abandon to provide any explanation for its sanc- ers for similar misconduct. The Douglass the Noland approach to judicial review tion decision, the reviewing court can- factors employed by federal courts are of agency sanctions by either judicial not perform its constitutional responsi- consistent with Delambo. It should also decision or legislative action. bility. This problem was illustrated in be noted that Douglass is no obscure Mr. Rochvarg is a Professor of Law at the Neutron Products, Inc. v. Department of doctrine in federal Administrative Law; University of Baltimore School of Law. He the Environment, 166 Md. App. 549, 890 a recent Westlaw search indicates it has may be reached at [email protected]. A.2d 858, cert. denied., 392 Md. 726, 898 been relied upon over 3300 times.

26 Maryland Bar Journal May 2011

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By Denise O. Shaffer

s a result of House Bill 472, codified in § 7-105.1 of the Real Property Article of the Maryland Code, homeowners in Maryland now have the right to opt-in to a mediation session when a foreclosure action has been filed in the Circuit Court. Section 7-105.1(a)(3) defines “foreclosure mediation” as “a conference at which the parties in a foreclosure action, their attorneys,A additional representatives of the parties, or a combination of those persons appear before an impartial individual to discuss the positions of the parties in an attempt to reach agreement on a loss mitigation program for the mortgagor or grantor.” That mediation session is conducted by an Administrative Law Judge (ALJ) from the Office of Administrative Hearings (OAH). It is designed to allow the lender and the homeowner the opportunity to have a face-to-face meeting to explore possible options to avoid a foreclosure sale.

28 Maryland Bar Journal May 2011 OAH’s Role in Foreclosure Mediation

May 2011 Maryland Bar Journal 29 The OAH is an independent state loss mitigation affidavit as one that and the topic for discussion at the agency in the executive branch. “(i) Is made by a person authorized mediation are mandated by statute. OAH conducts hearings, media- to act on behalf of a secured party of At a foreclosure mediation the hom- tions and settlement conferences a mortgage or deed of trust on own- eowner must be present and may around the State for over 30 dif- er-occupied residential property that be accompanied by a housing coun- ferent state agencies in over 500 is the subject of a foreclosure action; selor and may have legal representa- different case types. All of the ALJs (ii) Certifies the completion of the tion. The representative of the lend- at OAH are trained mediators in final determination of loss mitiga- er must be present and must have compliance with the requirements tion analysis in connection with the the authority to settle the matter or of Maryland Rule 17-104. Because mortgage or deed of trust; and (iii) be able to readily contact a person OAH had an experienced cadre of If denied, provides an explanation with authority to settle the matter. mediators and an infrastructure that for the denial of a loan modification OAH conducts the mediations at its already supported ALJs traveling to or other loss mitigation.” With this offices in Hunt Valley as well as in every county in the State to conduct final loss mitigation affidavit, the various Circuit Courts throughout due process hearings, OAH was a lender is required to send a home- the State. Through close partner- logical choice for the foreclosure owner a request for mediation, along ship with the Circuit Courts, OAH mediation program. with two pre-printed envelopes, one was able to schedule each mediation Prior to and since the law’s effec- addressed to the Circuit Court and session close to the property being tive date of July 1, 2010, OAH has one addressed to the lender’s attor- foreclosed for the convenience of the worked closely with the Department ney. The homeowner has 15 days to affected parties. of Labor, Licensing and Regulation file the request for mediation, along In addition, §7-105.1 (j)(2) requires (DLLR), the Department of Housing with a $50.00 fee or a request for the parties and the mediator to and Community Development fee waiver. While the statute pro- address loss mitigation programs that (DHCD) and the Circuit Courts to vides the opportunity for a lender may be applicable to the loan secured implement the program. DLLR issued to file a motion to strike the media- by the mortgage or deed of trust emergency regulations implement- tion, §7-105.1(h)(2)(iv) provides that that is the subject of the foreclosure ing the program, effective July 1, a homeowner is entitled to foreclo- action. All discussions in the media- 2010 that can be found in the Code sure mediation unless good cause is tion session that are not reduced to of Maryland Regulations (COMAR) shown why foreclosure mediation is a written agreement are confidential. 09.03.12. Through the end of 2010, not appropriate. Prior to the start of a mediation ses- OAH received over 400 requests for Once the homeowner files the sion, the parties are required to sign mediation. request for mediation, it is docketed an agreement to mediate agreeing to The statute and regulations pro- in the Circuit Court and the request the following: vide that eligibility for the mediation is electronically transmitted to the program is limited to “owner-occu- OAH. The OAH has 60 days from 1. I understand that the medi- pied residential properties,” defined the date it received the request for ator is here to help build in §7.105(a)(7) of the Real Property mediation to conduct the mediation understanding about the dis- Article as: “residential property in and report back to the Circuit Court. pute, think about solutions, which at least one unit is occupied by The statute provides for a 30 day and reach an agreement. an individual who: (i) Has an owner- extension but only upon a finding The mediator will not make ship interest in the property; and (ii) of good cause. Section 7-105.1 (k) decisions about the dispute Uses the property as the individu- (1) states that in the event OAH is or tell us how to resolve it. al’s primary residence.” In addition, unable to schedule the foreclosure eligibility for foreclosure mediation mediation within the 60-day period, 2. I understand that we are here to depends upon the party seeking the mediation period expires and the find a solution to our dispute and foreclosure filing a final loss mitiga- foreclosure attorney may schedule that this is most likely to occur tion affidavit with the Circuit Court. the foreclosure sale. if I openly share information. Section 7.105(a)(2) defines a final The attendance of certain parties

30 Maryland Bar Journal May 2011 3. I understand that mediation by COMAR 09.03.12.09, OAH sends fee, housing allowance, tips, discussions are confidential, the parties a detailed list of the docu- overtime. Reliable third party and they are not admissible ments that are required. Borrowers documentation describing the in any other administra- are required to provide: nature of the income, such as tive or judicial proceeding. (a) The borrower(s)’ signed federal an employment contract or tax returns (including all sched- printouts documenting tip 4. The only written record of the ules and attachments) for the last income. mediation is the agreement two (2) years. • Benefit income. For example, that we jointly create. I under- (b) The borrower(s)’ proof of social security, disability, death stand that the mediator is not income—including: benefits, pension, public assis- acting as a lawyer, administra- • Employment income. Copies tance, adoption assistance. tive law judge, or advocate. of two recent pay stubs not Evidence of (i) the amount more than 90 days old that and frequency of the bene- 5. I understand that the mediator indicate year-to-date earn- fits, such as letters, exhibits, cannot be called upon as a wit- ings. a disability policy or benefits ness in any other administra- • Self-employment income. The statement from the provider, tive or judicial proceeding. most recent quarterly or year- and (ii) receipt of payment, to-date profit and loss state- such as copies of the two Both the statute and regulations ment for each self-employed most recent bank statements require that the parties exchange borrower. or deposit advices showing documents 20 days in advance of • Other earned income. For deposit amounts. If a benefits the mediation session. As required example, bonus, commission, statement is not available, ser-

May 2011 Maryland Bar Journal 31 vicers may rely only on receipt ment and bank statements or over which it will be received, of payment evidence, if it is cancelled rent checks. and (ii) evidence of receipt clear that the borrower’s enti- • Alimony, separation main- of payment, such as copies tlement is ongoing. tenance, and child sup- of the two most recent bank • Unemployment benefits. port income. Borrowers are statements or deposit advices Evidence of the amount, fre- not required to use alimo- showing deposit amounts. quency and duration of the ny, separation maintenance, • Non-borrower household benefits (this information is or child support income to income. Documents proving found on your initial mon- qualify for a loss mitigation the income of any household etary determination letter). program. However, if a bor- member who is not a borrow- Any extension of length of rower chooses to provide this er but whose income will be the benefit (this information is income, it should be docu- relied upon to pay the modi- found on your verification of mented with (i) copies of the fied loan. unemployment status form). divorce decree, separation • Budget and Expenses. A • Rental income. Rental agreement or other legal writ- written summary of the income is generally docu- ten agreement filed with a borrower(s) complete monthly mented through the Schedule court, or a court decree that household budget including E—Supplemental Income and provides for the payment all expenses. Loss, for the most recent tax of alimony or child support (c) If the loan does not have an year. When Schedule E is not and states the amount of the escrow account, which means you available, a current lease agree- award and the period of time pay your property taxes and insur-

32 Maryland Bar Journal May 2011 ance directly—(i) a copy of the mation (telephone number, mail- (B) If the foreclosure mediation most recent property tax bill and ing address) for the individual is not held or is terminated proof of payment (if applicable) who will represent the secured because the borrower failed to and (ii) a copy of current insur- party at the foreclosure media- attend or failed to provide the ance bill and proof of payment (if tion and will have the authority documents required by regu- applicable). to settle on behalf of the secured lation of the Commissioner (d) Any previous loan modification party or be able to readily contact of Financial Regulation, the documentation (if applicable). a person with authority to settle secured party may advertise (e) Current second or other subor- the matter. the sale. dinate mortgage statement including the telephone number and Receipt of these documents is In order to ensure that the ALJs mailing address for the subordi- essential to a successful and efficient were well versed with the substan- nate lien holder. mediation session. tive issues that arise in a foreclo- After the mediation session, OAH sure process, OAH worked closely The lender is required to provide: is required to report the results to the with the Mediation and Conflict (a) The Final Loss Mitigation Circuit Court within five days. As an Resolution Office (MACRO) to devel- Affidavit. emergency measure this summer, the op an extensive training program. (b) The borrower(s)’ Loss Court of Appeals adopted Md. Rule All perspectives on the foreclosure Mitigation Application received 14-209.1 (f), which governs the pro- process contributed to the train- from the borrower(s). cedure following foreclosure media- ing. Lenders, housing advocates, (c) Any documents relied on in per- tion. The Rule states: DLLR and DHCD worked together forming loss mitigation analysis. (1) If Agreement Results from to deliver an effective and efficient (d) Summary of reason for denial Foreclosure Mediation training to the ALJs. Areas covered of loan modification or loss miti- If the foreclosure mediation results in the training included the Home gation. in an agreement, the court shall Affordability Modification Program, (e) Relevant sections of investor take any reasonable action reason- Traditional Workout Options, the guidelines if the denial of a loan ably necessary to implement the non-judicial foreclosure process in modification or other loss mitiga- agreement. Maryland, and an overview of the tion program was based on inves- (2) If No Agreement 2010 legislation as well as the 2008 tor guidelines. If the foreclosure mediation does foreclosure legislation. Additionally, (f) Payment history. not result in an agreement, the several follow-up trainings have (g) Escrow activity history (if secured party may advertise the been held. applicable). sale, subject to the right of the bor- Although only a few months into (h) Property valuation documen- rower to file a motion pursuant to the program, the implementation has tation relied on, such as an auto- Rule 14-211 to stay the sale and been smooth. The ALJ mediators are mated valuation model that ren- dismiss the action. well prepared to facilitate the discus- ders a reliable confidence score, (3) If Foreclosure Mediation Fails sions and many of the mediations a broker’s price opinion, or an Due to the Fault of a Party have resulted in settlement agree- appraisal. (A) If the foreclosure medi- ments. OAH is pleased to be able (i) Correspondence log of account ation is not held or is ter- to provide this valuable resource to activities from time of first contact minated because the secured Maryland citizens. with borrower after loan went into party failed to attend or failed Ms. Shaffer, Deputy Director of Quality default (typically generated elec- to provide the documents Assurance, is an Administrative Law Judge tronically by loss mitigation soft- required by regulation of the at the Office of Administrative Hearings. ware showing a record of when Commissioner of Financial She may be reached at DShaffer@oah. state.md.us. material was received, posted, Regulation, the court, after an processed, etc.). opportunity for a hearing, may (j) The name of and contact infor- dismiss the action.

May 2011 Maryland Bar Journal 33 When Discretionary Agency Action is Not So Discretionary Office of the Public Defender v. State

By Andrew H. Baida sured according to the financial ability of My view of administrative law can basically be boiled down to the follow- the applicant to engage and compensate ing exchange between nine-year-old Cole Sear and his psychiatrist, Malcolm a competent private attorney and to Crowe, in the Academy Award winning movie, “The Sixth Sense”: provide all other necessary expenses of Cole: “I see dead people.” representation.” Md. Crim. Proc. Code Malcolm: “In your dreams?” §§ 16-210(b)(1) and (b)(2) (2008 Repl. Cole: Shakes his head no. Vol.). Identifying an applicant’s “finan- Malcolm: “While you’re awake?” cial ability” as the core determinant of Cole: Nods yes. an individual’s eligibility for represen- Malcolm: “Dead people, like, in graves? In coffins?” tation, the statute also provides in § Cole: “Walking around like regular people. They don’t see each other. They 16-210(b)(3) that financial ability “shall” only see what they want to see. They don’t know they’re dead.” be determined by considering six sep- Malcolm: “How often do you see them?” arately enumerated factors, including Cole: “All the time. They’re everywhere.” the applicant’s assets and disposable income, the nature of the offense and the proceedings, the effort and skill required, hat last line essentially sums up when it has erroneously denied repre- and any other foreseeable expense. the way I feel about administra- sentation for an indigent individual. The Public Defender’s Office pro- Ttive law issues: I see them all the I guess it’s too late to announce a mulgated regulations setting forth the time because they’re everywhere. One spoiler alert at this point, but before manner in which the Office decides an of the most recent sightings occurred in giving away the entire story, some plot individual’s eligibility for representa- a case I handled which was decided last development is necessary to under- tion. Tracking initially the language of year by the Court of Appeals, Office of stand fully the role that administrative § 16-210(b)(1), which provides that an the Public Defender v. State, 413 Md. 411 law played in the Court of Appeals’ individual’s eligibility “shall be deter- (2010). The 4-3 majority did not com- somewhat novel decision announcing mined by the need of the applicant,” the pletely eliminate the possibility that I the circumstances in which an execu- first sentence of COMAR 14.06.03.05A was seeing ghosts, deeming one aspect tive branch government agency can be states that “eligibility for services of of my administrative law sighting and ordered to its job. the Office of the Public Defender shall approach to the case “by no means a be determined on the basis of need of perfect analogy” and only “somewhat the individual seeking legal representa- analogous.” Id. at 434. But I know better. Conflicting Statutory and tion.” But that is where the symmetry Not only am I not a little bit crazy, but, Regulatory Role between the enabling statute and the like Cole Sear, I’m not crazy at all, at least The Public Defender’s Office was estab- Public Defender’s regulations begins for the limited purpose of this article. lished in 1971 to provide a statewide and ends with respect to identifying the Why, you ask? Because core principles system for representing eligible indi- circumstances in which an individual is of administrative law lay at the heart of gent defendants. The Public Defender’s eligible for the representation. the holding in this case that a Maryland enabling statute states that “[e]ligibil- As stated previously, the Public trial court may override the decision of ity for the services of the Office shall be Defender’s enabling statute provides the Office of the Public Defender and determined by the need of the appli- that an applicant’s need “shall be mea- appoint an attorney from the Office cant,” and that “[n]eed shall be measured” by his or her “financial ability”

34 Maryland Bar Journal May 2011 to pay for an attorney, and states that representation was exclusively for the “[i]t would appear from this, by logical the applicant’s financial ability “shall be Office to decide and beyond the power extension, that, although the court may determined” by considering six factors. of the judiciary to second-guess. But as appoint any other qualified counsel to See § 16-210(b)(2) and (b)(3)(i)-(vi). In a result of other language in Thompson, represent an indigent defendant, it may contrast, COMAR 14.06.03.05A states, i.e., its holding, the trial judges in the not appoint the Public Defender against immediately after providing in the first same cases recognized that they had an his wish.” Id. at 553 n.11. sentence that an individual’s eligibility obligation to ensure that indigent indi- Now back to the other part of the for services is determined on the basis of viduals would receive legal representa- problem created by Thompson. Stating need, that an applicant’s “[n]eed may be tion in qualifying cases. And in at least that “there is the clear duty imposed measured according to the applicant’s one jurisdiction, the judges had been on the [trial] court, in order to decide maximum annual net income level and informed that the local government had whether it should appoint counsel, upon asset ceiling.” An applicant’s “maximum no funds to pay for any public defender the Public Defender declining to do so, net annual income” varies according to fees not covered by the State and that the to make its own independent determi- the type of case and may not exceed 110 members of the local bar were unwilling nation whether a defendant is indigent percent of the federal poverty income to provide these services pro bono. and otherwise eligible to have coun- guidelines. COMAR 14.06.03.05D(1) and So how did Thompson cause so much sel provided,” the Court of Appeals in (2). The applicant’s “asset ceiling” is sub- mischief, you may ask? The Public Thompson observed that the trial “judge ject to a limit, excluding the applicant’s Defender’s Office in that case had origi- originally in the case was complete- principal residence and primary vehicle, nally decided that the defendant was ly content with the Public Defender’s of $1,500 for the applicant, $2,500 for eligible for representation, but it later conclusion, whatever it may have been the applicant and his or spouse, and determined otherwise. Nevertheless, as based upon, that Thompson was not an additional $750 for each dependent. the Court of Appeals in Thompson stated, entitled to have representation provided COMAR 14.06.03.05E(1) and (2). In no the Public Defender “wanted to leave – ‘you tell me he is not eligible and that event are any of the six factors listed in it up to the court, making clear that if is good enough for me.’” 284 Md. at § 16-210(b)(3) of the Public Defender’s the court so ordered he would provide 129-30. Commenting that “[t]his view enabling statute to be considered in representation.” 284 Md. at 128. Planting governed the court’s action in the face determining whether an applicant has the seeds for the controversy which of an utter lack of the data contemplated the financial ability to pay for legal would not bloom until three decades by art. 27A, § 7 [recodified as § 16-210(b) counsel, unless and until “good cause is later, the Court of Appeals then made (3) of the Criminal Procedure Article], shown.” COMAR 14.06.03.05A. the following observation: “The court the absence of any expression by the refused to so order, properly we believe, Office of the Public Defender of the on the ground that the question whether reasons why it declined to provide rep- The Seeds of the Controversy the Public Defender represented a par- resentation, and the fact that the Public The conflict between the Public Defender ticular defendant was for the Public Defender had represented Thompson in Office’s enabling statute and its regu- Defender and not for the court.” Id. the District Court,” the Court of Appeals lation governing the determination of Commenting on this same pas- noted that the trial court “made no eligibility for services presented a real sage in another case decided several attempt to determine whether the refus- problem, as evidenced by the case giv- years after Thompson, Baldwin v. State, al of the Office of the Public Defender ing rise to the Court of Appeals’ decision 51 Md.App. 538 (1982), Judge Wilner to provide representation was despite in Office of the Public Defender v. State and wrote for the Court of Special Appeals Thompson’s eligibility to have counsel a number of other cases like it. The seeds that Thompson “seemed to hold that if provided.” 284 Md. at 130. The Court took a while to grow into a full-blown the Public Defender declines to repre- reversed the judgment, holding that the controversy, but they were planted by sent a defendant – even on grounds of trial court “was obligated to make that Thompson v. State, 284 Md. 113 (1978). non-eligibility (as opposed to a poten- determination” and that it erred “in not Primarily on the basis of certain tial conflict of interest) – the court has making a determination upon proper language from Thompson, the Public no authority to order him to provide considerations whether Thompson was Defender’s Office took the position in all representation.” 51 Md.App. at 552. As eligible to have it appoint counsel upon of these cases that the question whether Judge Wilner observed after quoting the the refusal of the Public Defender to pro- a person was indigent and eligible for two sentences above from Thompson, vide representation.” Id. at 130-31.

May 2011 Maryland Bar Journal 35 The Controversy in Office of appointing him as Mr. Stinnett’s counsel, Comp. Bd. v. Gould, 273 Md. 486, 500-01 the Public Defender v. State following which the Circuit Court con- (1975). In light of the Circuit Court’s The Public Defender’s Office’s view ducted a hearing at which Mr. Stinnett determination that the Public Defender’s that only it could decide whether to appeared but his newly-appointed law- indigency decision was based solely on represent a particular defendant went yer did not. Id. at 421. The Circuit Court the Public Defender’s regulations, those unchallenged for a significant period found Mr. Stinnett’s counsel in direct regulations “must be consistent with of time, from the year Thompson was contempt of court and fined him $10 the letter and the spirit of the law under decided in 1978 when Jimmy Carter for failing to appear for the hearing, which the agency acts.” Medstar Health was president, gas cost 63 cents a gallon, accepted Mr. Stinnett’s guilty plea, and v. Maryland Health Care Comm’n, 376 and the great classic – but definitely not imposed a three-year suspended sen- Md. 1, 20 (2003). The Circuit Court had in an Academy Award way – “Animal tence of imprisonment and two years “the right to consider for itself whether House” was released, until 40 years unsupervised probation. Id. Mr. Stinnett [the] administrative regulation exceeds later when matters came to a head in a did not file note an appeal from the the power of the agency.” Id. at 26. number of different cases. One of these judgment entered against him but his Even though “courts owe a higher cases was a criminal proceeding in the lawyer appealed the order finding him level of deference to functions specifi- Circuit Court for Cecil County in which in direct contempt. Id. at 421-22. He and cally committed to the agency’s discre- the Public Defender’s Office refused to the Public Defender’s Office also filed a tion than they do to an agency’s legal represent an individual named Jason petition for a writ of certiorari, which the conclusions or factual findings,” Spencer Flynn Stinnett after determining that Court of Appeals granted. Id. at 422. v. Maryland State Bd. of Pharmacy, 380 Mr. Stinnett’s income exceeded the Md. 515, 529 (2004), an agency has allowable limit imposed by COMAR no discretion to disregard its statutory 14.06.03.05A and D(2). The Core Administrative Law mandate. The Public Defender’s failure Following Mr. Stinnett’s receipt of a Principles At Issue to consider any of the statutory fac- letter from the Office apprising him of I was retained as special counsel to tors in rendering an indigency decision his ineligibility for representation, Mr. represent the State of Maryland and was not a discretionary act but rather Stinnett appeared before the Circuit sensed an administrative law appari- a dereliction of an executive branch Court at a hearing at which he reiterated tion haunting the case based on the agency’s “non-discretionary mandatory his request for representation because he Circuit Court’s determination that the duties.” Murrell v. Mayor & City Council could not afford private counsel. Stating Public Defender’s Office did not apply of Baltimore, 376 Md. 170, 196 (2003). As that the Public Defender’s regulations the statutory criteria in deeming Mr. a result of the Public Defender’s manda- are “actually contrary” to the Public Stinnett ineligible for representation, tory duty under § 16-207(a) to provide Defender’s enabling statute, the Circuit but, rather, did so in accordance with representation for indigent individuals, Court conducted “a separate, indepen- a regulation which the Circuit Court “the substance of the circuit court action dent determination” of Mr. Stinnett’s found to be contrary to the legislation was a common law mandamus action.” financial ability in accordance with creating the Public Defender’s Office. Murrell, 376 Md. at 196, citing Maryland Thompson by considering the six factors The Public Defender’s Office is an Transportation Authority v. King, 369 Md. set forth in § 16-210(b)(3). Office of the executive branch agency whose author- 274, 287 (2002) (“mandamus or other Public Defender v. State, 413 Md. at 418. ity derives from the General Assembly, traditional actions may lie to enforce After asking Mr. Stinnett questions con- which identified in § 16-210(b)(3) the administrative compliance with proce- cerning his assets, income, and financial factors that the Public Defender “shall” dural requirements or duties”). See also obligations, the Circuit Court concluded consider in determining an applicant’s Talbot County v. Miles Point Prop., LLC, that he was indigent and issued an order eligibility for representation. As an 415 Md. 372, 392-98 (2010); Bucktail, appointing the Deputy District Public executive branch agency, the Public LLC v. County Council, 350 Md. 530, 541- Defender for Cecil County as his attor- Defender’s Office is subject to “the 42 (1999). The Public Defender could ney, but providing that compliance with inherent power” of the courts, which not escape this duty by invoking a the order may occur if the Office assigned may “review and correct actions by regulation that is in contravention of, one of its attorneys or a panel attorney to an administrative agency which are rather than “consistent with the statu- represent Mr. Stinnett. Id. at 420-21. arbitrary, illegal, capricious or unrea- tory scheme under which the agency The Deputy District Public Defender sonable.” Harvey v. Marshall, 389 Md. operates.” Medstar Health v. Maryland filed a notice of appeal from the order 243, 275 (2005), quoting Criminal Injuries Health Care Comm’n, 376 Md. at 22.

36 Maryland Bar Journal May 2011 An Almost Perfect Analogy net annual income level and asset ceil- comply with its statutory mandate. When viewed against the backdrop of ing language of COMAR 14.06.03.05A See Harvey v. Marshall, 389 Md. 243, these fundamental administrative law and D(2), was erroneous and contrary to 302, 884 A.2d 1171, 1207 (2005) (“An principles, I argued that the Circuit law.” 413 Md. at 428. agency decision, for example, may Court did nothing exceptional when it So far, so good. The qualification be deemed ‘arbitrary or capricious’ if discharged the “clear duty” recognized of the administrative law analogy it is contrary to or inconsistent with in Thompson, 284 Md. at 129, by consid- occurred in the Court’s rejection of the an enabling statute’s language or ering at a hearing all of the § 16-210(b) Public Defender’s argument that the policy goals.”). (3) factors, determining that Mr. Stinnett Circuit Court exceeded its author- Id. at 434-35. was entitled to legal representation in ity in appointing an attorney from the I suppose that this judicial review fea- light of those factors, and requiring the Public Defender’s Office once the Office ture of administrative law does not pro- Public Defender’s Office to represent declined representation of Mr. Stinnett. vide a perfect analogy because, as Chief him. A majority of the Court of Appeals After addressing the language from Judge Bell pointed out in his dissenting in Office of the Public Defender v. State Thompson and Baldwin discussed ear- opinion, a court which concludes that agreed with this position and, while lier, the Court held, in accordance with an administrative agency applied an expressing the view that a particular the actual holdings in those cases and erroneous standard would ordinarily aspect of the administrative law anal- the language of the Public Defender return the matter to the agency to apply ogy was not quite perfect, it confirmed Office’s enabling legislation, that: the correct standard. Office of the Public the manner in which settled administra- [W]here the local OPD declines rep- Defender v. State, 413 Md. at 472 (Bell, tive law principles affected the way in resentation of a defendant errone- C.J., dissenting). This particular aspect which the case was decided. ously, because of the local OPD’s of administrative law, however, must The Court stated at the beginning of its failure to consider properly the necessarily yield to an indigent crimi- analysis that “it is clear to this Court, as it statutorily-mandated criteria for nal defendant’s right to a lawyer and a was to the Circuit Court in the proceed- determining indigency, and where speedy trial. ings below, that the local OPD denied a court finds, upon its subsequent In all other respects, the administra- erroneously representation to Stinnett. . . . mandatory independent review, that tive law glove fits this case perfectly. As Rather than apply the statutorily-man- the individual qualifies for repre- the majority stated, the Public Defender dated criteria for determining indigency sentation, the trial court, in carrying Office’s eligibility determination “is . . . , the local OPD, in denying represen- out its role as ‘ultimate protector’ entitled to deference” when it is based tation to Stinnett on this record, relied on of the Constitutional right to coun- on the Office’s application of the statu- certain language contained in COMAR sel, may appoint an attorney from tory criteria and will be overturned 14.06.03.05A and D(2).” 413 Md. at 424. the local OPD to represent the indi- only if it is “arbitrary and capricious.” Invoking the administrative law princi- gent individual unless an actual and Id. at 435. But when the Office acts ple discussed earlier that an administra- unwaived or unwaivable conflict of “contrary to its statutory mandate by tive agency’s regulations must be consis- interest would result thereby. wholly disregarding the indigency fac- tent with the agency’s statute, the Court Id. at 434. Immediately following tors” contained in the statute, “it abuses of Appeals declared that as a result of the this explication of the holding, the its discretion and its eligibility is entitled Public Defender’s misapplication of the Court stated: to no weight.” Id. These statements are law, “the local OPD applied the incor- Though by no means a perfect analo- based on classic principles of adminis- rect standard for determining indigency gy to the situation here, such a proce- trative law. See, e.g., Harvey v. Marshall, of applicants and erred, both legally dure is somewhat analogous to leg- 389 Md. at 302; Md. Aviation Admin. v. and factually, in concluding that Stinnett islatively-sanctioned judicial review Noland, 386 Md. 556, 571-77, 581 (2005); did not qualify for representation by its of decisions made by an administra- Medstar Health v. Maryland Health Care attorneys.” Id. at 426. The Court held tive agency. Where an administra- Comm’n, 376 Md. at 26. that “under a proper evaluation of the tive agency acts contrary to law by And they fully vindicate my OCD/ indigency factors” set forth in the statute, ignoring its statutory mandate and I-see-administrative-law-issues- the Circuit Court properly found that instead relies solely on a self-initiat- everywhere view of the law. Mr. Stinnett qualified as indigent and ed regulation that does not comply Mr. Baida is a partner at the Baltimore law firm that “the local OPD’s conclusion to the with its enabling statute, a court has Rosenberg | Martin | Greenberg, LLP. He may contrary, based solely on the maximum the power to order the agency to be reached at [email protected].

May 2011 Maryland Bar Journal 37 Dealing with Self- Represented Parties in Judicial and Administrative Actions Is Sauce for the Goose Good for the Gander?

By The Honorable Glenn T. Harrell, Jr. and Nicholas C. Stewart

Challenges to the administration of justice created by so many litigants representing themselves before decision-makers in judicial and administrative arenas have significantly increased during the recent reces- sion and slow economic recovery. Similar challenges existed previously, of course, but the sheer increase in the numbers of cases on judicial and administrative agency dockets around Maryland, where one or more parties represent themselves, intensifies the pressure on adjudicators charged with fairly administering these processes. The Maryland Judiciary’s annual conference of judges in 2009 produced a variety of panel discussions and suggestions focusing on how judges can manage cases, hearings and trials in non-traditional ways that may compensate for any lay participants’ lack of familiarity with procedures or knowledge of substantive legal requirements, yet not expose judges to unfair criticism for any real or perceived lack of objectivity or fairness to all litigants and counsel.

38 Maryland Bar Journal May 2011 Dealing with Self- Represented Parties in Judicial and Administrative Actions

May 2011 Maryland Bar Journal 39 In considering the tension between In the meantime, I rely on a rough, stituted well over the majority tried judicial ethics and judges undertak- predictive hint at the influx of SRLs before its ALJs. Thus, the OAH has ing to explain procedural or legal in our administrative and judicial considerable experience in evolving principles to lay participants, I ini- adjudicatory systems to gauge the its practices to accommodate SRLs tially thought that such an analy- status quo. from which the courts can learn. sis might contribute some insights The Administrative Office of the for our State Administrative Law Courts has tracked the number of SRL Judges (“ALJs”) to consider in their family law cases in Circuit Courts Respective Codes of Judicial proceedings. My research, however, since 2007. For example, in the third Conduct of Judges & ALJs revealed that judges may indeed quarter of FY 2007 (April to June), Before considering the portability to learn from the administrative judg- family law courts in Anne Arundel our courtrooms the techniques ALJs es, who seem well ahead in integrat- County experienced 8,691 SRL cases. use to manage SRL cases, I pause to ing into their case management and A year later – in the third quarter of note the ethical strictures and guide- adjudication practices what might be FY 2008 – the number of SRL cases lines governing ALJs and judges, to considered by some to be “non-tra- had dropped to 6,478. Then, the econ- identify any material and relevant ditional” techniques for making the omy plummeted, and simultaneously differences between them. Are the administrative adjudicatory process the number of SRL cases on Anne ALJs operating in a freer atmosphere less mysterious. Arundel County’s family law docket in that regard than judges? began trending upward, climbing to The Maryland Code of Judicial a high of 22,538 in the third quarter Conduct (“CJC”), Maryland Rule An Order of Magnitude of FY 2009. Other jurisdictions con- 16-813 (2010), establishes the stan- of the Challenges fronted similar changes. In Baltimore dards that compel or shape the con- It is well-nigh impossible to obtain County, the third quarter of FY 2007 duct and responsibilities of Maryland system-wide statistics on the number brought 4,978 family law SRL cases. In judges. Replete in the CJC is the of cases, either in Maryland’s courts the third quarter of FY 2009, the num- charge that judges are to be “indepen- or the administrative adjudication ber of SRL family law cases reached dent, fair, competent, and impartial . . system, where one or more parties 9,343. From anecdotal conversations . men and women of integrity who . . . are self-represented. Although juris- with trial judges (Circuit and District) interpret and apply the law that gov- dictions document on a case-by-case around the State, I surmise that the erns our society,” Md. Rule 16-813, basis when one or more parties are number of SRLs in other areas of law CJC, Preamble, C-101. “Inherent in all self-represented, they do not con- has risen as well. the Rules,” the CJC Preamble states, solidate and tally those figures in an In the administrative adjudica- “are the precepts that judges . . . must accessible or consistent database, a tion context, the Maryland Office of respect and honor the judicial office surprise considering that the “state of Administrative Hearings (“OAH”) as a public trust and strive to main- the self-represented litigant” (“SRL”) confirms that in recent years the tain and enhance confidence in the has been a sustained focus of both number of cases tried before its ALJs legal system,” id. adjudicatory systems for some time. by SRLs has risen dramatically, as The CJC, and its accompanying Moreover, even within the area of the economic downturn worsened, Comments, stress the negative duty law where the courts track SRLs con- unemployment and home foreclo- to refrain from engaging in compro- sistently, Family Law, not all jurisdic- sures rose, and the prospect of acquir- mising behavior, see e.g., Rule 16-813, tions use the same reporting stan- ing legal representation became even CJC, Rule 1.2(b) (“A judge shall avoid dards, leading to less than compre- more financially challenging. Even conduct that would create in reason- hensive and reliable data. Fortunately, before this increase, however, the able minds a perception of impropri- a new case management system pro- OAH, because of the nature of many ety.”) (emphasis added). At the same posal (“Maryland Electronic Courts cases brought before it, cases involv- time, however, the CJC places on Initiative”), that should capture such ing food stamps, medical assistance, judges the affirmative obligation to data in a searchable database, could temporary cash assistance, and long be “objective and open-minded,” Rule be implemented in the next few years. term care for example, SRL cases con- 16-813, CJC, Comment 1 to Rule 2.2,

40 Maryland Bar Journal May 2011 so as to ensure “every person who See also Rule 16-813, CJC, Comment from the Model Code for Federal has a legal interest in a proceeding 4 to Rule 2.2 (“It is not a violation Administrative Law Judges, see . . . [has] the right to be heard accord- of th[e] Rule[s] for a judge to make OAH CJC, Preface, and is also highly ing to law,” Rule 16-813, CJC, Rule reasonable accommodations to reflective of the Maryland Judiciary’s 2.6(a) (emphasis added). ensure [SRLs] the opportunity to CJC. Both Codes of Judicial Conduct Interpreting this responsibility in have their matters fairly heard.”) emphasize the primary importance the specific context of SRLs, Comment (emphasis added). of “[a]n independent and honorable 2 attending Rule 2.6(a) acknowledges, The ethical rules for ALJs are found . . . judiciary,” OAH CJC, Canon 1. relevantly, that: in the Maryland State Government as The duty to remain steadfastly impar- Increasingly, judges have before well as in the OAH Code of Judicial tial notwithstanding, both Codes also them [SRLs] whose lack of knowl- Conduct (“OAH CJC”), which may direct adjudicators to ensure that edge about the law and about judi- be obtained from OAH upon request. “every person who has a legal inter- cial procedures and requirements While the OAH CJC does not appear est in a proceeding . . . [has] the full may inhibit their ability to be in the Maryland Code, it directs the right to be heard according to law,” heard effectively. A judge’s obli- Chief ALJ to develop a code of ethics OAH CJC, Canon 3(A)(6). gation under Rule 2.2 to remain for ALJs, see Maryland Code (1984, Although the OAH CJC, unlike fair and impartial does not pre- 1999 Repl. Vol.) State Government the Judiciary’s CJC, does not com- clude the judge from making rea- Article, § 9-1604. Moreover, the Chief ment explicitly on the treatment of sonable accommodations to pro- ALJ enforces the code through the SRLs, the State Government Article, tect a [SRL’s] right to be heard, initiation of disciplinary actions. As provides indirect illumination. It so long as those accommodations a result, the OAH CJC is effectively authorizes an “individual who is not do not give the [SRL] an unfair mandatory in application. licensed to practice law in [Maryland advantage. The OAH CJC is derived directly to] . . . represent a party in [cer-

May 2011 Maryland Bar Journal 41 tain types of] proceeding[s] before [an ALJ],” State Gov’t Article, § 9-1607.1(a). This recognition of non- attorneys appearing in representative capacities before ALJs is reflective of the many types of proceedings arising before ALJs, including, but not limited to, the unrepresented litigant who is a recipient of or applicant for income-based benefits, an inmate with an administrative grievance, or a business appearing under particular provisions of the Code, see State Gov’t Article, §§ 9-1607.1(a)(2) (i), (iv), (3)-(4). Thus, a statutory directive helps ensure that in the administrative setting SRLs are afforded wider latitude for assistance to be heard adequately. The potential for this technique to bleed-over into the judicial arena is, I think, unlikely, except perhaps for the few scenarios involving landlords and tenants, e.g., summary ejectment.

Fostering Public Trust and Confidence With this understanding of the ethical bases guiding ALJs and judges, hypothetical scenarios. Represented Litigation Network, we consider conduct that judges may Second, even the most seasoned Maryland ALJs carefully set the stage borrow from ALJs in pursuit of two ALJs are encouraged to attend reg- for the hearing, confirming with the common CJC benchmarks – bolster- ular training sessions and confer- parties on the record the issues to ing the appearance and reality of ences, like the bi-annual National be heard and explaining in plain greater courtroom fairness pursuant Association of Administrative Law language the procedures to be fol- to Rule 2.6, and thereby we increas- Judges Conference, to help them con- lowed. Once a hearing begins, the ing public respect and confidence in front and meet the SRL challenge. ALJ employs a variety of techniques, our system of justice. Finally, OAH has constructed an including asking questions to elicit In addition to the inventive and extremely user-friendly webpage, key information. flexible unlicensed practice of law and a thirty minute video tutorial to ALJs also are trained to explain to (“UPL”) rule described above, OAH help SRLs acquire basic knowledge SRLs the basis for ruling on objec- has developed a number of prac- about representing themselves before tions, which helps questioning move tices to improve adjudicative fair- the OAH. along and otherwise supplies neu- ness. From a macro-perspective, At a micro-level, i.e., in the hear- tral guidance. In certain instances, three particular techniques are ing room itself, Maryland ALJs nota- ALJs will vary the order of proof, noted. First, newly-minted ALJs are bly engage with SRLs. According regardless of who bears the ulti- trained from the beginning how to to research summarized by Richard mate burden of proof or persuasion. treat appropriately SRLs in certain Zorza, a coordinator with the Self- For example, in entitlement cases,

42 Maryland Bar Journal May 2011 the Department of Social Services is housing,” Keynote Address at the in an open-minded way, to promote required to put its case on first, as a Annual Conference of Chief Justices greater understanding and greater means to manage case presentation (26 July 2010). fairness and confidence in the judi- when an SRL is involved. The Judiciary has generated a few cial process. When rendering a final decision, ideas about how to approach SRLs. This article focuses on those strat- the ALJ takes special care to eluci- Among those submitted for consid- egies and practices that ALJs and date the rationale and impact of the eration at the 2009 Maryland Judicial judges may employ to demystify pro- ruling in the plainest possible lan- Conference was a checklist, keyed ceedings and to compensate for lay guage. Throughout the proceedings, chronologically to the stages of a participants’ lack of procedural and an ALJ is conscious of the danger of hearing/trial, to serve as a reminder substantive legal proficiency. Going communicating through non-verbal for trial judges that their behavioral forward, a large challenge, it seems to cues, which may be perceived too mannerisms may impact in significant me, will be to improve information- readily by lay participants as bias, ways the efficacy of the proceedings. gathering efforts regarding SRLs in impatience, or frustration. Body lan- The checklist also helps trial judges our courts; to compile a succinct, guage has the potential to undermine recall that their affirmative interces- working manual of best practices for confidence in the proceedings and sion is not only permissible, but actu- how to deal with them; and to devise its outcome, while also flustering a ally necessary when, for example, a strategic plan for deployment and lay party so as to affect adversely the not enough facts have been elicited integration of the manual. presentation. to render a just decision. Similar to Although I acknowledge that One reason the OAH fashioned the OAH’s user-friendly website and there are legitimate concerns among these progressive approaches is video tutorial, the District Court now many of my judicial colleagues about because, unlike trial judges, ALJs has pilot Self-Help Centers at various involving themselves inappropriately have a statutory and regulatory duty locations around the State. or improperly (in fact or in appear- to develop adequately the adminis- In 2009 the specially-created ance) in hearings and trials and, trative record in a case. Somewhat Maryland Committee to Review thereby, violating fundamental and freed from adherence to the formal the 2007 Model CJC proposed a essential ethics regarding objectivity rules of evidence, ALJs are incentiv- new comment highlighted explic- and impartiality, I submit that both ized to be creative, proactive, and itly the SRL issue, see Rule 16-813, CJCs provide ample room for judges responsive to SRLs. Although trial CJC, Comment 2 to Rule 2.6. The to “engage neutrally,” to borrow a judges do not bear universally the Comment notes that judges may phrase from Mr. Zorza. Ensuring that same record-building obligation in make reasonable accommodations SRLs are fairly heard requires more their courtroom proceedings and where necessary to protect the right than judicial passivity. As adjudica- are constrained (usually by appel- to be heard. The Committee’s report tors, we must take a role that is both late courts) to apply the formal rules to the Court of Appeals acknowl- active and measured. Actually doing of evidence in most situations, trial edges that such accommodations so will take time, open-mindedness, judges remain bound by the CJC to may include judges “tak[ing] a more effort and nerve, especially in light of protect the parties’ right to be heard, active role in questioning witness- the ever-increasing number of SRLs see Rule 16-813, CJC, Rule 2.6. es,” “modify[ing] the order of tak- and other pressures, such as case As a result, judges should apply, ing evidence,” “explain[ing] legal management time performance stan- constructively and prudently, best requirements to [SRLs], including the dards. To assist us somewhat, we practices to improve the adminis- requirements for offering or object- have the fine example of our ALJ tration of justice. Simply because ing to evidence,” and “advis[ing] colleagues. “our UPL [and other] rules have not [SRLs] of agencies that may be Judge Harrell serves on the Court of caught up with our reality,” implores able to provide assistance.” Thus, Appeals of Maryland and is Senior Judge. Professor Lawrence H. Tribe, is no the Committee, by proposing the Mr. Stewart is a law clerk for Judge Harrell. excuse to “inhibit the ability of [SRLs] Comment – and the Court by adopt- to seek ministerial help in addressing ing it – recognized the growing need issues as critical as child custody and for trial judges to engage with SRLs

May 2011 Maryland Bar Journal 43 Administrative Law: Rules to Results

By Ralph S. Tyler and Karen Stakem Hornig In this article, we propose to discuss the efforts underway to hold agen- raditionally, the central concern of administrative law has cies accountable for accomplishing the Tbeen that parties subject to the jurisdiction of an admin- agency’s substantive mission. Implicit in our emphasis on agency performance istrative agency are treated fairly. Administrative law has thus is our view that the study and practice focused on ensuring that parties are afforded prior notice of administrative law should be broad- and an opportunity for a hearing before an agency takes ened to focus on results in addition to focusing on procedural fairness. an adverse action and that the public not be subject to an agency rule unless the rule is promulgated lawfully through Performance Accountability notice and comment rulemaking. These principles are unde- When we refer in this article to agency niably important protections of individual rights and sound performance, we mean how well an limitations on agency actions. These central administrative agency improves public safety, if that is the agency’s mission, or improves law concerns fail, however, to capture why legislatures create public health, if that is the mission, or agencies, and similarly fail to provide a basis for determining places children for adoption, and so on. whether agencies are successful in accomplishing their legis- The notion of holding agencies accountable for their performance involves latively intended purposes. two fundamental components. First, the agency must have clearly articulat- Administrative agencies are created to ance in the State of Maryland. ed goals and second, the agency must manage ongoing complex social and In each of these, the test of whether have reliable mechanisms for measur- economic problems. Familiar federal the particular agency is doing the job ing progress towards those goals. examples include the Securities and it was created to do is whether, for For-profit enterprises have a built- Exchange Commission (SEC) to regu- example, the securities markets work in accountability mechanism as their late the sale of securities and the Food fairly and efficiently, whether safe survival depends upon making a and Drug Administration (FDA) to and effective drugs are approved and profit. No similarly obvious account- regulate drugs and medical devices unsafe and ineffective ones are not, and ability measure exists for public sec- (as well as other products). On the whether insurance consumers receive tor entities. Traditional management state level, the Maryland Insurance fair treatment and the benefits to which theory has focused also on for-profit Administration (MIA) exists to regu- they are entitled under their various entities, developing, for example, late the marketing and sale of insur- insurance contracts. statistical methods to control man-

44 Maryland Bar Journal May 2011 ufacturing quality, management by this regard. The congressional pur- cise than that. An appropriately precise objective, and various theories like pose in giving the FDA jurisdiction goal would be some stated reduction in Total Quality Management (TQM) over tobacco was not, however, so smokers per year. As precision increas- and Six Sigma. that the FDA could promulgate lawful es, accountability increases. A fair question is why the tools for regulations. The FDA’s success as a In the 1980s and the 1990s, there were measuring the successful manufacture regulator of tobacco is not measured initial efforts to move outcome and of widgets are more established and by how many pages it adds to the accountability measures to the public better developed than are the tools for Code of Federal Regulations. sector. The purpose of this movement measuring the production of public Congress gave the FDA authority was to help agencies ensure that they goods and services. The quality pro- over tobacco, in part, to reduce the num- apply their resources to address what duction of public goods is certainly no ber of Americans who smoke. Thus, a is really important to the agency’s mis- less important than is the quality pro- central measure of the effectiveness of sion rather than spending significant duction of private goods. Nevertheless, FDA’s tobacco regulatory activities is resources on insignificant problems. what does not seem seriously debat- whether there is a meaningful decline In 1993, for example, Congress passed able is that there has been less atten- in the number of smokers fairly attrib- the Government Performance Results tion to accountability and measuring utable to the FDA’s activities. Act (GPRA). 31 U.S.C. § 1115 (1993). This performance in the public sector than To evaluate agency performance, an law was designed to improve project in the private sector. Less easily prov- agency needs to state its goal in quan- management by requiring government able, but still likely true, is that this tifiable terms. In the case of tobacco, agencies to engage in strategic plan- inattention to accountability in how the long history of smoking in our ning, to measure results, and to report government does its job has made and country and the extensive amount of regularly their progress in achieving makes government weaker and less governmental and industry research those goals. The stated purpose of the effective than it should be. over many decades means there is reli- GPRA was to “improve the confidence Success (or failure) in the agency able data on the number of smokers of the American people in the capabil- context must be measured against an in the United States. This data makes ity of the Federal Government, by sys- articulated goal. An administrative it rather straightforward to measure tematically holding Federal Agencies agency’s goals, at least in the broad- progress. The data will show whether accountable for achieving program est terms, are set forth in the agen- the number of smokers is decreasing, results…” by improving service deliv- cy’s statute. Consider, for example, increasing, or holding static. ery, program performance, and cus- the Family Smoking Prevention and One FDA regulatory requirement tomer satisfaction. Tobacco Control Act, which Congress under the Tobacco Control Act will be In 1996, Maryland’s governor estab- enacted and the President signed in that graphic health warnings (as well lished the Managing for Results (MFR) 2009, giving the FDA authority to regu- as textual warnings) will be required initiative, which requires Maryland state late tobacco products, including the on cigarette packs. The effectiveness agencies to engage in an annual strategic advertising and promotion of those (or not) of FDA’s regulatory action planning, performance measurement, products. Congress took this action in requiring these warnings can be and budgeting process. According to because of the thoroughly documented measured in consumer response to the Maryland’s Department of Budget and negative health effects of smoking and warnings, and less directly in rates Management, the emphasis of MFR is the corresponding enormous health of quitting, and rates of initiation. A on the appropriate use of state resourc- care costs associated with preventable marked decline in the number of smok- es “to achieve measurable results, smoking related diseases. ers represents success for the FDA’s accountability, efficiency, and continu- The FDA’s regulation of the tobacco efforts on tobacco; status quo or an ous improvement.” MFR was codified industry requires, among other things, uptick in smoking does not. as part of Maryland’s State Finance and that the agency promulgate in a time- There will be no hiding success Procurement Article in 2004. ly fashion numerous regulations and or failure. “A marked decline” is, of The concept of governmental guidance documents on a wide range course, not a sufficiently precise goal. accountability has developed, as well of novel topics. It is, of course, critical Accountability requires that an agen- it should, into an increasing demand that the FDA meet its obligations in cy’s goal be substantially more pre- for greater empirical data to support

May 2011 Maryland Bar Journal 45 the actions taken by and the decisions the effort to improve the condition of it was intended to do?) and judicial made by government agencies. In 2000, the Bay or assisting families in need. review of agency action. Judicial def- the City of Baltimore launched the The FDA has implemented FDA- erence is based, in large measure, on a CitiStat program, which has inspired Track. Not coincidentally, one of the presumption of agency expertise and followers from other cities, nationally leaders of this effort at the agency has expertise, in turn, presupposes agency and internationally. CitiStat is a per- personal experience with CitiStat as competence. formance-based management program a cabinet official in Baltimore. FDA- An underlying assumption of that holds managers accountable to Track monitors over one hundred FDA administrative law, and one that has clearly measurable performance goals, program areas and tracks performance only strengthened over time, is that the achievement of which is measured measures for those programs. Most of courts are not well equipped to evalu- on a weekly or biweekly basis. the program measures and the perfor- ate how well an agency does its real job One of the first problems tackled by mance record against those measures of, for example, protecting consumers the CitiStat program was the reduc- are posted on the agency’s public web- from unsafe products or regulating tion of overtime and sick leave by City site. FDA-Track is thus intended to financial markets. Courts are far bet- employees. In the first year, the City advance agency accountability both ter equipped to protect the procedural realized a $6 million reduction in over- internally (are programs meeting their rights of those impacted by agency time costs with an impressive reduc- objectives?) and externally (by allow- action, including whether the agency tion in employee absenteeism. CitiStat ing the public to see both what the followed fair procedures and wheth- is also used to improve the quality of agency is proposing to accomplish and er the agency decision is rationally municipal services. whether the agency does so). supportable. At the same time that it For example, the Department of There is debate about the effective- has become increasingly difficult and Public Works set a goal of filling pot ness of these programs within and perhaps unrealistic for the courts to holes within 48 hours. Each week, without government. Some argue that evaluate in any significant fashion the the appropriate managers head to the initiatives like the federal government’s substantive work of an administrative CitiStat office to face a panel of their GPRA and Maryland’s MFR are too top- agency, the public’s faith in the work of colleagues (often including the Mayor) down and become a meaningless annu- government agencies has diminished. to report about their progress. The pro- al exercise of filling out paperwork. If courts are not the proper institu- cess also requires agencies to coordi- Others complain that the relentlessness tion to hold agencies accountable for nate their efforts. Police officers report of the weekly “stat” process requires too their performance, that leaves the task about alleys that need to be cleared of many staff hours, especially in times of to the public and the legislative and trash or neighborhoods that need addi- shrinking government budgets. executive braches of government. The tional lighting to improve safety. However, it is difficult to argue with role of the legislative and executive The CitiStat method was adopted by the notions of clear goal setting and branches is critical, Maryland’s state government in 2007, measuring performance against those because administrators conform to and named StateStat, as a corollary goals. The alternative is a society that most of their instruction most of to the MFR process. It has now been places high demands on government the time, statutes, executive orders, adopted and adapted by certain federal agencies (everything from garbage pick and congressional and executive agencies, such as the FDA. Maryland’s up to oil well safety) without a means oversight are much more important StateStat meetings are also held on a to measure the performance of govern- sources of constraints on admin- weekly basis and are used to implement’s varied and important tasks. istration than judicial opinions. ment measures to improve the health Administrative officials received of the Chesapeake Bay, to reduce state their subject matter jurisdictions, spending for overtime costs, and to How to Enforce Performance their powers of action, their fiscal improve public health and safety pro- The traditional administrative law and human resources, much of their grams. The emphasis on inter-agency “check” on agencies is judicial review. internal structure, and the processes cooperation is even greater at the State A difficult question is the proper rela- by which they must act, not from the level, with numerous State agencies tionship between agency accountabil- courts that review their actions, but involved in common problems such as ity (is an agency actually doing what from the Congresses and Presidents

46 Maryland Bar Journal May 2011 who create, empower, appoint, inevitable and, perhaps, healthy. In the status of its facilities. fund, and monitor them. end, though, effective management of The public has a legitimate inter- administrative agencies requires active est in having this information as it Jerry L. Mashaw, Recovering engagement and direction as well as allows the public to know what gov- American Administrative Law: Federalist collaboration. The executive branch ernment is doing and reveals what Foundations, 1787-1801, 115 Ya l e L.J., must commit to long-term, and ongo- government knows about the activities 1256, 1261 (2006). ing bottom-up management review, of businesses that impact the public. Legislatures, as the entities that cre- which outlives changes to top agen- Nevertheless, much of this information ate, fund, and oversee administrative cy administrators. This process must is often withheld as “confidential com- agencies, plainly play a critical role review the work of individual agencies mercial information.” Consideration in improving agency accountability. and the work of the government as a should be given to whether doing so is There is a tendency for legislatures to whole to ensure that agencies are doing in the public interest. grant agencies broad delegations of what they are supposed to do (and authority, while leaving it to the agency that this fact is demonstrable through and its rulemaking to develop the solu- data), and that agencies are not work- Conclusion tions to many of the tough problems. ing at cross-purposes or duplicating The daily business of government at The complexities of the issues involved the efforts of other agencies. all levels, local, state, and national, is in, for example, developing new rules Technology provides new tools for conducted by administrative agencies. for financial institutions and the pres- the public to participate more direct- What is more, this pattern is almost cer- sures of the political process make this ly in holding government account- tain to continue and even increase. The tendency understandable. able. Websites such as Maryland’s implications of this phenomenon are Nevertheless, legislative uncertainty Chesapeake Bay site (www.baystat. many. One of these implications is that expressed in the form of an overly maryland.gov) and FDA’s site (www. the study and practice of administrative broad delegation about the scope and fda.gov/fdatrack) allow the public to law must include agency performance. range of an agency’s authority does see what agencies are seeking to do Agencies must be fair in their deal- not start an agency on solid account- and whether they are doing it. ings with the public. That is neces- ability footing. If the legislature frames Given the close relationship between sary, but not sufficient. In addition to an agency’s mission too broadly, that transparency, here meaning public dis- being fair, agencies must be effective complicates the task of defining suc- closure of an agency’s goals and how and have transparent mechanisms for cess or failure. they are being achieved, and account- demonstrating their effectiveness. And A challenge in most agencies is ability, a legal issue arises that deserves while judicial review seems like the the relationship between the political reconsideration. The issue is what cate- least viable way to monitor agency appointee leadership and the perma- gories of information should be treated effectiveness, the legislative and execu- nent agency employees. The contra- as “confidential information” not sub- tive branches have ample tools to do so diction is that the political appointees ject to public disclosure. Certain cat- and, increasingly, so does the public. are accountable to the elected execu- egories of information held by agencies tive to a far greater degree than are surely deserve protection. Personnel Disclaimer: The opinions, beliefs and view- the non-political career agency staff, information would be an example. points expressed by the authors do not but the real work of agencies is done The rationale for continuing to pro- necessarily reflect the opinions, beliefs and largely by career staff. Likewise, much tect from disclosure certain other cat- viewpoints of the administrations of the of the knowledge that forms the basis egories of information is far less clear. United States Government or the State of of specialized agency expertise resides For example, many government agen- Maryland. in career employees even though the cies conduct inspections of commercial Mr. Tyler is Chief Counsel for the Food principal responsibility for bringing facilities, everything from farms to fac- and Drug Administration. He may be performance accountability rests with tories. In the course of these inspec- reached at [email protected]. Ms. political appointees. tions, agencies collect information, Hornig is the Deputy Commissioner for the Maryland Insurance Administration. She A level of tension around these including, of course, the name of the may be reached at khornig@mdinsurance. internal agency management issues is business and data on the compliance state.md.us.

May 2011 Maryland Bar Journal 47 48 Maryland Bar Journal May 2011 Gubernatorial Executive Orders: Legislative or Executive Power? By The Honorable Robert A. Zarnoch

early 50 years ago, Maryland Governor J. Millard Tawes asked the Attorney General whether by executive order he could eliminate discrimination because of race, religion, color, creed, or national Norigin in any private business or profession licensed by the State. In a formal opinion, 48 Opinions of the Attorney General 72 (1963), the Attorney General responded that he had “the gravest doubts” as to the constitutionality of such an order because it might be taken by the Courts as an attempt to “intrude” into the area of powers . . . not granted under the Constitution or State law. The 1963 opinion went on to note that the Executive “has no plenipotentiary power, under the guise of executing the will of the Legislature, to brush aside any legislative act or to superimpose [the governor’s] view of what is necessary for the public good.”

May 2011 Maryland Bar Journal 49 Flash forward to the near-present, to Governor William Paca notifying the Although a comprehensive defini- a 2009 decision of the Court of Special citizens of the ratification of the Treaty tion, this language leaves undefined Appeals, State v. Maryland State Family of Paris and calling upon Marylanders the term “order,” which has been read Child Care Assoc., 184 Md. App. 424 to observe and carry into effect the not to include letters, press releases (2009). In that case, the Court of Treaty; and a July 13, 1786 proclama- or other less formalized gubernatorial Special Appeals rejected a challenge tion of Governor William Smallwood statements. For decades, this implied to an executive order establishing a seeking to quell riots in Port Tobacco. exclusion allowed Governors to use a collective bargaining system for pri- mere letter to create advisory boards, vate family child care providers who such as those proposing legislative contracted with the State under a pro- Statutory Authority and congressional redistricting plans. gram that provided funding to assist The first serious attempt to define, cata- As a result, these entities could oper- working parents. The Court held log and proceduralize executive orders ate free of the dictates of the Open that the Governor had the statutory occurred during the administration of Meetings Law. This loophole has been authority to adopt such an order for, Governor Marvin Mandel. In 1973, the closed to some degree by an amend- among other reasons, it established General Assembly enacted legislation, ment to that “sunshine” statute. procedures for those who “deal with” minimally invasive of executive pre- Another surprising impact of § the State. rogatives, imposing distribution and 3-401 is that this definition has not publication requirements in connec- been interpreted as merely descriptive tion with the issuance of executive language in a procedural statute, but Earliest “Executive Orders” orders. However, the most important as a substantive source of gubernato- This half-decade evolution in the feature of that statute was its defini- rial authority to issue executive orders legal acceptance of executive orders tion of executive order. That defini- in the named areas. Appellate courts in Maryland does not mean that the tion, now found in §3-401 of the State have cited this provision in support issuance of executive orders, or their Government Article, provides: of executive orders that created a non- legal equivalent, is a recent develop- In this subtitle, “executive order” binding system of collective bargain- ment. In Colonial or Revolutionary means an order or an amendment ing for executive branch employees, War Maryland, the term “executive to rescission of an order that, over McCulloch v. Glendening, 347 Md. 272 order” did not exist, but “proclama- the signature of the Governor: (1997); lengthened the work week for tions” issued during the period had (1) proclaims or ends a state of State employees, MCEA v. Schaeffer, much in common with the modern emergency or exercises the authori- 325 Md. 19 (1991); established a sub- executive order. ty of the Governor during an emer- stance abuse policy for executive According to the State Archivist, gency, under Title 14, Subtitle 3 branch employees, Dept. of Pub. Safety Dr. Edward C. Papenfuse, one of the of the Public Safety Article or any & Correctional Services v. Beard, 142 earliest such documents was a March other provision of law; Md. App. 283 (2002); and mandated 30, 1755 proclamation of Governor (2) adopts guidelines, rules of con- collective bargaining for State contrac- Horatio Sharpe warning Baltimore duct, or rules of procedure for: tors who provide family child care and Frederick counties to prepare for (i) State employees; services, Maryland State Family Care attack by the French and the Indians (ii) units of the State government; Assoc., supra. and urging citizens to procure arms. or Dr. Papenfuse also notes an April 1777 (iii) persons who are under the proclamation of Governor Thomas jurisdiction of those employees Constitutional Dimensions Johnson calling out the militia to fight or units or who deal with them; In the case of executive branch employ- the British during the Revolutionary (3) establishes a unit, including an ees, cases like McCulloch have suggested War; an April 3, 1779 proclamation of advisory unit, study unit, or task that the Governor’s authority to issue Governor Thomas Sim Lee declaring force; or executive orders regarding the State May 1st of that year a “day of fasting, (4) changes the organization of the work force may also be of constitutional humiliation and prayer”; the January Executive Branch of the State gov- origin, because Article II, § 1 expressly 14, 1784 “Peace Proclamation” of ernment. vests executive power in the Governor.

50 Maryland Bar Journal May 2011 An example of the broad authority was 2002 enactment of legislation giving Diversity of Governor William Donald Schaeffer’s the executive authority with respect Executive Orders 1993 executive order banning discrim- to “catastrophic” health emergencies. Not every executive order responds ination in State employment on the Although the exercise of these pow- to an actual emergency or articulates basis of sexual orientation. This order ers is triggered by a “proclamation,” a bold new State policy. Many are was issued some eight years before the details of such a procedure would routine or ceremonial: establishing the General Assembly enacted such a most likely be set forth in an execu- a task force to study a specialized prohibition for all employees, public as tive order. Once again, these pow- issue, dedicating a week to highlight well as private. ers are far-reaching, including the a certain disease or historical event, or An express grant in the Constitution authority to require vaccinations or calling or extending a session of the of power to promulgate an executive medical treatment for those exposed General Assembly. Over the last 40 order appears in Article II, § 24, which to a disease or outbreak and even to years, the number of executive orders authorizes the Governor to reorganize order individuals to remain in places issued in a single year has varied from State government by an “executive of isolation or quarantine. Violation 8 by Governor Mandel in 1975 to 75 by order in statutory form,” which is sub- of these orders could also result in a Governor Robert Ehrlich in 2004. From mitted to the General Assembly for criminal penalty. 2003-05, Governor Ehrlich issued 167 approval or rejection. This seldom-used executive orders — probably a record. authority differs from the issuance of However, these numbers are skewed the typical executive order — even one General Emergencies to a degree because many of these authorized by statute — in that it can The Public Safety Article (§ 14-107), executive orders reflected individu- trump existing legislative enactments. authorizes to Governor to issue an al pardons and sentence commuta- executive order or proclamation to tions that were widely regarded as an address more traditional emergen- enlightened policy accomplishment of Emergency Powers cies, such as hurricanes, floods, snow the Ehrlich administration. Governor Another area where the Governor’s storms, droughts “and any other disas- Martin O’Malley has issued an annual authority to act by executive order is ter.” The definition of “emergency” is average of 23 executive orders during far-reaching is when the executive is also broad enough to encompass “acts his first term, numbers more reflective confronted with an emergency. Here, of terrorism.” Here, if necessary to of the typical governorship. the Governor’s statutory powers are protect the public health, welfare or both exceedingly specific and very safety, the Governor may order evacu- general. Under Title 14, subtitle 3 of the ation, authorize the use of private Legal Effect Public Safety Article, the executive has property (with compensation) and What is the legal effect of an execu- specific authority to address energy most importantly “suspend the effect tive order? In 1979, Attorney General emergencies, riots and “tumultuous of any statute or rule or regulation Stephen H. Sachs opined that a statuto- conduct,” and bank closings. When the of an agency of the State or political rily-authorized executive order had the public safety is threatened during an subdivision.” force and effect of law — a conclusion emergency, the Governor’s executive A recent example of the invocation which Maryland appellate courts, see order could dictate substantial restric- of this power occurred in 2002, when e.g., Beard, supra, 142 Md. App. at 297, tions, such as establishing curfews the search was on for the Beltway have accepted. This does not mean that and barring the carrying of weapons. snipers. At that time, Governor Parris such an order can be inconsistent with Persons who violate such an executive Glendening issued an executive order existing law, unless the Governor is order could face criminal penalties. to halt the beginning of hunting sea- exercising emergency powers under a son in the D.C. suburbs because “[i] State law that grants the executive the n these very tense times, there is both power to suspend statutory provisions. Catastrophic Health individual and community reaction to However, Beard noted, id. at 303, that Emergency Powers any discharging of firearms, and the even in non-emergency situations, a A more recent addition to the potential relation of the discharge to statutorily-authorized Executive order Governor’s emergency powers is the the recent sniper shootings.” may trump agency regulations.

May 2011 Maryland Bar Journal 51 One issue that arose in 1989 is wheth- in MCEA and the Attorney General’s in point is Governor Ehrlich’s 2004 er the Governor was bound by his own Office have recognized that standard- executive order seeking to enhance the executive order, just as an administra- ized language in cabinet agency stat- ability of “faith-based organizations” tive agency is ordinarily bound by its utes making the Secretary “respon- to receive State financial assistance for regulations. The backdrop was a long- sible for carrying out the Governor’s providing various services. To counter standing gubernatorial executive order policies,” enables the Governor to this gubernatorial initiative, the legis- on judicial nominating commissions “piggy back” on that agency’s author- lature in 2005 amended the budget bill and the specific question was whether ity. Thus, the Governor is able to per- to add the following language: the Governor was bound by the order sonally exercise the power granted by [N]o funds in this budget may be to pick from the Commission’s list of law to the Executive’s subordinate in expended pursuant to, or in fur- nominees or was he free to ignore the the form of an executive order. therance of, any policy, program, recommendations and select whom- One notable example occurred in or office, so named or otherwise, ever he wanted. 1987. When Governor Schaefer issued to purposefully promote or facili- The Attorney General’s Office con- an executive order banning smoking tate the participation of faith-based cluded that because the Governor’s in the State House, he could rely on organizations in State programs pro- power to gauge qualifications of judi- the Secretary of Health and Mental viding health, social, educational or cial applicants and to appoint judges Hygiene’s broad statutory powers to other community services, unless was constitutionally based, the execu- support the validity of the order. In that policy, program, or office is tive order’s requirement that appoint- addition, if the Secretary had proposed specifically authorized by an Act of ments come from the list of nominees such a prohibition, the policy would the 2005 General Assembly. had to be considered as directory, arguably have been subject to rulemak- not mandatory. In short, under these ing requirements. However, an execu- Because enabling legislation for a circumstances, the Governor could tive order issued by the Governor on faith-based organization program did ignore his own executive order. the basis of the Secretary’s powers not pass in the 2005 session, this bud- faced no such hurdles. get condition was not satisfied, the specific restriction took effect, and the Rulemaking goal of the 2004 executive order was Among the hurdles facing a proposed Legislative Control frustrated. agency regulation is submission to the Most executive orders, and certainly Joint Committee on Administrative, all statutorily-authorized orders, are Executive and Legislative Review, subject to legislative control, in that Unanswered Questions publication in the Maryland Register, the General Assembly can enact a law Although Maryland law on executive generally a delayed effective date, effectively altering or superceding the orders is beginning to take shape, and compliance with other features executive order. This rarely occurs. In there are still some unanswered ques- of the Administrative Procedure fact, after the Court of Appeals upheld tions. One is whether an executive Act (APA). Because the Governor is Governor Glendening’s controversial order can impliedly create a private exempt from the APA and because 1996 executive order on State employ- cause of action for its violation. The procedural requirements for execu- ee collective bargaining, the General issue arose in a 1982 opinion of the tive orders are governed by other less Assembly enacted legislation in 1999 Attorney General on a proposed exec- restrictive provisions of State law, the essentially codifying the executive utive order setting development poli- Court of Special Appeals in Maryland order. This was particularly surprising cies to guide State agencies. State Child Care Assoc. has concluded because the Governor upset many in The opinion dodged the question that executive orders are not subject to the legislature in 1996 when he issued of whether an executive order could rulemaking requirements. the executive order shortly after legis- be civilly enforceable by private par- This is true even if the authority for lation on the subject had failed. ties. The Attorney General character- the executive order is enabling legisla- Sometimes, the legislature does not ized the proposed order as directory tion for a cabinet agency that is subject need to pass substantive legislation to and noted that language in the order to the APA. Both the Court of Appeals supersede an executive order. A case expressly declaring that the document

52 Maryland Bar Journal May 2011 was not intended to confer standing statutorily-authorized executive contains many of his executive orders, on a private party would probably orders have the force and effect of but not all. In any event, these orders curb litigation. law, it is at least arguable that the can be located, even if the entire pack- Another unresolved issue is wheth- Governor could restrict access by an age is not instantly accessible. er an executive order can make pub- executive order. However, this is a lic records confidential. The executive question for another day. orders on judicial nomination com- Conclusion missions contain one such confiden- A policy-based executive order autho- tiality provision, viz. barring access Locating Executive Orders rized by statute may look like law- to a proposed nominee’s application. At one time, executive orders were making. However if it is lawmaking In 1991, the Attorney General’s Office included in a volume of the Annotated by the executive, it is a limited and fended off an attempt by a judge’s Code and in the Session Laws. This legislatively-delegated power. The divorcing spouse to obtain access to practice has ended. The Department General Assembly can control this her application. of Legislative Services does publish authority, if it chooses to act. To date, Because of the constitutional back- an annual volume of gubernatorial Maryland courts have generally reject- drop to the Governor’s powers in executive orders, which is also avail- ed ultra vires and constitutional chal- this area and the possible application able online on the General Assembly’s lenges to executive orders. As long as of executive privilege, this example website for the years 2007-2009. Governors do not abuse their powers, is hardly precedent to resolve con- The Code of Maryland Regulations this trend is likely to continue. fidentiality issues in the context of contains the “permanent” executive Judge Zarnoch, an Associate Judge on other executive orders. Nevertheless, orders and the Maryland Register con- the Court of Special Appeals, served because the Public Information Act tains all of them. Only four months of as Counsel to the Maryland General denies access to public records made the Maryland Register can be accessed Assembly for 30 years. confidential “by law” and because online. The Governor’s website also

May 2011 Maryland Bar Journal 53 Propriety of Using Generic Name of State Administrative Agency as Trade Name

You have requested an opinion of coupled with an adjective or further of practice before that agency. That the Maryland State Bar Association description ...should be judged by the generic name of the state agency Committee on Ethics as to the pro- the general policy underlying Rule also has become a shorthand refer- priety of using the generic name of a 7.5, and any doubt regarding the mis- ence to the nature of the practice state administrative agency for your leading connotations of a name may before it does not change our opin- practice and I have been assigned be resolved against use of the name.” ion. The name may also create an to respond to your inquiry. For the (Emphasis added). unreasonable expectation of suc- reasons set forth hereinafter, it is Rule 7.1 addresses communica- cess for the client and may lead an the Committee’s opinion that you tions concerning a lawyer’s services unsophisticated prospective client should discontinue the use of this and prohibits a lawyer from making to seek out your firm solely on the name for your firm. a false or misleading communication belief that you are preeminent law Rule 7.5 addresses the use of firm about the lawyer or the lawyer’s firm practicing this area of law in names and letterheads. Rule 7.5(a) services. Rule 7.4 addresses commu- the State. states: nications regarding a lawyer’s fields Other state ethics opinions focus “A lawyer shall not use a firm of practice and prohibits a lawyer on whether the use of the trade name name, letterhead or other pro- from holding himself or herself out would be misleading to the gen- fessional designation that vio- publicly as a specialist. eral public. See Rhode Island Ethics lates Rule 7.1. A trade name may After consideration of your Opinion 94.27 (1994) (use of a trade be used by a lawyer in private inquiry and an examination of our name such as “The Woman’s Law practice if it does not imply a responses to prior requests about Center,” that implies a connection connection with a government firm names in Ethics Docket 2004- with a charitable legal services orga- agency or with a public or chari- 09, Ethics Docket 2004-10 and Ethics nization is likely to be misleading table legal services organization Docket 2006-19, it is the opinion to the public and is impermissible and is not otherwise in violation of the Committee that the name under RI Rule 7.5(a)). of Rule 7.1” you suggest is not in compliance Some states have approved trade with Rules 7.1, 7.4 and 7.5. The names, such as “Medical Malpractice Comment 2 to Rule 7.5 advises Committee has significant concerns Associates,” as not implying a spe- that “The use of any of the follow- that a client may interpret the name cialization, See Phila. B.A. Prof. ing ordinarily would violate this to mean that your firm is affiliated Guid. Comm., Op 89-21 (1989) (find- Rule ...(2) The generic name of any with or endorsed by the state admin- ing that a name such as “Medical form of government unit found in istrative agency that your proposed Malpractice Associates” would be the same area where the firm prac- trade name incorporates, that the permissible, but that a law practices....” Furthermore, Comment 3 to members of your firm have received tice’s use of trade names such as Rule 7.5 provides, “The acceptabil- some sort of special accreditation “Med Law Associates” or “Medical ity of the use of a proper or generic and/or that those associated with Malpractice Clinic” would violate name of a government unit when your firm are specialists in the area the applicable rule because the term

58 Maryland Bar Journal May 2011 implies a specialty in medical mal- matter within this substantive prac- practice cases and also that there tice area must exclusively begin. is a medical doctor or personnel Thus, the use of the trade name and on staff in the law office). In South the state agency’s generic name are Carolina, the state’s Ethics Advisory intertwined. Finally, as noted above, Committee approved the use of the the Comment to Rule 7.5 states that trade name “Midlands Bankruptcy “any doubt regarding the mislead- Counselors, LLC” despite the fact ing connotations of a name may be that the firm’s lawyers were not cer- resolved against use of the name.” tified in bankruptcy law, an area of Accordingly, the Committee is of the practice the South Carolina Supreme opinion that your firm should dis- Court recognizes as a specialty for continue the use of this trade name certification. SC. Adv. Op. 03-10. for your practice. Where your selected trade name differs with those approved in other Ethics Docket 20 10-2 states that we have noted above is its similarity with the generic name The Ethics Committee of the state agency before which a

May 2011 Maryland Bar Journal 59 The Unsettling Process of Settlement

As a young lawyer, I drew immoderate through in accepting his settlement are and the depths of the Internal Revenue comfort from the assumption that, once like those of a terminal patient on being Code thoroughly plumbed, comes the my client agreed to settle, it was all told of his fate. There’s seldom anything terminal stage, that of revision. over but the shouting. Since Maryland you can do to alter the inevitable pro- Your client, who clutched at settle- treats settlements as binding from the gression, but, if you know what’s comment with the fervor of a Titanic pas- moment they take shape, albeit verbal, ing next, you can ease the patient’s suf- senger treading water, and who truck- my assumption was technically cor- ferings, and, peradventure, your own. led at the life line only when safely rect. But the comfort I drew from it Of course, the first reaction regis- back on the dock, now realizes his rapidly dwindled as I came to realize tered by your client will be relief: Relief role was more heroic than this prosaic how much shouting there could be. that, instead of sweating under the account would suggest. He now recalls Invariably, some of the shouting cross-examination of the lawyer he it was he who yielded his place in the comes from squabbles with opposing learned to detest during his deposition, life boat to the trembling child, he counsel over the wording of settlement he’ll be having lunch and figuring out who joined the captain on the bridge documents. For a state that endorses how to spend his cut of the settlement. as the tottering hulk slipped beneath handshake settlements, Maryland has The next stage is rejection: Particularly the foam, he who stoically embraced spawned a surprisingly well papered if the case settles on a Friday, the client a fate brought on, inexorably, by a settlement culture. Seldom are suits will now have plenty of time to think, legal system fraught with folly, a heart- settled just by swapping a check for a plenty of time to drink, and plenty of less insurance company and, of course, dismissal; instead, almost every settle- time to be berated by his wife, who his sissy lawyer. But, by now, you’ve ment is shrouded in a haze of docu- can’t believe he sold out his family’s been paid, your client’s been paid, and ments, including releases, covenants future for a pittance. the highly colored account given over not to sue, indemnifications, confi- The slimmer the chance the settle- beers by your client to his friends is dentiality agreements, written apolo- ment can actually come undone, the about as likely as the Aeneid to meet gies and, in short, pretty much every more vehement the Monday morning the baleful eye of the fact-checker. document that can be drafted by law- call from your client ordering you to And when, in the fullness of time, yers who keep getting paid as long as undo the settlement. Your response – you see your client in the supermarket, they’re drafting documents. which your client knows full well and the post office, the men’s room, he will But squabbling with other lawyers is good is coming – is that he’s already acknowledge you with the magnanim- routine. It is, after all, what you signed settled his case and he’s stuck with it. ity shown by tragic heroes to their on for. What you did not sign on for is all Your client will share this face saving comic foils and understudies. the shouting that comes from your own news with his wife, who has probably Relief, rejection, resignation, revi- client. True, he’s already settled his case, sobered up enough by now to appreci- sion: But the greatest of these is resig- at least in a formal sense, but he still has ate the storied virtues of birds in hand. nation, because, pragmatically, it’s the to learn to live with the settlement, and This brings on the next phase, that of only one that counts. that, I discovered, can cost you as much resignation, in which your client, like a time and acid indigestion as getting to weeping icon, stands wordlessly by as By Robin Cockey settlement in the first place. justice is sold down the river. Then, after Mr. Cockey is a Senior Partner with After a lot of hard experience, I’ve all has been signed and sealed, after the Law Offices of Cockey, Brennan & concluded the stages a Plaintiff passes the last bit of Latin has been explained Maloney, P.C. in Salisbury, Maryland.

60 Maryland Bar Journal May 2011 The Client Grievance

It has been some twenty four years Often, we receive letters from cli- attorney with an opportunity to edu- since the late Robert Conrad addressed, ents who simply do not understand cate her client and to foster better com- in these pages, questions arising from what is expected of them. They may munication and even respect between the client grievance. Since then, a not understand the need or purpose the lawyer and client. new generation of lawyers has been for a release or waiver. They may not Usually, Bar Counsel’s initial letter called to the Bar and they, too, must understand the need to maintain funds forwarding the complaint is sent to face inquiries from Bar Counsel. As in trust until the check that will fund the attorney before the case is formally we receive about two thousand com- their recovery clears. “docketed” for investigation. We seek plaints a year, it is unlikely that during They may not understand the delays to understand what caused the indi- her career, a private practitioner who to which litigation is often subject and vidual, usually, although not always, serves the legal needs of individuals, they may not understand the nature the client, to complain. The attorney as opposed to businesses, will escape of an attorney’s preparation that goes should reply succinctly and respond the obligation to respond to at least on “behind the scenes.” The need to to the issues raised. The complaint one letter from the Attorney Grievance respond to an inquiry presents the almost always deals with a specific Commission. The good news: the overwhelming majority of complaints result in no finding of a violation of the Rules of Professional Conduct and are dis- missed. Fee disputes and complaints about results usually (although by no means, never) result in dismissals, as an attorney’s charges are violative of the rules only when “unreasonable” and results are judged in the context of the appropriateness of the overall representation. Nevertheless, only in the most friv- olous or incomprehensible case, do we not ask for a response from the attorney whose actions are questioned. Most attorneys should appreciate the opportunity to correct the record and explain any misunderstanding, satisfy the client or correct an underlying non-disciplinary problem. In any case, pursuant to Rule 8.1 of the Rules of Professional Conduct, the attorney is obliged to respond.

May 2011 Maryland Bar Journal 61 matter; the attorney’s track record in and client would be well served to “truthful”), we will hear of it and the similar matters is often irrelevant to communicate and solve their mutual complaint will become, as we say, “of our decision-making. The reply should problem. Often the attorney client rela- continuing concern.” not be argumentative. There is little to tionship will survive a complaint to Finally, because the response is usu- be gained in attacking the complainant Bar Counsel. ally forwarded to the complainant, the (or Bar Counsel) and often, much that It is clear, however, that there should attorney should carefully proofread can be lost. At the very least, it reflects never be a quid pro quo for “dropping her response. The detriment to the poorly on the profession. the complaint.” Lawyers in Maryland reputation of the attorney and to law- Although it is important to respond have been sanctioned for this very con- yers generally cannot be denied when on a timely basis (and extensions are duct. We invariably advise complain- a complainant receives a response with routinely granted), do not respond to ants who withdraw their complaints obvious and unnecessary mistakes. I a complaint immediately -- it’s best to prior to a response from the attorney, have received letters from more than allow time to cool. The initial response that we will not dismiss the complaint, one complainant who will reiterate to a complaint is often crucial, espe- absent an answer, because such com- that his attorney did not handle his cially if the matter is serious, destined plaint (even though confidential) is of case appropriately and then furnish to be fully investigated and litigated. concern not only to the complainant, the attorney’s sloppy response to the The attorney’s response should be law- but to the Bar and public generally. complaint as “exhibit A.” yerly, not overly passionate. Remember, candor is essential. A second set of eyes on the attor- The response will, in most cases, be Glenn Grossman ney’s response, before it is forwarded forwarded to the complainant. If the Bar Counsel to Bar Counsel, is usually a good idea. attorney’s response is less than accu- The attorney who represents herself in rate (there should be no need to say responding to Bar Counsel’s inquiry should permit a trusted attorney to review her response for content and tone. An attorney subject to a complaint should certainly consider retain- ing counsel experienced in disciplinary matters. Such counsel can be invaluable in assessing the attorney’s disciplinary exposure and can assist in composing a response that addresses the complaint squarely and objectively. Malpractice insurance policies often permit the insured to retain counsel to address a disciplinary matter with no deductible and generally, if a complaint is concluded at an early stage, the attorney will pay nothing for the representation. A complaint from a client does not mean that the attorney cannot communicate with the client unless the circumstances so dictate. If the individual is still represented by the lawyer and the complaint comes from a misunderstanding or confusion, the attorney

62 Maryland Bar Journal May 2011