Board of License Commissioners v. Corridor Wine, Inc.

ELDRIDGE, Judge. This appeal presents the issue of whether a circuit court common law certiorari action will lie to review the interlocutory decision of an administrative agency on a matter of statutory construction. ⁴⁰⁶ I. In September 1997, following several contested administrative proceedings and circuit court judicial review actions, the Board of License Commissioners for Anne Arundel County (“the Board”) issued a Class “A” Beer, Wine, Liquor, Beer-Wine Tasting and Sunday Sales License to Robert Troné, the President and majority shareholder of Corridor Wine, Inc., and to Denise Bettinger, an officer and minority shareholder of Corridor Wine, Inc. The license authorized Troné, Betting-er, and Corridor Wine, Inc., to conduct a retail alcoholic beverage business at BB21 Laurel-Fort Meade Road in Anne Arundel County. 1 On October 2,1998, pursuant to a “sting” operation conducted by the Anne Arundel County Police Department, Elizabeth Ivey, an employee of Corridor, sold alcoholic beverages to a 19-year old woman in violation of Maryland Code (1957, 1998 Repl.Vol, 1999 Supp.), Art. 2B, § 12-108(a)(l). 2 The police issued a criminal citation to Ms. Ivey, and her trial in the District Court was initially scheduled for March 5, 1999. In addition, the Board instituted administrative proceedings against Corridor and scheduled an administrative hearing for the evening of November 24,1998. Counsel for Ms. Ivey requested an expedited District Court trial date.

The request was granted, and her trial on the misdemeanor charge was re-scheduled for November 24, 1998, the same date as the administrative hearing before the Board. At the District Court trial on November 24th, Ms. Ivey pled guilty to the charge of selling alcoholic beverages to a minor. ⁴⁰⁷ The court imposed a fine of $500.00 which was suspended, assessed costs of $55.00, and entered a verdict of “Probation Before Judgment.” 3 At the hearing before the Board later on November 24, 1998, counsel for Corridor moved to dismiss the administrative proceeding, arguing that the “Probation Before Judgment” disposition of Ms. Ivey’s criminal case constituted a bar to the administrative proceeding because of Art. 2B, § 12-108(a)(3)(iv), which states as follows: “(iv) Except as otherwise provided in this section, if any licensee or employee of the licensee is found not guilty, or ⁴⁰⁸ placed on probation without a verdict, of any alleged violation of this subsection, this finding operates as a complete bar to any proceeding by any alcoholic beverage law enforcement or licensing authorities against the licensee on account of the alleged violation.” In response to the motion to dismiss,- the Board’s counsel raised the question as to whether the verdict of “Probation Before Judgment” under Art. 27, § 641, which Ms. Ivey received, was encompassed by the “probation without a verdict” language of Art. 2B, § 12-108(a)(3)(iv). 4 After considerable oral argument by counsel, and questions by Board members, the Board granted the request by Corridor’s counsel to continue the proceeding in order that the legal issue could be further researched. Prior to the resumption of the administrative hearing, counsel for Corridor submitted a legal memorandum regarding the meaning and application of Art. 2B, § 12-108(a)(3)(iv). When the administrative hearing resumed on January 26, 1999, there was additional argument and discussion as to whether the administrative proceeding should be dismissed under § 12-108(a)(3)(iv).

Following the argument and discussion, the Board recessed to consider the legal issue, reconvened later on January 26th, and denied the motion to dismiss, holding that “probation before verdict and probation before judgment [are] not ... merely interchangeable [or] synonymous” and that § 12-108(a)(3)(iv) was inapplicable to the case. Thereafter, the Board granted Corridor’s motion to continue the hearing on the merits of the violation because one of the ⁴⁰⁹ witnesses which Copador had summonsed was sick and unable to attend. The administrative hearing was continued until March 28,1999, at 6:30 p.m. Before the administrative hearing was scheduled to resume, Corridor on February 22, 1999, filed in the Circuit Court for Anne Arundel County a “Petition For Writ Of Certiorari,” requesting the court to issue the writ to the Board “[b]ecause the Board has purported to assert jurisdiction over Corridor under circumstances where no such jurisdiction exists.... ” Corridor asserted in the petition “that Ms. Ivey’s probation before judgment deprived the Board of jurisdiction under § 12-108(a)(3)(iv).” Corridor requested that the writ stay the administrative proceeding and require the Board to produce the administrative record “so that this Court may determine the Board’s fundamental jurisdiction to proceed.” On the same day that Corridor’s petition was filed, the Circuit Court issued a writ of certiorari and ordered that the administrative proceeding be stayed pending further order from the Circuit Court.

After the Board’s answer to the petition, the filing of legal memoranda, and a hearing, the Circuit Court issued an opinion holding that the certiorari action was appropriate and that the “probation without a verdict” language in Art. 2B, § 12-108(a)(3)(iv), should- “be interpreted to mean ‘probation before judgment.’ ” The court entered an order adjudicating that the Board “lacks jurisdiction to proceed in the pending administrative matter against the Petitioner,” and remanding the case to the Board “with instructions to dismiss the pending administrative action against the Petitioner for lack of jurisdiction .... ” The Board took an appeal to the Court of Special Appeals, and we issued a writ of certiorari prior to oral argument in that court. License Commissioners v. Corridor Wine, 358 Md. 381 , 749 A.2d 172 (2000). The parties’ arguments in this Court concern the appropriateness of the certiorari action in the Circuit Court and the correct interpretation of Art. 2B, § 12-108(a)(3)(iv). More specifically, the debated issues in- ⁴¹⁰ elude whether a common law certiorari action may be brought under the circumstances here, whether the underlying statutory interpretation issue relates to the subject matter jurisdiction of the Board, whether Corridor should have been required to exhaust its administrative remedy and bring a judicial review action after a final decision by the Board, 5 and which interpretation of Art. 2B, § 12-108(a)(3)(iv), is correct.

II

We shall hold, on two alternative grounds, that a common law certiorari action does not lie under the circumstances of this case. We shall further hold that Corridor was required to await a final administrative decision before seeking judicial review in the Circuit Court. Consequently, we shall not reach the issue regarding the correct interpretation of Art. 2B, § 12-108(a)(3)(iv). A. The traditional common law definition of a writ of certiorari was as follows: “Certiorari is a writ issued by a superior court, directed to an inferior tribunal, commanding it to return the record of its proceedings in a cause into such superior court, in order that inquiry may be duly made into its authority or jurisdiction.” 2 John Prentiss Poe, Pleading and Prac tice, § 722, at 692 (Tiffany ed.1925).

The writ of certiorari has three distinct uses under present Maryland practice. First, pursuant to statute, the writ is issued by the Court of Appeals in the exercise of the Court’s appellate jurisdiction. See Code (1974, 1998 Repl.Vol.), §§ 12-201 through 12-203 and 12-305 of the Courts and Judicial Proceedings Article. ⁴¹¹ Second, when there is no statutory provision for judicial review of final adjudicatory decisions by administrative agencies, either a certiorari or a mandamus action in the appropriate circuit court is normally available for ordinary “substantial evidence” judicial review of the adjudicatory administrative decisions. See, e.g., Bucktail, LLC v. County Council of Talbot County, 352 Md. 530, 542 , 723 A.2d 440, 445 (1999); State v. Board of Education, 346 Md. 633, 642-644 , 697 A.2d 1334, 1338-1339 (1997); Goodwich v. Nolan, 343 Md. 130, 146 , 680 A.2d 1040, 1048 (1996); Medical Waste v. Maryland Waste, 327 Md. 596, 610 , 612 A.2d 241, 248 (1992); Silverman v. Maryland Deposit, 317 Md. 306, 324-326 , 563 A.2d 402, 411-412 (1989); Criminal Inj.

Comp. Bd. v. Gould, 273 Md. 486, 501-507 , 331 A.2d 55, 65-68 (1975); Balto. Import Car Service & Storage, Inc. v. Md. Port Auth., 258 Md. 335, 342-343 , 265 A.2d 866, 869-870 (1970); State Health Dep't v. Walker, 238 Md. 512, 522-523 , 209 A.2d 555, 561 (1965); Riggs v. Green, 118 Md. 218, 227-228 , 84 A. 343, 345-346 (1912). See also Md. Comm’n On Human Relations v. Bethlehem Steel Corp., 295 Md. 586 , 457 A.2d 1146 (1983); Johnson v. Board of Zoning Appeals, 196 Md. 400 , 76 A.2d 736 (1950) (Instead of involving common law judicial review by certiorari or mandamus because of the absence of statutory judicial review, this case was brought under a local statute expressly authorizing circuit court judicial review of an administrative decision by a petition for a writ of certiorari).

The use of certiorari or mandamus for judicial review of adjudicatory administrative decisions, like statutory judicial review of such decisions, is an exercise of a circuit court’s original jurisdiction and not its appellate jurisdiction. Gisriel v. Ocean City Supervisors of Elections Board, 345 Md. 477, 490-496 , 693 A.2d 757, 763-767 (1997), cert. denied, 522 U.S. 1053 , 118 S.Ct. 702 , 139 L.Ed.2d 645 (1998), and cases there cited. Most of the Maryland cases involving nonstatutory judicial review of adjudicatory decisions by administrative agencies have been denominated “mandamus” actions rather than “certiorari” actions, although the substance of these judicial review actions is the same regardless of the labels. It is probably more ⁴¹² appropriate to treat such actions as mandamus actions, instead of certiorari actions, as writs of mandamus have traditionally-been issued to officials and agencies outside of the judicial branch of government, whereas writs of certiorari have traditionally been issued to “lower tribunals” in relation to the issuing tribunal.

Third, “[i]t has long been the common law rule in Maryland that a circuit court has jurisdiction to issue a writ of certiorari to a lower court for the purpose of inquiring into that tribunal’s jurisdiction.” Kawamura v. State, 299 Md. 276, 283 , 473 A.2d 438, 442 (1984). See, e.g., Fisher v. State, 305 Md. 357, 362-363 , 504 A.2d 626, 628-629 (1986); Thistlewood v. Trial Magistrate for Ocean City, 236 Md. 548, 550 , 204 A.2d 688, 689 (1964); State v. Jacob, 234 Md. 452, 457-458 , 199 A.2d 803, 806 (1964); Ruth v. Durendo, 166 Md. 83, 86 , 170 A. 582, 583 (1934); State v. Stafford, 160 Md. 385, 389 , 153 A. 77, 79 (1931); State ex rel. Baum v. Warden, 110 Md. 579, 583 , 73 A. 294, 295-296 (1909); Roth v. State, 89 Md. 524, 526-527 , 43 A. 769, 770 (1899); Weed v. Lewis, 80 Md. 126, 127-128 , 30 A. 610, 611 (1894); Judefind v. State, 78 Md. 510, 512 , 28 A. 405, 406 (1894); Kane v. State, 70 Md. 546, 552 , 17 A. 557, 558 (1889); Rayner v. State, 52 Md. 368, 377 (1879); Hall v. State, 12 G. & J. 329 (1842). The writ of certiorari for such purpose may be issued by a circuit court even in the absence of a final decision by the lower court, Kawamura v. State, supra, 299 Md. at 280-281 , 473 A.2d at 441 .

This is the traditional common law use of certiorari, and it falls within the original jurisdiction of a circuit court. Kawamura, 299 Md. at 283 , 473 A.2d at 442 ; Rayner v. State, supra, 52 Md. at 377 . Absent a statute, an appellate court has no authority to issue a writ of certiorari to review the jurisdiction of a court below. Hendrick v. State, 115 Md. 552, 557 , 81 A. 18, 19 (1911). 6 ⁴¹³ In the present case, Corridor invoked the third category set forth above.

It argues that the Board lacked “subject matter jurisdiction” (Respondent’s brief at 17-18) and that Corridor “invoked the Circuit Court’s limited certiorari jurisdiction. Such limited jurisdiction existed at common law and remains viable today ... precisely to question the fundamental jurisdiction of inferior tribunals, even when a statutory right of appeal exists.” (Id. at 21). Corridor’s argument necessarily presents the threshold question of whether the Board is an “inferior tribunal” for purposes of this third type of certiorari action. In our view, this third use of a writ of certiorari, for the purpose of inquiring into an “inferior tribunal’s” subject matter jurisdiction, does not apply to administrative agencies in the executive branch of the state government or to local government administrative agencies.

In all of the above-cited cases involving a circuit court’s or county court’s use of certiorari to inquire into the jurisdiction of an “inferior tribunal,” the so-called “inferior tribunal” was a court, such as the District Court of Maryland, a trial magistrate court, or a justice of the peace court. The District Court is, and the trial magistrate or justice of the peace courts were, part of the judicial branch of government. The District Court is, and the others were, trial courts of limited jurisdiction. Not only does the third category of certiorari cases involve courts of limited jurisdiction, but this Court’s opinions in those ⁴¹⁴ cases use the phrases “lower court,” “judicial tribunal,” “inferi- or tribunal,” and “tribunal” interchangeably.

See, e.g., Kawamura, 299 Md. at 283 , 473 A.2d at 442 (“a circuit court has jurisdiction to issue a writ of certiorari to a lower court for the purpose of inquiring into that tribunal’s jurisdiction”) (emphasis added). The use of the word “inferior” in describing these tribunals is perhaps unfortunate, as it has nothing to do with the quality, performance, or stature of the courts. Rather, the cases use the phrase “inferior tribunals” because it reflects the position of such courts, below the circuit courts, in the judicial hierarchy for purposes of oversight and appeal. The purpose of a writ of certiorari issued by a court of general jurisdiction is to examine “the jurisdiction of the [limited jurisdiction] magistrate to try the case.” Baum v. Warden, supra, 110 Md. at 583 , 73 A. at 295 .

As an “inferior tribunal’s” subject matter jurisdiction is limited, the use of certiorari by a “superior court” of general jurisdiction constitutes part of the oversight function within the judiciary. If the court of limited jurisdiction has no subject matter jurisdiction “to try the case,” the case very likely belongs either in the court of general jurisdiction or does not belong in the judiciary. Administrative agencies are not courts and do not exercise judicial authority. Shell Oil Co. v. Supervisor, 276 Md. 36, 44-47 , 343 A.2d 521, 525-528 (1975).

Article 8 of the Maryland Declaration of Rights, providing for the separation of powers, “prohibits administrative agencies from performing judicial functions.” Shell Oil Co. v. Supervisor, supra, 276 Md. at 46 , 343 A.2d at 526-527 . With very few exceptions, administrative agencies are not within the judicial branch of government. Instead, they are parts of the executive branch of the state government or parts of local governments. Consequently, administrative agencies are not, and cannot be, “inferior tribunals” in relation to the circuit courts.

Moreover, circuit courts exercise neither appellate nor oversight authority with regard to administrative agencies. Even though some statutes and cases