Breedon v. Maryland State Department of Education

Moore, J., delivered the opinion of the Court. William B. Breedon, the subject of this appeal, is a young man with aphasia, a disorder which renders it exceedingly difficult for him to communicate with the world because language is something which he cannot readily comprehend. 1 This dispute began in 1975 when the school officials of Prince George’s County decided that William should be placed in a public school facility. William’s parents insisted that continued private schooling would better fulfill his educational needs, and they asked the school officials to pay for his tuition. While at first glance the case appears to center on the procedural and substantive rights of a handicapped child to a publicly-financed, appropriate education, we perceive from the record a procedural error which diverts us from the merits of William’s appeal.

The issue which we believe is determinative concerns the power of the circuit court, sitting as a reviewing court under the Administrative Procedure Act 2 [hereinafter referred to as the "APA”], to receive, in open court, additional evidence not offered before the administrative agency. The Circuit Court for Prince George’s County (Levin, J.) held a hearing and received additional evidence on the parents’ appeal from an adverse decision of the Hearing Review Board of the Maryland State Department of Education. For the reasons that follow, we shall vacate the judgment of the circuit court upholding the department’s action and remand the case for futher proceedings in accordance with this opinion. ⁷⁵ I. The Facts William, who will be twenty years old this spring, has been the object of attentive parental concern since the discovery of his disorder at age four. Until 1967 the Breedon family resided in the Pittsburgh, Pennsylvania area.

Mrs. Breedon diligently sought out an educational program for William but found that aphasic children were in a virtual no man’s land, as she explained to the Hearing Review Board: "If you want to find the gaps in the educational system have an aphasic child. The retarded didn’t want him because he wasn’t retarded. The deaf didn’t want him because he wasn’t deaf. He didn’t belong with the emotionally disturbed.” After much searching, the Breedons, in 1968, discovered the Children’s Hearing and Speech Center at Children’s Hospital in the District of Columbia.

William was accepted by the center, and the family moved to Maryland. As Mrs. Breedon told the board: "It wasn’t a hard decision to make at all. We have certainly never regretted it. Billy came to Children’s really lost....

He made steady improvement and he became a person. I have often said that I think Billy joined the world when he came to Children’s Hospital. He was not in it before and he now has really become a person.” During the next seven years, until the Spring of 1975, William made steady progress to the point where his linguistic ability ranged between a second grade and a sixth grade level, depending upon the nature of the tests and the particular skill being tested. In April 1975, William turned fifteen; he was then considerably older than the other students at Children’s.

Mrs. Breedon explained to the board why William’s educational program necessitated a change: "Last Spring it was decided that he should leave Children’s. This was a mutual decision. We all ⁷⁶ agreed on it. He was much older than most of their children.

We all knew he could still benefit greatly from their language program but he did need to be with older children. He needed to start getting some other things, a more mature program. He needed to mature socially. So we all decided that he should leave and we should try to find another program for him.” Thus began the search for a new school for William. 3 On May 22, 1975, a Pupil Personnel Team for the Prince George’s County Schools reported that there was no appropriate public school in the county for a young man with William’s needs.

Mrs. Breedon immediately filed for tuition funding in order to place William at the Lt. Joseph P. Kennedy Institute in the District of Columbia because "it seemed to me to be the closest thing to what he needed that I could find. It is a fully academic program. . . .” In July 1975, a reconstituted Pupil Personnel Team reversed the prior team’s conclusion and instead proposed that William be placed at the H. Winship Wheatley Center, a facility for multiply-handicapped children operated by the Prince George’s County schools. Formal notice of the Wheatley placement was made on August 27, 1975.

Not satisfied with the proposed placement, the Breedons requested a local level hearing. In early September 1975, the Breedons received formal notification that their request for tuition funding for the Kennedy Institute had been denied. Feeling very strongly that Wheatley was inappropriate for an aphasic person whose primary need was growth in linguistic ability, the Breedons enrolled him at Kennedy at their own expense. Again, in February 1976, the Breedons attempted to convince the Prince George’s County School officials that the Wheatley school did not meet William’s needs.

Their effort to have the Wheatley placement reconsidered was denied on March 12, 1976. Shortly thereafter, on March 19, 1976, a ⁷⁷ Hearing Panel of the Prince George’s County school system (local level hearing) was convened, and it received the testimony of Mrs. Breedon and various experts in the field of special education. Ruling that "William functions as a multiply handicapped youngster,” the Hearing Panel stated that the Wheatley "placement was not shown by a preponderance of the evidence to be inappropriate.” In addition, the panel concluded that "the Wheatley staff can provide reading, mathematics, and language programs which will reasonably meet Williaml’]s academic needs.” It has been, and continues to be, the Breedons’ position that William is chiefly language-impaired. They relegate any motor or behavioral problems to secondary importance and insist that William requires a structural and linguistically-oriented academic program in order to advance his limited capability to comprehend and use the English language.

They also contend that William does not function as a multiply-handicapped person, and they allege that the Hearing Panel was wrong in concluding to the contrary. As provided by the Bylaws of the Maryland State Department of Education, the Breedons appealed to the department’s Hearing Review Board (State level hearing). 4 At that de novo hearing, Mrs. Breedon and various experts again testified about William, his language impairment, and his educational needs. Two months later, on August 30,1976, the board affirmed the decision of the local panel, finding that "William functions educationally as a multiply handicapped child with language impairment being the primary area of disability.” The board also ruled that "the Prince George’s County Public Schools has an appropriate program that can be modified to meet the needs of your son at the Wheatley Special Education Center.” From that adverse ruling, the Breedons again appealed, this time to the Circuit Court for Prince George’s County. 5 ⁷⁸ They alleged that the board’s decision was "against the weight of competent, material, and substantial evidence in view of the entire record as submitted. . . See Md. Ann. Code, art. 41, § 255 (f) (5) (1979 Cum.

Supp.). In addition, the Breedons argued that no public school facilities, appropriate to William’s needs, existed in Prince George’s County, and they complained about several alleged procedural deficiencies in the administrative process. Although the order for appeal was filed on September 29, 1976, a hearing on the merits of the Breedons’ allegations was not held until September 18, 1978. 6 At that hearing, Judge Levin received further testimony from Mrs. Breedon as well as the testimony of five experts in the field of special education. 7 The Breedons argued that the board had received ⁷⁹ erroneous data regarding the mean I.Q. of the Wheatley class to which William would have been assigned, and that the board had compared the Kennedy and Wheatley schools in reaching its decision without giving the Breedons an opportunity to submit comparative evidence. In a written opinion, Judge Levin affirmed the decision of the Hearing Review Board and denied the Breedons’ motion for further relief. 8 He acknowledged that he "considered the additional evidence adduced before [me] in open court pursuant to § 255 (e) of the Administrative Procedure Act as propounded [sic] prior to the July 1,1978 amendment to that section which disallowed production of additional evidence before the Court.” Although recognizing the disparity in the I.Q. data presented before the board and the court, he did not find it "so significant to warrant the disturbance of the decision of the State Board.” 9 He therefore concluded that the board’s decision was "clearly supported by competent, material and substantial evidence that William, as a multiply-handicapped child, would get an appropriate education suitable to his needs at Wheatley.” The court’s opinion was silent on the comparability issue raised by the Breedons.

On this appeal, the Breedons argue that the circuit court applied the wrong standard of review, under either the old or new statutes, 10 and that the Maryland State Department of ⁸⁰ Education Bylaw which placed upon them the burden of proof of demonstrating the inappropriateness of the public school’s suggested placement at Wheatley is unconstitutional as a deprivation of life, liberty, or property without due process of law. 11 ⁸¹ II. Authority of Circuit Court to Receive Additional Evidence A significant procedural issue, although discussed by the parties in their briefs, has not been considered by them to be determinative of this appeal; we find it, however, to be dispositive. We advert to the authority of the circuit court, sitting as a reviewing court under the Administrative Procedure Act to receive additional evidence. Under prior law, "the court may order that the additional evidence be taken in open court or before the agency upon such conditions as the court deems proper.” 12 1957 Md. Laws, ch. 94, previously codified as Md. Ann. Code, art. 41, § 255 (e) (1978).

In 1978, however, the General Assembly withdrew the authority of the circuit court to receive additional evidence; instead, the law now states that "the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper.” 13 Md. Ann. Code, art. 41, § 255 (d) (1979 Cum.Supp.). See 1978 Md. Laws, ch. 884. This latter provision became effective on July 1, 1978. ⁸² A. Applicability of the 1978 Amendments As we previously noted, the order for appeal to the circuit court from the Hearing Review Board was filed on September 29,1976; this was, of course, prior to the 1978 amendments to the APA. The hearing on the Breedons’ appeal did not occur until September 18, 1978 — two and one-half months after the APA had been amended by 1978 Md. Laws, ch. 884.

A threshold question thus arises: did the APA amendments revoking the authority of the circuit court to receive additional evidence apply to this proceeding in which the appeal was docketed prior to the amendments but the hearing was held after the amendments became effective? Although the parties never directly raised the issue in the circuit court, the question of the circuit court’s authority to receive additional evidence is, in our view, a question of jurisdiction which may be raised at any time, or by this Court sua sponte. Maryland National Capital Park & Planning Commission v. Washington National Arena, 37 Md. App. 346 , 377 A.2d 545 (1977), rev’d on other grounds, 282 Md. 588 , 386 A.2d 1216 (1978); see Mayor of Annapolis v. Hartge, 38 Md. App. 629 , 382 A.2d 345 (1978); Thompson v. State, 38 Md. App. 499 , 381 A.2d 704 (1978). If the amended APA provisions apply to this action, the circuit court had no authority to receive additional evidence; such evidence could only be received by the agency involved pursuant to the circuit court’s order.

Md. Ann. Code, art. 41, § 255 (d) (1979 Cum.Supp.). Under the terms of 1978 Md. Laws, ch. 884, the APA amendments became effective on July 1, 1978. There is no express statutory language that exempts pending actions from the amended provisions, nor is there any language which specifically denies an exemption. The general rule guiding the applicability of statutes to pending actions is that: "Absent a contrary intent made manifest by the enacting authority, any change made by statute or court rule affecting a remedy only (and consequently not impinging upon substantive rights) controls all court actions whether accrued, pending, or future.” ⁸³ Aviles v. Eshelman Electric Corp., 281 Md. 529, 533 , 379 A.2d 1227, 1229 (1977).

See Janda v. General Motors Corp., 237 Md. 161, 168-69 , 205 A.2d 228, 232-34 (1964). See also Luxmanor Citizens Association v. Burkhard, 266 Md. 631 , 296 A.2d 403 (1972) (statutory change in regard to procedure applies to all actions then pending at effective date of change); Kelch v. Keehn, 183 Md. 140 , 36 A.2d 544 (1944); Ireland v. Shipley, 165 Md. 90 , 166 A. 593 (1933). We have little difficulty in holding that the revocation of the authority of the circuit courts to receive additional evidence in administrative review proceedings applied at least to those actions pending on July 1, 1978 in which evidence had not been taken under the prior law. In the instant case, therefore, the circuit court improperly received additional evidence in open court after that date.

As heretofore stated, under both the old and new APA provisions relating to the taking of additional evidence, it was incumbent upon the party seeking to introduce the additional evidence to establish to "the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency.” Md. Ann. Code, art. 41, § 255 (d) (1979 Cum.Supp.) (emphasis added). The State argues that neither condition has been established by the Breedons. It follows, then, according to the State, that no referral to the agency for the taking of additional evidence is necessitated. We are asked to affirm the circuit court’s judgment because even with the additional evidence, the court was unable to overturn the board’s decision.

In essence, the State contends that the circuit court’s receipt of additional evidence, while erroneous, was harmless. We do not agree. B. Materiality The State points out that Judge Levin ruled that the disparity in the I.Q. data was not "so significant to warrant the disturbance of the decision of the State Board,” and therefore, the evidence was not material. As to this point, we believe that the State is confusing significance with materiality.

The court’s determination that the evidence was ⁸⁴ not sufficiently significant to compel a change in the State Hearing Board’s decision does not constitute a finding that the evidence was not material. 14 Materiality, as referred to in the APA provision, is a broad concept that is generally understood to include any evidence which is reasonably capable of influencing a tribunal’s decision, but it does not require that the evidence will necessarily do so. Numerous court decisions have discussed the concept of materiality: "A fact is material if it tends to facilitate resolution of any of the issues either for or against the party having the burden of persuasion on that issue.” Brandon v. State, 264 Ind. 177, 180 , 340 N.E.2d 756, 758 (1976). See Parklawn, Inc. v. Nee, 243 Md. 249, 254 , 220 A.2d 563, 566 (1966); Dietrick v. District of Columbia Board of Zoning Adjustment, 293 A.2d 470, 473 (D.C. 1972) (issue was material where it was within conditions to be considered by the agency). 15 In sum, material evidence need not be determinative of the outcome of a given issue, but rather, it must be of such a nature as would