Cicala v. Disability Review Board

Davidson, J., delivered the opinion of the Court. This case involves an application of the Prince George’s County Police Pension Plan (Plan) authorized by Prince George’s County Code (1975), § 16-231. 1 The Plan is funded by contributions from both the County and each participating policeman. § 7.1 and § 7.2. 2 ²⁵⁷ The Plan’s purpose is to provide a variety of pension benefits to policemen. Among these benefits is a monthly payment to policemen who retire as a result of disability. Disability is defined in pertinent part in § 4.3 (a) of the Plan as: "(1) The Participant is so disabled, mentally or physically, that he is unable to fill any position then available to him as an Employee.

"(2) His disability is likely to be of long duration.” If the disability is "service connected,” a retired policeman is ordinarily entitled to a monthly benefit amount of one-twelfth of 70 percent of his average annual compensation. A service-connected disability is defined in pertinent part in § 4.3 (c) (1) as: 'TA] disability. .. caused by an injury or sickness suffered as a result of his performance of his duties as an Employee. . . .” (Emphasis added.) If the disability is not service connected, the monthly benefit amount is ordinarily one-twelfth of 50 percent of the average annual compensation. A "non-service connected disability” is defined in pertinent part in § 4.3 (c) (2) as: "[A] disability... not caused by an injury or sickness suffered as a result of his performance of his duties as an Employee..;.” (Emphasis added.) The Plan establishes a procedure for determining disability. Section 4.3 (b) provides in pertinent part: "All determinations of disability shall be made by the Disability Review Board, which shall be composed of not less than five members appointed by the Retirement Board.

A disability determination shall be begun upon written application of a Participant, the Retirement Board, or the Administrator, filed with the Disability Review Board. Before making its determination, the Disability Review Board shall hold a hearing, if ²⁵⁸ requested by the Participant, the Administrator, or the Retirement Board, and shall obtain a written opinion of the Medical Review Committee which shall be composed of at least three physicians selected by the Retirement Board, with regard to the nature, cause, degree of permanence, and effect of the alleged disability. ” (Emphasis added.) In addition, Rule III (3) of the Rules of Administrative Procedure of the Disability Review Board (Rule III (3)) provides in pertinent part: "Within 7 days from the date of receipt of the decision of the Board, the applicant, the County, or any other party of record may file with the Board a motion for rehearing but only on the grounds of error of law or newly discovered evidence which the movant could not with due diligence have discovered prior to the Board’s decision.” (Emphasis added.) On 6 February 1974, and again on 19 March 1976, the appellant, John Cicala, a Prince George’s County policeman (policeman), suffered accidental injuries. On 31 May 1977, he applied to the Disability Review Board (Board) for service-connected disability retirement benefits. On 19 May 1978, the Board determined that the policeman was permanently disabled but that his disability was not service connected, and denied him the enhanced benefit amount provided for in § 4.3 (c) (1).

In the absence of a statutory right of appeal, the policeman, on 9 June 1978, filed a petition for a writ of mandamus in the Circuit Court for Prince George’s County seeking reversal of the Board’s determination. The trial court denied his request for a jury trial, found that the Board had not acted arbitrarily, and affirmed. The policeman appealed to the Court of Special Appeals and we issued a writ of certiorari before consideration by that Court. We too shall affirm.

I The policeman initially contends that he was denied the ²⁵⁹ right to a jury trial. He points out that Maryland Code (1957), Art. 60, Mandamus, § 7 provided in pertinent part: "An action for a writ of mandamus shall be tried by a jury if either party desire it....” 3 (Emphasis added.) He maintains that this section established, in effect, the right to a trial in which the jury could decide both questions of fact and matters of law. We do not agree. In Maryland, a party in a civil proceeding at law is entitled to a jury trial on questions of fact, but not on matters of law. 4 More specifically, this Court has recognized that in mandamus proceedings, a jury’s function is limited to determining questions of fact.

See Williams v. McCardell, 198 Md. 320, 330 , 84 A.2d 52, 57 (1951) (dicta). Courts in other jurisdictions agree, holding that in mandamus proceedings, a party is not entitled to a jury trial if there is no dispute as to any material fact. See, e.g., Williamson v. Kempf, 574 S.W.2d 845, 847 (Tex. Civ.

App. 1978); State ex rel. Pillsbury v. Honeywell, Inc., 291 Minn. 322, 332-33 , 191 N.W.2d 406, 413 (1971); Marion County v. Coler, 75 F. 352, 353 (5th Cir, 1896). See also 50 C.J.S. Juries § 52 (1947). A statute which would authorize a jury to determine a matter of law in a mandamus proceeding would constitute a radical departure from this established principle.

In the absence of a statutory provision for an appeal from a determination of an administrative agency, judicial review may be obtained through an action for a writ of mandamus. ²⁶⁰ Criminal Injuries Compensation Bd. v. Gould, 273 Md. 486, 503 , 331 A.2d 55, 66 (1975); Hecht v. Crook, 184 Md. 271, 280 , 40 A.2d 673, 677 (1945). When an action for a writ of mandamus is brought to have a trial court review the decision of an administrative agency, the trial court’s function is limited to a determination of whether the administrative agency has acted arbitrarily, capriciously, unreasonably, or illegally. Gould, 273 Md. at 501 , 331 A.2d at 65 ; Hecht, 184 Md. at 280 , 40 A.2d at 677 . One of the ways in which an administrative agency acts arbitrarily is to reach a decision which is not based upon or supported by facts in the record.

Insurance Comm’r v. National Bureau of Casualty Underwriters, 248 Md. 292, 300-01 , 236 A.2d 282, 286-87 (1967); Heaps v. Cobb, 185 Md. 372, 378 , 45 A.2d 73, 76 (1945). See Steuart Inv. Co. v. Board of Comm’rs of St. Mary’s County, 38 Md. App. 381, 394 , 381 A.2d 1174, 1182 (1978). In determining whether the agency has acted arbitrarily in this respect, a court is restricted to the record made before the administrative agency.

Aspen Hill Venture v. Montgomery County Council, 265 Md. 303, 316-17 , 289 A.2d 303, 310 (1972); Port Wardens of Annapolis v. Maryland Capital Yacht Club, 261 Md. 48, 60 , 273 A.2d 102, 108 (1971), may not substitute its judgment for that of the agency, Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 395 , 396 A.2d 1080, 1087 (1979); Marek v. Baltimore County Bd. of Appeals, 218 Md. 351, 359 , 146 A.2d 875, 879 (1958), and is confined to a determination whether, based upon the record, a reasoning mind reasonably could have reached the factual conclusion reached by the administrative agency. Courtney v. Board of Trustees of the Md. State Retirement Systems, 285 Md. 356, 362 , 402 A.2d 885, 889 (1979); Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 225 , 334 A.2d 514, 523 (1975); Snowden v. Mayor of Baltimore, 224 Md. 443, 448 , 168 A.2d 390, 392 (1961). Such a determination involves a matter of law, not of fact, and is appropriately one to be made by the court without a jury. See Federal Radio Comm’n v. Nelson Bros.

Bond & Mortgage Co., 289 U.S. 266, 275-76 , 53 S. Ct. 627, 632 (1933); Suburban Properties, Inc. v. Mayor of Rockville, 241 Md. 1, 6 , 215 A.2d 200, 203 (1965). ²⁶¹ Cf. Administrative Procedure Act, Md. Code (1957, 1978 Repl. Vol., 1979 Cum. Supp.), Art. 41, § 255(e). 5 Accordingly, we now hold that there is no right to a jury trial in an action for a writ of mandamus brought to review a decision of an administrative agency on the ground that, based on the record, a reasoning mind could not reasonably have reached the factual conclusion reached by the agency.

Here the Board concluded, based on the record, that the policeman’s disability was not service connected. The policeman brought an action for a writ of mandamus to review the Board’s decision on the ground that its conclusion was not supported by the record. The trial court’s function was limited to determining whether a reasoning mind reasonably could have reached the conclusion reached by the Board. Such a determination involved only a matter of law.

The policeman was not entitled to a jury trial. II The policeman next contends that he was denied due process of law under the fourteenth amendment of the United States Constitution. 6 He points out that the Board considered and relied upon a recommendation of the Medical Review Committee (Committee) which the Board did not receive until approximately nine days after the hearing. He asserts that as a result he was deprived of the right to refute the Committee’s findings by the presentation of contrary evidence or by cross-examination. We do not reach the merits of this contention.

A party who knows or should have known that an administrative agency has committed an error and who, despite an opportunity to do so, fails to object in any way or ²⁶² at any time during the course of the administrative proceeding, may not raise an objection for the first time in a judicial review proceeding. Bulluck v. Pelham Wood Apts., 293 Md. 505, 518-19 , 390 A.2d 1119, 1127 (1978); Severn v. Mayor of Baltimore, 230 Md. 160, 170-71 , 186 A.2d 199, 204 (1962). . Here the record shows that the Plan itself requires that before making its decision, the Board obtain a written opinion from the Committee. Thus, from 31 May 1977, when the policeman filed his application for service-connected disability retirement benefits, his attoreney knew or should have known that the Board was required to obtain and consider a Committee report.

The Committee recorded its findings in a written report dated 20 April 1978. Before a hearing was held, the policeman’s attorney asked the Board to provide him with "medical reports.” While he received various doctors’ reports, he did not receive the Committee’s report. 7 The Board held a hearing on 3 May 1978 at which time the Committee’s report was not before it. Despite the fact that the policeman’s attorney knew or should have known that the Board was required to obtain and consider the Committee’s report, he neither objected to its absence nor requested that it be made available. On 10 May 1978, the Board sent a written request to the Committee for a statement of its findings.

On 12 May 1978, the policeman’s attorney received a copy of this request. On 12 May 1978, the Committee sent the requested findings to the Board which forwarded a copy to the policeman’s attorney. On 16 May 1978, he received a copy of the Committee’s report. Thus, before the Board had made any determination, the policeman’s attorney knew or should have known that it had obtained the Committee’s report.

Nevertheless, he did not request a further hearing. On 19 May 1978, the Board, expressly relying on the Committee’s report, determined that the policeman was ²⁶³ permanently disabled but that his disability was not service connected. On 22 May 1978, the policeman’s attorney received a copy of the Board’s written decision. As of this date, he knew that the Board had considered and relied on the Committee’s report.

Although Rule III (3) authorized the filing of a motion for a rehearing "on the grounds of error of law or newly discovered