Commissioner of Motor Vehicles v. Lee

Barnes, J., delivered the opinion of the Court. The appeal in this case involves the action of the appellant, the Commissioner of Motor Vehicles (Commissioner) in revoking the license to operate a motor vehicle of the appellee, Robert Vernester Lee, in light of the decision of the Municipal Court of Baltimore City, Traffic Division, upon charges against Mr. Lee for violations of Code (1957), Art. 66%, § 206 (operating under the influence of alcohol) and § 209 (reckless driving). Mr. Lee was charged on August 17, 1968 with the violations mentioned. At the trial before the Municipal Court of Baltimore City on September 18, 1968, Mr. Lee entered pleas of “Not Guilty” to both charges.

After hearing evidence, the Municipal Court entered findings of “Probation Without Verdict” and imposed pecuniary penalties, totalling $115 and costs. The record of the proceedings against Lee in the Municipal Court having been forwarded to the Commissioner, a hearing was held by Rudolph W. Walker, License Reviewer, on October 11, 1968 at which Mr. Lee and his counsel were present. Although the Baltimore City Court (Sodaro, J.) in its opinion stated that Mr. Lee’s license was revoked under the provisions of Art. 66%, § 104 which directs a mandatory revocation of a license upon “conviction” for “driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug,” and this was alleged in the Commissioner’s motion for certiorari and is also stated by the Attorney General in his brief filed on behalf of the Commissioner and apparently acquiesced in by the appellee; an examination of the record indicates that the License Reviewer proceeded under Art. 66%, § 105(d) which provides: “(d) Applicant or licensee unfit or unsafe person. — The Department, after due hearing, ²⁸² may refuse, suspend or revoke the operator’s license, motorcycle operator’s, chauffeur’s license or special chauffeur’s license or the registration of any vehicle granted under this article for any violation of this article by any such applicant, licensee or registrant, and for any other cause or reason which, in the opinion of the Department renders the holder of any such license or registration an unfit or unsafe person to hold the same; provided at least three (3) days’ notice by registered or certified letter to the address as shown by the records of the Department, shall be given; and further provided that said person shall have the right of appeal as provided for by § 109.” The report of the License Reviewer indicates that he, taking into consideration among other factors the proceedings in the Municipal Court against Lee, found that Lee was an “unfit and unsafe” person within the meaning of Art. 66%, § 105. An appeal was taken to the Baltimore City Court by Mr. Lee in accordance with Art. 66%, § 109 which provides in relevant part: “§ 109.

Right of appeal to court. “(a) In general. — Any person denied a license or whose license has been cancelled, suspended or revoked by the Department, except where such cancellation or revocation is mandatory, under the provisions of this article, shall have the right to file an appeal for a hearing in the matter in the Baltimore City court or in the circuit court of the county as the case may be, wherein such person shall reside and such court is hereby vested with jurisdiction to take testimony and examine into the facts of the case and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation, or revocation of license under the provi ²⁸³ sions of this article. In the case of nonresidents the circuit court of the county or the Baltimore City court depending upon the place where such nonresident was convicted of any violation of this article, shall have jurisdiction.” See also Art. 41, § 255 designating the Baltimore City Court as a reviewing court for such an appeal. The case came on for trial on December 3, 1968 at which time the Commissioner objected to the Baltimore City Court’s jurisdiction to hear an appeal for a revocation of a license under the mandatory provisions of § 104, but the objection was overruled by the lower court. The case was submitted for determination of the court without the aid of a jury and was held sub curia.

In the Commissioner’s brief it is stated that the case was submitted to the trial court upon an agreed statement of facts, but the record does not disclose any such agreed statement. The docket entries show that the petition for appeal was filed on October 15, 1968 and the Commissioner’s answer was filed on October 30, 1968 on which date the transcript of the record of proceedings before the Commissioner was filed. There is nothing in the docket entries to indicate that any agreed statement of facts was filed. On December 19, 1968 the lower court filed a memorandum opinion indicating that the Commissioner should be reversed.

On the same date the docket entries also show that “The decision of the Department of Motor Vehicles is hereby, Reversed” and “Judgment absolute in favor of the Plaintiff (Appellant), for costs of suit.” As we have stated, the lower court’s opinion is based upon the erroneous theory that the license was revoked under the mandatory provisions of § 104, rather than under § 105 (d) which, as we have observed, is the section under which the License Reviewer actually proceeded. The lower court was of the opinion that there had been no “conviction” in Mr. Lee’s case by the Municipal Court and that the Commissioner had attempted to “look be ²⁸⁴ hind” a judicial determination which was “legally arbitrary and capricious.” We granted certiorari on February 3, 1969 upon the motion of the Commissioner alleging (1) that since the revocation of the license had occurred pursuant to § 104, no appeal would lie to the Baltimore City Court and (2) that the scope of the opinion of the lower court constituted an impermissible intrusion by the lower court into the administrative duties imposed upon the Commissioner by statute. For both of these reasons, as well as the alleged danger to the public safety which might result, the Commissioner urged upon us that the public interest indicated that a writ of certiorari should be issued in order to resolve these important matters. As we indicated, we did grant certiorari and the case was briefed and argued before us in regular course, but, unfortunately, upon the erroneous assumption that the appellee’s license had been revoked under § 104.

In view of the erroneous assumption mentioned, we will remand the case to the lower court without affirmance or reversal so that further proceedings may be held to determine whether or not the Commissioner acted properly in revoking the license under § 105(d). As we do not believe that there is any doubt that the Baltimore City Court has jurisdiction under § 109 to hear appeals from a nonmandatory revocation pursuant to § 105(d), and because that question was neither briefed nor argued before us, we need not consider the question of the court’s jurisdiction. But inasmuch as the record indicates that the License Reviewer considered in part, the imposition of the fine as some evidence of “guilt” on the part of Mr. Lee, we have concluded that for the guidance of the lower court upon the remand and in accordance with Maryland Rule 885, we shall indicate our opinion in regard to certain aspects of the matters briefed and argued before us. At the outset, we observed that, in our opinion, it is not proper for the municipal courts, the circuit courts for the counties or for the Criminal Court of Baltimore to make a finding of “Probation without Verdict” as to a ²⁸⁵ particular offense charged and at the same time impose a pecuniary penalty or fine for that offense.

The two actions are inconsistent with each other. We reviewed the origin and development of the concept of “probation before verdict” and the present provisions of the Maryland law under Art. 27, § 641 giving that power, with the written consent of the accused, to the circuit courts of the counties and the Criminal Court of Baltimore in Skinker v. State, 239 Md. 234 , 210 A. 2d 716 (1965). We pointed out that: “Unlike the supension of the imposition of or the execution of a criminal sentence, which can be exercised 'only when there has been a conviction and sentence thereon, probation without verdict, if granted, avoids any finding of guilt’ (State v. Jacob, supra, 234 Md. at 455). Avoidance of the stigma of a criminal record, indeed, is the very raison d’etre of the procedure.” (234 Md. at 239, 210 A. 2d at 719 ) Curiously enough the power of the Municipal Court of Baltimore City to “place persons charged on probation