Howard v. State

KARWACKI, Judge. On June 22, 1986, Steven M. Howard, the appellant, was cited by a Department of Natural Resources police officer for operation of a motorboat on the Rhode River in violation of COMAR .08.04.04.07 which provides: Power vessels towing persons on water skis, aquaplanes, or other similar devices shall at all times keep at least 100 feet from any shore, wharf, pier, bridge structure or abutment, or people in the water. On passing another boat, the operator of the towing vessel shall keep his vessel at least 100 feet distant from any other craft. That regulation had been promulgated by the Department of Natural Resources pursuant to Md.Code (1983 Repl. ⁴⁴⁹ Vol.), § 8-704(b-l) of the Natural Resources Article directing the Department to: adopt rules and regulations governing ... operations of any vessels subject to this subtitle so that each vessel complying with the rules and regulations may be operated with equal freedom or under similar requirements on all waters of the State.

Md.Code, supra, § 8-1501(c) of the Natural Resources Article makes the violation of any such rule or regulation promulgated by the Department a misdemeanor punishable by fine and/or imprisonment. Prior to his trial in the District Court of Maryland for Anne Arundel County, appellant moved to dismiss the charge. He asserted that the Legislature’s delegation of authority to specify what conduct by the operator of a power vessel on the waters of this State would be a crime violated Article 8 of the Maryland Declaration of Rights which provides: That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other. Judge Donald M. Lowman agreed and dismissed the charge against the appellant on March 13, 1987.

Two months later the State filed a petition for writ of certiorari in the Circuit Court for Anne Arundel County seeking a review of that dismissal. The writ was granted on May 19, 1987, directing that the records of the proceedings in the district court be transferred to the circuit court for review pursuant to Rule K44. Appellant moved to quash the writ. Rule K48.

After hearing argument, the Circuit Court denied appellant’s motion to quash, ruled that the District Court had erred in deciding that the adoption of COMAR .08.04.04.07 violated the separation of powers mandated by Article 8 of the Maryland Declaration of Rights, and remanded the case to the District Court for trial. Appellant filed a timely appeal. ⁴⁵⁰ In this Court appellant questions whether the Circuit Court misapplied the writ of certiorari under these circumstances. We hold that it did and explain. The circuit courts of this State have jurisdiction to issue a writ of certiorari to a lower court for the limited purpose of inquiring into that tribunal’s fundamental jurisdiction.

Kawamura v. State, 299 Md. 276, 283 , 473 A.2d 438 (1984); Smith v. State, 73 Md.App. 156, 161 , 533 A.2d 320 (1987); 4 Poe’s Pleading and Practice, § 723 (6th ed. 1975). Fundamental jurisdiction of a court means its “power to act with regard to a subject matter which ‘is conferred by the sovereign authority which organizes the court.’ ” Pulley v. State, 287 Md. 406, 416 , 412 A.2d 1244 (1980). Thus, the limited function of the writ of certiorari is to inquire into the power of a court to decide an issue—not to review its resolution of that issue. Hendrick v. State, 115 Md. 552, 560 , 81 A. 18 (1911); Crichton v. State, 115 Md. 423, 429-30 , 81 A. 36 (1911); VonOppenfeld v. State, 53 Md.App. 462,