Klein v. State

Moore, J., delivered the opinion of the Court. This appeal from the denial of a motion to dismiss five separate indictments, asks whether a criminal action for bribery is barred by the State’s prior civil action under the Maryland Consumer Protection Act (1975, ch. 49, § 3). The question involves the following issues: Í. Is bribery an aspect of unfair trade practices envisioned in Md. Com.

Law Code Ann. § 13-101 et seq. (1975, 1982 Cum.Supp.)? 2. Does a civil proceeding under this Act bar a subsequent criminal prosecution for bribery because of the double jeopardy clause, U.S. Const. Amend.

V, and the principle of res judicata? 3. Is the State required to seek criminal sanctions in a civil proceeding it has initiated under the Act? We believe that these questions should be answered in the negative. Accordingly, we shall affirm the judgments below. ⁶⁴² I On August 31, 1981, Irving H. Klein, founder of Anthony Plumbing,' Inc., and Ray P. Klein, president and director of the firm in Maryland, were found to have engaged in unfair and deceptive trade practices in violation of the Consumer Protection Act, § 13-301 et seq.

The unlawful practices included overcharging consumers for plumbing and heating services, recommending new parts and services when not needed, charging for goods and services which were never supplied, failing to perform work pursuant to the State Plumbing Code, and sending out untrained salespeople lacking in the skills and knowledge necessary to diagnose plumbing problems. The Circuit Court for Baltimore City (Baylor, J.) imposed fines under § 13-410 of $33, 100 on Irving Klein, $8,100 on Ray P. Klein, $17, 900 on Anthony Plumbing of Maryland, Inc., and $15,800 on Anthony Plumbing of D.C., Inc. Consumers were granted restitution of $18, 034, § 13-406 (c) (2), and the defendants were required to post a bond to cover future restitution to presently unknown consumers, § 13-204 (10). Finally, the defendants were enjoined under § 13-406 from doing further business in Maryland. This decision was appealed (Klein v. Attorney General, No. 1548, September Term, 1981) but the proceedings were stayed because the defendants filed for voluntary bankruptcy under the Federal Bankruptcy Act, 11 U.S.C. § 301 (1979).

In September 1981, less than a month after Judge Baylor’s order, criminal indictments were lodged against Ray P. Klein for bribing six Baltimore City plumbing inspectors, Md. Ann. Code, Art. 27, § 23 (1957, 1982 Repl. Vol.). The indictments charged that Ray P. Klein "did unlawfully, wilfully and corruptly bribe” six plumbing inspectors employed by the City of Baltimore, by giving them various sums of money to process plumbing permits although the corresponding jobs were not previously inspected as required by the State code. One of the defendant inspectors, Nathaniel R. Swayney, pleaded guilty on November 17, 1981, and was sentenced to three years’ imprisonment, sus ⁶⁴³ pended, and three years’ probation.

The agreed statement of facts read into the record before the Criminal Court of Baltimore City (Hargrove, J.) described the alleged payoff scheme. Mr. Klein filed a motion to dismiss, maintaining that the criminal action was barred by the constitutional protection against double jeopardy and the doctrine of res judicata. The motion was denied by the Criminal Court of Baltimore City (Bothe, J.) and all further proceedings were stayed pending this appeal. 1 II The heart of appellant’s argument is that bribery is an unfair trade practice under § 13-301 of the Consumer Protection Act. Appellant asserts in essence that bribery "amounts to” an unfair trade practice because in this case it is part of the "pattern of unfair and deceptive trade practices” for which appellant was fined in the civil action.

In ⁶⁴⁴ that case, the court found nine specific violations, including a failure to perform all work in compliance with the State Plumbing Code. This failure, appellant claims, was furthered by the alleged bribing of State inspectors to approve the work without actually inspecting it. The fraudulent inspection amounted to misrepresentation under § 13-301 (2) (i).* 2 Therefore, appellant concludes, "the alleged acts of bribery are one and the same with the other unfair and deceptive trade practices.” Unfortunately for appellant, the statute itself refutes his argument. Nowhere in the lengthy and detailed definition of unfair trade practices is bribery either mentioned or implied.

None of the constituent elements of bribery — payment to a public employee to influence him in the performance of his official duties, Art. 27, § 23 — appear in § 13-301. Instead, unfair trade practices are identified as misstatements or misrepresentations, made directly to the consumer or by advertisement or telephone solicitation, concerning the quality and availability of goods and services or the expertise and affiliation of merchants. See Smith v. Attorney General, 46 Md. App. 78, 88 , 415 A.2d 651, 657 (1980). ⁶⁴⁵ Admittedly, bribery may furnish a climate in which numerous varieties of unfair and deceptive trade practices may flourish. And such practices may provide a motive or the occasion for bribery.

But their potential symbiotic relationship does not put them in the same family. While the Division of Consumer Protection has authority under § 13-204 (12) (ii) to define unfair trade practices in addition to those specified in § 13-301, 62 Op. Att’y Gen. 535, 542 (1977), it has not included bribery. The section carefully enumerates what constitutes an unfair trade practice, and bribery is conspicuously absent.

Notwithstanding the liberal interpretation to be afforded the Consumer Protection Act, § 13-105, we may not, by judicial fiat, add bribery to the list contained in § 13-301. Furthermore, the purpose of the Consumer Protection Act is to protect the consumer, § 13-102 (b) (1), by setting minimum standards, § 13-103 (a), and to restore an "undermined” public confidence in merchants. See Comment, "Maryland’s Consumer Protection Act: A Private Cause of Action for Unfair or Deceptive Trade Practices, ”38 Md.L.Rev. 733, 735 (1979). The remedies available in the Consumer Protection Act are civil and equitable. § 13-401 et seq.

In addition, § 13-411 provides criminal penalties; the crime is a misdemeanor. The purpose of Art. 27, § 23, on the other hand, is to punish the crime of bribery. Although bribery is not made a felony, the section authorizes imprisonment in the penitentiary. State v. Canova, 278 Md. 483, 490 , 365 A.2d 988, 993 (1976).

Thus, bribery is among those unique misdemeanors classified as "penitentiary misdemeanors” which do not have to be prosecuted within one year after their commission. Id., Md. Cts. & Jud. Proc. Code Ann. § 5-106 (1980 Repl.

Vol.). The Consumer Protection Act is concerned with all consumers; its scope is far removed from that of the bribery statute, which is directed at public employees and officeholders. The two statutes are simply different species. See, e.g., Carey v. State, 43 Md. App. 246 , 405 A.2d 293 (1979), cert. denied, 286 Md. 744 (1979), 445 U.S. 967 (1980) ⁶⁴⁶ (public official guilty of robbery — he demanded money to influence the performance of his duties — may also be guilty of extortion if demand was accompanied by threat).

Finally, the elements and standards of proof required to show bribery or unfair trade practices are demonstrably different under the "required evidence” test adopted in Thomas v. State, 277 Md. 257 , 353 A.2d 240 (1976). The test focuses "on the evidence necessary to sustain convictions on each offense.” Id. at 262, 244 . Multiple prosecutions are prohibited only if the evidence needed to secure a conviction in the second prosecution would also have been necessary to convict in the first prosecution. Id. at 263, 244 .

Such is not the case here. Bribery requires proof of the payment of money or other benefits to a public employee for the purpose of influencing him in the performance of his official duties. It must be established that payment was received pursuant to a corrupt agreement, Spector v. State, 289 Md. 407 , 425 A.2d 197 (1981), cert. denied, 452 U.S. 906 (1981), and the level of proof must be beyond a reasonable doubt. Unfair trade practices, on the other hand, require proof of "[djeception, fraud, false pretense, false premise, misrepresentation, or knowing concealment, suppression, or omission of any material fact with the intent that the consumer rely on the same ...,Ӥ 13-301 (9).

There must be sufficient sworn testimony to support each violation, Smith, supra, 46 Md. App. at 88-9 , 415 A.2d at 657-8 , and the proof must be by a preponderance of the evidence. Devine Seafood v. Attorney General, 37 Md. App. 439, 444 , 377 A.2d 1194, 1197 (1977), cert. dismissed, 282 Md. 482 , 385 A.2d 85 (1978); § 13-404 (b) (i). Thus, "... each offense contains an element which the other does not.” Thomas, supra, 277 Md. at 267 , 353 A.2d at 247 . This case goes further; each offense contains none of the elements of the other.

Therefore, the two offenses cannot be subsumed. Appellant, invoking the principles of double jeopardy and res judicata, 3 strongly urges that any criminal proceeding ⁶⁴⁷ against him is barred by the prior civil judgment. As appellee points out, to consider this argument at all, we must assume that the crime of bribery is in fact an unfair trade practice. We have said it is not, but assuming arguendo that it is, the question appellant presents is somewhat novel.

There are few cases directly holding a criminal action barred by a prior civil action or vice versa. 4 Nonetheless, if the issue were solely whether a criminal action could be barred merely because of prior civil litigation, the answer in Maryland would have to be negative. In Marques v. State, 267 Md. 542 , 298 A.2d 408 (1973), for example, the court ruled that the State may prosecute for pornography viola ⁶⁴⁸ tions under Art. 27, § 418 after having obtained a civil injunction under § 418A. Id. at 550. Federal case law allows the government to seek a combination of civil and criminal remedies involving the same transaction.

See Helvering v. Mitchell, 303 U.S. 391 (1938); Berdick v. United States, 612 F.2d 533 (U.S.Ct. of Claims 1979); United States v. Hedges, 458 F.2d 188 (10th Cir. 1972). The real question is not whether a prior case was civil or criminal in nature so as to bar subsequent prosecution, but whether constitutional protections have been subverted. Double jeopardy principles have traditionally applied to successive criminal prosecutions. Benton v. Maryland, 395 U.S. 784 (1969).

There are three prohibitions involved: a bar against a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after a conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Thomas, supra. It is the third upon which appellant must rely because the civil nature of the prior suit eliminates the first two bars dealing with criminal prosecution. He argues that because of the fines, civil penalties and injunctive relief granted in the civil trial, he has already been punished, and any further punishment would be unconstitutional.

As stated in Ex Parte Lange, 85 U.S. (18 Wall) 163, 168 (1874), "[I]f there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense.” The key here, however, is in the words "same offense.” Even if we overlook the civil nature of the prior proceeding, we have already shown that the "offenses” at issue, bribery and unfair trade practices, are not the same. See Thomas, supra. The evidence necessary to secure a conviction of bribery and that required to support a judgment under § 13-410 are completely different. Therefore, neither can trigger the claim of double jeopardy, based on the bar against multiple punishments for the same offense.

See Blockburger v. United States, 284 U.S. 299 (1932); Newton v. State, 280 Md. 260 , 373 A.2d 262 (1977). ⁶⁴⁹ Neither is the principle of res judicata availing to appellant. Res judicata means that "a final and valid judgment rendered in one proceeding between two parties operates as a bar in a second proceeding between them on all matters that have been or could have been decided in the original litigation, where the second proceeding involves the same subject matter as the first cause of action.” Cook v. State, 281 Md. 665, 668 , 381 A.2d 671, 673 (1978), cert. denied, 439 U.S. 839 (1979). The doctrine "applies without regard to the kind of court which rendered the earlier final judgment,” DeMaio v. Lumbermens Mutual Casualty Co., 247 Md. 30, 34 , 230 A.2d 279 (1967), but, like double jeopardy, requires that the subject matter of both actions be the same. Again assuming arguendo that the subject matter of both actions is the same, we will consider that part of the definition dealing with matters that could have been decided.

As Judge Bothe noted in her memorandum opinion, although the courts have held that at least the first part of the res judicata definition dealing with decided issues applies in subsequent criminal proceedings,