Maryland-National Capital Park & Planning Commission v. Mardirossian

Opinion by SALMON, J. Aris Mardirossian and his development company, 12000 River Road Property, LLC., (collectively, Mardirossian) filed a lawsuit in the Circuit Court for Montgomery County against Wayne Goldstein. In the discovery phase of that lawsuit, Mardirossian issued subpoenas duces tecum to Royce Hansen, Allison Bryant, John Robinson, Wendy Purdue, and Meredith Wellington (“the Commissioners”) requiring each of them to attend a deposition and produce certain documents. The persons subpoenaed were all either present or former members of the Maryland National Capital Park and Planning Commission and were then serving (or had served) on the Montgomery County Planning Board. The Maryland National Capital Park and Planning Commission (MNCPPC), joined by the Commissioners, filed a motion for protective order asking that the circuit court not enforce the subpoenas.

Mardirossian filed a written opposition to the motion and on September 26, 2007, a hearing was held in the Circuit Court for Montgomery County. The court denied the motion for protective order but in doing so directed counsel for Mardirossian to limit the scope of his deposition inquiries in certain respects. A timely appeal was filed by the ²¹⁰ MNCPPC and the Commissioners. 1 The court stayed the depositions pending the outcome of any appeal. The sole issue raised by the appellants in this appeal is: Did the Circuit Court err in failing to follow federal and out-of-state precedent that forbid (under most circumstances) the taking of the deposition of high-ranking government officials in lawsuits that are not specifically directed at the officials’ conduct?

I In August 2006, Mardirossian began the process of obtaining approval for a forest conservation plan concerning property located at 12000 River Road. Mardirossian first filed a Natural Resources Inventory/Forest Stand Delineation for the property with the Commission’s Environmental Planning staff. After that filing was approved, Mardirossian filed several proposed forest conservation plans that were reviewed by Mark Pfefferle, a member of the Environmental Planning staff. In response to each of the proposed forest conservation plans submitted by Mardirossian, Mr. Pfefferle sent Mardirossian a written explanation as to why the plan would not be approved by the staff.

When the last proposed forest conservation plan was rejected by Mr. Pfefferle, Mardirossian exercised his right to appeal the staff-level denial to the Planning Board (“the Board”). At the hearing before the Board, it was shown that the buildable portion of the 12000 River Road Property sits atop a bluff overlooking the Potomac River and the C & O Canal National Park. The rear of the property drops off steeply towards the National Park, and the property line sits only a few feet away from the C & O Canal. The Planning Board voted unanimously to deny the proposed ²¹¹ forest conservation plan because, among other things, the plan proposed removal of more then fifty native species of trees, many of which were located on extremely steep slopes and within stream valley buffer areas where tree removal is generally not permitted.

Following the planning board’s denial, Mardirossian made it clear that he planned to file a petition for judicial review of the Board’s denial. But before such a petition could be filed, Mardirossian had to wait until the Board filed a written resolution denying the forest conservation plan. II The Goldstein Lawsuit On August 8, 2006, which was about three months after Mardirossian began the process of seeking approval for the forest conservation plan, Wayne Goldstein (“Goldstein”) wrote a letter to Mr. Mardirossian that read, in part: It has come to my attention from a reliable source that you have apparently arranged for a tree company to come to the property at 12000 River Road in Potomac, owned by 12000 River Road Property, LLC, of which you are the manager and resident agent, to cut down sufficient trees to create a view of the Potomac River from the property. It is my understanding that such an action would clearly violate Chapter 22A of the Montgomery County Code and could subject you and the corporate entity that owns the property to a fine of up to $1000, up to six months in jail, and an administrative civil penalty of up to $9 per square foot, as well as a requirement to reforest the cleared area and perhaps place a conservation easement on most of the 3.25 acre property.

In addition, if the clearing includes land under a scenic easement with the National Park Service (NPS) related to the C & O Canal National Historic Park, there could be additional federal penalties. As president of Montgomery Preservation, Inc., my primary concern is the potential negative impact upon the Historic National Park. I’m including a clause from a scenic ²¹² easement agreement that details the century-long interest of the federal government in the Potomac River and adjacent lands. Goldstein’s letter, dated October 8, 2006, went on to discuss Montgomery County’s Forest Conservation Law and Mardirossian’s efforts to obtain planning commission approval of a forest conservation plan for his property.

Goldstein’s letter continued: It is my understanding that you have met with representatives of both the NPS (National Park Staff) and the Maryland-National Capital Park and Planning Commission (M-NCPPC) to discuss your plans for this property. At this point, the M-NCPPC apparently had rejected your Natural Resource Inventory/Forest Stand Delineation (NRI/FSD) plan as inaccurate and incomplete because a number of specimen trees have not been included on the initially-submitted plan. This meeting underscores your great familiarity with the administrative processes and underlying statutes regarding environmental planning and all other planning in Montgomery County as well as the City of Gaithersburg, and that you would have to know that you can do no clearing of any trees on the property before the NRI/FSD plan and other plans have been approved. It is also my understanding that you want the tree company to do for you what was done for Dan Snyder, the owner of the neighboring properties at 11920 and 11930 River Road.

It is because of Mr. Snyder’s actions that Montgomery County raised the maximum available administrative civil penalty for such unlawful tree cutting from $l/foot to $9/foot. In addition, Mr. Snyder had received improper permission from an NPS official to do the clearing an action that nonetheless allowed Mr. Snyder to negotiate a less severe financial settlement. However, even in that circumstance in addition to paying a fine and planting hundreds of trees he also had to place a perpetual easement on three acres of his property. I hope that my source is mistaken in the information provided to me and if that turns out to be the case, I will ²¹³ then offer my sincerest apology to you.

However, if the information is correct, I urge you to stop this action immediately because the consequences to you if you went forward could otherwise be nothing less than disastrous. Please consider yourself to be fully informed in advance of all of those consequences by this letter. (Emphasis supplied.) It should be noted that Goldstein’s letter was written, and Mardirossian’s lawsuit was filed, about nine months before the Commission voted to deny the proposed forest conservation plan for 12000 River Road. Goldstein’s letter was disseminated to numerous third-parties.

Within days after Goldstein’s letter was sent, Mardirossian sued Goldstein in the Circuit Court for Montgomery County, asserting claims for private nuisance, false light invasion of privacy, and interference with prospective advantage. Mardirossian amended his complaint on February 6, 2007. Mardirossian’s amended complaint alleged that Mardirossian’s “development of the 12000 River Road Property was derailed as a result of the wide circulation of Goldstein’s letter and Goldstein’s false, incendiary, and misleading communications (about Mardirossian’s alleged plans for his property) with various Federal, State and local government agencies and their employees.” In mid-August 2007, about six week’s after the Board’s denial, Mardirossian served the subpoenas here at issue. Each of the Commissioners was required by the subpoenas to appear at a deposition and produce documents.

The deposition was scheduled for September 17, 2007. The evident purpose of the deposition was to determine what, if any, verbal, written, or electronic contact each of the Commissioners had with Goldstein and other persons (allegedly) engaged with Goldstein in tortious conduct against Mardirossian. At the time the subpoenas were issued, two of the Commissioners subpoenaed, Wendy Perdue and Meredith Wellington, were no longer serving on the Commission. In their motion to suppress, appellants did not cite any federal or out-of-state precedent to support their position.

Movants relied exclusive ²¹⁴ ly on two Maryland cases, viz: Montgomery County v. Stevens, 887 Md. 471 , 654 A.2d 877 (1995) and Public Service Comm’n. of Maryland v. Patuxent Valley Conservation League, 300 Md. 200 , 477 A.2d 759 (1984). Those cases were cited for two legal principles viz: 1) Agency decision makers cannot be found to stand for deposition, except under extremely rare circumstances and 2) Depositions of agency decision makers may be permitted only where there has been a “strong showing” of fraud or extreme circumstances. As will be shown, appellants characterization of those legal principles are too broad, and by its breadth they misstate the law. In their motion to quash, movants also said: Because the Commission has already been subjected to substantial burdens to comply with two other subpoenas served by [Mardirossian] in this case, requiring the Commissioners to be deposed would result in annoyance, oppression, and undue burden and expense.

In April 2007, [Mardirossian] subjected Mark Pfefferle, an employee in the Commission’s Environmental Planning Section, to an all-day deposition. In deposing Mr. Pfefferle, the Plaintiffs have already had access to the Commission employee who has by far the most knowledge of facts that might be in any way related to this litigation. The Commission’s Custodian of Records and Mrx Pfefferle also produced a substantial number of documents in response to the Plaintiffs’ subpoenas. Subjecting the Commission to the substantial additional annoyance, oppression, burden, and expense of having five of its Commissioners deposed would be inappropriate in any case, but is particularly inappropriate in this case where the Plaintiffs have already had a full opportunity to depose the Commission employee who has by far and away the most knowledge of the subject matter of their case.

Mardirossian’s written opposition pointed out, accurately, that the two Maryland cases relied upon by the Commissioners were inapposite because both dealt with attempts to depose high ranking officials in lawsuits that were commenced by the filing of a petition for judicial review of a decision of an administrative agency in which a party sought to take the ²¹⁵ deposition of the administrative decision maker(s). In the case sub judice, Mardirossian had not filed an administrative appeal and, as far as is shown in the record, the depositions were not being taken so as to strengthen Mardirossian’s position in the event that an administrative appeal was filed. At the September 26, 2007, hearing concerning the Commissioners’ motion for protective order, counsel for the Commissioners first argued that it is incorrect to say “that the bar [against] deposing agency decision makers and top agency officials, applies only in judicial review proceedings.” To support that argument, counsel initially relied on three cases: United States v. Morgan, 813 U.S. 409 , 61 S.Ct. 999 , 85 L.Ed. 1429 (1941) Public Service Comm’n of Maryland v. Patuxent Valley Conservation League, supra, 300 Md. at 213-14 , 477 A.2d 759 ; and Montgomery County v. Stevens, supra, 337 Md. at 481 , 654 A.2d 877 . Later in oral argument, counsel for the Commissioners also relied on Church of Scientology of Boston v. I.R.S., 138 F.R.D. 9 (D.Mass.1990) and Martin v. Valley National Bank of Arizona, 140 F.R.D. 291 (1991).

The Church of Scientology case was cited in support of the proposition that “a top government official may only be deposed upon a showing that the information to be gained from such a deposition is not available through any other source.” Martin was cited to support appellant’s contention that “the normal presumption in favor of allowing discovery does not apply. Rather, ... ‘A party may only conduct such a deposition upon a showing that the deposition is necessary in order to obtain relevant information that would not significantly interfere with the ability of the official to carry out his governmental responsibilities.’ ” In response, counsel for Mardirossian stressed that at deposition he was not seeking information that related to how the Commissioners arrived at their decision in any case, nor did counsel have any intent to make inquiry about matters involving “quasi-judicial decision-making” by the Commissioners. His counsel explicitly conceded that any such inquiry would be improper. Counsel then explained why the depositions were necessary: ²¹⁶ Now in- order to prove the damages [caused by Goldstein] we have elicited so far information that individuals would be writing to the Commission complaining about Mr. Mardirossian.

We have information through documents that there were airplanes and rangers dispatched to ... [the] Mardirossian, [property] to surround his premises. That helicopters would hover over in the most unusual circumstances that exist in the history of a normal citizen’s life in this community. The claim is that the cause of the damages was this particular improper communication [by Goldstein]. Now why do we want to question the Commissioners?

We want to question the Commissioners because there are letters, e-mail letters from some of the individuals involved in planning the letter, the egregious letter, that to [Royce] Hanson [one of the appellants] that make certain complaints. And then there are copies of letters to Mr. Hanson from Federal agencies relating to follow-ups on what’s happening with surveillance on the property. We want to depose the Commissioners to ask them questions that related to communications between the Commissioners, Mr. [Mark] Elrich and Mr. Goldstein, and others. We want to ask questions about the involvement of the Commissioners, if any, knowledge or communications with the [park] rangers.

We want to ask questions about what they knew of the helicopters. What involvement they had. And to verify certain facts that we have. Now those questions would not be violative of any privilege or protection.

However, what is of, I think, more than interest, of concern is the point raised by counsel whether there’s a pending matter [possible petition for judicial review contemplated by Mardirossian concerning the Planning Commission Board’s denial of his proposed Forest Conservation Plan]. And there should, not be questions relating to the pending matter. And I agree with that. (Emphasis added.) Ill After the trial judge denied appellant’s motion for protective order, and after the appeal in this case was filed, Mardirossian ²¹⁷ submitted a new forest conservation plan to the Park and Planning Commission’s Environmental Planning staff.

The revised plan was approved by the staff and Mardirossian withdrew his previously submitted plans. As a consequence, Mardirossian never filed a petition for judicial review. IV Trial judges are accorded broad discretion in deciding whether to grant or deny a motion for protective order. When such a motion is denied, we review that denial based on an abuse of discretion standard.

See Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 170 Md.App. 520, 530-31 , 907 A.2d 855 (2006). Judicial discretion is defined “as the power of a court to determine a question upon fair judicial consideration with regard to what is right and equitable under the law and directed by reason and conscience to a just result.” Ehrlich v. Grove, 396 Md. 550, 561 , 914 A.2d 783 (2007) (quoting Schneider v. Hawkins, 179 Md. 21, 25 , 16 A.2d 861 (1940)). A trial judge abuses his or her discretion “where no reasonable person would take the view adopted by the [trial] court.” See Fontaine v. State, 134 Md.App. 275, 288 , 759 A.2d 1136 (2000) (citing Metheny v. State, 359 Md. 576, 604 , 755 A.2d 1088 (2000)). The appellants, (citing Patuxent Valley, 300 Md. at 204 , 477 A.2d 759 ), commence their attack on the trial judge’s decision by stating that “the Court of Appeals has found that ordering a top agency decision maker to stand for deposition under circumstances similar to this case was an abuse of discretion.” The Patuxent Valley case had its origin when Pepeo, a public utility, asked the Maryland Public Service Commission for a Certificate of Public Convenience and Necessity that Pepeo needed in order to construct a 500 kilovolt overhead transmission line between substations in Howard and Montgomery counties.

Id. After taking testimony for almost one year from more then 100 lay witnesses and numerous expert witnesses, a hearing examiner recommended that Pepeo be issued the requested certificate. The Public Service Commission agreed with the hearing examiner. Id.

The Patuxent Valley Conser ²¹⁸ vation League, and others, then filed a petition for judicial review of the Commission’s decision to issue the certificate. Id. Prior to a hearing in the circuit court in regard to the petition for judicial review, Patuxent Valley filed a request for the issuance of a summons for the purpose of taking the depositions of the Public Service Commissioners who participated in the Pepeo decision. The Public Service Commission filed a motion for protective order.

Id. At the hearing it was alleged by Patuxent Valley that the Commissioners had used “improper procedure” in granting the certificate to Pepeo, and that the administrative record was deficient. Id. at 204-5 , 477 A.2d 759 . Counsel for Patuxent Valley also argued that at some point during the administrative proceedings, an “informal” ex parte communication may have taken place between the hearing examiner and the chairman of the Public Service Commission.

Id. at 205 , 477 A.2d 759 . Lastly, it was alleged that the hearing examiner “might have been predisposed” in favor of Pepeo and that the case “may even bear down [sic] to some question of bad faith.” Id. The motions judge concluded that the assertions by the petitioners amounted to allegations of “bad faith” and “improper procedure” and therefore denied the Public Service Commissions motion and ordered the Commissioners to appear for deposition. Id.

On appeal, the decision to deny the motion for protective order was reversed. 300 Md. at 218 , 477 A.2d 759 . In Patuxent Valley , the Court of Appeals began its opinion by acknowledging that it had “never expressly ruled whether a party challenging an administrative decision in court can depose the individual decision maker upon a mere allegation of ‘bad faith’ or ‘improper procedure.’ ” Id. at 212 , 477 A.2d 759 . The Court noted, however, that in Montgomery County Council v. Kaslow, 235 Md. 45, 53 , 200 A.2d 184 (1964), it had said, in dicta, that the aggrieved party must “persuade” the reviewing court “that there were, in fact, or in all likelihood, factors present ... which influence the action----” The Patuxent Valley Court construed its prior decision in Kaslow to mean that the aggrieved party carries the burden of showing the ²¹⁹ “factors” necessary to support a claim of impropriety and something more than counsel’s bare allegations are needed to meet that burden. Id. at 213, 200 A.2d 184 .

The Patuxent Valley Court then proceeded to analyze the Supreme Court decision in U.S. v. Morgan, 313 U.S. 409 , 61 S.Ct. 999 , 85 L.Ed. 1429 (1941), saying: The language from Kaslow would appear to be consistent with the United States Supreme Court’s rulings relating to judicial review of agency action. Under the Supreme Court’s holdings, ordinarily the individual administrative decision makers may be deposed only upon a strong showing of bad faith or improper behavior---- In United States v. Morgan, supra, 313 U.S. 409 , 61 S.Ct. 999 , 85 L.Ed. 1429 , several market agencies charged the Secretary of Agriculture with bias in the fixing of rates for certain services rendered by the agencies. In connection with the allegation, the trial judge permitted the market agencies to