Montgomery County v. Stevens

ELDRIDGE, Judge. In an action for judicial review of an administrative decision, the circuit court issued an order permitting the taking of depositions of the administrative decision maker and other persons. We consider in this opinion the appealability and propriety of the circuit court’s order. I. On February 25, 1992, Melanie Creedon, an assistant public defender, represented in the District Court of Maryland, in Montgomery County, a defendant charged with auto theft.

After the close of the prosecution’s case, Ms. Creedon made a motion for judgment of acquittal which the court granted. Officer Alan E. Stevens of the Montgomery County Police Department, who was in the courtroom at the time, became frustrated because the prosecution had failed to introduce into evidence an inculpatory statement which the defendant had made. Officer Stevens approached Ms. Creedon and said, “We had a confession in this case. If I ever see that kid again, he’s mine.

If he makes one wrong move, I will shoot him.” Ms. Creedon said nothing to Officer Stevens in reply. Instead, she walked to the back of the courtroom and related Officer Stevens’s comments to Mr. Lloyd Johnson, an assistant state’s attorney. Mr. Johnson had not heard Officer Stevens’s comments but had witnessed “a brief interchange” ⁴⁷⁴ take place between Ms. Creedon and Officer Stevens. Mr. Johnson expressed shock at the statement but took no action at that time.

The parties dispute how Officer Stevens’s remarks came to the attention of the Montgomery County Police Department’s Office of Internal Affairs. Either Ms. Creedon filed a complaint on March 3, 1992, with the Police Department, or the Montgomery County Chief of Police, Colonel Clarence Edwards, brought the matter to the attention of the Office of Internal Affairs after having learned of the matter from Mr. Johnson at an unrelated function. Regardless, an internal investigation ensued. The investigator confirmed that Officer Stevens had made the comments set forth above, and the investigator concluded that the comments warranted a charge of “conduct unbecoming” a police officer in violation of Department Rules, Function Code 300, III, Rule 14. 1 Chief Edwards concurred in the findings of the internal investigation, and he offered Officer Stevens the option to accept an official letter of reprimand and two days suspension without pay, or to request an administrative hearing pursuant to the Law Enforcement Officers’ Bill of Rights (“LEOBR”), Maryland Code (1957, 1992 Repl.Vol., 1994 Cum.Supp.), Art. 27, §§ 727-734D.

Officer Stevens opted for the latter course of action. On August 20, 1992, the hearing board convened. It sustained the charge of “conduct unbecoming” a police officer after receiving testimony from Ms. Creedon and Mr. Johnson. Officer Stevens, through his attorney, admitted at the hearing that he had made the statement but denied that he had violated the rule under which the alleged violation fell. 2 His ⁴⁷⁵ argument was rejected, and the board recommended to Chief Edwards that the punishment for the violation should be a letter of reprimand.

Art. 27, § 731. Pursuant to § 731(c) of the LEOBR, a chief of police is not bound by the recommendation of the hearing board. Rather, he may “increase the recommended penalty of the hearing board, [but before doing so he] shall permit the law enforcement officer to be heard and shall state the reason for increasing the recommended penalty.” Art. 27, § 731(c). 3 On September 29, 1992, Chief Edwards sent a memorandum to Officer Stevens and his attorney, advising them of his intention to increase the recommended penalty back to his original offer of a letter of reprimand and two days suspension without pay. Officer Stevens and his attorney were given an opportunity to respond.

They responded both in writing and in a subsequent meeting with Chief Edwards. In a memorandum dated November 17, 1992, however, Chief Edwards advised Officer Stevens that the recommended penalty would be increased to include the two days suspension without pay. Officer Stevens then brought an action for judicial review in the Circuit Court for Montgomery County pursuant to § 732 of the LEOBR. Officer Stevens represented to the court that he was not seeking judicial review of “the verdict of the Hearing Board in this case.

Rather, he has appealed the decision of Chief Edwards to increase the level of punishment ⁴⁷⁶ [over that] recommended unanimously by the Hearing Board.” Officer Stevens filed in the circuit court a motion for leave to initiate discovery, notice depositions, amplify the record, and suspend the time for filing memoranda. The motion alleged that Chief Edwards was the actual “complainant” in this matter, not Ms. Creedon. Furthermore, Officer Stevens charged that the proper procedure was not followed in filing the complaint and that Chief Edwards failed to specify his reasons for increasing the penalty. The motion was granted, and depositions were scheduled for Chief Edwards, the Commander of the Office of Internal Affairs, the Chief of Police of Takoma Park, and Assistant State’s Attorney Johnson.

Montgomery County filed a motion for reconsideration of the order granting discovery, and the motion for reconsideration was denied on April 19,1993. On that same day a timely appeál was noted by the County to the Court of Special Appeals. The circuit court subsequently granted a motion by the County to stay discovery pending the appeal. Prior to the stay, only Mr. Johnson’s deposition had been taken.

This Court issued a writ of certiorari before the case was heard in the Court of Special Appeals. In addition to filing a brief on the merits, Officer Stevens has filed a motion to dismiss the appeal.

II

Initially, we consider whether Montgomery County is entitled to appeal from the circuit court’s discovery order. As we shall hold that the order relating to Chief Edwards is appealable as a final judgment under the collateral order doctrine, we need not consider whether the other discovery orders could be properly appealed in the absence of the order relating to Chief Edwards. Maryland Rule 8-131(d) provides that, on appeal from an order constituting a final judgment, other orders, even if interlocutory, are generally reviewable by the appellate court. See B & K Rentals v. Universal Leaf, 319 Md. 127, 132-133 , 571 A.2d 1213, 1216 (1990) (“It is a long established principle of appellate procedure, now embodied in ⁴⁷⁷ Rule 8—131(d), that an appeal from a final judgment ordinarily brings up for appellate review all [other] orders in the case”).

This Court has consistently held that discovery orders, being interlocutory in nature, are not ordinarily appealable prior to a final judgment terminating the case in the trial court. Dep’t of Social Services v. Stein, 328 Md. 1, 7, 18 , 612 A.2d 880, 883, 888 (1992); Public Service Comm’n v. Patuxent Valley, 300 Md. 200, 207 , 477 A.2d 759, 763 (1984). “We have long recognized, however, a narrow class of orders, referred to as collateral orders, which are offshoots of the principal litigation in which they are issued and which are immediately appealable as ‘final judgments’ without regard to the posture of the case.” Harris v. Harris, 310 Md. 310, 315 , 529 A.2d 356, 358 (1987). See also Town of Chesapeake Beach v. Pessoa, 330 Md. 744, 754 , 625 A.2d 1014, 1019 (1993); Dep’t of Social Services v. Stein, supra, 328 Md. at 10 , 612 A.2d at 884 ; County Comm’rs v. Schrodel, 320 Md. 202, 209 , 577 A.2d 39, 43 (1990); State v. Jett, 316 Md. 248, 251 , 558 A.2d 385, 386 (1989); Bunting v. State, 312 Md. 472, 476 , 540 A.2d 805, 806 (1988); Public Service Comm’n v. Patuxent Valley, supra, 300 Md. at 206 , 477 A.2d at 762 . For an order to be appealable under this narrow exception, called the “collateral order doctrine,” it must satisfy the following four requirements (Town of Chesapeake Beach v. Pessoa, supra, 330 Md. at 755 , 625 A.2d at 1019 ): “(1) it must conclusively determine the disputed question; “(2) it must resolve an important issue; “(3) it must be completely separate from the merits of the action; and “(4) it must be effectively unreviewable on appeal from a final judgment.” See also Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-547 , 69 S.Ct. 1221, 1225-1226 , 93 L.Ed. 1528, 1536-1537 (1949); Clark v. Elza, 286 Md. 208, 212-213 , 406 A.2d 922, 924-925 (1979); Peat & Co. v. Los Angeles Rams, 284 Md. 86 , 394 A.2d 801 (1978). ⁴⁷⁸ Under this Court’s holding in Public Service Comm’n v. Patuxent Valley, supra, the discovery order concerning Chief Edwards meets the requirements of the collateral order doctrine and is, therefore, appealable as a final judgment.

In Patuxent Valley , the Potomac Electric Power Company (“PEPCO”) had applied to the Public Service Commission for a Certificate of Public Convenience and Necessity in order to commence construction of an overhead transmission line. After a hearing, the hearing examiner recommended that the certificate issue. The Public Service Commission, upon review of the record, agreed. The property owners who would have been affected by the line brought an action for judicial review in the Circuit Court for Howard County.

The property owners then sought to depose the commissioners who had participated in the decision to issue the certificate. The property owners alleged that the hearing examiner had considered information outside the administrative record. In particular, they claimed that an ex parte communication had taken place between the hearing examiner and the Chairman of the Commission. Moreover, alluding to possible “bad faith,” they alleged that the examiner may have been predisposed to granting the certificate.

The circuit court issued an order granting their motion to take the commissioners’ depositions. An appeal was immediately taken from the discovery order, and this Court issued a writ of certiorari while the appeal was pending before the Court of Special Appeals. This Court held that the discovery order in Patuxent Valley was appealable, as a final judgment, under the collateral order doctrine. We explained as follows ( 300 Md. at 206-207 , 477 A.2d at 762-763 ): “In our view the [] four criteria [under the collateral order doctrine] were met, and the trial court’s discovery order is appealable by the Commission or the State.

First, the order conclusively determined that individual Commission officials must appear for depositions with respect to their decision to grant PEPCO a certificate. Second, the issue is clearly important. If, in actions for judicial review of administrative decisions, it is permissible for trial courts ⁴⁷⁹ to order the depositions of the administrative decision makers, upon the type of allegations made in this case, the impact upon administrative agencies of the State and local governments may be quite substantial. Third, the question whether Commission decision makers should be required to stand for depositions is distinct from the merits of Patuxent’s action for judicial review of the agency decision.

Finally, if not appealable until the conclusion of the trial, the claim that Commission members should not be routinely subjected to extensive probing of their individual decisional thought processes would irretrievably be lost. Regardless of the outcome of the trial, the disruption to the administrative process, caused by placing the officials under pretrial scrutiny, is incurred at the first instance. Therefore, it would be impossible to cure the harm done to the Commission once the depositions have been taken.” This Court further stated that our holding was extremely narrow, that “we continue to adhere to the general rule that discovery orders are interlocutory and ordinarily cannot be appealed prior to a final judgment terminating the case,” and that “only ... the particular facts of this case warrant a departure from the general rule.” 300 Md. at 207 , 477 A.2d at 763 . The facts of the present case, with regard to the order allowing Officer Stevens to take Chief Edwards’s deposition, are essentially the same as the facts in Patuxent Valley .

The order in this case similarly meets the criteria of the collateral order doctrine. First, it conclusively determines that Chief Edwards must appear for depositions. Second, the importance of the issue in question here is identical to that in Patuxent Valley , that is, the potentially great harm to the public by the “disruption of the governmental process” that can be caused by discovery into the decision making processes of a high level government official. 300 Md. at 207-209 , 477 A.2d at 763-764 . Third, the issue as to whether the deposition is appropriate is distinct from the merits of the action for judicial review.

Finally, this issue will become effectively unreviewable later, because the harm would occur when the ⁴⁸⁰ deposition was taken, and there would be no effective remedy available thereafter. This Court pointed out in Patuxent Valley that “discovery orders, directed at other than high level government decision makers, are ordinarily not appealable.... ” 300 Md. at 210 , 477 A.2d at 764 . The Chief of Police for Montgomery County is a high level government decision maker. He is the head of the police department in the largest subdivision in this state.

Our holding in Patuxent Valley was not limited to state government officials, as indicated by our discussion of the application of the criteria required to sustain an appeal ( 300 Md. at 206-207 , 477 A.2d at 762-763 , emphasis added): “If, in actions for judicial review of administrative decisions, it is permissible for trial courts to order the depositions of the administrative decision makers, upon the type of allegations made in this case, the impact upon administrative agencies of the State and local governments may be quite substantial.” We hold that the appeal in this case comes within the collateral order doctrine and is properly before us.

III

As previously mentioned, the circuit court issued the discovery order in this case based on Officer Stevens’s allegations that Chief Edwards’s involvement in this controversy, from the initial filing of the complaint through his decision to increase the hearing board’s recommended penalty, constituted “improper procedure.” Officer Stevens relied on the administrative record as evidence that Chief Edwards informally brought this incident to the attention of the Office of Internal Affairs based on an ex parte communication