Moose v. Fraternal Order of Police

CATHELL, Judge. In this very convoluted case, we are going to dismiss, for reasons discussed infra, all of the judicial actions that have been filed. After the first emergency suspension hearing was held on April 26, 1999, appellees 1 could not obtain judicial review until they exhausted them administrative remedies. They have never filed any petition for review of administrative agency actions.

Appellees, therefore, have failed to exhaust such remedies. The various lower courts in this case have overlooked, the fact that appellees failed to exhaust their administrative remedies and, therefore, this case and its prior proceedings, were never properly before any court. The lower courts should not have exercised jurisdiction in this case to rule on any of the proceedings in any of the cases other than to dismiss them. We are going to discuss the complete history of the case, although the proceedings after the original emergency suspension hearing are not relevant to our holding in the case at bar.

After the original emergency suspension hearing concluded, the courts, under the circumstances of this case, should not have exercised jurisdiction to consider any issues raised from that point until the present. Facts In April of 1999, Officer John Doe 2 was suspended with pay from the Montgomery County Police Department (Police Department) pending an investigation into allegations that the ⁴⁷⁹ officer had used excessive force in the performance of his duties. 3 Officer Doe was assigned to administrative duties pending the outcome of the investigation, and his power to make arrests was suspended. Officer Doe was notified that pursuant to section 734A(2)(iii), he would be provided a prompt hearing before a one-member hearing board. 4 Prior to that hearing, Officer Doe did not seek a show cause order from the trial court in respect to the one-member composition of the hearing board. On April 26, 1999, an emergency suspension hearing was held before a one-member hearing board and after the hearing the chief continued Officer Doe’s suspension.

On June 29, 1999, the Fraternal Order of Police, Montgomery County Lodge 35, Inc. and Officer Doe, appellees, filed a “Verified Petition in Support of Show Cause Order and/or Complaint for Declaratory Relief’ in the Circuit Court for Montgomery County purporting to be pursuant to Maryland Code (1957, 1996 Repl.Vol.), Article 27, section 734 of the LEOBR 5 and ⁴⁸⁰ Maryland Code (1973, 1998 RepLVol.), section 3-401 et seq. of the Courts and Judicial Proceedings Article. 6 In their petition against the Chief of Police, Charles Moose, and the Police Department, 7 appellees challenged the Police Department’s failure to convene a three-member hearing board for the emergency suspension hearing and also challenged the conduct of the hearing. Because the parties had not exhausted them administrative remedies, the Circuit Court should have dismissed the action. Instead, it found that the administrative hearing had been unfair and did not address the other issue. 8 A new emergency suspension hearing was scheduled, with the hearing board to consist of only one member. On February 9, 2000, prior to the scheduled second emergency suspension hearing, appellees again filed a “Verified Petition in Support of Show Cause Order and/or Complaint for Declaratory Relief’ in the Circuit Court for Montgomery County pursuant to section 734 and section 3-401 et seq.

In their petition, appellees sought to have the Circuit Court issue an order stating that appellants had to conduct the emergency suspension hearing on the reasonableness of Officer Doe’s emergency suspension before a three-member hearing board. Again, the Circuit Court should, for the reasons we have mentioned and shall explain further, have dismissed the action. The Circuit Court, however, determined that the LEOBR did not require appellants to use a three-member hearing board. Appellees appealed to the Court of Special Appeals, which should have vacated the judgment and directed the trial court to dismiss the action.

Instead, it remanded the case to the Circuit Court for a determination of all of the issues in this case. The Court of Special Appeals held that the Circuit Court had only addressed whether Officer Doe ⁴⁸¹ would have been entitled to a three-member emergency suspension hearing board pursuant to the LEOBR. The Circuit Court, according to the Court of Special Appeals, failed to address whether Officer Doe would have been entitled to a three-member emergency suspension hearing board pursuant to the Police Department’s regulations. The Court of Special Appeals thus held that it could not reach the merits of the dispute because the Circuit Court had failed in a declaratory judgment action to issue a written order fully addressing the rights of the parties.

The Court of Special Appeals apparently did not perceive that appellants had not exhausted their administrative remedies. On remand, the Circuit Court determined that both the LEOBR and the Police Department’s administrative regulations required a three-member emergency hearing board. The Circuit Court, however, should have dismissed the action even though the Court of Special Appeals had remanded. Appellants filed an appeal to the Court of Special Appeals.

We granted certiorari on our own motion prior to further consideration by that court. Appellants present two questions for our review: “I. Under the Law Enforcement Officers’ Bill of Rights, does the requirement for a ‘prompt hearing’ mean that the charges against the officer must be disposed of promptly, or does the provision require an additional hearing before a three-member board to address the sole issue of the reasonableness of the suspension prior to addressing the charges?

II

Do the administrative procedures of the Montgomery County Police Department require a three-person hearing board to review the police chiefs decision to suspend an officer’s police powers with pay?” We do not address either of appellants’ questions. We are going to vacate the decision of the Circuit Court and remand the case to that court with instructions to dismiss all judicial proceedings now, or heretofore, pending, arising out of the two petitions for show cause and declaratory judgment actions. ⁴⁸² We hold that in the case sub judice, appellees failed to exhaust their administrative remedies as is required before the commencement of either of the declaratory judgment actions. Because the parties had not exhausted all administrative remedies, neither the Circuit Court, nor the Court of Special Appeals, should have addressed any issues in the framework of declaratory judgment actions. The declaratory judgment actions should have been dismissed.

We also hold that the show cause provisions of section 734 were not applicable to the case at bar in respect to the only emergency suspension hearing properly held because the emergency suspension hearing had already been held when appellees first filed for relief under that section. Once the first emergency suspension hearing was held, the show cause provision of section 734 of the LEOBR was not available to appellees. Discussion In this very unusual procedural case, Officer Doe was initially subjected to an “emergency suspension hearing.” At no time prior to that initial emergency suspension hearing did appellees request a show cause order challenging the one-member composition of the emergency suspension hearing board. The applicable statute, section 734, permitting show cause orders in such cases, requires them to be filed prior to the commencement of such hearings.

That was not done prior to the initial emergency suspension hearing. Shortly after the conclusion and decision in the initial emergency suspension hearing, appellees filed a combined action in the Circuit Court for Montgomery County. One thrust of their action was an effort to require appellants to “show cause,” pursuant to section 734, as to why a three-member emergency suspension hearing board was not required. As we have indicated, and will discuss infra, such a show cause petition must be filed prior to the “commencement” of such a hearing.

Accordingly, this type of action was not then available to appellees and should not have been considered by any of the lower courts. Another thrust of ⁴⁸³ appellees’ efforts was for a declaratory judgment that a three-member emergency suspension hearing board was required. At the time of appellees initial filing of an action in the Circuit Court, there had not been, and, in fact, as far as the record reflects, has never been to this point, a subsequent hearing on the merits. Therefore, administrative remedies had not at that time, and never have, been exhausted.

A declaratory judgment action was, therefore, not permitted at that time, or since, or now, as we explain, infra. The trial court to which the issues were presented should have dismissed the action. What then should have occurred was for a hearing on the merits before a three-member hearing board pursuant to the LEOBR and any subsequent reviews as statutorily appropriate. Instead, the Circuit Court for Montgomery County directed certain actions, which it should not have directed.

It should not have authorized any reconvened or additional emergency suspension hearing because the administrative remedies had not been exhausted. Thereafter, prior to the new emergency suspension hearing improperly directed by the Circuit Court, appellees filed a show cause and declaratory judgment action in the Circuit Court reasserting their claims. That is the instant action. These issues, however, were not properly before the Circuit Court because it could not properly direct or permit another emergency suspension hearing.

Officer Doe had already had the only emergency suspension hearing to which he was at that point entitled. He had not asked for court intervention prior to that hearing. At that point, the issue of the validity of a one-member board had to await the resolution of the merits hearing before a three-member board, ie., had to await the exhaustion of administrative remedies. For the same reason, these issues are not properly before us.

There has, even now, been no exhaustion of administrative remedies. After the original emergency suspension hearing, the only action left was for appellees and appellants to hold a hearing on the merits pursuant to the LEOBR. Once all administrative remedies had been exhausted, appellees could then have ⁴⁸⁴ sought judicial review in the Circuit Court for Montgomery County. After the initial emergency suspension hearing, the Circuit Court should have dismissed appellees’ petition and then a hearing on the merits pursuant to the LEOBR could have been held if necessary.

Because administrative remedies had not been exhausted, the Circuit Court should not have ruled on appellees’ petition. Therefore, any hearings, other than a hearing on the merits, and any further judicial review was inappropriate. At that point, the only action left was for a hearing on the merits pursuant to the LEOBR. All of the lower courts should have dismissed all of the actions. 9 Section 734 Appellees’ first contention in their “Verified Petition in Support of Show Cause Order and/or Complaint for Declaratory Relief’ is that pursuant to section 734 Officer Doe was being denied a right under the LEOBR — his alleged right to a three-member emergency suspension hearing board.

We hold that appellees were barred from applying for show cause relief under section 734, seeking the implementation of a three-member emergency suspension hearing board, after that first emergency suspension hearing had been held. A party being denied a right under the LEOBR can apply for a show cause order under section 734. Section 734 states: “ § 734. Application to court for show cause order.

Any law enforcement officer who is denied any right afforded by this subtitle may apply at any time prior to the commencement of the hearing before the hearing board, either individually or through his certified or recognized employee organization, to the circuit court of the county where he is regularly employed for any order directing the ⁴⁸⁵ law enforcement agency to show cause, why the right should not be afforded.” [Emphasis added.] As section 784 clearly states, appellees would have had to have applied for a show cause order before the first emergency suspension hearing seeking to require the Police Department to show cause why appellees’ alleged right to a three-member hearing board was not being provided at the emergency suspension hearing. Appellees were aware that the Police Department was planning on the hearing board only consisting of one member at the first emergency suspension hearing. In the memorandum sent to Officer Doe to inform him of his police powers being suspended, the Police Department stated that the board would only consist of one member. At that time, appellees did not apply to the circuit court for a show cause order pursuant to section 734.

Officer Doe proceeded with the emergency suspension hearing and then, before a merits hearing before a three-member board could be held, filed an action in the Circuit Court for Montgomery County protesting the Police Department’s failure to have a three-member emergency suspension hearing board. Once the first emergency suspension hearing commenced, appellees were then barred from seeking a show cause order under section 734 as to the already held emergency suspension hearing. Declaratory Judgment Appellees’ second contention in their “Verified Petition in Support of Show Cause Order and/or Complaint for Declaratory Relief’ is that they are entitled to declaratory relief stating that the emergency suspension hearing boards should consist of three members. After the first emergency suspension hearing, no subsequent hearing on the merits before a three-member board that would exhaust appellees’ administrative remedies was held prior to the instant declaratory judgment action.

We hold that the Circuit Court should not have addressed appellees’ concerns in either of the declaratory judgment actions because appellees had not, and still have not, exhausted their administrative remedies. Appellees filed for relief under the declaratory judgment statutes, codified at Maryland Code (1978, 1998 Repl.Vol.), ⁴⁸⁶ section 3-401 et seq. of the Courts and Judicial Proceedings Article. The courts of this state, however, have, in cases involving administrative agency actions, held that, generally, all administrative remedies must be exhausted before a party may seek a declaratory judgment in the Circuit Court. We examined the application of the declaratory judgment statutes to administrative proceedings in Secretary, Department of Human Resources v. Wilson, 286 Md. 639 , 409 A.2d 713 (1979), when we stated: “Ordinarily, where a statutory administrative remedy is provided, it will be deemed to be exclusive.[ 10 ] White v. Prince George’s County, 282 Md. 641, 649 , 387 A.2d 260, 265 (1978); Schneider v. Pullen, 198 Md. 64, 68 , 81 A.2d 226, 228 (1951).

More particularly, the Uniform Declaratory Judgment Act, Md.Code (1974) § 3-409(b) of the Courts and Judicial Proceedings Article expressly provides: Tf a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle.’ ⁴⁸⁷ This Court has consistently held that because, under the Declaratory Judgment Act, statutory administrative remedies are exclusive, the administrative procedures established must be exhausted before a litigant may seek declaratory relief from a trial court. Soley v. State Comm’n on Human Relations, 277 Md. 521, 526-27 , 356 A.2d 254, 257 (1976); Tawes v. Williams, 179 Md. 224, 228 , 17 A.2d 137, 139 (1941). In Soley, 277 Md. at 526 , 356 A.2d at 257 , this Court articulated the underlying rationale for this requirement. There, Judge Levine said for the Court: ‘The rule requiring exhaustion of administrative or statutory remedies is supported by sound reasoning.

The decisions of an administrative agency are often of a discretionary nature, and frequently require an expertise which the agency can bring to bear in sifting the information presented to it. The agency should be afforded the initial opportunity to exercise that discretion and to apply that expertise. Furthermore, to permit interruption for purposes of judicial intervention at various stages of the administrative process might well undermine the very efficiency which the Legislature intended to achieve in the first instance. Lastly, the courts might be called upon to decide issues which perhaps would never arise if the prescribed administrative remedies were followed.’ Thus, this Court recognized that when the Legislature enacts a comprehensive remedial scheme in which a claim is to be determined by an administrative agency and reviewed in an administrative appeal before judicial review is available, it establishes, as public policy, that such a procedure produces the most efficient and effective results.

In order to effectuate this public policy, trial courts generally should not act until there has been compliance with the statutory comprehensive remedial scheme. For the same reasons, an appellate court, on its own motion, ordinarily will raise the issue of exhaustion of statutory administrative remedies, even though not raised by the parties. Maryland-Nat’l Capital Park & Planning Comm’n v. Washington, Nat’l ⁴⁸⁸ Arena, 282 Md. 588, 594 , 386 A.2d 1216, 1222 (1978); Commission on Medical Discipline v. Bendler, 280 Md. 326, 327, 329-30 , 373 A.2d 1232, 1232-34 (1977). See also Eastgate Assocs. v. Apper, 276 Md. 698, 701 , 350 A.2d 661, 663 (1976); Harford Sands, Inc. v. Levitt & Sons, Inc., 27 Md.App. 702, 706 , 343 A.2d 544, 546 (1975).

Indeed, because the parties cannot, by agreement, cause an appellate court to act contrary to public policy, such a court will consider this question even though all of the parties desire judicial intervention. See Eastgate Assocs. v. Apper, 276 Md. at 700 , 350 A.2d at 663 ; Price v. Hobbs, 47 Md. 359, 378 (1877); Harford Sands, Inc. v. Levitt & Sons, Inc., 27 Md.App. at 706 , 343 A.2d at 546 . Accordingly, we have, on our own motion, raised the issue of exhaustion of statutory remedies here.” Id. at 643-45, 409 A.2d at 716-17 ; see Josephson v. City of Annapolis, 353 Md. 667, 674-78 , 728 A.2d 690, 693-95 (1998); Prince George’s County v. Blumberg, 288 Md. 275, 283-85 , 418 A.2d 1155, 1160-61 (1980); Abington Center Assocs. Ltd. Partn. v. Baltimore County, 115 Md.App. 580, 590-93 , 694 A.2d 165, 170-72 (1997).

While the issue of whether appellees properly filed for a declaratory judgment was not raised by either party, we have the authority to raise the issue sua sponte. Secretary, Department of Human Resources v. Wilson, 286 Md. 639, 645 , 409 A.2d 713, 717 (1979) (“[A]n appellate court, on its own motion, ordinarily will raise the issue of exhaustion of statutory administrative remedies, even though not raised by the parties.”) Furthermore, even though both parties