Rowe v. Md. Comm'n on Civil Rights

Jennifer Rowe v. Maryland Commission on Civil Rights, No. 17, September Term, 2022. Opinion by Biran, J. APPELLATE JURISDICTION – The Supreme Court of Maryland held that there is no express statutory grant of review in the Appellate Court of Maryland of circuit court rulings on judicial review of no-probable-cause findings by the Maryland Commission on Civil Rights (the “Commission”). Section 20-1005(d)(2) of the State Government Article is unambiguous. It expressly references section 10-222 of the State Government Article – the Administrative Procedure Act provision regarding judicial review of agency decisions in circuit courts – and nothing else.

Thus, the plain language of the statute demonstrates that the General Assembly intended to confine judicial review of Commission no-probable- cause determinations to the circuit court. Circuit Court for Baltimore City Case No. 24-C-20-003503 Argued: December 5, 2022 IN THE SUPREME COURT OF MARYLAND* No. 17 September Term, 2022 JENNIFER ROWE v. MARYLAND COMMISSION ON CIVIL RIGHTS Fader, C.J. Watts Hotten Booth Biran Gould Eaves, JJ. Opinion by Biran, J. Fader, C.J., and Watts and Booth, JJ., dissent. Filed: March 29, 2023 * At the November 8, 2022 general election, the Pursuant to the Maryland Uniform Electronic Legal Materials voters of Maryland ratified a constitutional Act (§§ 10-1601 et seq. of the State Government Article) this amendment changing the name of the Court of document is authentic.

Appeals of Maryland to the Supreme Court of 2023-03-29 14:37-04:00 Maryland. The name change took effect on December 14, 2022. Gregory Hilton, Clerk In this case, we consider whether judicial review of a no-probable-cause determination by the Maryland Commission on Civil Rights (the “Commission”) begins and ends at the circuit court, or whether the losing party in the circuit court may appeal the adverse judgment to the Appellate Court of Maryland. That determination turns on whether there is a statute that expressly authorizes appellate review of the circuit court’s ruling.

Jennifer Rowe filed a complaint with the Commission alleging that her gym, Krav Maga MD, LLC (“KMMD”), engaged in disability discrimination by deleting a comment she had posted on KMMD’s Facebook account relating to her disability, and by subsequently terminating her membership. After investigating, the Commission found no probable cause to believe that KMMD had discriminated against Ms. Rowe based on her disability. Ms. Rowe submitted a request for reconsideration of the Commission’s determination, which the Commission denied. Ms. Rowe then sought review in the Circuit Court for Baltimore City, filing a petition for judicial review of the Commission’s denial of her motion for reconsideration.

The circuit court affirmed the Commission’s no-probable-cause finding. Ms. Rowe then noted an appeal to the Appellate Court of Maryland (at the time, called the Court of Special Appeals of Maryland).1 The Appellate Court held that it lacked jurisdiction to consider Ms. Rowe’s appeal of the circuit court’s ruling, concluding that no Maryland statute expressly 1 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022. grants the Appellate Court the authority to conduct such a review. For this reason, the Appellate Court dismissed Ms. Rowe’s appeal.

We affirm. I Background A. The Deletion of Ms. Rowe’s Facebook Comment and Termination of Her Membership at KMMD Ms. Rowe had been a member of KMMD, a mixed-martial arts training gym, for approximately two years before the events at issue in this case took place. Ms. Rowe signed a membership agreement when she joined the gym, which included a provision that KMMD “reserves the right to revoke or deny the membership of any member or guest for cause if member fails to keep and obey any of such rules and regulations, or for reasons of nuisance, disturbance of other members, moral turpitude or fraud.” The provision further stated: “In no event shall member’s behavior, demeanor, hygiene or attitude be in any way offensive, threatening, unsanitary or in any manner contrary to the best interest of the membership as a whole.” In February 2019, Ms. Rowe commented on a post in KMMD’s private Facebook group. The original post asked why some people have negative attitudes despite having full use of their extremities.

Ms. Rowe – who suffers from anxiety, depression, and post- traumatic stress disorder – responded: “[b]ecause some of us have mental/emotional disabilities.” KMMD staff determined that Ms. Rowe’s comment violated the group’s posting policies, and they deleted the comment. On a few occasions between February and 2 June 2019, Ms. Rowe and KMMD staff communicated regarding the deletion of her comment. On June 17, 2019, Ms. Rowe expressed concern about a comment one of KMMD’s instructors made about left-handed gym members. She emailed several complaints to KMMD staff about that issue between June 17 and 27, 2019.

Then, on June 27, 2019, Ms. Rowe emailed that she still felt “hurt and angry” about the deleted Facebook comment. KMMD’s General Manager, Elisabeth Green, responded that, if Ms. Rowe remained dissatisfied about the deletion, Ms. Rowe could cancel her membership. Ms. Green also told Ms. Rowe that “our communication on this matter will cease and moving forward, be entirely restricted to your ongoing weekly membership, classes, belt testing, and any feedback or questions you have regarding the physical facility.” Ms. Rowe subsequently sent two more emails to Ms. Green and the Chief Executive Officer of KMMD, Jeff Mount, on June 27, and she also called the gym twice. In her second email, Ms. Rowe told Mr. Mount and Ms. Green that “[a]t this point it seems impossible to resolve this dispute via email.” She stated, “I am willing to meet in person,” but “[i]f you are not able or willing to do that, then I will contact Krav Maga Worldwide.

If they cannot help, then I will have no choice but to initiate an inquiry with the Maryland Commission on Civil Rights.” Later in the afternoon on June 27, Mr. Mount sent Ms. Rowe an email terminating her membership and banning her from the premises because, according to KMMD, she had violated her membership agreement by engaging in “disruptive, slanderous, [and] harassing” behavior. 3 B. Statutory Framework Title 20 of the Maryland Code’s State Government Article prohibits discriminatory acts in places of public accommodation. Md. Code, State Government Article (“SG”) §§ 20-101(d)(1), 20-304 (2021 Repl. Vol.). That means an owner or operator of a place of public accommodation “may not refuse, withhold from, or deny to any person any of the accommodations, advantages, facilities, or privileges of the place of public accommodation because of the person’s race, sex, age, color, creed, national origin, marital status, sexual orientation, gender identity, or disability.” Id. § 20-304.

Under Subtitle 10 (“Enforcement”), a person claiming to be aggrieved by an alleged discriminatory act may file a complaint with the Commission. Id. § 20-1004(a). The Commission then investigates the complaint, and the Commission’s staff issues written findings. Id. §§ 20-1005(a)(1), (a)(3).

What happens next depends on whether or not the Commission finds probable cause to believe that a discriminatory act has been or is being committed. 1. Procedures Following a Finding of Probable Cause If – unlike in Ms. Rowe’s case – the Commission finds probable cause to believe that a discriminatory act has been or is being committed, the Commission’s staff “immediately shall endeavor to eliminate the discrimination by conference, conciliation, or persuasion.” Id. § 20-1005(b). If an agreement cannot be reached, the Commission’s staff must make a written finding to that effect and provide copies of the written finding to the complainant and the respondent. Id. § 20-1005(c)(2).

On the making of a finding under § 20-1005(c)(2) that an agreement cannot be reached, the complaint is certified to the 4 general counsel of the Commission, and written notice is issued and served in the name of the Commission, together with a copy of the complaint, requiring the respondent to answer the charges of the complaint at a public hearing before an administrative law judge. Id. § 20-1006. The administrative law judge conducts the hearing in the county where the alleged discriminatory act occurred. Id. § 20-1008(a)(2).

Testimony at the hearing is taken under oath and is recorded; a transcript is made of all such testimony. Id. § 20-1008(d). If, after reviewing all of the evidence, the administrative law judge finds that the respondent has engaged in a discriminatory act, the administrative law judge (1) issues a decision and order stating findings of fact and conclusions of law and (2) issues an order requiring the respondent to “cease and desist from engaging in the discriminatory acts … and … take affirmative action to effectuate the purposes of the applicable subtitle of this title.” Id. § 20-1009(a). Various other remedies are also available if there is a finding that the respondent has engaged in a discriminatory act.

See id. § 20-1009(b), (c). If, after reviewing all of the evidence, the administrative law judge finds that the respondent has not engaged in an alleged discriminatory act, the administrative law judge states findings of fact and conclusions of law and issues an order dismissing the complaint. Id. § 20-1009(d). Unless a timely appeal is filed with the Commission in accordance with the Commission’s regulations, “a decision and order issued by the administrative law judge under this section shall become the final order of the Commission.” Id. § 20-1009(e).

The human relations statute is silent concerning judicial review of a final order issued under 5 § 20-1009(e), but judicial review is available of such an order under the “contested cases” provisions of Maryland’s Administrative Procedure Act (“APA”): SG § 10-222 (petition for judicial review filed in circuit court) and SG § 10-223 (appellate review in the Appellate Court of Maryland for a party aggrieved by circuit court decision issued under § 10-222). See State Comm’n on Hum. Rels. v. Kaydon Ring & Seal, Inc., 149 Md. App. 666, 690 (2003). 2. Procedures Following a Finding of No Probable Cause Cases like Ms. Rowe’s proceed differently.

If, after investigation of the initial complaint, the Commission finds no probable cause to believe that a discriminatory act has been or is being committed, the complainant may file a request that the Commission reconsider its determination. Id. § 20-1005(d)(1). If the Commission denies that request for reconsideration and if the federal Equal Employment Opportunity Commission does not have jurisdiction over the complaint’s subject matter, then “a denial of a request for reconsideration of a finding of no probable cause by the Commission is a final order appealable to the circuit court as provided in § 10-222 of [the State Government Article].” Id. § 20-1005(d)(2). C. Ms. Rowe’s Complaint On June 28, 2019, Ms. Rowe filed a complaint with the Commission alleging that KMMD engaged in disability discrimination by deleting her Facebook comment and by terminating her gym membership.2 The Commission investigated the complaint, accepting 2 Ms. Rowe’s initial charge of discrimination also included an allegation of unlawful retaliation.

The record reflects that Commission staff contacted Ms. Rowe on July 19, 2019, 6 evidence from Ms. Rowe and KMMD. On May 20, 2020, the Commission issued its written findings, explaining that “the investigation established that [KMMD] had a legitimate, non-discriminatory business reason, not based on [Ms. Rowe’s] disability, for terminating her membership because she failed to conform to the usual and regular requirements, standards, and regulations of [KMMD’s] establishment.” (Cleaned up). Thus, the Commission concluded that there was not probable cause to believe KMMD had discriminated against Ms. Rowe based on her disability. On May 29, 2020, Ms. Rowe filed a request for reconsideration of the no-probable- cause finding, which the Commission denied on July 15, 2020.

On August 14, 2020, Ms. Rowe filed a petition for judicial review in the Circuit Court for Baltimore City of the Commission’s denial of her request for reconsideration. The circuit court issued an order affirming the Commission’s decision on February 8, 2021. Ms. Rowe then noted an appeal to the Appellate Court. Ms. Rowe raised issues in her briefing to the Appellate Court concerning the administrative process and the evidentiary basis for the Commission’s findings.

The Commission filed a response brief addressing the merits of Ms. Rowe’s claims. During oral argument on February 2, 2022, the Appellate Court panel raised sua sponte the issue of its jurisdiction – specifically, whether there exists a statute authorizing an appeal to the Appellate Court from the judgment of the circuit court on a petition for judicial review of a no-probable-cause finding by the Commission. After receiving supplemental briefing from the parties on the to “revise charge to remove Retaliation,” and that she revised her complaint to delete the retaliation claim on July 25, 2019. 7 jurisdictional issue, the Appellate Court dismissed the appeal for lack of jurisdiction in an unreported opinion. In the Matter of Rowe, No. 0354, Sept. Term, 2021, 2022 WL 1224729 (April 25, 2022).

The Appellate Court concluded that SG § 20-1005(d)(2) does not authorize an appeal to the Appellate Court of a circuit court’s ruling concerning a no- probable-cause finding by the Commission. Id., 2022 WL 1224729 , at ⁶-⁹. Ms. Rowe petitioned this Court for a writ of certiorari, which we granted on August 25, 2022. Rowe v. MCCR, 481 Md. 1 (2022).

Ms. Rowe presents the following question for our review, which we have rephrased slightly: Does the Appellate Court of Maryland have jurisdiction over appeals from circuit courts of petitions for judicial review of Maryland Commission on Civil Rights no-probable-cause findings in public accommodations discrimination cases? II Standard of Review Whether the Appellate Court has subject matter jurisdiction over Ms. Rowe’s appeal is a question of law that we review de novo. See Mayor & City Council of Balt. v. ProVen Mgmt., Inc., 472 Md. 642, 664 (2021). III Discussion Ms. Rowe argues that the General Assembly expressly has granted the right to Appellate Court review of an adverse circuit court ruling concerning a Commission no- probable-cause finding.

Her argument proceeds as follows: SG § 20-1005(d)(2) grants the right to judicial review by the circuit court of no-probable-cause determinations through 8 express incorporation of the circuit court judicial review provision contained in the APA, SG § 10-222, the same section that provides judicial review in contested cases in circuit courts. The next section of the APA, SG § 10-223, provides that “[a] party who is aggrieved by a final judgment of a circuit court under this subtitle may appeal to the [Appellate Court of Maryland] in the manner the law provides for the appeal of civil cases.” SG § 10- 223(b)(1). Ms. Rowe contends that, as a result of the reference to SG § 10-222 in SG § 20- 1005(d)(2), the losing party in the circuit court on a petition for judicial review filed under SG § 20-1005(d)(2) is aggrieved by a final judgment of a circuit court “under this subtitle” – the APA’s contested cases subtitle – and therefore is entitled to the same right to review in the Appellate Court that the losing party in an APA contested case has under SG § 10- 223. The Commission argues that the plain language of SG § 20-1005(d)(2) does not include an express grant of the right to appeal an adverse ruling in the circuit court.

Rather, the Commission contends, SG § 20-1005(d)(2) only expressly provides a right to judicial review in the circuit court. The Commission asserts that, by referring only to § 10-222 in § 20-1005(d)(2) – and not also to § 10-223 or to the APA as a whole – the General Assembly intentionally limited judicial review with respect to Commission no-probable- cause findings to the circuit court. Resolution of the parties’ competing contentions requires us to interpret SG § 20-1005(d)(2). As we have stated previously, [t]he goal of statutory interpretation is to “ascertain and effectuate the actual intent of the General Assembly in enacting the law under consideration.” Matter of Collins, 468 Md. 672, 689 (2020).

In conducting this inquiry, “we 9 begin with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology.” Blackstone v. Sharma, 461 Md. 87, 113 (2018) (internal quotation marks and citations omitted). If the statutory language is “unambiguous and clearly consistent with the statute’s apparent purpose, [the] inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction.” Lockshin v. Semsker, 412 Md. 257, 275 (2010). We “neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with forced or subtle interpretations that limit or extend its application.” Id. (internal quotation marks and citations omitted).

Rather, we construe the statute “as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory.” Mayor & Town Council of Oakland v. Mayor & Town Council of Mountain Lake Park, 392 Md. 301, 316 (2006). We do not “read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone.” Lockshin, 412 Md. at 275 . “Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute.” Id. at 276 . We presume “that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope.” Id. To the extent there is ambiguity in statutory language, we strive to resolve it by “searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process.” Id.

We also often review legislative history to determine whether it confirms the interpretation suggested by our analysis of the statutory language. See, e.g., In re O.P., 470 Md. 225, 255 (2020). Further, we “check our interpretation against the consequences of alternative readings of the text,” Bell v. Chance, 460 Md. 28, 53 (2018), which “grounds the analysis.” In re O.P., 470 Md. at 255 . Doing so helps us “avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense,” Mayor & Town Council of Oakland, 392 Md. at 316 ; see also Bell, 460 Md. at 53 (explaining that, throughout the statutory interpretation process, “we avoid constructions that are illogical or nonsensical, or that render a statute meaningless”).

Pabst Brewing Co. v. Frederick P. Winner, Ltd., 478 Md. 61, 75-76 (2022). 10 A. The Statutes Governing Appellate Review From Judgments of the Circuit Court Generally “It is an often stated principle of Maryland law that appellate jurisdiction, except as constitutionally authorized, is determined entirely by statute, and that, therefore, a right of appeal must be legislatively granted.” Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 485 (1997) (citing Maryland-Nat’l Cap. Park & Plan. Comm’n v. Smith, 333 Md. 3, 6 (1993) (“The right to take an appeal is entirely statutory, and no person or agency may prosecute an appeal unless the right is given by statute.”)). A general right to appeal from a judgment of the circuit court exists under § 12-301 of the Courts and Judicial Proceedings Article: Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.

The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. Md. Code, Cts. & Jud. Proc. (CJP) § 12-301 (2020 Repl.

Vol.). The next section limits this broad appeal right in some cases: Unless a right to appeal is expressly granted by law, § 12-301 of this subtitle does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of … an administrative agency[.] Id. § 12-302(a); see Gisriel, 345 Md. at 486 .3 A complaint seeking statutory judicial review of an administrative agency decision is not technically an invocation of “appellate jurisdiction” but rather is an original action 3 This Court described the history of this exception, from its origin in 1785 to relatively modern times, in Gisriel, 345 Md. at 487-90 . 11 for judicial review. Thus, CJP § 12-302(a) uses the phrase “appellate jurisdiction” in a nontechnical sense. Kant v. Montgomery County, 365 Md. 269, 274 (2001) (“Although § 12-302(a) refers to a circuit court exercising ‘appellate jurisdiction’ in reviewing the decision of an administrative agency or local legislative body, the word ‘appellate’ is a misnomer in this context.

As we have often pointed out, a circuit court action reviewing the adjudicatory decision of an administrative agency or local legislative body is not an ‘appeal.’”). This Court has held that § 12-302(a) removes circuit court judgments reviewing administrative agency decisions from CJP § 12-301’s general right of appeal. See id. at 274-75; Prince George’s County v. Beretta U.S.A. Corp., 358 Md. 166, 176-77 (2000); Gisriel, 345 Md. at 496 . “[A]ny right of appeal in such a case must be found in some other statute.” Murrell v. Mayor & City Council of Balt., 376 Md. 170, 185 (2003). Ms. Rowe appealed from a final judgment of the Circuit Court for Baltimore City, which exercised “appellate jurisdiction” (within the meaning of CJP § 12-302(a)) to affirm the Commission’s denial of Ms. Rowe’s motion for reconsideration.

In order for the intermediate appellate court to have jurisdiction over Ms. Rowe’s appeal, CJP § 12-302(a) requires an expressly granted right to appeal rooted in a statutory authorization other than CJP § 12-301. B. The Proposed Other Statutory Authorization Ms. Rowe contends that SG § 20-1005(d)(2) provides that express authorization. That subsection states that (unless the Equal Employment Opportunity Commission has jurisdiction over the complaint) the Commission’s denial of reconsideration of its no- 12 probable-cause finding is “a final order appealable to the circuit court as provided in [SG] § 10-222.” The APA is found in the State Government Article, Title 10, Subtitles 1, 2, and 3 of the Maryland Code. Section 10-222 concerns circuit court review under Subtitle 2, the APA’s “Contested Cases” subtitle.

A “contested case,” as relevant here, is a “proceeding before an agency to determine … a right, duty, statutory entitlement, or privilege of a person that is required by statute or constitution to be determined only after an opportunity for an agency hearing[.]” SG § 10-202(d)(1)(i). Section 10-222 provides a right of judicial review in the circuit court to “a party who is aggrieved by the final decision in a contested case[.]” Id. § 10-222(a)(1). A petition for judicial review must be filed with the circuit court for the county in which “any party resides or has a principal place of business.” Id. § 10-222(c). The section goes on to outline the procedures for judicial review of an agency action in a contested case, including rules governing intervention by other interested persons and the taking of additional evidence before the agency.

See id. § 10-222(d), (f). The statute directs the circuit court to “conduct a proceeding under this section without a jury,” id. § 10-222(g)(1), following which the court may: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; 13 (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; (vi) in a case involving termination of employment or employee discipline, fails to reasonably state the basis for the termination or the nature and extent of the penalty or sanction imposed by the agency; or (vii) is arbitrary or capricious. Id. § 10-222(h). A discrimination complaint prior to a finding of probable cause is not a “contested case” under the APA.

See Parlato v. State Comm’n on Hum. Rels., 76 Md. App. 695 , 701- 03 (1988) (holding that a charge of employment discrimination within the jurisdiction of the EEOC, and therefore not subject to judicial review under the predecessor to SG § 20-1005(d)(2)), is not a “contested case,” and thus judicial review is also unavailable under the APA). This is so because a complainant is not entitled to, and does not receive, a quasi-judicial hearing prior to the Commission making its determination regarding probable cause. The Commission’s work is investigative, not quasi-judicial, at this stage of the process.

Id. at 703; cf. Wash. Suburban Sanitary Comm’n vs. Lafarge N. Am., Inc., 443 Md. 265, 274-78 (2015) (refund claims brought under § 25-106 of the Public Utility Article are contested cases under the APA, because the agency is required to hold a hearing to determine whether the claimant is entitled to a refund and, if so, in what amount). SG § 20-1005(d)(2)’s reference to SG § 10-222 means that the circuit court must conduct its review of the Commission’s no-probable-cause determination, to the extent applicable, as it conducts its review in a contested case under § 10-222. Some of § 10-222’s 14 provisions can, and therefore do, have application to judicial review of Commission no-probable-cause determinations.

Thus, a complainant who seeks judicial review of a no-probable-cause determination must file their petition with the circuit court for the county in which “any party resides or has a principal place of business,” SG § 10-222(c), and “[t]he court may permit any other interested persons to intervene[.]” Id. § 10-222(d)(1). The circuit court, in its decision, may affirm the Commission’s determination or “reverse or modify” it “if any substantial right of the petitioner may have been prejudiced” because a finding, conclusion, or decision of the Commission is (among other things) arbitrary or capricious. Id. § 10-222(h)(2), (h)(3). However, other portions of § 10-222 have no application to judicial review of no-probable-cause determinations because no quasi-judicial hearing has occurred at the Commission.

For example, § 10-222(f)(2) provides that the circuit court “may order the presiding officer to take additional evidence” under certain circumstances. That subsection has no application to judicial review of a no-probable-cause finding, because no “evidence” has previously been taken. While SG § 20-1005(d)(2) effectively incorporates SG § 10-222’s procedures (to the extent applicable) into the judicial review process for Commission no-probable-cause findings, § 20-1005(d)(2) is silent concerning an appeal from the circuit court to the intermediate appellate court. The parties’ core disagreement is whether, despite SG § 20-1005(d)(2)’s silence concerning review beyond the circuit court, the Appellate Court has jurisdiction to review a circuit court’s ruling concerning a Commission no- probable-cause finding under SG § 10-223. 15 Section 10-223 concerns appeals from the circuit court to the intermediate appellate court under the APA’s contested cases subtitle, reading in relevant part: “A party who is aggrieved by a final judgment of a circuit court under this subtitle may appeal to the [Appellate Court of Maryland] in the manner that law provides for appeal of civil cases.” (Emphasis added).

Section 10-222 is part of “this subtitle,” as referenced in § 10-223. The question thus becomes: Is a circuit court’s ruling on a petition for judicial review of a Commission no-probable-cause finding under § 20-1005(d)(2) (part of Subtitle 20 of the State Government Article) “a final judgment of a circuit court under this subtitle,” i.e., Subtitle 2? To answer this question, we look first to the plain language of § 20-1005(d)(2). 1. The Plain Language of SG § 20-1005(d)(2) Section 20-1005(d)(2) is unambiguous.

It expressly provides for judicial review in “the circuit court,” not the Appellate Court. It expressly references SG § 10-222 – the APA provision regarding judicial review of agency decisions in circuit courts – and nothing else. Thus, the plain language of the statute indicates that the General Assembly intended to confine judicial review of no-probable-cause determinations to the circuit court. Nevertheless, Ms. Rowe argues that the text of SG § 20-1005(d)(2) indicates that no-probable-cause findings should be treated in every regard as though they were APA contested cases.

Specifically, she contends: Since an appeal of a no-probable-cause determination to the circuit court pursuant to SG § 20-1005(d) occurs via SG § 10-222, it follows that any decision rendered by a circuit court via that procedure occurs under the APA—Contested Cases subtitle. A party who loses her appeal before the circuit court pursuant to SG § 20-1005(d)(2)’s invocation of SG § 10-222 is therefore a party “aggrieved by a final judgment of a circuit court under this 16 subtitle,” the APA—Contested Cases [subtitle], for purposes of SG § 10-223 appellate review. Similarly, Ms. Rowe characterizes § 20-1005(d)(2)’s reference to § 10-222 elsewhere in her briefing as “provid[ing] for circuit court review of no-probable-cause determinations under SG § 10-222.” Ms. Rowe overstates the connection between SG § 20-1005(d)(2) and the APA. The reference to § 10-222 in § 20-1005(d)(2) does not transform Ms. Rowe’s claim into a petition for judicial review “via” or “under” the APA.

As discussed above, the Commission’s investigation of Ms. Rowe’s discrimination complaint was not a contested case. See Parlato, 76 Md. App. at 701 . Although Ms. Rowe’s circuit court case followed SG § 10-222’s procedures to the extent they apply to a review of a Commission no- probable-cause finding, her case never became a contested case brought under the APA; rather, it retained its essence as a petition for judicial review arising under § 20-1005(d)(2). The reference in § 20-1005(d)(2) to § 10-222 does not transform an initial investigation and no-probable-cause finding into an APA contested case as to which every provision of the entire APA – including SG § 10-223 – applies.

Jurisdiction arises under the human relations statute, not under the APA or somehow under both. Elsewhere in the Human Relations title – and throughout the Code4 – the General Assembly has referenced not one specific section, but rather the entire APA contested cases 4 See, e.g., Md. Code, Crim. Law § 4-107(i) (2021 Repl. Vol.) (providing that a person aggrieved by a decision of the Secretary of Public Safety with respect to a permit to purchase, possess, and use bulletproof body armor “may seek review of the decision under Title 10, Subtitle 2 of the State Government Article”); Md. Code, Trans. § 5-201(c) (2020 Repl.

Vol.) (“Any person aggrieved by an order of the Administration or by the 17 subtitle or the APA as a whole, when it has sought to apply all of the APA’s judicial review provisions (including review in the Appellate Court) to a particular agency proceeding. One example just a few sections away from § 20-1005(d)(2) stands out: The housing discrimination part of the Human Relations title’s enforcement subtitle specifies that “any party aggrieved by a final order for relief under § 20-1029 of this subtitle may obtain judicial review of the order in accordance with the provisions for judicial review under Title 10, Subtitle 2 of this article.” SG § 20-1030(a) (emphasis added). This language expressly refers to the entire APA contested cases subtitle, rendering applicable both § 10-222 and § 10-223 and thereby providing for Appellate Court review of circuit court rulings on petitions for judicial review of final administrative orders in housing grant, denial, suspension, or revocation of any license, certificate, or other approval may appeal as provided by the Administrative Procedure Act.”); see also id. § 12-209(b); Md. Code, State Fin. & Proc. (SFP) § 15-223 (2021 Repl.

Vol.) (providing that a decision of the Maryland State Board of Contract Appeals “is subject to judicial review in accordance with Title 10, Subtitle 2 of the State Government Article”). We discuss SFP § 15-223 further in footnote 8 below. 18 discrimination cases.5 Other statutes expressly refer to SG § 10-2236 or to the intermediate appellate court7 itself in establishing the extent of review of agency action. These provisions in the Human Relations title and throughout the Code show that the General Assembly knows how to expressly provide for Appellate Court review of a circuit court’s decision on a petition for judicial review when it wants to do so. The General Assembly has used varying language to effect these express grants of appellate review. 5 The Dissent notes that the General Assembly enacted § 20-1030(a) in 1991, several years after it amended § 20-1005(d)(2) to provide judicial review of no-probable- cause findings.

It is telling that, in choosing language to provide Appellate Court review of housing discrimination cases, the General Assembly did not import § 20-1005(d)(2)’s language referencing § 10-222 into its new neighbor, § 20-1030(a), but instead referenced Subtitle 2 of the APA in its entirety in § 20-1030(a). 6 See, e.g., Md. Code, Tax-Prop. § 8-215(e) (2019 Repl. Vol.) (“A country club or golf course may appeal any action taken under this section as provided by §§ 10-222 and 10-223 of the State Government Article.”); Md. Code, Crim. Proc. § 11-815(c) (2018 Repl. Vol.) (“Within 30 days after the final decision of the Executive Director [of the Criminal Injuries Compensation Board], a claimant aggrieved by that decision may appeal the decision under §§ 10-222 and 10-223 of the State Government Article.”); Md. Code, Env’t § 4-412(b) (2014 Repl.

Vol.) (“A person aggrieved by an order or permit issued may obtain immediate judicial review under the provisions of §§ 10-222 and 10-223 of the State Government Article and the Maryland Rules.”); see also Md. Code, Bus. Reg. § 4-312 (2015 Repl. Vol.); Md. Code, Health-Gen. § 7-407 (2019 Repl. Vol.); Md. Code, Health Occ. § 21-314 (2021 Repl.

Vol.); Md. Code, Lab. & Empl. (LE) § 3-906(j) (2016 Repl. Vol.); Md. Code, Nat. Res. § 5-608(c)(3) (2018 Repl.

Vol.); Md. Code, Pub. Safety (PS) § 3-212(c) (2018 Repl. Vol.); Md. Code, Tax-Gen. § 13-532(a) (2016 Repl. Vol.); Md. Code, Bus.

Occ. & Prof. § 2-210 (2018 Repl. Vol.). 7 See, e.g., Md. Code, Corr. Servs. § 10-911(b) (2017 Repl. Vol.) (“A party aggrieved by a decision of a court under this subtitle may appeal to the [Appellate Court of Maryland],” after having provided in § 10-911(a) for initial judicial review in the circuit court); PS § 5-110 (“The Secretary or the applicant may appeal the decision of the circuit court to the Court of Special Appeals.”); see also LE § 4-602; Md. Code, Fin.

Inst. (FI) § 11-218(d) (2020 Repl. Vol.); Md. Code, Land Use § 9-1005(c) (2012 Repl. Vol.); FI § 11-416(e). 19 However, the distinctions in language from one statute to another are immaterial; they all contain express language demonstrating that the General Assembly intends for review of the particular kind of agency decision to continue beyond the circuit court to the Appellate Court.

Section 20-1005(d)(2) is different. Unlike all of these other statutes, § 20-1005(d)(2) only references the APA’s contested cases circuit court procedures.8 Ms. Rowe chalks this 8 The judicial review provision pertaining to whistleblower claims contains language similar to § 20-1005(d)(2) in that it authorizes review “in accordance with § 10-222 of the State Government Article.” Md. Code, State Pers. & Pens. (SPP) § 5-310(e) (2015 Repl. Vol.).

However, SPP § 5-310(e) is distinguishable from SG § 20-1005(d)(2) in an important respect. Prior to 1996, the predecessor to SPP § 5-310(e) provided that “[a] complainant or appointing authority may appeal the decision issued under subsection (e) of this section in accordance with §§ 10-215 and 10-216 of the State Government Article.” SPP § 3-308(g)(1) (1994 Repl. Vol.) (emphasis added). Sections 10-215 and 10-216 were the predecessors of § 10-222 and § 10-223, respectively.

Thus, prior to 1996, the predecessor to SPP § 5-310(e) expressly referenced both the APA’s circuit court and Appellate Court judicial review sections. In 1996, as part of the reorganization of the State Personnel and Pensions Article, the General Assembly moved the whistleblower judicial review provision from § 3-308(g)(1) to new § 5-310(e). In the new version of the provision, the General Assembly referenced only § 10-222 of the State Government Article. In doing so, the General Assembly gave no indication that it had purposefully eliminated Appellate Court review of circuit court decisions in whistleblower cases.

This absence is notable because an earlier Revisor’s Note pointed out that SPP § 3-308(g)(1)’s “former reference to the ‘judicial review standards of the Administrative Procedure Act’ is deleted as unnecessary in light of the specific reference to the governing provisions – i.e., §§ 10-215 and 10-216 of the State Government Article.” SPP § 3-308, Rev. Note (1994). Given the General Assembly’s explicit prior recognition of both circuit court and appellate review of administrative decisions in whistleblower cases, it would be strange to whittle down such review without comment while reorganizing the State Personnel and Pensions Article. The Appellate Court considered an analogous situation in Department of General Services v. Harmans Associates Limited Partnership, 98 Md. App. 535 (1993). In Harmans, after the Board of Contract Appeals ruled in favor of the contractor, the Department of General Services sought judicial review of the Board’s decision under SFP 20 up to “inartful drafting” and contends that the absence of an express reference to § 10-223 is not enough to justify the inference that § 20-1005(d)(2)’s references to the circuit court and to § 10-222 mean that only the circuit court has jurisdiction to review a Commission § 15-223. 98 Md. App. at 541, 544 .

The circuit court entered a judgment in favor of the contractor, and DGS appealed to the Appellate Court. Id. at 541. The contractor filed a motion to dismiss the appeal due to lack of jurisdiction, based on the fact that (at that time) SFP § 15-223 only referenced a right to judicial review “in accordance with § 10-215 of the State Government article,” the predecessor to current SG § 10-222. The predecessor to SFP § 15-223 (SFP § 11-139) had referred to judicial review in accordance with the provisions of “title 10, subtitle 2 of the State Government article (Administrative Procedure Act—Contested Cases).” As part of the Code Revision process, SFP § 11-139 was recodified as SFP § 15-223.

At that time, the reference to “title 10, subtitle 2” of the APA changed to a specific reference to SG § 10-215. However, the Revisor’s Note for that bill stated that “[t]his section is new language derived without substantive change from former SF §§ 11-137(e) and 11-139.” Harmans, 98 Md. App. at 545 . The Appellate Court stated that it “would regard an abrogation of the right of appeal from the decision of the circuit court to be a substantive change in the law, and thus presume from the Revisor’s Note that the Legislature did not intend such a result.” Id. at 545-46 . The Appellate Court denied the contractor’s motion to dismiss, concluding that the reference only to SG § 10-215 in SFP § 15-223 was a “Code Revision error.” Id. at 543.

Notably, the Appellate Court did not perceive a right to appeal to the Appellate Court based on the language of SG § 10-216 (the predecessor to current § 10-223). Following the Appellate Court’s decision in Harmans, the General Assembly did not indicate that it believed the reference in SFP § 15-223 to SG § 10-215 by itself triggered jurisdiction under SG § 10-216,