State v. Cates

⁶⁸² ADKINS, J. Respondents Dean Cates, Randy Kucsan, Bill Tran, and Dana Way (the “Officers”) are police officers working for Montgomery County (the “County”). The County’s automated speed monitoring system captured the Officers exceeding the posted speed limits in police vehicles at various locations in the County. The initial citations were issued to the County, as the owner of the police vehicles. The County and the Montgomery County Police Department (the “Department”) determined that, although the Officers were on duty, they were not responding to emergencies, and the Department reissued the citations directly to the Officers.

The Officers were found guilty in the District Court of Maryland, sitting in Montgomery County, and appealed their cases to the Circuit Court for Montgomery County for a consolidated, de novo trial. The Circuit Court reversed the District Court’s judgment, holding that the Department’s procedure for investigating the tickets violated the Officers’ due process rights, and dismissed the charges. 1 We granted the State’s Petition for a Writ of Certiorari 2 to consider the following questions: 1. Whether a political subdivision may transfer liability to a police officer for a speed monitoring system citation when the police officer was on duty and operating an emergency vehicle in excess of the speed limit? ⁶⁸³ 2. Whether a police officer is entitled to “due process” before liability for a speed monitoring system citation may be transferred to the officer?

We shall hold that the Officers would be subject to liability for operating their vehicles in excess of the speed limit, even while on-duty, and that the Officers were not deprived of due process, but instead were afforded ample opportunity to contest their liability under the statute. FACTS AND LEGAL PROCEEDINGS 1. The Automated Enforcement Program (“AEP”) As part of its effort to enforce traffic laws, the County uses speed monitoring systems, which are “device[s] with one or more motor vehicle sensors producing recorded images of motor vehicles traveling at speeds at least 10 miles per hour above the posted speed limit.” Md.Code (1977, 2009 Repl. Vol.), § 21-809(a)(5) of the Transportation Article (“TA”). 3 The statute provides that anyone thus cited, or anyone to whom a citation is reissued, may “[ejlect to stand trial in the District Court for the alleged violation.” TA § 21-809(d)(5)(ii).

At trial, the cited person may present evidence that they were not driving the vehicle, as well as “[ajny other issues and evidence that the District Court deems pertinent.” TA § 21—809(f)(1). The cited person may also argue that the State has failed to meet the numerous requirements of TA Section 21-809. 4 ⁶⁸⁴ TA Section 21-809 also provides the procedures required in the District Court before the Department may reissue a citation to a non-owner. 5 During the District Court hearing, the owner of a cited vehicle may present “evidence that the person named in the citation was not operating the vehicle at the time of the violation[.]” TA § 21—809(f)(ii). The owner must then provide the District Court with: ... a letter, sworn to or affirmed by the person and mailed by certified mail, return receipt requested, that: (i) States that the person named in the citation was not operating the vehicle at the time of the violation; (ii) Provides the name, address, and, if possible, the driver’s license identification number of the person who was operating the vehicle at the time of the violation; and (iii) Includes any other corroborating evidence. TA § 21-809(f)(3).

Then, “[i]f the District Court finds that the person named in the citation was not operating the vehicle at the time of the violation or receives evidence ... identifying the person driving the vehicle at the time of the violation,” the District Court must forward the file to the Department so that it may reissue the citation in the alleged driver’s name. TA § 21-809(0(4). Arguably, the formality of the District Court proceeding varies depending on who, or what, owns the vehicle. Where the owner of the vehicle is a person, that person must convince ⁶⁸⁵ the District Court with credible evidence that she was not driving at the time of the citation.

Where the owner, however, is an entity (such as the Police Department), which is physically incapable of operating a vehicle, the required procedure is less clear. Presumably the District Court will always find that the entity was not the vehicle’s actual operator. Once the District Court has determined that the owner was not driving, the District Court’s only remaining statutory tasks are to “receive[] evidence” of the identity of alleged driver, and to “provide to the local police department a copy of any evidence substantiating who was operating the vehicle at the time of the violation.” TA § 21-809(f)(4)(i). When a police vehicle is captured speeding by the Automated Enforcement Program (the “AEP”), the Department uses an internal procedure, as opposed to this statutory procedure, to reissue a citation to the responsible officer. 6 According to the testimony of AEP’s director, the AEP staff first determines whether the vehicle was using its emergency lights and/or sirens: [WJhen we see an event, or, which is an image, a picture of the, of a vehicle going through one of our cameras, and if that picture clearly shows that the vehicle in the picture, which is a, whether it be a Montgomery County Police ⁶⁸⁶ Department vehicle or a Fire and Rescue vehicle, or some emergency vehicle, if there are lights and sirens, then we would then not issue that citation.

If there is no corroborating physical evidence that this, that the vehicle was attending to an emergency situation, then the citation would be issued similar to every other citation that we issue. (Emphasis added). Without physical evidence that the officer was responding to the emergency, the AEP issues a citation to the Department, which is the owner of the vehicles. Upon receiving a citation, the Department further checks the Computer-Aided Dispatch (“CAD”) reports to determine if the operating Officer was responding to an emergency at the time.

If the CAD reports demonstrate that the Officer was responding to an emergency, the Department sends a written request to the AEP to void the citation. If, however, the Department ... doesn’t find on the CAD report an exact notation or incident that corresponds with the time of the ticket; for example, that there was a traffic stop, or that they were pursuing somebody, or they had their lights and flashers on, it was an emergency run—if they don’t see an exact denotation on the CAD report to match the time of the ticket, preliminarily, they say that it wasn’t an authorized speed. And the officer was unauthorized in going fast because it’s not on the CAD report. If neither the recording nor the CAD reports demonstrate that the Officer was responding to an emergency, the Department initiates a third layer of investigation, in which it interviews the Officer to determine if she had a justification for speeding.

The Department summarizes the result of its investigation to the AEP in a memo, with a recommendation either to reissue the ticket to the Officer or to void the citation. 2. The Officers’ Citations The Respondents in this case are all police officers employed by Montgomery County. Each officer—Dean Cates, ⁶⁸⁷ Randy Kucsan, Bill Tran, and Dana Way—was recorded speeding by the AEP in 2008. 7 The Officers were on-duty and driving official police vehicles when the cameras captured them speeding. In its initial review of the recordings, the AEP did not observe emergency lights or sirens, and issued initial citations to the Montgomery County Department of Police, the owner of the Officers’ vehicles, as required by the statute.

See TA § 21—809(d)(1). The Department compared the complaints against the CAD reports, and found no evidence that the Officers had been responding to an emergency at the time. The Department then forwarded the complaints to the Officers’ respective divisions. The Officers’ supervisors interviewed the Officers and, in each case, found no justification for the speeding violations.

Accordingly, the Department sent memoranda to the AEP, directing them to reissue the citations in the Officers’ names. 8 The Officers elected to plead not guilty and stand trial for their violations in the District Court, sitting in Montgomery County. The trials, heard together, occurred on March 9, 2009, and the District Court found each Officer guilty. The Officers appealed to the Circuit Court, where they received a de novo trial on July 13, 2009. At trial, the Officers stipulated to most of the facts.

The Officers did not dispute that the speed cameras were properly functioning, and they admitted to driving the vehicles. Moreover, the Officer did not contest the CAD reports, which failed to show an emergency to which they were responding. Instead, the Officers advanced two due process arguments, each based on a concept of justified speeding. First, the ⁶⁸⁸ Officers argued that the Department failed to follow the statutory procedure for re-issuing the citations, and instead “created [its] own procedure, which is not by statute” and “without legislative authority.” The Officers claim that this internal procedure caused delay, which prevented them from remembering their justification for speeding: Now, due, on a due process argument, we submit that the [Officers’ due process rights have been violated.

One, it’s often weeks or months after they get the ticket where they’re asked by their sergeant, “Why were you going, why were you speeding?” And I have not seen a case yet where the officer could recall a reason. If it’s not on the CAD report, basically, their responses are, “I have no explanation.” And we submit that’s a due process violation ... Secondly, Your Honor, the County has taken too much time in getting these tickets processed through their own internal investigation until the case comes to court. It’s often months before the officer’s required to go to court.

Again, a due process violation. How are they going to recall that it wasn’t because they were speeding to stop a kid from running in the street, chasing a ball; or a person in a wheelchair was spinning. The Officers’ counsel then continued: [T]hat’s exactly our argument, that there are many, many reasons for an officer to speed that are lawful and justified. But because they’re not on the CAD report, or they don’t recall, [they are hable for the citation] ... ... [W]hen an officer is on duty in an authorized vehicle, they are entitled to speed for public safety and lawful reasons.

For example, a ball is running, you know, running across a street, and a kid is going to run into the street. The officer may speed up to stop traffic, stop the boy. ⁶⁸⁹ ... There are so many reasons for an officer to accelerate. And then they’re asked, and that’s why I brought up the time frames, you know, some of these times where they, between the ticket being issued and when the County says, “Officer, you’re responsible,” is months later.

We don’t know exactly when he’s questioned, but some of these are months later. And the, they can’t remember. How are they going to remember what they did yesterday? I mean, an officer’s in his car for eight hours, 10 hours.

And if they’re accelerating for a lawful purpose, and it’s not on the CAD, or they can’t remember, then they get the ticket. We’re saying the whole process violates their due process. ... [T]he fact that an officer is speeding, and it’s not on the CAD report, and he can’t recall two months later why, violates his due process to force him to be penalized under a statute which is not incorporating their action.... Second, the Officers argued that the Department’s unwritten investigation policy provided inefficient notice as to what speeding was justified and could lead to arbitrary results. The trial court agreed: [Tjhere’s no written policy that says, “We, we’ll take reasons (a) through (d), but don’t come in here with (e), (f), and (g)[.] Why isn’t that not arbitrary?

What if—I’m not saying this—what if Captain A thinks it’s a good reason, but Captain B doesn’t think it’s a good reason? ❖ * * You’re going to have two different results ⁶⁹⁰ ... [Y]ou agree that Captain A could say the reason is fíne, Captain B could say the reason is not fine, who knows what Captain C would say. ... The procedures do not have to be unduly sophisticated or unduly elaborate.... But it seems to me that if the Department is going to institute a system, it should be in writing, distributed—it could be a page, it doesn’t mean it has to be 200 pages— setting forth those elements which will result in exoneration, and those elements which will not. I understand there’s always a gray area which is left to discretion, but it could be said, Point A, if you’re doing (a), (b), and (c), and you can prove it, you win; B, if you’re doing any of the things listed in B, you lose.

Okay? For example, not on duty, going to Johnny’s soccer game. Can’t do that. It’s against Department policy.

And C could be the gray area. But it’ll be delineated so that the individuals driving the vehicles know what’s expected of them, and the individuals deciding these matters will know what’s, what the parameters are. Like I’m saying, it does not have to be unduly formal; it could be a page or two. The Circuit Court thus reversed the Officers’ convictions on the grounds that the Department violated their due process rights through its informal investigation policy for determining whether violations ought to be reissued.

The State petitioned this Court for a writ of certiorari. We granted the State’s petition. DISCUSSION In their briefs, the parties present different arguments from those relied upon by them in the Circuit Court. The Officers shift their theory from the assertion that their speeding could have been justified, and instead focus on the Department’s failure to comply with the statutory procedure.

Accordingly, the Officers do not contest the applicability of TA Section 21- ⁶⁹¹ 106, which requires that Officers follow the rules of the road except in limited circumstances. The County claims that police officers are subject to the “rules of the road,” and may not break the speed limit except where allowed by TA Sections § 21-106(a) and (b)(3). The County thus argues that the Circuit Court erred in its underlying assumption that speeding may be justified even though the Officers did not engage their lights or siren and were not responding to an emergency listed in the CAD report. The County also argues that the Officers failed to preserve the current iteration of its due process argument, which focuses not on the possibility that the Officers were justified in speeding, but merely on the asserted statutory deviation by the Department.

This case presents only issues of law, involving questions of constitutional rights and statutory interpretation, and will therefore be reviewed de novo. See, e.g., Renbaum v. Custom Holding, Inc., 386 Md. 28, 43 , 871 A.2d 554, 563 (2005) (“Decisions on matters of law are reviewed de novo.”) While the “due process” issue is the determinative issue here, we will first address the issues of preservation and the “rules of the road.” Preservation The State argues that the Officers failed to preserve what we interpret as their principal argument in this Court— that the Department violated the Officers’ rights by reissuing the citations without observing the procedures required by TA Section 21-809. The State correctly points out that this Court “ordinarily will consider only an issue ... that has been preserved for review[.]” Md. Rule 8-131(b). The State also recognizes our holding that “[a]n appellee, in seeking an affirmance, is ordinarily entitled to assert any ground shown by the record for upholding the trial court’s decision, even though the ground was not relied on by the trial court and was ⁶⁹² perhaps not raised in the trial court by the parties.” Grant v. State, 299 Md. 47 , 58 n. 3, 472 A.2d 459 , 462 n. 3 (1984). 9 Despite the Officers’ recharacterization of their argument, our review of the record in the Circuit Court shows that the Officers did raise the issue of the Department’s failure to follow the statute.

At trial, the Officers’s counsel made the following statement to the court: Here, the Police Department has set up their own procedure, which is not by statute. They have created their own procedure without legislative authority. And their procedure is that when the County gets the ticket, the County refers it to the Police Department, which is the agency assigned to the vehicle; then the Police Department does an internal investigation, and they determine whether or not the ticket should be voided, or who was driving, and [if] the officer should pay. The County has refused to pay these tickets.

This statement establishes, on the record, the Officers’ objections to the procedure used by the Department, and to its circumvention of the applicable statutes. We are therefore satisfied that the principal argument the Officers present to this Court has been preserved for review. Police Officers and “The Rules of the Road” While the Officers do not argue, on appeal to this Court, that they are exempt from the so-called “rules of the road,” the issue is integral to the resolution of this case. The relevant statute, TA Section 21-106, grants certain privileges to the drivers of various emergency vehicles. 10 ⁶⁹³ There are precisely three circumstances in which the driver of an emergency vehicle may violate traffic laws: “(1) Responding to an emergency call; (2) Pursuing a violator or suspected violator of the law; or (3) Responding to, but not while returning from, a fire alarm.” TA § 21-106(a).

The statute also enumerates the traffic laws which may be violated: Under the [three] circumstances stated ... the driver of an emergency vehicle may: (1) Park or stand without regard to the other provisions of [Title 21]; (2) Pass a red or stop signal, a stop sign, or a yield sign, but only after slowing down as necessary for safety; (3) Exceed any maximum speed limit, but only so long as the driver does not endanger life or property; and (4) Disregard any traffic control device or regulation governing direction of movement or turning in a specified direction. TA § 21—106(b) (emphasis added). Even when the driver is operating under one of the circumstances listed in Section 21-106(a), she does not have carte blanche to violate traffic laws. There are two further restrictions on such a driver.

First, the driver must also be in compliance with TA Section 21-106(c), which requires that the driver of an emergency vehicle must be using her vehicle’s sirens, flashing lights, alarm bells, exhaust whistles, or other alert signals, at the time of the violation. See TA § 21-106(c) ⁶⁹⁴ (requiring the use of alarms in order to engage in a privileged violation of the rules of the road); see also TA § 22-218 (outlining permissible and required forms of alarms on emergency vehicles). Second, a driver who is in compliance with all of these requirements still bears “the duty to drive with due regard for the safety of all persons.” TA § 21-106(d). The provisions of TA Section 21-106 make clear that drivers of emergency vehicles are subject to the rules of the road except under extremely limited, specifically delineated circumstances.

There is no suggestion in this record that the Officers’ alleged speeding occurred in response to an emergency call, while pursuing a suspected violator of the law, or in connection with a fire alarm as required by Section 21-106(a). Due Process In analyzing the final issue on appeal—whether the Department violated the Officers’ due process rights—it is important to clarify the “private interest” 11 which the Officers assert was inadequately protected, and those which they do not. The Officers do not contend, as they did below, that the unwritten policy of investigations by the Department would lead to inconsistent results as to what speeding was justified. The Officers abandoned this argument, perhaps in recognition that police officers are subject to the “rules of the road” except in limited circumstances.

Nor do the Officers contend that they were deprived of an adequate hearing to contest the actual violations before paying the fines. Indeed, the Officers had an opportunity to stand trial in District Court and a de novo trial in Circuit Court. Instead, the Officers