Suburban Hospital, Inc. v. Maryland Health Resources Planning Commission

KENNEY, Judge. Appellant, Suburban Hospital, Inc. (“Suburban”), sued ap-pellee, the Maryland Health Resources Planning Commission (“the Commission”), in the Circuit Court for Baltimore City, seeking to void the Commission’s adoption of the Open Heart Surgery Section of the State Health Plan (the “proposed OHS Section”). Suburban alleged that the Commission violated the Open Meetings Act, Md.Code (1984, 1995 Repl.Vol., 1998 Supp.), § 10-501 et. seq. of the State Government Article (“S.G.”), by deliberating about the proposed OHS Section in a meeting closed to the public. The Commission moved to dismiss Suburban’s complaint or, in the alternative, for summary judgment.

After a hearing on January 6, 1998, the circuit court granted the motion for summary judgment by Order on January 14, 1998. Suburban appeals from the circuit court’s decision. Facts The circuit court succinctly explained the factual background to this case: The Maryland Health Resources Planning Commission not only establishes the State’s health plan, but it also reviews requests by health facilities to provide specific health services. Md. Health General Code Ann. § 19-101, et seq.

According to the statutory scheme, the State health plan must include (1) a description of the components that should comprise the health care system; (2) the goals and policies for Maryland’s health care system; (3) identification of unmet needs, excess services, minimum access criteria, and services to be regionalized; (4) an assessment of the financial resources required and available for the health care system; and (5) the methodologies, standards, and ⁵⁸⁴ criteria for certificate of need review. Md. Health General Code Ann. § 19-114(a)(2). On April 1, 1996, Suburban and Holy Cross Hospital of Silver Spring, Inc. filed letters of intent in which they proposed establishing new open heart surgery programs in the Washington Metropolitan Region. On September 27, 1996, they filed the appropriate Certificate of Need applications.

The Commission, relying upon the notion that there was not a need for additional open heart surgery programs in the area, denied both applications. On June 18, 1997, the Circuit Court for Baltimore City reversed the Commission’s decision and ordered the Commission to review the merits of the Suburban and Holy Cross applications “in a prompt and timely fashion.” While an appeal of the Court’s order is pending in the Court of Special Appeals, Suburban filed a modified application with the Commission. Subsequently, the Commission updated and revised the State Health Plan Chapter on Cardiac Surgery and Therapeutic Catheterization Services. After extensive public comment, several public hearings and finally publication in the Maryland Register, the Commission considered the proposed Open Heart Chapter regulation for promulgation as a final rule at its November 11,1997 meeting.

After discussion of the proposed Open Heart Surgery (“OHS”) Section at the meeting, Commissioner Joan Harris moved for the adoption of the OHS Section as proposed, a version that would have precluded approval of a new open heart surgery program in the Washington metropolitan region (the “Region”). Before any action was taken on that motion, Commissioner Marvin Schneider, M.D., proposed an amendment (the “Schneider Amendment”) to alter the method of measuring open heart surgery program capacity in the proposed OHS Section, thereby permitting additional open heart programs in the Region if certain criteria were met. After more discussion, Chairman George S. Malouf, M.D., called for a vote on the Schneider Amendment. After six of the nine commissioners voted in favor of its adoption, James ⁵⁸⁵ Stanton, the Commission’s Executive Director, interrupted the vote to urge Commissioners who voted for the Schneider Amendment to reconsider.

Without finishing the vote, the Commissioners discussed the possible need to republish the entire proposed OHS Section in the Maryland Register as a proposed rule if the Schneider Amendment was adopted, and asked C. Frederic Ryland, an Assistant Attorney General and General Counsel to the Commission, if adding the Schneider Amendment would necessitate republishing the entire proposed OHS Section. Mr. Ryland stated that the promulgation process would have to be repeated. Several Commissioners and staff members who opposed the Schneider Amendment opined that adding the Amendment would require additional public hearings. Chairman Malouf eventually called for a second vote on the Schneider Amendment.

Two Commissioners changed their position, resulting in a five to four vote against the Amendment. Commissioner Schneider requested that the Commission stay the execution of its decision until Mr. Ryland could provide a “more considered thoughtful opinion” about the procedural ramifications of altering the proposed OHS Section. Commissioner Ruth Spector then moved for reconsideration of the vote that rejected the Schneider Amendment. Before action was taken on that motion, the Commissioners unanimously voted to meet in a closed “executive session” to obtain advice from counsel.

The Commission held a thirty-minute closed session. The meeting minutes do not detail any of the events of the closed session. After the Commission returned to public session, Chairman Malouf brought up the pending motion to reconsider, which Commissioner Spector immediately withdrew. Chairman Malouf stated that the Schneider Amendment was defeated and that the Commission would consider the original motion, i.e., the proposed OHS Section, without any amendment.

The ⁵⁸⁶ Commission then voted seven to two to approve the unamended proposed OHS Section. Commissioner Walter Hall immediately stated: Mr. Chairman, I would like to request that we ask the staff to consider a petition to amend the section of the plan and examine a number of issues specifically focused on the hospitals and environmental suburbs of the District of Columbia[,] issues such as the relationship of the rates set by our own cost review commission for the Maryland hospitals, vis-vis [sic] the costs and charges within the District of Columbia hospitals. Also issues such as an analysis of what the region really is as far as the hospitals in the Maryland suburbs of the District of Columbia that are located in Montgomery and Prince George’s County and so forth and I think there will be a number of additional analysis [sic] that the staff may want to consider as they look at this issue and I think that I would like to put forward that request and ask the staff if they would consider that. [Chairman Malouf]: Smokey [Mr. Stanton], did you get the petition in writing? Mr. Stanton: Yes, I did.

The request was unanimously approved. Suburban sued the Commission, alleging that, instead of merely receiving legal advice in the closed meeting, the Commission violated Maryland’s Open Meetings Act by discussing substantively the Schneider Amendment, the proposed OHS Section, and a petition process to assess the need for additional OHS programs. Questions Presented Suburban presents three questions for our review, which we have re-worded and consolidated: 1. Must Suburban demonstrate that Commission members knew they were violating the Open Meetings Act ... to maintain an enforcement action under State Government Article § 10-510? ⁵⁸⁷ 2.

Did Suburban satisfy its burden of demonstrating sufficient grounds to avoid summary judgment? We answer the first question in the negative, and the second in the positive. Accordingly, we shall reverse. Discussion A trial court shall enter judgment in favor of or against a party moving for summary judgment if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

Md. Rule 2 — 501(e). When considering a summary judgment motion, a trial court makes no findings of fact. Dobbins et ux. v. Washington Suburban Sanitary Commission, 338 Md. 341, 345 , 658 A.2d 675 (1995). The trial court decides whether a genuine issue of material fact exists to prevent the entry of summary judgment.

Fearnow v. Chesapeake & Potomac Telephone Co. of Maryland, et al., 104 Md.App. 1, 48 , 655 A.2d 1 (1995), aff'd in part and rev’d in part, 342 Md. 363 , 676 A.2d 65 (1996). When reviewing a trial court’s decision to grant a summary judgment motion, we examine “simply whether the trial court was legally correct.” Beatty v. Trailmaster Products, Inc., et al., 330 Md. 726, 737 , 625 A.2d 1005 (1993) (citing Heat & Power v. Air Products, 320 Md. 584, 591 , 578 A.2d 1202 (1990)). An appellate court ordinarily should review a grant of summary judgment only on the grounds relied upon by the trial court. 1 Maryland Rule 8-131(a); Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995); Gross et ux. v. Sussex Inc., et al., 332 Md. 247 , 254 n. 3, 630 A.2d 1156 (1993). ⁵⁸⁸ A grant of a summary judgment motion is appropriate only when the moving party meets a two-part test. Fearnow, 104 Md.App. at 48 , 655 A.2d 1 (citing Gross, 332 Md. at 255 , 630 A.2d 1156 ).

The movant for summary judgment must (i) clearly demonstrate the absence of any genuine issue of material fact, and (ii) demonstrate that it is entitled to judgment as a matter of law. To satisfy the first part of this test, the moving party must present the material facts necessary to obtain judgment and demonstrate that there is no dispute as to any of those facts. A material fact is one that will “somehow affect the outcome of the case.” It is the burden of the movant to “identify the portions of the record that ‘demonstrate the absence of a genuine issue of material fact.’ ” Once the movant makes this showing, the burden shifts to the non-moving party to identify “with particularity the material facts that are disputed.” Md. Rule 2-501(b). Neither general allegations of facts in dispute nor a mere scintilla of evidence will suffice to support the non-movant’s position; there must be evidence upon which the jury could reasonably find for the non-moving party.

In other words, the opposing party “ ‘must do more than simply show there is some metaphysical doubt as to the material facts.’ ” In ruling on a motion for summary judgment, the court must consider the motion and response submitted by the parties in a light most favorable to the non-moving party. Thus, summary judgment is inappropriate where the evidence is susceptible to more than one inference. Furthermore, the non-moving party “ ‘is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists.’ ” Fearnow, 104 Md.App. at 48-50 , 655 A.2d 1 (citations omitted). I. In an action pursuant to the Open Meetings Act, the public body is presumed to have complied with the Act, and the ⁵⁸⁹ complainant has the burden of proving the violation.

S.G. § 10 — 510(c). Suburban argues that the Commission improperly conducted deliberations and debate in its closed “executive session” on November 11, 1997. Maryland’s Open Meetings Act provides, in pertinent part, that a public body may meet in closed session to “consult with counsel to obtain legal advice,” S.G. § 10-508(a)(7). State Government § 10-508(b) states that “[a] public body that meets in closed session under this section may not discuss or act on any matter not permitted under subsection (a) of this section.” 2 “The exceptions in subsection (a) of this section [allowing closed meetings] shall be strictly construed in favor of open meetings of public bodies.” S.G. § 10-508(c).

Before a public body meets in a closed session, “the presiding officer shall: (i) conduct a recorded vote on the closing of the session; and (ii) make a written statement of the reason for closing the meeting, including a citation of the authority under this section, and a listing of the topics to be discussed.” 3 S.G. § 10 — 508(d)(2).

II

The Commission contends that Suburban cannot maintain an action under S.G. § 10-510 because Suburban cannot prove that the Commission “willfully” failed to comply with the Open Meetings Act. State Government § 10-510 provides that, if a public body fails to comply with § 10-508, a circuit court, upon petition of an adversely affected person, may consolidate proceedings, issue an injunction, or determine the applicability of the Open Meetings Act to a public body. In addition, the court may, “if the court finds that a public body willfully failed to comply with § 10-505, § 10-506, § 10-507, or § 10~509(c) ⁵⁹⁰ of this subtitle and that no other remedy is adequate, declare void the final action of the public body.” S.G. § 10-510(d)(4). The Commission suggests that “willfully” is equivalent to “knowingly” and that only a conscious decision to violate the statute merits the voiding of a public body’s actions.

The Commission’s arguments fail in several respects. First, the requirement that a public body must have acted “willfully” only applies to attempts to void the public body’s acts. The circuit court interpreted “willfully” as “knowingly,” and then found that the Commission had therefore not willfully violated S.G. §§ 10-505, 506, 507, or 509(c). Because of this conclusion, the trial court refused the discretionary option, offered to it by S.G. § 10-510(d)(4), of voiding the Commission’s actions.

State Government § 10-510(d)(2), (3), (5), and (6), however, which provide for injunctive relief, declaratory relief, attorneys’ fees, and “any other appropriate relief,” respectively, do not require the same finding that the public body “willfully failed” to comply with the Open Meetings Act that § 10-510(d)(4) requires. See Wesley Chapel Bluemount Asso ciation, et al. v. Baltimore County, 347 Md. 125, 149 , 699 A.2d 434 (1997). In addition to being apparent on the face of § 10-510(d), this is evident from the public policy reality that enjoining a public body’s action, or issuing a declaratory judgment action, will be less disruptive and more conducive to a balance between citizen complaints and governmental efficiency than would be voiding the public body’s actions. Simply put, under the Open Meetings Act, injunctions and declaratory relief are available for a lower threshold of violation than that needed to void a public body’s action.

The trial court quoted § 10-510(d)(4) and then stated: The Court may not void the [Commission’s] decision unless it finds that the violation of the Open Meetings Act was willful which has been defined as a voluntary, intentional violation of a known legal duty, such that the “violator knew that what he or she was doing was illegal.” Reisch v. State, 107 Md.App. 464, 477, 482 [ 668 A.2d 970 ] (1995). This ⁵⁹¹ requires the Maryland Health Resources Planning Commission to have had knowledge of the legal requirement and a specific intent to disobey the law. Reisch at 476 [ 668 A.2d 970 ]. Therefore, even if the Court accepts all of Suburban Hospital’s allegations as fact, Plaintiff [Suburban] failed to demonstrate that a willful violation of the Act occurred.

Consequently, the Court in applying the Act to the present facts can not void the decision by the Commission. The trial court then discussed the administrative remedies potentially available to Suburban, and proceeded to grant the Commission’s motion for summary judgment. The trial court, however, never discussed Suburban’s requests for attorneys’ fees, declaratory relief, or injunctive relief, nor did it acknowledge that, under the Open Meetings Act, those remedies do not require the “willful” standard used for requests to void a public body’s action. The trial court’s finding that Suburban had not willfully violated the Open Meetings Act, even if correct, was not sufficient by itself to allow the court to grant summary judgment as to Suburban’s requests for attorneys’ fees and injunctive and declaratory relief.

Without additional findings by the trial court that the Commission did not violate the Act at all, Suburban’s requests for these modes of relief enable it to avoid summary judgment on those issues. In other words, the circuit court, in its Order, appears to have applied the more stringent “willful” standard to all of Suburban’s desired remedies, not just to the request to void the Commission’s actions. We note that summary judgment in a declaratory judgment action is “the exception rather than the rule.” Nationwide Mutual Insurance Co. v. Scherr, et al., 101 Md. App. 690, 695 , 647 A.2d 1297 (1994), cert. denied, 337 Md. 214 , 652 A.2d 670 (1995) (quoting Loewenthal v. Security Insurance Co. of Hartford, 50 Md.App. 112, 117 , 436 A.2d 493 (1981)). For instance, in a declaratory judgment action concerning a contract dispute, summary judgment may be granted when there is no dispute as to the terms of the documents in issue, but only disagreement as to the legal interpretation ⁵⁹² of those terms.

Nationwide, 101 Md.App. at 695 , 647 A.2d 1297 . In the present case, however, the parties dispute both the legal interpretation of the term “willfully” in the Open Meetings Act and the factual events that may or may not have constituted a violation of the Act. Second, “willfully,” in this context, is more accurately defined as “non-accidentally.” State Government § 10-510, as just discussed, provides for judicial enforcement of several remedies against a public body when the Open Meetings Act is violated. In contrast to S.G. § 10-510, S.G. § 10-511 provides that a court may impose a civil penalty of up to $100 on a public body member only if the member “willfully participates in a meeting of the body with knowledge that the meeting is being held in violation of [the Act].” (Emphasis added).

Members of a public body may only incur a civil penalty if they acted willfully and knew that they were violating the Act. 4 Section 10-511 imposes individual liability on members of the body, a more personally intrusive penalty than the general curative remedies established by § 10-510 for the public body as a whole. It is therefore consistent that § 10-511 requires a higher standard of violative conduct than § 10-510, which has no scienter requirement. ⁵⁹³ If we were to read §. 10-511 as prohibiting and punishing the same conduct that is violative of § 10-510, the “with knowledge” phrase in § 10-511 becomes mere surplus-age. Viewing terms as surplusage is a disfavored method of statutory construction. Mayor and City Council of Baltimore et al. v. Hackley, et al., 300 Md. 277, 283 , 477 A.2d 1174 (1984).

Statutes should be read “so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory.” Montgomery County v. Buckman, 333 Md. 516, 523-524 , 636 A.2d 448 (1994) (citations omitted). Reading § 10-510 and § 10-511 with regard for each term, the different phrasing in the two sections implies that they present different standards. The legislative decision to impose personal penalties on members of public bodies only if those members knew they were violating the Act is consistent with the Act’s policy goals. The Act observes that it is “essential to the maintenance of a democratic society” that public business is performed in public and that citizens are able to observe the deliberations and decision-making of public officials.

S.G. § 10-501(a). Keeping government operations accessible and visible to the public ensures the accountability of the government to the citizens and increases the faith of the public in their representatives. S.G. § 10-501(b). To support these goals, the policy of the State is to provide the public with adequate notice and opportunity to observe meetings of public bodies.

S.G. § 10-501