Neustadter v. Holy Cross Hosp. of Silver Spring Inc.

• Decision Date: 24 February 2011
• Docket Number: No. 12,Sept. Term,2010.,12
• Citation: 13 A.3d 1227,418 Md. 231
• Parties: Alexander H. NEUSTADTER, et al.v.HOLY CROSS HOSPITAL OF SILVER SPRING, INC.
• Court: Maryland Court of Appeals

418 Md. 231
13 A.3d 1227

Alexander H. NEUSTADTER, et al.
v.
HOLY CROSS HOSPITAL OF SILVER SPRING, INC.

No. 12

Sept. Term

2010.

Court of Appeals of Maryland.

Feb. 24, 2011.

[13 A.3d 1228]

Thomas J. Mack (University of the District of Columbia, David A. Clarke School of Law, Washington, D.C.) (Rene Sandler of Sandler Law LLC, Rockville, MD; Stephen B. Mercer of Stephen B. Mercer, Esq., P.C., Rockville, MD), on brief, for petitioners.Michelle R. Mitchell (David A. Levin of Wharton, Levin, Ehrmantraut & Klein, P.A., Annapolis, MD), on brief, for respondent.Abba Cohen, Esq., Jenny Figa, Esq., Agudath Israel of America, Washington, D.C., Steven A. Loewy, Esq., Germantown, MD, for Amicus Curiae brief of Agudath Israel of America in Support of Petitioners.Kenneth Lasson, Esq., Professor of Law, University of Baltimore, Baltimore, MD, for Amici Curiae brief of Interested Professors of Law in Support of Petitioners.

[13 A.3d 1229]

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.GREENE, J.

[418 Md. 233] Petitioner (“Mr. Neustadter”) appeals from a judgment of the Circuit Court for Montgomery County and asserts that his constitutional right to the free exercise of his religion was infringed by rulings denying a two-day postponement or recess during his medical malpractice case so that he could [418 Md. 234] observe an Orthodox Jewish holiday. The trial judge and County Administrative Judge collectively denied four motions for postponement of the case. We hold that the judges abused their discretion in denying the requests for a continuance of the trial where the movant's religious beliefs prohibited any appearance or advocacy on his behalf in the pending civil court proceeding. Therefore, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

Petitioner filed a complaint in the Circuit Court for Montgomery County against Capital Internal Medicine, LLC, Dr. Ahmed Nawaz, MD, and Holy Cross Hospital of Silver Spring (“Holy Cross”) alleging negligent medical care of his father, Israel Neustadter, who died on March 27, 2003.¹ On October 20, 2006, the Circuit Court scheduled the case for a ten-day trial to commence on February 11, 2008. At a pre-trial hearing on January 24, 2008, the trial judge rescheduled the ten day trial, on a motion to continue by Respondent, to begin instead on June 2, 2008.² In addition, the trial judge appointed a Special Master to resolve ongoing discovery disputes.

Between January and May, 2008, counsel for the parties communicated on several occasions about an anticipated scheduling conflict due to Petitioner's anticipated religious observances, which would fall on the fifth and sixth days of the, then, ten-day trial. Subsequently, on May 6, 2008, Petitioner filed a “Motion to Suspend Trial Days for Religious Holidays” ^{3, 4} (“May 6th motion”) stating in pertinent part:

[418 Md. 265] To be sure, judges and courts decide cases and controversies. See Thom v. Cook, 113 Md. 85, 88, 77 A. 120, 120 (1910) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293, 293 (1895)) (“The duty of this [C]ourt, as of every other judicial tribunal, is to decide actual controversies....”). Accordingly, the judge's ruling on a motion affects generally only the litigants to the particular case. Thus, a judicial ruling does not have the same generally-applicable effect as a legislative act. That said, I believe the judge's denial of Petitioner's motions to postpone the trial was the judicial analog to a generally-applicable legislative act, in that there is no evidence in the record from which one could conclude that the judge's ruling would have been any different if faced with nonreligious justifications for the requested postponement. See State v. Blackmon, 130 Ohio App.3d 142, 719 N.E.2d 970, 975 (1998) (holding that appellant's Free Exercise rights were not violated where there was no evidence that the trial court considered anything other than “generally applicable factors” in considering a motion for a

[13 A.3d 1248]

continuance, including: length of delay requested, inconvenience to litigants and witnesses, whether the moving party contributed to the circumstances for which the request was made, etc.).

C. Individualized Assessment

Notwithstanding my view that the judge's rulings on Petitioner's motions to postpone the trial constitute a judicial analog to a neutral and generally-applicable legislative act, I must undertake another inquiry, namely, whether the judge's determination constitutes an “individualized assessment,” sufficient to trigger a Sherbert analysis. See [418 Md. 266] Kissinger v. Bd. of Trustees of Ohio State Univ., 5 F.3d 177, 179 (6th Cir.1993) (employing a “three-part analysis”: whether the governmental action “was generally applicable, was not aimed at particular religious practices, and did not contain a system of particularized exemptions”). But see First Covenant Church v. City of Seattle, 120 Wash.2d 203, 840 P.2d 174, 181 (1992) (appearing to conflate the “individual assessment” analysis with the “neutral/generally-applicable” analysis).

Smith said, vis-á-vis individualized exemptions/assessments, that:

The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct. As a plurality of the Court noted in [ Bowen v.] Roy [476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986) ], a distinctive feature of the unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant's unemployment: The statutory conditions ... provided that a person was not eligible for unemployment compensation benefits if, without good cause, he had quit work or refused available work. The “good cause” standard created a mechanism for individualized exemptions. As the plurality pointed out in Roy, our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason.

Smith, 494 U.S. at 884, 110 S.Ct. at 1603, 108 L.Ed.2d at 884 (internal citations and quotation marks omitted).

To be sure, and as mentioned supra, because trial courts deal with discrete controversies between the parties before them, each ruling or determination in the case is somewhat “individualized.” The rub, though, is whether a judicial ruling is cut from the same cloth as the individualized exemptions with which the Supreme Court in Sherbert and its progeny dealt. In formulating an answer to this question, I proceed along the following path:

[418 Md. 267] The determination of whether the Sherbert exception [ i.e. application of Sherbert ] is triggered proceeds in two steps. The first focuses on whether a law contains a mechanism similar to the “good cause” criterion that is open to unfettered discretionary interpretation. If such a mechanism exists, the second step requires courts to determine whether it is enforced in a discriminatory manner. Absent evidence of discrimination in the actual enforcement of the [governmental action], ... Sherbert ... is not triggered, and there is no need to apply the compelling state interest test.

Carol M. Kaplan, The Devil Is in the Details: Neutral, Generally Applicable Laws and Exceptions from Smith, 75 N.Y.U. L.Rev. 1045, 1081 (2000).

First, although there is no requirement in civil cases in the posture of the present case that a judge find expressly “good

[13 A.3d 1249]

cause” before granting a motion to postpone a trial,⁶ a trial court's decision to grant or deny a motion to postpone or continue a trial is within the sound discretion of the trial court, and, accordingly, the decision is subject to a great degree of deference on appellate review. See Schroder v. State, 206 Md. 261, 265, 111 A.2d 587, 589 (1955) (“It has long been a well settled rule in this State that the granting or refusing of a continuance is within the sound discretion of the trial court and will not be set aside on appeal unless the exercise of that discretion has been arbitrary.”). Although the abuse of discretion standard does not leave judges with “unfettered discretionary interpretation,” appellate review of this type of judicial determination is highly deferential and gives judges a substantial degree of discretion in granting such motions.

Whether the abuse of discretion standard of review that insulates, to a degree, a trial court's decision to grant or deny a motion to postpone or continue a trial is akin to the “good cause” standard with which Sherbert and the other unemployment compensation cases deal, absent from the record here is [418 Md. 268] any evidence that this ruling specifically, rulings from this particular judge, or rulings from this particular court, were in any way discriminatory. Absent such evidence, I conclude Sherbert to be inapposite and inapplicable to the present factual situation.⁷

One final observation on this point is in order. I do not believe that the legislative ills that strict scrutiny protects against in the Free Exercise sphere are applicable with equal force to the judicial branch. See Gordon S. Wood, The Creation of the American Republic, 1776–1787 609 (1969) (concluding that separation of powers was intended to “ensure the protection of individual rights against all governmental encroachments, particularly by the legislature, the body which Whigs ha[d] traditionally cherished as the people's exclusive repository of their public liberty”) (emphasis added). That is, a concern of any democratic society is that an oppressive or tyrannical electorate will emerge and elect similarly minded legislative representatives, who, in turn, will enact laws that will oppress certain disfavored groups. See Riley v. St. Luke's Episcopal Hosp., 196 F.3d 514 (5th Cir.1999) (Stewart, J., dissenting), rev'd,...