Bender v. Secretary, Maryland Dept. of Personnel

• Decision Date: 28 May 1981
• Docket Number: No. 22,22
• Citation: 290 Md. 345,430 A.2d 66
• Parties: Paul G. BENDER et al. v. SECRETARY, MARYLAND DEPARTMENT OF PERSONNEL et al.
• Court: Maryland Court of Appeals

Page 345

290 Md. 345

430 A.2d 66

Paul G. BENDER et al. v. SECRETARY, MARYLAND DEPARTMENT OF PERSONNEL et al.

No. 22.

Court of Appeals of Maryland.

May 28, 1981.

James E. Carbine, Baltimore (J. Edward Davis and Weinberg & Green, Baltimore, on the brief), for appellants.

Robert B. Harrison, III, and Scott A. Livingston, Asst. Attys. Gen., Baltimore (Stephen H. Sachs, Atty. Gen. and James F. Truitt, Jr., Asst. Atty. Gen., Baltimore, on the brief), for appellees.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE and DAVIDSON, JJ.

DAVIDSON, Judge.

This case presents a question involving necessary parties to a declaratory judgment action. The petitioners, Paul G. Bender, a classified employee of the Maryland Department of Transportation, and Robert Stephens, a classified employee of the Maryland Department of Health and Mental Hygiene (classified employees), filed a Petition for Declaratory and Injunctive Relief in the Circuit Court of Baltimore City. The petition alleged that the respondents, the Secretary of Transportation and the Secretary of Personnel (Secretaries), had abolished a number of classified positions of employment and had illegally established approximately 350 unclassified positions within the Department of Transportation. ¹ The petition requested:

1) a declaration that the 350 unclassified positions were illegally established;

2) a mandatory injunction compelling the Secretaries to abolish the illegally established positions 3) an injunction, in the event that the Secretaries failed to comply, prohibiting payment of salaries to employees holding illegally established positions;

4) an injunction prohibiting the Secretaries from establishing any unclassified positions in the future without approval from the Court; and

5) such other and further relief as the cause may require.

The Secretaries filed a Motion Raising Preliminary Objection on the ground, insofar as here relevant, of "want of necessary parties." In a Memorandum and Order on Preliminary Matters entered 17 November 1977, the trial court determined that the unclassified employees had an interest that would be affected by a declaration that their positions had been illegally established and that they were, therefore, necessary parties. It recognized that an amendment adding the approximately 350 interested unclassified employees as parties would be an appropriate remedy. However, in an effort to prevent that "time-consuming and expensive undertaking," it decided to fashion an alternative remedy. The trial court indicated that because any of the unclassified employees "would have the right under Maryland Rule 208 to intervene as a defendant to protect his employment interests," it "would permit any employee who file(d) a motion to intervene under Md. Rule 208 to do so." ² It directed the parties to formulate a procedure for notifying all of the unclassified employees of "their right to intervene as additional defendants." Proposed procedures were to be submitted to the trial court for approval.

Subsequently, the parties agreed to a procedure by which each of the unclassified employees would be notified that they had a right to

"file a Motion to Intervene as a party Defendant to this action, in accordance with the provisions of Rule 208(a) and (c) of the Maryland Rules of Procedure...."

On 19 December 1977, the trial court entered an order implementing the agreed-upon procedure. That order expressly stated:

"(A)ny Motion to Intervene filed pursuant to the terms of this Order be, and is hereby, deemed to be an application for intervention as of right pursuant to Maryland Rule 208(a)...."

On 16 May 1978, before this procedure was fully implemented, the General Assembly enacted Chapter 440 of the 1978 Laws of Maryland, effective 1 July 1978, codified, in part, as Md. Code (1957, 1979 Repl.Vol.), Art. 64A, § 51A. That section permitted any of the unclassified employees, whose jobs might be held to have been illegally established, to transfer into the State Merit System.

On 13 July 1978, the trial court, after a hearing, determined that as a result of the enactment of this section, the unclassified employees did not need to be made parties to the suit and, therefore, did not need to be notified. On 19 April 1979, after a trial on the merits, the trial court declared that 323 of the 350 unclassified positions had been illegally established, designated those positions as classified positions within the Department of Transportation, and entered a judgment.

The Secretaries appealed to the Court of Special Appeals. That Court found that despite the existence of Art. 64A § 51A the unclassified employees had interests that would be affected and were, therefore, necessary parties. The Court of Special Appeals reversed and remanded the case directing that the trial court "compel compliance with (its) November 17, 1977 Memorandum and Order on Preliminary Matters." Secretary, Dept. of Personnel v. Bender, 44 Md.App. 714, 727-32, 411 A.2d 107, 114-16 (1980).

The classified employees filed a petition for a writ of certiorari that we granted. We agree with the Court of Special Appeals that the unclassified employees are necessary parties, and, to that extent, we shall affirm its judgment reversing the trial court on the merits. However, we do not agree with the Court of Special Appeals that upon remand of the case the trial court should be directed to comply with its 17 November 1977 Memorandum and Order. ³ Accordingly, we shall remand the case to the Court of Special Appeals with instructions that the trial court be directed to permit either an amendment adding the unclassified employees as parties or, if appropriate, a class action under Md. Rule 209.

Maryland Code (1974, 1980 Repl.Vol.) § 3-405(a)(1) and (2) of the Courts and Judicial Proceedings Article provides:

"(a) Person who has or claims interest as party. (1) If declaratory relief is sought, a person who has or claims any interest which would be affected by the declaration, shall be made a party.

(2) Except in a class action, the declaration may not prejudice the rights of any person not a party to the proceeding." (Emphasis added.)

Ordinarily, in an action for declaratory judgment, all persons who have an interest in the declaration are necessary parties. Williams v. Moore, 215 Md. 181, 185, 137 A.2d 193, 196 (1957); United Slate Tile & Composition Workers Ass'n Local No. 80 v. United Brotherhood of Carpenters & Joiners of America, Local No. 101, 185 Md. 32, 37, 42 A.2d 913, 915 (1945). See Saunders v. Roland Park Co., 174 Md. 188, 193, 198 A. 269, 270 (1938). Any person who, as a result of a declaration, may gain or be deprived of a legal right or other benefit has an interest that might be affected by the outcome of the action and is, therefore, a necessary party. Reddick v. State, 213 Md. 18, 29, 130 A.2d 762, 767, cert. denied, 355 U.S. 832, 78 S.Ct. 50, 2 L.Ed.2d 44 (1957); Crook v. Brown, 11 Md. 158, 164 (1857). More specifically, any person who may be deprived of his employment as a result of a declaration that such employment is illegally established has an interest that might be affected by the outcome of the action and is, therefore, a necessary party. Gannon v. Perk, 46 Ohio St.2d 301, 311, 348 N.E.2d 342, 348-49 (1976); Paterra v. Charleroi Area School Dist., 22 Pa.Cmwlth. 451, 454, 349 A.2d 813, 815 (1975). See County Dept. of Public Welfare of Lake County v. Morrow, 158 Ind.App. 106, 109, 301 N.E.2d 787, 788-90 (1973).

Necessary parties must be made parties to the proceeding. Md.Code § 3-405(a) (1) of the Courts and Judicial Proceedings Article. Their presence cannot be waived by the other parties to the proceedings. Williams, 215 Md. at 185, 137 A.2d at 196. While this Court has on occasion dismissed after a failure to join necessary parties, Atkinson v. Sapperstein, 191 Md. 301, 316, 60 A.2d 737, 743 (1948); Saunders, 174 Md. at 194, 198 A. at 271, it has indicated that ordinarily dismissal is undesirable and that a preferable procedure is to permit an amendment joining the necessary parties. Kelley v. Davis, 233 Md. 494, 498, 197 A.2d 230, 231-32 (1964). See Givner v. Cohen, 208 Md. 23, 35, 116 A.2d 357, 362 (1955).

One purpose of this rule is to assure that a person's rights are not adjudicated unless that person has had his "day in court." This rule also prevents multiplicity of litigation by assuring a determination of the entire controversy in a single proceeding. Reddick, 213 Md. at 30, 130 A.2d at 767-68; McMahon v. Consistory of St. Paul's Reformed Church, 194 Md. 262, 268, 71 A.2d 17, 20 (1950); Crook, 11 Md. at 164.

Here the classified employees are requesting that the jobs of 350 unclassified employees be declared to be illegally established and that the Secretaries be enjoined from paying salaries to persons holding unclassified positions that are declared to be illegally established. The classified employees contend that as a result of the enactment of Art. 64A, § 51A, the jobs and salaries of the unclassified employees are adequately protected and that these employees have "no other 'interest' in this litigation requiring their joinder." The classified employees maintain that any "other interest" of the unclassified employees must be derived from the Constitution of the United States or the Laws of the State of Maryland. The classified employees point out that unclassified positions are ordinarily terminable at will and assert that, consequently, neither the Constitution, see, e. g., Bishop v. Wood, 426 U.S. 341, 346-47, 96 S.Ct. 2074, 2078-79, 48 L.Ed.2d 684 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2710, 33 L.Ed.2d 548 (1972), nor state law, see Small v. Secretary of Personnel, 267 Md. 532, 535-36, 298 A.2d 173, 174-75 (1973); Ahlgren v. Cromwell, 179 Md. 243, 245-46, 17 A.2d 134, 135-36 (1941), affords unclassified employees a property right or litigable interest in the...