Broadcast Equities, Inc. v. Montgomery County
| Decision Date | 01 September 1997 |
| Docket Number | No. 1861,1861 |
| Citation | 718 A.2d 648,123 Md.App. 363 |
| Parties | BROADCAST EQUITIES, INC. v. MONTGOMERY COUNTY, Maryland et al. , |
| Court | Court of Special Appeals of Maryland |
David N. Ventker (John C. Lynch and Huff, Poole & MaHoney, P.C., on the brief), Virginia Beach, VA, for appellant.
Judson P. Garrett, Jr. (Karen L. Federman Henry, on the brief), Rockville, for appellees.
Argued before MURPHY, C.J., and HOLLANDER and EYLER, JJ.
In this appeal, Broadcast Equities, Inc. ("BEI"), appellant, lodges a broad challenge to the legality of Chapter 27 of the Montgomery County Code, entitled Human Relations and Civil Liberties. In particular, BEI focuses on those provisions that deal with discrimination in employment.
On August 28, 1996, appellant filed a complaint in the Circuit Court for Montgomery County seeking a declaratory judgment that Montgomery County Code § 27 et seq. violates the United States Constitution, the Maryland Constitution, and 42 U.S.C. § 1983. The defendants below, who are appellees in this case, are: Montgomery County (the "County"); the Montgomery County Human Relations Commission (the "Commission"); the Hearing Panel for the Commission; the Hearing Examiner, Philip Tierney; the Montgomery County Attorney, Charles W. Thompson; and David E. Stevenson, an Assistant Montgomery County Attorney. Appellees answered the complaint and subsequently moved for summary judgment. Appellant then moved for partial summary judgment. After a hearing on both motions, the court granted appellees' motion for summary judgment and denied appellant's motion for partial summary judgment. Appellant noted a timely appeal and presents a plethora of questions, which we have reordered:
I. DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT SECTIONS 27-17 THROUGH 27-26 OF THE MONTGOMERY COUNTY CODE ARE NOT "LOCAL LAWS" UNDER ARTICLE XI-A OF THE MARYLAND CONSTITUTION?
II. DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT SECTIONS 27-17 THROUGH 27-26 OF THE MONTGOMERY COUNTY
III. DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT MONTGOMERY COUNTY CODE SECTIONS 27-17 THROUGH 27-26 CONFLICT WITH MARYLAND LAW?
IV. DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT MONTGOMERY COUNTY HAS CREATED A PRIVATE RIGHT OF ACTION WHERE NONE EXISTS?
V. DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT THE MONTGOMERY COUNTY CODE CANNOT BE ENFORCED RETROACTIVELY AGAINST BEI?
VI. DID THE TRIAL COURT ERR IN FAILING TO DECLARE THAT MONTGOMERY COUNTY'S ATTEMPTS TO ENFORCE CHAPTER 27 OF THE MONTGOMERY COUNTY CODE AGAINST BEI VIOLATE BEI'S CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAWS?
VII. DID THE TRIAL COURT ERR IN RULING THAT BEI IS REQUIRED TO EXHAUST ITS ADMINISTRATIVE REMEDIES PRIOR TO CHALLENGING THE VALIDITY OF CHAPTER 27 OF THE MONTGOMERY COUNTY CODE AND PRIOR TO CLAIMING VIOLATIONS UNDER 42 U.S.C. § 1983 AND THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION?
VIII. DID THE TRIAL COURT ERR IN RULING THAT BEI'S CLAIMS UNDER 42 U.S.C. § 1983 AND THE UNITED STATES CONSTITUTION ARE NOT RIPE FOR JUDICIAL REVIEW?
We shall answer questions I, II, IV, V, VI, VII, and VIII in the negative and question III in the affirmative. Therefore, for the reasons that follow, we shall reverse in part and affirm in part.
BEI, a Virginia corporation, is a subsidiary of the Christian Broadcasting Network ("CBN"). Between January 1990 and January 1993, BEI operated a radio station in Silver Spring under the name of WNTR Radio ("WNTR"). In January 1990, WNTR employed Richard J. Mangus as a senior producer and as an "on call" control board operator. Mangus's employment at WNTR ended on November 29, 1990. The facts and circumstances of Mangus's departure from WNTR are the subject of intense dispute. On October 1, 1991, almost a year after his departure from WNTR, Mangus filed a Complaint of Alleged Discrimination in Employment with the Commission, stating: "I believe I was discriminated against and my employment terminated based on my sexual orientation (homosexual)." BEI, on the other hand, contends that Mangus resigned.
On October 24, 1991, the Commission notified BEI of Mangus's complaint. In its response of March 24, 1992, BEI denied any discrimination by either BEI or WNTR. 1 Appellant asserted in its response that WNTR's personnel records, including those pertaining to Mangus's employment, were destroyed in a fire at the radio station on February 28, 1991. 2
On October 26, 1992, BEI contracted to sell WNTR to Capital Kids Radio, Inc., a Maryland corporation. That sale became final on or about January 29, 1993.
Almost three years after Mangus filed his complaint with the Commission, its investigator informed BEI, by letter dated August 23, 1994, that the investigation was nearing completion and that the evidence gathered up to that point was "leading to a finding of reasonable grounds to believe discrimination occurred in the termination of [Mangus's] employment." The letter also invited BEI to provide additional evidence and requested that BEI contact the Commission if it was interested in exploring a negotiated settlement. By letter dated September 14, 1994, BEI responded, through CBN's associate general counsel. In its letter, BEI stated that its files indicated that there had been no contact with the Commission regarding the case for more than two and a half years, and that BEI had "presumed that this investigation was terminated long ago." In addition, BEI stated that it would not explore a negotiated settlement until the Commission provided BEI with evidence of the alleged discrimination. In a reply letter dated September 27, 1994, the Commission's investigator indicated that much of the evidence was provided by witnesses to conversations and remarks by WNTR's management.
On March 23, 1995, the Commission's acting executive director issued a written determination that the record supported Mangus's allegation of discrimination based on sexual orientation and that reasonable grounds existed to believe that BEI had engaged in an unlawful employment practice, as defined in the County Code. Subsequent conciliation efforts were unsuccessful and, on January 17, 1996, the Commission's executive director certified the March 23, 1995, determination for public hearing.
Accordingly, on May 14, 1996, the County Attorney filed a Statement of Charges, which included a prayer for relief, seeking either (1) reinstatement at a radio station owned by CBN, and back pay retroactive to December 1, 1990 or (2) back pay, retroactive to December 1, 1990, in the amount of $134,592.24. In addition, the Statement of Charges sought damages for humiliation and embarrassment in the amount of $1,000.00, and "such other affirmative or prospective relief as, in the judgment of the Panel, is necessary to effectuate the purposes of the Law, or is deemed necessary to eliminate the effects of the discriminatory practice or practices found to have been committed in this case."
On May 17, 1996, the Commission's Office of Zoning and Administrative Hearings issued a notice that public hearings on the case would begin on September 23, 1996. That notice spawned BEI's complaint for declaratory relief, filed on August 28, 1996. The administrative hearing was stayed pending resolution of the declaratory action.
In its complaint for declaratory relief, appellant sought a declaration that enforcement of Chapter 27 of the County Code against BEI: (1) violated BEI's rights to Due Process and Equal Protection under the federal Constitution; (2) violated 42 U.S.C. § 1983; (3) was "unconstitutional under the Constitution of the State of Maryland"; and (4) violated BEI's rights to freedom of association, freedom of religion, and freedom of speech under the United States Constitution. In addition, BEI sought a permanent injunction barring appellees from proceeding against BEI, and a temporary injunction to prevent the Commission from holding the hearing scheduled for September 23, 1996. The complaint also sought attorney's fees, costs, and other relief.
Appellees answered the complaint and, on June 30, 1997, they filed a motion for summary judgment, seeking a declaration that the applicable County Code provisions are valid and a dismissal of appellant's complaint. On July 18, 1997, appellant filed a motion for partial summary judgment, again requesting a declaration that certain provisions of Chapter 27 violate the Maryland Constitution and an injunction barring appellees from proceeding against BEI in any administrative hearing.
After the trial court held argument on the parties' respective motions on October 22, 1997, it granted appellees' motion and denied appellant's motion. On November 3, 1997, the court issued a Final Declaratory Judgment and Order that stated, in pertinent part:
The Court agrees with [appellees] that at this stage of proceedings all claims except [appellant's] challenge on its face to the validity of the employment discrimination provisions in Chapter 27 of the Montgomery County Code, § 27-17 et seq., are premature. As to all claims under Maryland law other than the facial challenge, plaintiff must exhaust administrative remedies before seeking judicial relief. As to all federal claims, including the claims under 42 U.S.C. § 1983, the Court finds that they are not ripe for judicial review, as [appellant] has not been denied any property right or liberty interest protected by the Constitution and laws of the United States.
The Court further agrees, for the reasons stated by [appellees], that [appellant's] facial challenge to the validity of the employment discrimination laws must be denied. [Appellant] has not shown that the challenged laws are not authorized by Article XI-A of the Maryland Constitution or by the Express Powers Act, Art. 25A, Md.Code Ann., and [appellant] has not shown that the challenged laws...
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