Brown v. Baer

• Decision Date: 08 October 1981
• Docket Number: No. 145,145
• Citation: 291 Md. 377,435 A.2d 96
• Parties: Gerald R. BROWN et al. v. Judith B. BAER et al.
• Court: Maryland Court of Appeals

Page 377

291 Md. 377

435 A.2d 96

Gerald R. BROWN et al. v. Judith B. BAER et al.

No. 145.

Court of Appeals of Maryland.

Oct. 8, 1981.

Paul J. Feeley, Towson, for appellants.

Richard Clark Faint, Jr., Baltimore (James M. Smith and Gebhardt & Smith, Baltimore, on the brief) for appellees.

Argued Before SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

ELDRIDGE, Judge.

The laws of Maryland pertaining to judicial review of county liquor board decisions, codified in Maryland Code (1957, 1981 Repl. Vol.), Art. 2B, contain several provisions not found in typical statutes authorizing judicial review of administrative action. The issues in this case concern the interaction of three such provisions. The first is § 175(e)(3), which states that the failure of the reviewing court to decide the administrative appeal within thirty days after the administrative record is filed shall constitute an automatic affirmance of the liquor board's decision, unless the court has extended the time for good cause. The second of these provisions is § 175(e)(4), which, after authorizing the reviewing court to affirm, modify or reverse the liquor board's decision, provides that the court "may remand the proceedings to the local board in the following counties: Carroll, Charles, Howard and Prince George's." The third unusual provision is § 175(f), which states that the trial court's decision is final, with no appeal to the appellate courts of this State, unless the trial judge decides "a point of law at variance with any decision previously rendered by any other judge of the State on the same question ...." In the event of such conflict, an appeal to the Court of Special Appeals is authorized and that court "shall only decide the question of law involved ...." ¹

The only facts relevant to the issues before us concern the procedural history of the case. The petitioners Gerald R. Brown, G. Rick O'Shea and Paul J. Feeley applied to the Board of Liquor License Commissioners for Baltimore County (the "liquor board") for a new Class A (BWL) alcoholic beverages license for a package goods liquor store at a certain intersection in northern Baltimore County. The respondents, who are residents of the area, protested the issuance of the license. After taking extensive testimony, the liquor board denied the application, and the applicants took an appeal to the Circuit Court for Baltimore County.

The liquor board filed the administrative record in the circuit court on September 6, 1979, and thus the statutorily prescribed thirty-day period for the circuit court to decide the case began to run. As October 6, 1979, was a Saturday, the circuit court had until Monday, October 8, 1979, either to render a final decision or to extend the time; otherwise, under Art. 2B, § 175(e)(3), the liquor board's decision would be automatically affirmed. A hearing in the circuit court was held on October 4, 1979, and on October 8, 1979, the last day to decide the case, the circuit court issued an opinion and order remanding the proceedings to the liquor board. The circuit court's October 8th order upheld the liquor board on one legal question presented but remanded the case to give the applicants "the opportunity to produce evidence of the need or necessity of the issuance of the license for the accommodation of the public."

Fourteen days later, on October 22, 1979, the protestants and the liquor board filed in the circuit court a motion under Maryland Rule 625 a to revise the October 8th judgment. ² The basis of the motion was the contention that under Art. 2B, § 175(e)(4), the court may remand for additional administrative proceedings in only four counties, not including Baltimore County, and that in Baltimore County the court could only affirm, modify or reverse the liquor board's decision. The protestants and the liquor board requested an order affirming the administrative decision.

On the same day that the motion to revise the judgment was filed, October 22, 1979, the circuit court filed an order which initially recited that at the conclusion of the hearing on October 4, 1979, the court had orally extended the time for determining the appeal. The court then ordered that the time for making a determination of the administrative appeal "shall be extended, ... Nunc Pro Tunc, for a period of ninety days (90) from October 4, 1979." Later, the time was further extended to January 12, 1980.

Next, on November 8, 1979, the circuit court granted the motion to revise the October 8th judgment insofar as the judgment had remanded the case to the liquor board, but the court refused to grant the additional relief sought, namely an affirmance of the liquor board's decision. Instead, the case was set for a hearing before the court "to permit appellants to produce evidence of the need or necessity of the issuance of the license for the accommodation of the public." The hearing was held on December 17, 1979.

The circuit court on January 11, 1980, filed an opinion and order reversing the liquor board's decision and granting the license. After reviewing some of the testimony relating to the need of the license for the accommodation of the public, the court in its opinion concluded as follows:

"... this Court views the decision of the Board to be against the public interest, an unfair exercise of the Board's discretion, and unreasonable."

At no place in its opinion and order did the court expressly state that the liquor board's finding, that the issuance of the license was not needed for the accommodation of the public, was unsupported by substantial evidence.

After the denial of their motion to revise the January 11th order, the protestants took an appeal to the Court of Special Appeals. The protestants argued that their appeal was authorized under Art. 2B, § 175(f), because the circuit court's decision on two different questions of law varied with decisions of other judges. As to both matters, it was claimed that the circuit court's decisions in the present case were in error.

First, the protestants argued that the circuit court failed to render a final decision, or to extend the time for rendering a decision, by the October 8, 1979, deadline, and that, therefore, the decision of the liquor board should have been affirmed automatically under Art. 2B, § 175(e)(3). It was contended that the October 8th order remanding the case to the liquor board was not final and that, moreover, it was in violation of Art. 2B, § 175(e)(4), and thus was a nullity. The protestants pointed out that the transcript of the October 4, 1979, hearing disclosed no oral order extending the time to decide the case, and that the extension order issued after the time expired was ineffective under this Court's opinion in Scherr v. Braun, 211 Md. 553, 566, 128 A.2d 388, 394 (1957). It was argued that the circuit judge's failure in the instant case to treat the liquor board's decision as automatically affirmed, conflicted with the decisions of other circuit judges in three cases, as well as with decisions of this Court and of the Court of Special Appeals.

Second, the protestants alternatively argued to the Court of Special Appeals that the circuit court in its January 11, 1980, order had not applied the correct standards in reviewing the decision of the liquor board. They claimed that the court did not apply the "substantial evidence" test for reviewing the finding of the liquor board on the issue of public need for the license. The protestants cited three decisions of other circuit judges for the proposition that findings of a liquor board, supported by substantial evidence, must be accepted by the reviewing court. ³

The Court of Special Appeals, substantially agreeing with the protestants' first contention, reversed the circuit court's judgment of January 11, 1980, and affirmed the decision of the liquor board. Baer v. Brown, 47 Md.App. 416, 423 A.2d 278 (1980). Because of its reversal on the first ground, the intermediate appellate court found it unnecessary to consider the protestants' second contention relating to the proper standard of judicial review. In deciding that the circuit court should have treated the liquor board's decision as affirmed automatically under Art. 2B, § 175(e)(3), the Court of Special Appeals accepted the trial judge's statement that he had orally extended the time on October 4, 1979, but held that under the statute there must be a written extension prior to the expiration of the thirty-day period. With regard to the remand order of October 8, 1979, the appellate court appeared to view it as non-final as well as unauthorized. Finally, in holding that it had jurisdiction to entertain the appeal under Art. 2B, § 175(f), the appellate court stated that the trial judge's refusal to treat the administrative decision as being automatically affirmed was at variance with the decisions of this Court in Pearce v. Board, 228 Md. 515, 180 A.2d 651 (1962), and Scherr v. Braun, supra. Thereafter, we granted the petition for a writ of certiorari filed by the applicants for the license.

Preliminarily, it should be noted that Art. 2B, § 175(f), authorizing an appeal from the trial judge's decision in one limited situation, provides that the appeal may be taken "if any judge of the circuit court ... shall in any case finally decide a point of law at variance with any decision previously rendered by any other judge of the State on the same question" (emphasis supplied). As appellate judges do not sit or render decisions individually, but decide cases in conjunction with other judges as a panel constituting the appellate court, it is clear that the statute contemplates an appeal only to resolve a conflict between two trial judges' decisions on a legal issue. Consequently, in order for there to be an appeal from a circuit court in a case such as this, a showing that the trial judge's decision was inconsistent with prior decisions of this Court would not be sufficient. In the...