Dvorak v. County Ethics

• Decision Date: 31 July 2007
• Docket Number: No. 143, September Term, 2006.,143, September Term, 2006.
• Citation: 929 A.2d 185,400 Md. 446
• Parties: Robert J. DVORAK, et al. v. ANNE ARUNDEL COUNTY ETHICS COMMISSION.
• Court: Court of Special Appeals of Maryland

929 A.2d 185

400 Md. 446

Robert J. DVORAK, et al. v. ANNE ARUNDEL COUNTY ETHICS COMMISSION.

No. 143, September Term, 2006.

Court of Appeals of Maryland.

July 31, 2007.

Phillip F. Scheibe, Millersville, for appellants/cross-appellees.

Betsy K. Dawson, Executive Director, Anne Arundel County Ethics Commission of Annapolis, Douglas Clark Hollman, Annapolis, on brief, for appellee/cross-appellant.

Argued before BELL, C.J., RAKER, CATHELL,^* HARRELL, BATTAGLIA, GREENE and ALAN M. WILNER, (Retired, specially assigned), JJ.

BELL, C.J.

The genesis of this ethics proceeding was the filing, in the Circuit Court for Anne Arundel County, of Cambridge Commons v. Anne Arundel County, Case No. C-2001-69418-AA, a class action lawsuit alleging that, between 1988 and 1996, Anne Arundel County mishandled and unlawfully used the developmental impact fees it collected. Robert J. Dvorak and Phillip F. Scheibe, the appellants here, both former employees of Anne Arundel County, participated in the class action lawsuit on the side of the plaintiffs, against the County. Scheibe, a former two-time County Attorney,¹ the last time between 1994 and 1999, entered his appearance as counsel for the plaintiffs in 2002, although Greiber & Scheibe, the law firm in which he was a principal, had filed the action a year earlier. Dvorak, the Chief Administrative Officer of the County from 1994 to 1997,² was hired by Greiber & Scheibe in 2000 to examine the County public financial records in preparation for litigation and has continued his involvement in the case.

Based on their participation in the Cambridge Commons case, the County Executive of Anne Arundel County filed with the Anne Arundel County Ethics Commission, the appellee, a complaint against Dvorak and Scheibe. In that complaint, the County Executive alleged that the appellants, by virtue of that participation, had violated Article 9, § 5-105 of the Anne Arundel Code,³ a provision of the Public Ethics Law prohibiting "former County employees from representing or assisting a party in a matter, if the former employee had information not generally available to the public." After protracted and contentious preliminary proceedings, the Commission held a hearing on the complaint and ultimately issued its Findings of Fact and Conclusions of Law,⁴ in which the Commission determined that the allegations were well-founded.⁵ The appellants sought judicial review in the Circuit Court for Anne Arundel County.⁶ The primary focus of their challenge to the Commission decision was, as it is on this appeal, that the Commission lacked jurisdiction over them.⁷ After a hearing, the Circuit Court issued its Opinion and Order, affirming the decision of the Commission.

The appellants noted an appeal to the Court of Special Appeals. Subsequently, on November 2, 2006, the Commission filed in that court, pursuant to Maryland Rule 8-602(a)(1),⁸ a motion to dismiss the appeal on the grounds that it "is not allowed by these rules or other law." The intermediate appellate court, by order of December 12, 2006, ordered that the "jurisdictional issue raised in the motion . . . be fully briefed and argued in due course," after which, on March 1, 2007, the Commission filed, in this Court, a Petition for Writ of Certiorari, which this Court granted. Dvorak v. Ethics Comm'n, 397 Md. 396, 918 A.2d 468 (2007).

"Appellate jurisdiction, except as constitutionally authorized, is determined entirely by statute, and . . ., therefore, a right of appeal must be legislatively granted," Gisriel v. Ocean City Bd. of Sup'rs of Elections, 345 Md. 477, 485, 693 A.2d 757, 761 (1997), reconsideration denied, cert. denied, 522 U.S. 1053, 118 S.Ct. 702, 139 L.Ed.2d 645 (1998) (citing Maryland-Nat'l v. Smith, 333 Md. 3, 7, 633 A.2d 855, 857 (1993) ("`The right to take an appeal is entirely statutory, and no person or agency may prosecute an appeal unless the right is given by statute,'" quoting Subsequent Injury Fund v. Pack, 250 Md. 306, 309, 242 A.2d 506 (1968))); Howard County v. JJM, Inc., 301 Md. 256, 261, 482 A.2d 908, 910 (1984); State v. Bailey, 289 Md. 143, 147, 422 A.2d 1021, 1024 (1980); Estep v. Estep, 285 Md. 416, 422, 404 A.2d 1040, 1043 (1979); Smith v. Taylor, 285 Md. 143, 146, 400 A.2d 1130, 1132, (1979); Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 500, 331 A.2d 55, 64 (1975); see State v. Green, 367 Md. 61, 76-77, 785 A.2d 1275, 1284 (2001); Prince George's County v. Beretta U.S.A. Corp., 358 Md. 166, 173, 747 A.2d 647, 651 (2000). In other words, an examination of the relevant Maryland Code provisions and the legislative enactments of the subject local governmental body is necessary to determine whether, in a given case, there is a right of appeal or judicial review from the final decision of an administrative body. Id. The right to appellate review, prescribed by the Maryland Code, is delineated in Maryland Code (1957, 2006 Repl.Vol.), §§ 12-301 and 12-302 of the Courts and Judicial Proceedings Article. Indeed, in Green, after noting that, "except as may be constitutionally authorized, the right of appeal is entirely dependent upon statutes," 367 Md. at 76, 785 A.2d at 1284, we held that the appeals statutes represent the entire subject matter of the law of appellate review and, as such, abrogate the common law on the subject. Id. at 77-78, 785 A.2d at 1284.

Section 12-301 provides:

"Right of appeal from final judgments-Generally.

"Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended. In a civil case a plaintiff who has accepted a remittitur may cross-appeal from the final judgment."

Although refined in the second sentence by identifying the exercises of jurisdiction to which a final judgment must relate, this grant of the right of appeal is quite broad and general.

This broad grant of the right to appeal, we have held, is limited significantly by § 12-302. It provides, as relevant to the case sub judice:⁹

"(a) Unless a right of appeal is expressly granted by law, § 12-301 does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of the District Court, an administrative agency, or a local legislative body."

That limitation relates to the nature of the Circuit Court's exercise of jurisdiction in the review of District Court, administrative agency and local legislative body decisions. In describing the proscribed exercise, the statute uses the term, "appellate jurisdiction."

In this case, the Circuit Court was asked to, and did, engage in the judicial review, at the behest of the appellants, of the final order of the Commission. It did so pursuant to a provision of the Public Ethics Law, § 7-4-105 of the Anne Arundel County Code,¹⁰ which prescribed that right of review to a party aggrieved by such an order of the Commission. It is well-settled that "whenever a circuit court directly reviews the action, or inaction, of any administrative agency, governmental body, or official in the executive or legislative branches of government, including local government, the court is exercising original jurisdiction and not appellate jurisdiction." Gisriel, 345 Md. at 491-92, 693 A.2d at 764, citing Shell Oil Co. v. Supervisor, 276 Md. 36, 43, 343 A.2d 521, 525 (1975) ("[T]he exercise of appellate jurisdiction requires a prior action by some judicial authority, or the prior exercise of judicial power.... [R]eview of the decisions of an administrative agency is an exercise of original jurisdiction and not of appellate jurisdiction"); Medical Waste v. Maryland Waste, 327 Md. 596, 604-605 n. 5, 612 A.2d 241, 245 n. 5 (1992); In re Petition for Writ of Prohibition, 312 Md. 280, 294, 539 A.2d 664, 671 (1988); Montgomery Co. v. Ian Corp., 282 Md. 459, 467, 385 A.2d 80, 84 (1978). Indeed, we noted that, "[i]n a technical, constitutional meaning of the term, a circuit court never exercises `appellate jurisdiction' when it directly reviews the decision of an administrative agency or a local government body." Id. Nevertheless, in Gisriel, we held that:

"when a circuit court proceeding in substance constitutes ordinary judicial review of an adjudicatory decision by an administrative agency or local legislative body, pursuant to a statute, ordinance, or charter provision, and the circuit court renders a final judgment within its jurisdiction, § 12-302(a) is applicable, and an appeal to the Court of Special Appeals is not authorized by § 12-301."

345 Md. at 496, 693 A.2d at 766-67, citing Prince George's County v. American Federation of State, County and Municipal Emp., Council 67, 289 Md. 388, 397-400, 424 A.2d 770, 774-76 (1981).

To justify that holding, we reviewed the history of the first general appeals statute, Ch. 87 of the Acts of 1785, § 6, granting the "full power and right to appeal" to "any party or parties aggrieved by any judgment or determination of any county court in any civil suit or action, or any prosecution ..." and similarly broadly worded subsequent general appeals statutes, noting that this Court did not construe them as permitting the appeal of a county court's, or later, a circuit court's, exercise of a special limited statutory jurisdiction rather than its ordinary common law-type jurisdiction: "When a county court or a circuit court was exercising a special limited statutory jurisdiction, and not a common law-type of jurisdiction, this Court regularly held that the general appeals statutes did not authorize an appeal, and that an appeal could be taken only if authorized by a specific statute relating to...