Hatt v. Anderson

• Decision Date: 12 September 1983
• Docket Number: No. 19,19
• Citation: 297 Md. 42,464 A.2d 1076
• Parties: Gordon HATT v. Mark ANDERSON et al. (Adv.).
• Court: Maryland Court of Appeals

Page 42

297 Md. 42

464 A.2d 1076

Gordon HATT v. Mark ANDERSON et al.

No. 19 (Adv.).

Court of Appeals of Maryland.

Sept. 12, 1983.

Andrew H. Kahn, Baltimore (Zukerberg & Kahn, Baltimore, on brief), for appellant.

Douglas Clark Hollmann, Asst. County Sol., Annapolis (Steven P. Resnick, County Sol., Annapolis, on brief), for appellees.

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

MURPHY, Chief Judge.

Gordon Hatt, a firefighter in the Anne Arundel County Fire Department, and President of the County Firefighters Association, filed a bill of complaint against Harry Klasmeier, the County's "Fire Administrator," seeking declaratory relief under the Uniform Declaratory Judgments Act (the Act), Maryland Code (1980), § 3-403, et seq., of the Courts and Judicial Proceedings Article. Hatt sought a declaration that the County Fire Department's Regulation 2.6 was void and of no force or effect. ¹ The bill recited that Klasmeier was charged under the County Charter with administering the Fire Department and enforcing its rules and regulations; that as a firefighter Hatt is required to conform his conduct to the requirements of the regulation; that his failure to do so will result in disciplinary action; that the regulation is "overbroad" and violates the First and Fourteenth Amendments to the United States Constitution "in that it prohibits without limitation any and all public and private speech which is critical of superior officers"; and that Hatt's rights "are being presently impaired by the prior restraints upon [his] speech ... imposed by the subject Regulation." Klasmeier's answer asserted that the regulation was not unconstitutional.

Each party moved for summary judgment on the pleadings. The Circuit Court for Anne Arundel County (Lerner, J.), after hearing argument of counsel on the summary judgment motions, granted the County's motion and denied Hatt's. In its decree, the court declared that Regulation 2.6 "was not overly broad, did not violate the United States Constitution and therefore was a valid, enforceable regulation." Hatt appealed. We granted certiorari prior to consideration of the appeal by the intermediate appellate court.

On appeal, the parties filed an agreed statement of facts which recites only that Hatt, as a county firefighter, is subject to the Department's regulations; that he sought a declaration that Regulation 2.6 was "unconstitutionally overbroad and impermissibly impinged upon his freedom of speech in violation of the First and Fourteenth Amendments to the United States Constitution"; that the circuit court ruled that the regulation was not overbroad; and that judgment was thereafter entered and the appeal taken.

Before us Hatt argues that to pass judicial scrutiny the regulation "must be narrowly directed toward achieving the legitimate state interest of preventing actual interference with the efficient operation of the governmental body." He contends that regulations similar to Regulation 2.6 have been declared unconstitutional by some courts; that Regulation 2.6 is a "wholesale gag order," without any limitation on the discretion of the Fire Administrator to enforce the regulation; that the regulation is not limited to cases where the discipline or operation of the Department is jeopardized; that the prohibition of "criticism of superior officers" is not limited by time, place or manner; and that as bargaining agent for the professional firefighters' association Hatt's duties demand that he criticize superior officers whenever they violate the labor agreement which governs the working conditions of firefighters. Hatt says that the regulation subjects him to discipline; he suggests that a complaint regarding a firefighter's superior officer whispered to a family member in the privacy of the firefighter's home, if repeated, would place the firefighter's career in jeopardy.

Klasmeier points out that Hatt "cites no situation where this regulation has chilled his rights as a firefighter or as a union representative, even as to complaints regarding one's superiors whispered to members of a firefighter's family." Klasmeier contends that no such restriction of the free speech rights of firefighters has occurred, nor has any one been disciplined for positions taken at the bargaining table, or for complaints whispered to a family member in the privacy of the firefighter's home.

With one exception not here pertinent, the Act provides, in § 3-409(a) of the Courts Article, that a court may grant a declaratory judgment in a civil case

"if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if:

(1) An actual controversy exists between contending parties;

(2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or

(3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it."

It is thus clear that the existence of a justiciable controversy is an absolute prerequisite to the maintenance of a declaratory judgment action. Kronovet v. Lipchin, 288 Md. 30, 415 A.2d 1096 (1980); Reyes v. Prince George's County, 281 Md. 279, 380 A.2d 12 (1977); Hamilton v. McAuliffe, 277 Md. 336, 353 A.2d 634 (1976). As we noted in Reyes, a controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded. 281 Md. at 288, 380 A.2d 12. Accord: Harford County v. Schultz, 280 Md. 77, 371 A.2d 428 (1977); Pr. George's Co. v. Bd. of Trustees, 269 Md. 9, 304 A.2d 228 (1973); Patuxent Co. v. Commissioners, 212 Md. 543, 129 A.2d 847 (1957). To be justiciable the issue must present more than a mere difference of opinion, Kirkwood v. Provident Savings Bank, 205 Md. 48, 106 A.2d 103 (1954), and there must be more than a mere prayer for declaratory relief, Master v. Master, ...