Montgomery County v. Stevens

• Decision Date: 01 September 1993
• Docket Number: No. 124,124
• Citation: 337 Md. 471,654 A.2d 877
• Parties: MONTGOMERY COUNTY, Maryland et al. v. Alan E. STEVENS. ,
• Court: Maryland Court of Appeals

Page 471

337 Md. 471

654 A.2d 877

MONTGOMERY COUNTY, Maryland et al. v. Alan E. STEVENS.

No. 124, Sept. Term, 1993.

Court of Appeals of Maryland.

March 3, 1995.

Ramona Bell-Pearson, Asst. County Atty., (Joyce R. Stern, County Atty., Bruce P. Sherman, Sr. Asst. County Atty., all on brief), Rockville, for appellants.

William W. Thompson, II (Zwerdling, Paul, Leibig, Kahn Thompson & Driesen, P.C., all on brief), Washington, DC, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

ELDRIDGE, Judge.

In an action for judicial review of an administrative decision, the circuit court issued an order permitting the taking of depositions of the administrative decision maker and other persons. We consider in this opinion the appealability and propriety of the circuit court's order.

I.

On February 25, 1992, Melanie Creedon, an assistant public defender, represented in the District Court of Maryland, in Montgomery County, a defendant charged with auto theft. After the close of the prosecution's case, Ms. Creedon made a motion for judgment of acquittal which the court granted. Officer Alan E. Stevens of the Montgomery County Police Department, who was in the courtroom at the time, became frustrated because the prosecution had failed to introduce into evidence an inculpatory statement which the defendant had made. Officer Stevens approached Ms. Creedon and said, "We had a confession in this case. If I ever see that kid again, he's mine. If he makes one wrong move, I will shoot him."

Ms. Creedon said nothing to Officer Stevens in reply. Instead, she walked to the back of the courtroom and related Officer Stevens's comments to Mr. Lloyd Johnson, an assistant state's attorney. Mr. Johnson had not heard Officer Stevens's comments but had witnessed "a brief interchange" take place between Ms. Creedon and Officer Stevens. Mr. Johnson expressed shock at the statement but took no action at that time.

The parties dispute how Officer Stevens's remarks came to the attention of the Montgomery County Police Department's Office of Internal Affairs. Either Ms. Creedon filed a complaint on March 3, 1992, with the Police Department, or the Montgomery County Chief of Police, Colonel Clarence Edwards, brought the matter to the attention of the Office of Internal Affairs after having learned of the matter from Mr. Johnson at an unrelated function. Regardless, an internal investigation ensued. The investigator confirmed that Officer Stevens had made the comments set forth above, and the investigator concluded that the comments warranted a charge of "conduct unbecoming" a police officer in violation of Department Rules, Function Code 300, III, Rule 14. ¹

Chief Edwards concurred in the findings of the internal investigation, and he offered Officer Stevens the option to accept an official letter of reprimand and two days suspension without pay, or to request an administrative hearing pursuant to the Law Enforcement Officers' Bill of Rights ("LEOBR"), Maryland Code (1957, 1992 Repl.Vol., 1994 Cum.Supp.), Art. 27, §§ 727-734D. Officer Stevens opted for the latter course of action.

On August 20, 1992, the hearing board convened. It sustained the charge of "conduct unbecoming" a police officer after receiving testimony from Ms. Creedon and Mr. Johnson. Officer Stevens, through his attorney, admitted at the hearing that he had made the statement but denied that he had violated the rule under which the alleged violation fell. ² His argument was rejected, and the board recommended to Chief Edwards that the punishment for the violation should be a letter of reprimand. Art. 27, § 731.

Pursuant to § 731(c) of the LEOBR, a chief of police is not bound by the recommendation of the hearing board. Rather, he may "increase the recommended penalty of the hearing board, [but before doing so he] shall permit the law enforcement officer to be heard and shall state the reason for increasing the recommended penalty." Art. 27, § 731(c). ³ On September 29, 1992, Chief Edwards sent a memorandum to Officer Stevens and his attorney, advising them of his intention to increase the recommended penalty back to his original offer of a letter of reprimand and two days suspension without pay. Officer Stevens and his attorney were given an opportunity to respond. They responded both in writing and in a subsequent meeting with Chief Edwards. In a memorandum dated November 17, 1992, however, Chief Edwards advised Officer Stevens that the recommended penalty would be increased to include the two days suspension without pay.

Officer Stevens then brought an action for judicial review in the Circuit Court for Montgomery County pursuant to § 732 of the LEOBR. Officer Stevens represented to the court that he was not seeking judicial review of "the verdict of the Hearing Board in this case. Rather, he has appealed the decision of Chief Edwards to increase the level of punishment [over that] recommended unanimously by the Hearing Board." Officer Stevens filed in the circuit court a motion for leave to initiate discovery, notice depositions, amplify the record, and suspend the time for filing memoranda. The motion alleged that Chief Edwards was the actual "complainant" in this matter, not Ms. Creedon. Furthermore, Officer Stevens charged that the proper procedure was not followed in filing the complaint and that Chief Edwards failed to specify his reasons for increasing the penalty. The motion was granted, and depositions were scheduled for Chief Edwards, the Commander of the Office of Internal Affairs, the Chief of Police of Takoma Park, and Assistant State's Attorney Johnson.

Montgomery County filed a motion for reconsideration of the order granting discovery, and the motion for reconsideration was denied on April 19, 1993. On that same day a timely appeal was noted by the County to the Court of Special Appeals. The circuit court subsequently granted a motion by the County to stay discovery pending the appeal. Prior to the stay, only Mr. Johnson's deposition had been taken.

This Court issued a writ of certiorari before the case was heard in the Court of Special Appeals. In addition to filing a brief on the merits, Officer Stevens has filed a motion to dismiss the appeal.

II.

Initially, we consider whether Montgomery County is entitled to appeal from the circuit court's discovery order. As we shall hold that the order relating to Chief Edwards is appealable as a final judgment under the collateral order doctrine, we need not consider whether the other discovery orders could be properly appealed in the absence of the order relating to Chief Edwards. Maryland Rule 8-131(d) provides that, on appeal from an order constituting a final judgment, other orders, even if interlocutory, are generally reviewable by the appellate court. See B & K Rentals v. Universal Leaf, 319 Md. 127, 132-133, 571 A.2d 1213, 1216 (1990) ("It is a long established principle of appellate procedure, now embodied in Rule 8-131(d), that an appeal from a final judgment ordinarily brings up for appellate review all [other] orders in the case").

This Court has consistently held that discovery orders, being interlocutory in nature, are not ordinarily appealable prior to a final judgment terminating the case in the trial court. Dep't of Social Services v. Stein, 328 Md. 1, 7, 18, 612 A.2d 880, 883, 888 (1992); Public Service Comm'n v. Patuxent Valley, 300 Md. 200, 207, 477 A.2d 759, 763 (1984).

"We have long recognized, however, a narrow class of orders, referred to as collateral orders, which are offshoots of the principal litigation in which they are issued and which are immediately appealable as 'final judgments' without regard to the posture of the case." Harris v. Harris, 310 Md. 310, 315, 529 A.2d 356, 358 (1987). See also Town of Chesapeake Beach v. Pessoa, 330 Md. 744, 754, 625 A.2d 1014, 1019 (1993); Dep't of Social Services v. Stein, supra, 328 Md. at 10, 612 A.2d at 884; County Comm'rs v. Schrodel, 320 Md. 202, 209, 577 A.2d 39, 43 (1990); State v. Jett, 316 Md. 248, 251, 558 A.2d 385, 386 (1989); Bunting v. State, 312 Md. 472, 476, 540 A.2d 805, 806 (1988); Public Service Comm'n v. Patuxent Valley, supra, 300 Md. at 206, 477 A.2d at 762. For an order to be appealable under this narrow exception, called the "collateral order doctrine," it must satisfy the following four requirements (Town of Chesapeake Beach v. Pessoa, supra, 330 Md. at 755, 625 A.2d at 1019):

"(1) it must conclusively determine the disputed question;

"(2) it must resolve an important issue;

"(3) it must be completely separate from the merits of the action; and

"(4) it must be effectively unreviewable on appeal from a final judgment."

See also Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-547, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528, 1536-1537 (1949); Clark v. Elza, 286 Md. 208, 212-213, 406 A.2d 922, 924-925 (1979); Peat & Co. v. Los Angeles Rams, 284 Md. 86, 394 A.2d 801 (1978).

Under this Court's holding in Public Service Comm'n v. Patuxent Valley, supra, the discovery order concerning Chief Edwards meets the requirements of the collateral order doctrine and is, therefore, appealable as a final judgment. In Patuxent Valley, the Potomac Electric Power Company ("PEPCO") had applied to the Public Service Commission for a Certificate of Public Convenience and Necessity in order to commence construction of an overhead transmission line. After a hearing, the hearing examiner recommended that the certificate issue. The Public Service Commission, upon review of the record, agreed. The property owners who would have been affected by the line brought an action for judicial review in the Circuit Court for Howard County. The property owners then sought to depose the commissioners who had participated in the decision to issue the certificate. The property owners alleged that the hearing examiner had considered information outside the administrative record. In particular, they...