Moose v. FOP

• Decision Date: 13 June 2002
• Docket Number: No. 114,114
• Citation: 369 Md. 476,800 A.2d 790
• Parties: Charles A. MOOSE et al., v. FRATERNAL ORDER OF POLICE, Montgomery County Lodge 35, Inc. et al.
• Court: Maryland Court of Appeals

800 A.2d 790

369 Md. 476

Charles A. MOOSE et al., v. FRATERNAL ORDER OF POLICE, Montgomery County Lodge 35, Inc. et al.

No. 114, Sept. Term, 2001.

Court of Appeals of Maryland.

June 13, 2002.

Reconsideration Denied July 17, 2002.

Charles W. Thompson, Jr., County Atty. (Karen L. Federman Henry, Principal Counsel for Appeals, and Michael A. Fry, Asst. County Atty., on brief), Rockville, for appellants.

Martha L. Handman, Gaithersburg, for appellees.

Argued Before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

CATHELL, Judge.

In this very convoluted case, we are going to dismiss, for reasons discussed infra, all of the judicial actions that have been filed. After the first emergency suspension hearing was held on April 26, 1999, appellees¹ could not obtain judicial review until they exhausted their administrative remedies. They have never filed any petition for review of administrative agency actions. Appellees, therefore, have failed to exhaust such remedies. The various lower courts in this case have overlooked the fact that appellees failed to exhaust their administrative remedies and, therefore, this case and its prior proceedings, were never properly before any court. The lower courts should not have exercised jurisdiction in this case to rule on any of the proceedings in any of the cases other than to dismiss them.

We are going to discuss the complete history of the case, although the proceedings after the original emergency suspension hearing are not relevant to our holding in the case at bar. After the original emergency suspension hearing concluded, the courts, under the circumstances of this case, should not have exercised jurisdiction to consider any issues raised from that point until the present.

Facts

In April of 1999, Officer John Doe² was suspended with pay from the Montgomery County Police Department (Police Department) pending an investigation into allegations that the officer had used excessive force in the performance of his duties.³ Officer Doe was assigned to administrative duties pending the outcome of the investigation, and his power to make arrests was suspended. Officer Doe was notified that pursuant to section 734A(2)(iii), he would be provided a prompt hearing before a one-member hearing board.⁴ Prior to that hearing, Officer Doe did not seek a show cause order from the trial court in respect to the one-member composition of the hearing board.

On April 26, 1999, an emergency suspension hearing was held before a one-member hearing board and after the hearing the chief continued Officer Doe's suspension. On June 29, 1999, the Fraternal Order of Police, Montgomery County Lodge 35, Inc. and Officer Doe, appellees, filed a "Verified Petition in Support of Show Cause Order and/or Complaint for Declaratory Relief" in the Circuit Court for Montgomery County purporting to be pursuant to Maryland Code (1957, 1996 Repl.Vol.), Article 27, section 734 of the LEOBR⁵ and Maryland Code (1973, 1998 Repl.Vol.), section 3-401 et seq. of the Courts and Judicial Proceedings Article.⁶ In their petition against the Chief of Police, Charles Moose, and the Police Department,⁷ appellees challenged the Police Department's failure to convene a three-member hearing board for the emergency suspension hearing and also challenged the conduct of the hearing. Because the parties had not exhausted their administrative remedies, the Circuit Court should have dismissed the action. Instead, it found that the administrative hearing had been unfair and did not address the other issue.⁸ A new emergency suspension hearing was scheduled, with the hearing board to consist of only one member.

On February 9, 2000, prior to the scheduled second emergency suspension hearing, appellees again filed a "Verified Petition in Support of Show Cause Order and/or Complaint for Declaratory Relief" in the Circuit Court for Montgomery County pursuant to section 734 and section 3-401 et seq. In their petition, appellees sought to have the Circuit Court issue an order stating that appellants had to conduct the emergency suspension hearing on the reasonableness of Officer Doe's emergency suspension before a three-member hearing board. Again, the Circuit Court should, for the reasons we have mentioned and shall explain further, have dismissed the action. The Circuit Court, however, determined that the LEOBR did not require appellants to use a three-member hearing board. Appellees appealed to the Court of Special Appeals, which should have vacated the judgment and directed the trial court to dismiss the action. Instead, it remanded the case to the Circuit Court for a determination of all of the issues in this case. The Court of Special Appeals held that the Circuit Court had only addressed whether Officer Doe would have been entitled to a three-member emergency suspension hearing board pursuant to the LEOBR. The Circuit Court, according to the Court of Special Appeals, failed to address whether Officer Doe would have been entitled to a three-member emergency suspension hearing board pursuant to the Police Department's regulations. The Court of Special Appeals thus held that it could not reach the merits of the dispute because the Circuit Court had failed in a declaratory judgment action to issue a written order fully addressing the rights of the parties. The Court of Special Appeals apparently did not perceive that appellants had not exhausted their administrative remedies.

On remand, the Circuit Court determined that both the LEOBR and the Police Department's administrative regulations required a three-member emergency hearing board. The Circuit Court, however, should have dismissed the action even though the Court of Special Appeals had remanded. Appellants filed an appeal to the Court of Special Appeals. We granted certiorari on our own motion prior to further consideration by that court. Appellants present two questions for our review:

"I. Under the Law Enforcement Officers' Bill of Rights, does the requirement for a `prompt hearing' mean that the charges against the officer must be disposed of promptly, or does the provision require an additional hearing before a three-member board to address the sole issue of the reasonableness of the suspension prior to addressing the charges? II. Do the administrative procedures of the Montgomery County Police Department require a three-person hearing board to review the police chief's decision to suspend an officer's police powers with pay?"

We do not address either of appellants' questions. We are going to vacate the decision of the Circuit Court and remand the case to that court with instructions to dismiss all judicial proceedings now, or heretofore, pending, arising out of the two petitions for show cause and declaratory judgment actions. We hold that in the case sub judice, appellees failed to exhaust their administrative remedies as is required before the commencement of either of the declaratory judgment actions. Because the parties had not exhausted all administrative remedies, neither the Circuit Court, nor the Court of Special Appeals, should have addressed any issues in the framework of declaratory judgment actions. The declaratory judgment actions should have been dismissed.

We also hold that the show cause provisions of section 734 were not applicable to the case at bar in respect to the only emergency suspension hearing properly held because the emergency suspension hearing had already been held when appellees first filed for relief under that section. Once the first emergency suspension hearing was held, the show cause provision of section 734 of the LEOBR was not available to appellees.

Discussion

In this very unusual procedural case, Officer Doe was initially subjected to an "emergency suspension hearing." At no time prior to that initial emergency suspension hearing did appellees request a show cause order challenging the one-member composition of the emergency suspension hearing board. The applicable statute, section 734, permitting show cause orders in such cases, requires them to be filed prior to the commencement of such hearings. That was not done prior to the initial emergency suspension hearing.

Shortly after the conclusion and decision in the initial emergency suspension hearing, appellees filed a combined action in the Circuit Court for Montgomery County. One thrust of their action was an effort to require appellants to "show cause," pursuant to section 734, as to why a three-member emergency suspension hearing board was not required. As we have indicated, and will discuss infra, such a show cause petition must be filed prior to the "commencement" of such a hearing. Accordingly, this type of action was not then available to appellees and should not have been considered by any of the lower courts. Another thrust of appellees' efforts was for a declaratory judgment that a three-member emergency suspension hearing board was required. At the time of appellees initial filing of an action in the Circuit Court, there had not been, and, in fact, as far as the record reflects, has never been to this point, a subsequent hearing on the merits. Therefore, administrative remedies had not at that time, and never have, been exhausted. A declaratory judgment action was, therefore, not permitted at that time, or since, or now, as we explain, infra.

The trial court to which the issues were presented should have dismissed the action. What then should have occurred was for a hearing on the merits before a three-member hearing board pursuant to the LEOBR and any subsequent reviews as statutorily appropriate. Instead, the Circuit Court for Montgomery County directed certain actions, which it should not have directed. It should not have authorized any reconvened or additional emergency suspension hearing because the administrative remedies had not been exhausted.

Thereafter, prior to the new emergency suspension hearing improperly directed by the...