Public Service Com'n of Maryland v. Patuxent Valley Conservation League

• Decision Date: 01 September 1982
• Docket Number: No. 148,148
• Citation: 300 Md. 200,477 A.2d 759
• Parties: PUBLIC SERVICE COMMISSION OF MARYLAND et al. v. PATUXENT VALLEY CONSERVATION LEAGUE et al. ,
• Court: Maryland Court of Appeals

Page 200

300 Md. 200

477 A.2d 759

PUBLIC SERVICE COMMISSION OF MARYLAND et al. v. PATUXENT VALLEY CONSERVATION LEAGUE et al.

No. 148, Sept. Term, 1982.

Court of Appeals of Maryland.

July 12, 1984.

James A. Pine, Gen. Counsel, Baltimore (O. Ray Bourland, III, Staff Atty., and Sandra L. Hall, Asst. General Counsel, Baltimore, on the brief), for appellant, Public Service Commission.

Michael J. Scibinico, II, Asst. Atty. Gen., Annapolis (Stephen H. Sachs, Atty. Gen., Baltimore, and Thomas A. Deming, Asst. Atty. Gen., Annapolis, on the brief), for appellant, State of Maryland, Dept. of Natural Resources.

James L. Mayer, Columbia (Richard B. Talkin and Talkin & Abramson, Columbia, on the brief), for appellees.

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

ELDRIDGE, Judge.

In this case we are asked to decide whether the individual commissioners of the Public Service Commission, a state agency, may be required to appear for pretrial depositions with respect to a Commission decision granting the Potomac Electric Power Company (PEPCO) a Certificate of Public Convenience and Necessity for the construction of a transmission line in Montgomery and Howard Counties. We are also presented with the threshold question of whether the trial court's discovery order, in an action for judicial review of the administrative decision reached by the Commission, may be immediately appealed by the Commission and the State of Maryland. We hold that the trial court's order is immediately appealable by the Commission and the State, and that the order constituted an abuse of the trial judge's discretion.

I.

Pursuant to Maryland Code (1957, 1980 Repl.Vol., 1983 Cum.Supp.), Art. 78, § 54A, a public utility must acquire a Certificate of Public Convenience and Necessity from the Commission before commencing construction of any overhead transmission line carrying in excess of 69,000 volts. In this case, PEPCO sought such a certificate from the Commission for the purpose of constructing a 500 kilovolt overhead transmission line between substations in Howard and Montgomery Counties. After taking testimony for approximately one year from more than one hundred lay witnesses and many expert witnesses, the hearing examiner recommended that PEPCO be issued the requested certificate. The Commission, upon extensive review of the testimony, which was detailed in a record of 6,000 pages, agreed. Howard County, and numerous property owners who would be affected by the transmission line (Patuxent Valley Conservation League, et al.), then filed in the Circuit Court for Howard County an action for judicial review of the Commission's decision. ¹

About a month prior to the circuit court hearing, the Patuxent Valley Conservation League (Patuxent) filed a notice and a request for a summons for the purpose of taking the oral depositions of the commissioners who participated in the Commission's PEPCO decision. The Commission then filed a motion for a protective order, and a hearing on the motion was held. At the hearing, counsel for Patuxent orally alleged that the Commission had used "improper procedure" and that the administrative record was deficient. The only factual allegations made by counsel for Patuxent, however, were that a report by the Commission's engineer was not in the administrative record and that, at some point during the administrative proceedings, an "informal" ex parte communication may have taken place between the hearing examiner and the Chairman of the Commission. In addition, counsel for Howard County alleged that the hearing examiner "might have been predisposed" and that the case "may even bear down to some question of bad faith." Counsel for the Commission, on the other hand, argued that "[t]he record speaks for itself," that Patuxent had raised "only ... spurious allegations," and that, therefore, the members of the Commission should not be deposed. The circuit court judge, concluding that Patuxent's assertions amounted to allegations of "bad faith" and "improper procedure," denied the Commission's motion and ordered the commissioners to appear for depositions.

The Commission immediately asked the circuit court to stay the discovery order so that the Commission could seek appellate review of the decision. The circuit court granted the stay, and both the Commission and the State filed orders of appeal to the Court of Special Appeals. While the case was pending before the Court of Special Appeals, this Court issued a writ of certiorari. In addition to briefing and arguing the merits, Patuxent has filed in this Court a motion to dismiss the appeals on the ground that the circuit court's order was interlocutory and not appealable.

II.

The threshold question is whether the Commission and the State may appeal from the trial court's discovery order. ²

As we have repeatedly stated, ordinarily an appeal will lie only from a final judgment, and finality is a matter ultimately to be determined by this Court. Sigma Repro. Health Cen. v. State, 297 Md. 660, 664-666, 467 A.2d 483 (1983); Peat & Co. v. Los Angeles Rams, 284 Md. 86, 90-91, 394 A.2d 801, 5 A.L.R.4th 1238 (1978); Warren v. State, 281 Md. 179, 182-183, 377 A.2d 1169 (1977). We have also in recent years adopted the so-called "collateral order doctrine," which treats as final and appealable a limited class of orders which do not terminate the litigation in the trial court. See, e.g., Kawamura v. State, 299 Md. 276, 282-283 n. 5, 473 A.2d 438 (1984); Mann v. State's Atty. for Montgomery Cty., 298 Md. 160, 163-165, 468 A.2d 124 (1983); Highfield Water Co. v. Wash. Co. San., 295 Md. 410, 417, 456 A.2d 371 (1983); News American v. State, 294 Md. 30, 45-46, 447 A.2d 1264 (1982); Clark v. Elza, 286 Md. 208, 212-213, 406 A.2d 922 (1979), and cases cited therein. This doctrine generally permits an appeal from an order which satisfies four requirements. The four requirements are as follows ( Clark v. Elza, supra, 286 Md. at 213, 406 A.2d 922):

" '[T]he order must [ (1) ] conclusively determine the disputed question, [ (2) ] resolve an important issue [, (3) be] completely separate from the merits of the action, and [ (4) ] be effectively unreviewable on appeal from a final judgment.' "

In our view these four criteria were met, and the trial court's discovery order is appealable by the Commission or the State. First, the order conclusively determined that individual Commission officials must appear for depositions with respect to their decision to grant PEPCO a certificate. Second, the issue is clearly important. If, in actions for judicial review of administrative decisions, it is permissible for trial courts to order the depositions of the administrative decision makers, upon the type of allegations made in this case, the impact upon administrative agencies of the State and local governments may be quite substantial. Third, the question whether Commission decision makers should be required to stand for depositions is distinct from the merits of Patuxent's action for judicial review of the agency decision. Finally, if not appealable until the conclusion of the trial, the claim that Commission members should not be routinely subjected to extensive probing of their individual decisional thought processes would irretrievably be lost. Regardless of the outcome of the trial, the disruption to the administrative process, caused by placing the officials under pretrial scrutiny, is incurred at the first instance. Therefore, it would be impossible to cure the harm done to the Commission once the depositions have been taken.

Although in this case we take the position that the order requiring Commission members to stand for pretrial depositions is appealable by the Commission or the State, we continue to adhere to the general rule that discovery orders are interlocutory and ordinarily cannot be appealed prior to a final judgment terminating the case. See, e.g., Sigma Repro. Health Cen. v. State, supra, 297 Md. at 675, 467 A.2d 483 ("ordinarily an order denying a motion to quash a subpoena duces tecum in a pending case is not an appealable final order"); Price v. Orrison, 261 Md. 8, 9, 273 A.2d 183 (1971) (order authorizing plaintiff to take depositions of members of civic association to aid in execution of judgment obtained against association); Kardy v. Shook, 237 Md. 524, 534, 207 A.2d 83 (1965) (order allowing defendant in criminal case to take pretrial depositions of State's witnesses); Alford v. Commissioner, 227 Md. 45, 47, 175 A.2d 23 (1961) (orders denying discovery against Commissioner of Motor Vehicles and employee of insurance company in connection with suit arising out of "hit and run" automobile accident). Rather, we conclude only that the particular facts of this case warrant a departure from the general rule.

One reason underlying the general rule against the immediate appeal of discovery orders is that "[o]rdinarily, an order granting or denying discovery does not finally determine the rights of any party ...." Alford v. Commissioner, supra, 227 Md. at 47, 175 A.2d 23. Also, in the usual case, the party or individual opposing the discovery order does not suffer sufficient immediate harm to warrant an appeal prior to the final termination of the litigation. Moreover, a party is generally able to seek effective review of the order upon an appeal from an adverse final judgment terminating the case. By contrast, in the case at bar, the harm that will result from deposing Commission members prior to trial, should they be immune from this type of scrutiny, will occur from the instant they are subjected to a probing of their decision making processes. Furthermore, the harm to the State and its agencies, and consequently to the public, because of the disruption of the governmental process which could result from orders such as this, is potentially much greater than the harm to private individuals and entities.

While Montgomery Co. Coun....