With All Administrative Speed

By Steve Klepper (Twitter: @MDAppeal)

The June 21 opinion of the Court of Appeals of Maryland in National Waste Managers, Inc. v. Forks of the Patxuent Improvement Association illustrates a serious problem with judicial review of state administrative decisions. The process takes a long time, often to accomplish very little.

“The origin of this saga goes back to 1990,” Judge Wilner wrote for the court in National Waste. “What has driven this case for the last 27 years is the confluence of (1) administrative and judicial litigation during a substantial part of that period, (2) a time-consuming process for obtaining State and county permits required in order to construct and operate the proposed facilities, (3) time limits under county zoning laws on obtaining those permits, and (4) extension and tolling provisions under county law.”

Twenty-three pages of procedural history and legal analysis later, the Court concluded that the Anne Arundel County Board of Appeals cited insufficient evidence in denying a two-year extension, from 2013 to 2015, for obtaining a necessary permit from the Maryland Department of the Environment. The reader then learns that the process will begin anew, like King Sisyphus’ boulder rolling back down the hill:

That does not require an outright reversal of the Board’s rejection, however, but rather a remand to address and resolve the relevant issue which, in 2013, when the decision was made, was what impact, if any, the requested two-year extension to 2015 would have on the character of the neighborhood, the appropriate use or development of adjacent property, or the public welfare, accepting as fact that there was no lack of diligence on the part of National or adverse impact on the neighborhood or adjacent property warranting a rejection of an extension as of the Board’s decision in 2011. That, of course, has become more complicated by the passage of time and the effect of tolling. In some manner, the Board will have to take into account the impact of the requested extension beyond 2017.

Beginning to end, the administrative appeals and judicial review process in National Waste took four years:

• June 6, 2013: The board begins its hearing.
• October 15, 2013: The board concludes its hearing.
• December 27, 2013: The board issues a 2-2 decision, effectively denying the permit extension.
• January 2, 2014: The applicant petitions the circuit court for judicial review.
• February 2015: The circuit court rules for the applicant.
• April 6, 2015: The circuit court denies the board’s motion for reconsideration.
• May 6, 2015: The board appeals to the Court of Special Appeals.
• July 16, 2015: The circuit court forwards the record to the Court of Special Appeals.
• February 3, 2016: The Court of Special Appeals hears argument.
• October 25, 2016: The Court of Special Appeals rules for the applicant, but on different grounds.
• February 3, 2017: The Court of Appeals grants the board’s certiorari petition.
• May 8, 2017: The Court of Appeals hears argument.
• June 21, 2017: The Court of Appeals issues its decision for the applicant, remanding for a new adjudication that accounts for the passage of time.

These delays were not unusual. The Court of Special Appeals only barely missed its case management standard of issuing a decision within 270 days after argument.[1] In fact, the only unusual timing aspect was that the Court of Appeals placed the appeal on an accelerated schedule and resolved the appeal 4½ months after granting certiorari.

Now imagine that a client seeks your advice whether to pursue the judicial review process. There are three layers of judicial review in the state courts. First comes the circuit court,[2] and then the losing side can appeal as of right to the Court of Special Appeals. If the Court of Special Appeals reverses or vacates the agency’s decision, there is a good chance the Court of Appeals will grant certiorari. Quite often, the reasonable best-case scenario is that, at the end of two to four years of judicial review, there will be a remand for a new adjudication, at which point the whole process starts again. A cautionary tale like National Waste may well convince the client that judicial review is… well, a waste.

Administrative law is an inefficient subject area to add extra layers of judicial review. When “any appellate court reviews the final decision of an administrative agency … the court looks through the circuit court’s and intermediate appellate court’s decisions, although applying the same standards of review, and evaluates the decision of the agency.”[3] Even on pure questions of law – the stuff of appeals – agencies receive some measure of deference.

I think it’s safe to say that, given these realities, many of the most meritorious petitions for judicial review are never filed or never get appealed past the circuit court. If the judicial review process goes the distance, it likely means: (1) a lot of money is at stake; (2) the private party is fighting on principle, not driven by economic rationality; or (3) the agency keeps losing and keeps appealing.

The problem is systemic, and I’m not going to fix it in a blog post. [UPDATE: Two readers have forwarded me the excellent debate between Judge Harrell and Joel Smith from the Administrative Law Section’s November 2013 newsletter regarding whether to eliminate a layer of review in all cases and, if so, which layer.] But I do want to highlight one small measure a party can take within the current system. It is possible to skip one of the three steps of judicial review on a case-by-case basis.

The Court of Appeals can grant certiorari before the Court of Special Appeals decides a case – a procedure informally known as “bypass” review. Bypass, which be granted as soon as the Court of Special Appeals dockets the case, can easily cut a year or more from the appeal process. The Court of Special Appeals is a heavy-volume court that already must expedite adoption, guardianship, child access, and child in need of assistance appeals under Rule 8-207(a). It is not well-positioned to expedite other appeals. The Court of Appeals, with discretionary control over most of its docket, has much more flexibility to expedite argument and decisions. And, since 2013, the Court of Appeals has followed a policy of deciding every case during the same term it which it was argued.

Critically, the Maryland certiorari statute allows a petition by “any person,” not just the party who lost in the circuit court.[4] An appellee can therefore petition for bypass review, as occurred, for example, in South Easton Neighborhood Ass’n v. Town of Easton, 387 Md. 468, 475 n.1 (2005).

The only criteria for certiorari is that “review of the case … is desirable and in the public interest.”[5] That standard is flexible enough that a party can argue that expedition is itself a factor supporting bypass review. Timing will rarely be enough by itself. But if an administrative law appeal raises an important legal question, the petitioner has a strong argument that the time and effort required to obtain a Court of Special Appeals opinion – which would be disregarded if the Court of Appeals grants certiorari – disserves the public interest.

When a client wants a cost-benefit analysis for whether to seek judicial review, an attorney can factor in the potential that the Court of Appeals will grant bypass review. The attorney can draft each filing with an eye to maximizing the chances of bypass review if it becomes appropriate. The requirements for a circuit court memorandum are akin to the requirements for an appellate brief, allowing an attorney to position the case for Court of Appeals review from the beginning.[6]

In the right case, such advance planning can help to reduce the time and cost of the judicial review process – and, perhaps, make the appeal process look less daunting to a client with a strong challenge.

[1] Administrative Office of the Courts, Analysis of Case Processing Performance in the Court of Special Appeals, Fiscal Year 2014 (Nov. 2014).

[2] An agency has 60 days to transmit the record to the circuit court, though the agency can request an extension of up to 60 days. Md. Rule 7-206. The default is that the circuit court’s hearing can be “no earlier than 90 days from the date the record was filed.” Md. Rule 7-208.

[3] People’s Counsel for Baltimore County v. Surina, 400 Md. 662, 681 (2007).

[4] Md. Code, Cts. & Jud. Proc. § 12-201.

[5] Md. Code, Cts. & Jud. Proc. § 12-203.

[6] In the circuit court, the “petitioner shall file a memorandum setting forth a concise statement of the questions presented for review, a statement of facts material to those questions, and argument on each question, including citations of authority and references to pages of the record and exhibits relied on.” Md. Rule 7-207(a). An appellate brief requires a ” brief statement of the case,” a “statement of the questions presented,” a “clear concise statement of the facts material to a determination of the questions presented,” a “concise statement of the applicable standard of review for each issue,” argument “in support of the party’s position on each issue,” and a “short conclusion.” Md. Rule 8-504(a).