AGENDA ITEM 6B
February 2, 2016
Action
MEMORANDUM
TO:
FROM:
SUBJECT:
County Council
Jeffry
L.
zyo1.Lor Legislative Analyst
Action:
Bill 52-15, Administrative Procedures - Summary Decision
Government Operations and Fiscal Policy Committee recommendation (2-0, Councilmember
Riemer absent):
recommended approval of Bill 52-15 with amendments to require:
1)
a motion for a summary decision 30 days before a hearing; and
2)
a finding that the moving party is entitled to prevail as a matter of law when a
motion is granted.
Background
Bill 52-15, Administrative Procedures - Summary Decision, lead sponsor Council
President Floreen at the request of the Hearing Examiner, was introduced on December 8, 2015.
A public hearing was held on January 12, 2016. There were no speakers at the hearing. A
Government Operations and Fiscal Policy Committee worksession was held on January 21.
Most hearings involve the presentation of facts or opinions that are in dispute. At the
conclusion of such proceedings, the presiding officer decides which view is more persuasive. On
occasion, only an interpretation of a law or regulation is at issue.
In
such cases there are agreed
upon facts but different opinions on the correct outcome.
In
these latter cases, courts have the
ability to make its decision without an evidentiary hearing when the court sustains a party's motion
for summary judgement. Bill 52-15 would revise the Administrative Procedures Act to similarly
allow a summary decision. Such a summary decision would save all parties from the time and
expense of an otherwise unnecessary evidentiary hearing.
In
Eng'g Mgmt. Servs. V Md. State Highway Admin,
375 Md 211(2003), the Court of
Appeals found that the Maryland Board of Contract Appeals lacked the authority to grant a motion
for summary disposition in the absence of rules ofprocedure that stated the conditions under which
the motion could be granted. After amending the procedural regulations, the court was satisfied
that the following regulation satisfied the Court's concern:
1)
A party may move for summary decision on any appropriate issue in the case.
 PDF to HTML - Convert PDF files to HTML files
2)
The Appeals Board may grant a proposed or final summary decision if the Appeals
Board finds that:
(a)
After resolving all inferences in favor ofthe party against whom the motion
is asserted, there is no genuine issue of material fact: and
(b) A party is entitled to prevail as a matter of law.
These provisions included less detail than the Code of Maryland Regulation for the Office
of Administrative Hearing (COMAR 28.02.01.12D, which required affidavits as to the
admissibility of the evidence that the party might present). Despite its brevity, the Court of
Appeals found the revised rules adequate to provide notice to claimants and the ability to contest
the motion.
Bramble
v.
Md State Highway Admin,
2015 WL 6090614 (Sept. 25, 2015).
Issues
1) Is summary decision authority a good idea?
The consensus opinion among those officials who conduct hearings (Office of Zoning and
Administrative Hearings, Board of Appeals, Ethics Commission, Merit System Protection Board,
Commission on Human Rights, and Commission on Common Ownership Communities) is that
having a provision for summary judgement would be helpful. The summary decision process is
efficient for the parties and the holder of the hearing.
It
is acknowledged that a summary decision would not be available in all cases. When the
Charter requires a hearing, then a hearing must be held without regard to the County Code. The
Charter trumps the County Code.
The Committee agreed that a summary decision procedure would be helpful.
2) Is the proposed revision sufficient to provide the court required standards for a summary
decision?
The County Attorney's office recommends that the bill be amended to be more in parallel
to recent Court of Appeals decision.
In
that regard, the County Attorney recommends adding the
phrase "and the moving party is entitled to prevail as a matter of law" after the requirement for no
finding that there is no issue of fact.
The Committee recommended this amendment.
3) Should a motion for a summary be required 30 days before a hearing?
As introduced, Bill 52-15 requires that a motion for a summary decision be made at least
20 days before a hearing. The Hearing Examiner recommended that it be 30 days before a hearing.
With that timing, a hearing could still be held if the motion is not granted.
The Committee recommended changing when a motion for a summary decision must be
granted from 20 days before a hearing to 30 days before a hearing.
2
 PDF to HTML - Convert PDF files to HTML files
4) Should officiating authority have the right to make the motion for a summary decision?
An
early draft of Bill 52-15 included a provision to allow the hearing authority to pursue a
summary decision on its own motion. The Bill as introduced does NOT include that authority. The
County Attorney's office raised the point that in court proceedings, the judge may not make a
summary decision of the court's own motion. The parties may make a motion for summary
judgment, but not the judge.
The Hearing Examiner would like the authority to go to a summary motion on the
officiating authorities own motion. The Examiner envisioned a situation where the complainant
has
no legal basis to proceed (e.g., a trustee in bankruptcy, not the Complainant, now owns the
claim), but the respondent does not act to bring the matter to closure (e.g., it doesn't want to pay
an attorney to file a motion). The Examiner wants a way to bring the matter to completion without
going through a hearing or issuing a fonnal sanction or leaving it on our docket indefinitely.
In
the Hearing Examiner's opinion, Courts have alternative procedures to effectively
resolve a case. On their own motion, a Court may raise the issue oflack ofjurisdiction and some
other deficiencies
in
the complaint.
i
The Committee did not recommend revising the Bill to allow the hearing authority to
make a motion for summary judgement under its own authority.
5) Should the Bill be revised to note that a summary decision by a hearing authority who does
not have final decision making authority is mere a recommendation?
The Hearing Examiner recommended that the Bill be revised to note that a summary
decision by a hearing authority who does not have final decision making authority is mere a
recommendation. The Committee did not agree with this recommendation because it is
unnecessary. The hearing authority'S powers are not changed by Bill 52-15 except to allow a
summary decision which then mayor may not go to a deciding authority.
This packet contains:
Bill 52-15
Legislative Request Report
F:\LAW\BILLS\1552 Summary Judgement\Action Memo.Docx
Circle
#
1
3
MD Rule 2-324(b) provides
(b) Subject matter jurisdiction. Whenever it appears that the court lacks jurisdiction of the subject matter, the court
shall dismiss the action.
i
MD Rule 2-322(e) provides:
(e) Motion to strike.
On
motion made by a party before responding to a pleading or, ifno responsive pleading is
required by these rules, on motion made by a party within 15 days after the service ofthe pleading or on the court's
own initiative at any time, the court may order any insufficient defense or any improper, immaterial, impertinent, or
scandalous matter stricken from any pleading or may order any pleading that is late or otherwise not in compliance
with these rules stricken in its entirety.
3
 PDF to HTML - Convert PDF files to HTML files
Bill No.
52-15
Conceming: Administrative Procedures ­
Summary Decision
Revised: 1-19-16
Draft No.
Introduced:
December 8.2015
Expires:
June 8,2017
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effecwe:_~~
_________
Sunset Date: ..,..,N:..;:.:o=":n=e-=-----=-_______
Ch. _ _ Laws of Mont. Co. _ __
I
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Council President at the request ofthe Hearing Examiner
AN ACT
to:
(1)
(2)
revise the Administrative Procedures Act to allow a summary decision without an
evidentiary hearing ; and
generally amend the law governing administrative procedures.
By amending
Montgomery County Code
Chapter 2A, Administration
Section 2A-7
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface bracketsD
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment,
Existing law unqffected by bill.
The County Council for Montgomery County, Maryland approves thefollowing Act:
 PDF to HTML - Convert PDF files to HTML files
BILL NO. 52-15
1
2
Sec.
1.
Section 2A-7 is amended as follows:
2A-7. Pre-hearing procedures.
3
*
(d)
*
*
4
5
6
Summary Decision.
Any
~
may file
~
motion for summary decision
at least 20 days before the date of
~
hearing. The hearing authority may
grant summary decision if the hearing authority fmds that;
7
ill
(2)
there is no genuine issue of material fact to be decided at the
hearing; and
the moving party is entitled to prevail as a matter of law.
8
9
10
The hearing authority must give all other parties at least 10 days to
respond to the motion for summary decision before deciding the motion.
The hearing authority may permit oral argument on the motion.
11
12
13
W
Restrictions on data.
Unless a matter has been formally certified for
hearing by the hearing authority, government documents or records shall
not be subject to these provisions.
In
the event a matter is certified for
hearing by the hearing authority, any documents or records not to be used
at the hearing shall not be subject to the provisions of this chapter.
Further, any matter or materials which are designated by law as
confidential shall not be released without a waiver of the parties to the
14
15
16
17
18
19
20
confidentiality.
21
22
Approved:
23
Nancy Floreen, President, County Council
24
Approved:
Date
25
Isiah Leggett, County Executive
Date
f:\law\bills\1552 summary judgement\bill4.docx
 PDF to HTML - Convert PDF files to HTML files
LEGISLATIVE REQUEST REPORT
Bill 52-15
Administrative Procedures Summary Decision
DESCRIPTION:
The will would amend the Administrative Procedures Act to all a
hearing authority to come to conclusion without an evidentiary
hearing when there are no facts at issue.
Maryland Courts only allow a summary decision to be made when
that procedure is allow by law. Currently the authority for summary
decisions is not in County Code having for an inefficient hearing
process.
The Bill will make the hearing process more efficient.
Merit System Protection Board, Landlord Tenant Affairs
Commission, the Commission on Common Ownership, the Human
Rights Commission and the Office of Zoning and Administrative
Hearings
To be requested.
To be requested.
To
be
requested.
To be researched.
Consultations with Boards, Commissions, and offices
To be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
NA
F:\LAW\BILLS\! 552 Summary Judgement\LRR.Docx