Supreme Court of Maryland Rules No-Probable Cause Finding by MCCR Can Only be Reviewed in Circuit Court and Appellate Court Has No Jurisdiction
March 31, 2023
In Rowe v. Maryland Commission on Civil Rights, No. 17-2022 (Md. March 29, 2023), the Supreme Court of Maryland, in a case of first impression, held that a complainant aggrieved by a no-probable-cause determination by the Maryland Commission on Civil Rights (“MCCR”) is entitled to one level of judicial review in a circuit court and is not entitled to any further review by the Maryland appellate courts.
The case began when Jennifer Rowe filed claims for disability discrimination with the MCCR against Krav Maga MD, LLC (“KMMD”). After investigating Ms. Rowe’s claims, the MCCR determined there was no probable cause to believe that KMMD discriminated against Ms. Rowe based on her disability. Ms. Rowe requested reconsideration, which the MCCR denied.
Ms. Rowe then sought judicial review in the Circuit Court of Maryland for Baltimore City by filing a petition for review of the MCCR’s denial of her request for reconsideration. The circuit court affirmed the MCCR’s no-probable-cause finding. Ms. Rowe then appealed to the Appellate Court of Maryland. In her briefing to the Appellate Court, Ms. Rowe raised issues involving the MCCR’s process and procedures and the evidentiary basis for its no-probable-cause determination. The MCCR responded by addressing the merits of the issues (or the lack thereof) raised by Ms. Rowe. Neither party raised any issue of the Appellate Court’s jurisdiction to hear the case. During oral argument, however, the Appellate Court sua sponte questioned whether it had jurisdiction to hear an appeal regarding the circuit court’s approval of the MCCR’s no-probable-cause finding. After receiving supplemental briefing from the parties on the issue, the Appellate Court dismissed the case for lack of jurisdiction.
Ms. Rowe petitioned the Supreme Court of Maryland for a writ of certiorari, which the Court granted to determine whether “the Appellate Court of Maryland [has] jurisdiction over appeals from circuit courts of petitions for judicial review of [MCCR] no-probable-cause findings in public accommodations discrimination cases.” In a split decision by a vote of 4 to 3, the Supreme Court held that the Appellate Court does not have such jurisdiction because the General Assembly of Maryland has not expressly granted such a right, which is required under the statutory structure for appeals.
In a thorough and exhaustive 32-page opinion, the Court analyzed and relied on the plain language of the relevant statute, State Government Article (“SG”) § 20-1005(d)(2), while also addressing the statute’s legislative history. Noting that jurisdiction in the Appellate Court requires an expressly granted right to appeal authorized by statute, the Court focused on the language of SG § 20-1005(d)(2), which provides that “a denial of a request for reconsideration of a finding of no probable cause by the [MCCR] is a final order appealable to the circuit court as provided in § 10-222 of [the State Government Article].” SG § 10-222, which falls under Subtitle 2 of Maryland’s Administrative Procedure Act, governs the right of judicial review in a circuit court for “a party who is aggrieved by the final decision in a contested case.” The next section in Subtitle 2 of the APA, SG § 10-223, provides that “[a] party who is aggrieved by a final judgment of a circuit court under this subtitle [i.e., Subtitle 2] may appeal to the [Appellate Court of Maryland] in the manner that law provides for appeal of civil cases.”
Ms. Rowe argued that because SG § 10-222 is part of “this subtitle” as referenced in SG § 10 223, she was necessarily entitled to appeal the circuit court’s decision to the Appellate Court. The Supreme Court, however, held that SG § 20-1005(d)(2) is unambiguous, and by referencing only SG § 10-222 (but not SG § 10-223 or the APA generally), SG § 20-1005(d)(2) expressly provides only for judicial review in the circuit court. The Court noted how several other similar Maryland Code provisions specifically reference either both SG §§ 10-222 and 10-223 together or Subtitle 2 of the APA in its entirety or the Appellate Court specifically. This, the Court said, shows that the Maryland General Assembly “knows how to expressly provide for Appellate Court review of a circuit court’s decision on a petition for judicial review when it wants to do so.” The Court concluded, therefore, that the lack of such language in SG § 20-1005(d)(2) meant the General Assembly determined that one level of judicial review of MCCR no-probable-cause determinations is sufficient and that SG § 20-1005(d)(2) can only arguably be read – at most – to impliedly contemplate further review in the Appellate Court, which is not enough.
While noting that its analysis need not proceed beyond the plain language of SG § 20-1005(d)(2), the Court nevertheless explained that a review of the statute’s legislative history further bolsters the conclusion that the General Assembly intended only one level of judicial review. Ultimately, the Court summarized that the MCCR’s investigative process to determine whether there is probable cause to believe a discriminatory act has been committed operates to protect respondents from frivolous claims and that determining whether to afford one level or two levels of judicial review of a no-probable-cause finding is a policy decision to be made by the General Assembly.
The Maryland Supreme Court’s decision in Rowe is significant because, when it comes to judicial review of a finding of no probable cause by the MCCR, the buck stops with the circuit court. As expressly noted by the Court, the General Assembly is, of course, free to “amend SG § 20-1005(d)(2) to add a grant of review to the Appellate Court if it decides that, going forward, one level of judicial review of no-probable-cause determinations is insufficient.” It remains to be seen how the General Assembly will react to the Court’s decision in Rowe, if at all. For the time being, however, the Supreme Court has spoken, and a party aggrieved by the MCCR’s finding on probable cause has only the relevant circuit court as a last resort.
Disclaimer: Kagan Stern represented Krav Maga MD, LLC before the MCCR with respect to Ms. Rowe’s claims of discrimination and in the Circuit Court of Maryland for Baltimore City in response to Ms. Rowe’s petition for judicial review. On appeal, the case was litigated between Ms. Rowe and the MCCR, and Krav Maga MD was no longer an active participant during the appeal.