Sprenger v. Public Service Commission

A.2d 238 SPRENGER, et al. Paul C. MARYLAND, et al. COMMISSION OF

The PUBLIC SERVICE Term, Sept. No. 125 2006. Maryland. Appeals of

Court of June Monteleone, & Cumber- Coyle, (Hidey, Coyle Jr. John J. brief, land, MD), on for Petitioners. (Susan Public Maryland Miller of H. Mitchell Stevens

Miles Baltimore, Md), brief; A. Lamken Com’n, Jeffrey on Service Botts, (David Kringer E. of Baker Benjamin A. Super DC), brief, L.L.P., Respondents. on Washington, HARRELL, CATHELL, RAKER, BEFORE ARGUED (Retired ELDRIDGE, GREENE, specially C. JOHN (Retired WILNER, specially assigned) ALAN M. assigned), (Retired BLOOM, JJ. specially assigned), G. THEODORE CATHELL, Judge. Public from the Service approval

This case arises (the Commission) Clipper Windpower of a plan Commission Windpower Allegheny Heights to construct (“Clipper”), (the Maryland. Paul C. County, Facility “Facility”) filed an action for Harvey,1 petitioners, and Rebecca Sprenger County, in the Circuit Court Garrett declaratory relief The first to rescind two Commission orders. that court asking and the plan Facility, to build the Clipper’s order approved Bounds, Tribbey, Harvey, W. Eric Sprenger and Russell 1. In addition to plaintiffs before the Circuit Court for Roderick were also and Paul Special Appeals. County appellants before the Court of Garrett and Harvey the outcome Only Sprenger sought review this Court on declaratory Circuit Court for Garrett relief filed in the of the action County. on request rehearing approval second denied a Facility. County peti- The Circuit Court denied relief, action for to the they appealed tioners’ Special Appeals. reported opinion, Court of that court judgment Sprenger affirmed the the Circuit Court. (2006). Comm’n, Md.App.

Public Service 910 A.2d 544 granted following This Court certiorari to consider the ques- tions:

“I. AN IS INTERESTED PERSON WHO IS AD- VERSELY IMPACTED BY AN THE ORDER OF PUB- ENTITLED LIC SERVICE COMMISSION TO BRING IF THE AN ACTION FOR DECLARATORY RELIEF PUBLIC TO SERVICE COMMISSION FAILS PROVIDE REQUIRED AND THE FILE NOTICE TIME TO AN APPEAL THE FROM PUBLIC SERVICE COMMIS- SION ORDER HAS EXPIRED?

“II. A DOES CIRCUIT COURT HAVE JURISDIC- THE TION TO CONSIDER AND TRY SAME ISSUES RAISED BUT NOT TRIED IN ANOTHER CIRCUIT COURT IN AN ACTION DISMISSED AS UNTIMELY TIMELINESS, IF THE OF THE ISSUE NOT LACK OF CASES, NOTICE ISSUE RAISED IN BOTH PEND- IS ING IN AN APPELLATE COURT?” Comm’n, Sprenger v. Public Service 914 A.2d 768 (2007). We answer the first question negative affirm the judgment Special the Court of Appeals.2

I. Facts cases, This case is the second of two both challenging the process by Facility which the approved, reach this case, one, Court. As our decision in this the second case, inexorably linked to the first we shall summarize the background of that case reviewing before the facts relevant to question It is axiomatic that we presented need not answer the second holding, question presented, petitioners because our under the first relief, bring are not entitled to an action for turns the rule, question hypothetical question. general second into a As a hypothetical questions. Court does not answer to the first sake we will refer clarity’s For case. to this I”3 and, we will refer “Clipper necessary, when

case II.” “Clipper case as I

Clipper I, earlier, facts we summarized the relevant Clipper filed as follows: with the application filed an Clipper August

“On to build a wind turbine authorization seeking Commission As electricity. re generating of purpose for the facility to build application of its public notified the Clipper quired, time, date, location of a scheduled facility, a notice in both by publishing conference pre-hearing Times-News, generally and The Cumberland Republican on the successive County, newspapers circulated weeks 3,2002, and October September 6,2002.3 ^[4] September 30, 2002, October upof facility composed was to be “The wind turbine of a free- Each turbine would consist turbines. individual rotor, A height. 262 feet approximately tower standing (39m (80m) of 262 feet not excess having a diameter The maximum blades), attached to the tower. would be (120 m) ft '394 approximately would be height combined executive position.’ Clipper’s vertical one blade with some, facility implied its summary proposal of that size and stated all, the turbines would be but not upon built may depending not need be that all 67 turbines start of construc- prior ... not to [the] ‘factors identified blade, turbine tower and the each In addition tion.’ ground it to the anchoring consist of a foundation would from the tur- power that would collect the a transformer an ‘under- through it to a substation and transfer bines ser- system.’ gravel collection All-weather electrical ground (2007). 924 A.2d 1160 Clipper Sprenger, appeared dispute that the notices in either of parties do not 4. The newspapers papers they dispute both of the are newspapers do nor County. general in Garrett circulation vice be existing hardtop roads would built from roads and the cables associated system with the electrical collection alongside were to be buried such service roads. The total project area would cover approximately 10.8 miles and would be constructed on Backbone extending Mountain (984 m) 3,228 from Turkey ‘Wild Rock at an elevation of ft above sea level to Allegheny Heights southwestward (975 m).’ 3,200 ft three other Although surveyed, sites were Allegheny Heights was selected ‘because of wind resource potential and favorable site (primarily contig characteristics transmissionlines).’ uous, well-exposed areas proximity to three ] [5 “An adjudicatory hearing[6] regarding Clipper’s proposal, at which attendance was high, ‘standing only,’ room held. Clipper, Department of Natural Resources’s Pow er Plant Research Program, Commission, the staff of the and the of People’s Office Counsel parties were the named to the proceeding. 3-106, Pursuant to PUC four individu al public members of the granted intervened and were party status.[7] Among those respondents attendance were Tribbey Eric and Russell Bounds.... Although both Trib bey and Bounds submitted citizen comment letters following the conclusion of the hearing, neither nor they, Friends[8] sought to intervene. appears

5. “It project that access ‘improved hardtop to the area via roads’ choosing particular was also a factor in site over others.” I, Clipper 399 Md. at 545 n. 924 A.2d at 1163 n. 7. hearing January 6. The was conducted on 2003. Robbins, Eastman, “They Boone, Ajax were Chandler S. D. Daniel

7. and Jon E. Boone. None of party these individuals is a to the I, Clipper action.” 399 Md. at 545 n. 924 A.2d at 1163 n. 8. According Tribbey to a letter wrote to the Commission on behalf of (“Friends”), organization "Friends of Backbone Mountain” ” growing group “a County of over 100 seeking citizens’ " obtain 'a moratorium projects on construction of wind in Garrett ” County I, siting until enforceable criteria can Clipper be enforced.’ 399 Md. at 546 Apparently, n. 924 A.2d at 1164 n. 9. Friends was created after the Commission’s initial allowing Facility order to be built. issued order hearing proposed “The a examiner conditions which and recommended settlement contained which subse- parties agreed, had the Commission all of (Order 78354) a final No. It issued order adopted. quently Clipper’s plan. approving Friends, then, on behalf of submitted

“Tribbey, writing rehearing. requesting to the Commission letter Commission, request, ex- No. denied Order plaining: Commis-

‘This matter comes before Public Service (“Commission”) filings result of made as a a series sion in the above- appear parties that did not by entities 24, 2003, April the Friends of proceeding. On captioned (“Friends”) se pro filed a formal Backbone Mountain in this rehearing April case. On request (“Citizens”) for Wind Power also Responsible Citizens for in this A rehearing a se formal case. pro request filed for this matter request rehearing se formal pro third 2003, by County on The Garrett April was filed Historical”)____ (“Garrett Friends Society Historical Counsel, filing, by an on June 2003. made additional (1) an 27th includes two documents: filing This June (2) Intervene, to to and a Re- Supplement Application for Application Reopen and to Fur- Rehearing quest 5, 2003, for Paul August Evidence.... On Counsel ther Application an to Intervene and a Sprenger filed C. for Modification the Motion Reconsideration Mo- (“Sprenger of the Service Commission Order Public tion”). filing This 5th includes four exhibits August B, C, D”). A, None actual (“Sprenger Exhibits objection raised to the any to the case have parties on March Order No. issued Commission’s all four Public denies Utili- requests. ‘The Commission 3-114(c)(l) (“PUC”) § Article restricts the ty Companies to “A apply rehearing parties: party right rehearing to the Commission for with- may apply interest party.” of a final order on the days after service none Since of the four entities re- [Emphasis added.] were to the none questing rehearing parties proceeding, qualify request rehearing. Additionally, filing the filing made on behalf of Friends on June is not a § provided Mary for either under 3-114 or PUC Code (“COMAR”) 20.07.02.08,[9] § land Regulations both of contemplate single, comprehensive rehearing ap which plication party. Friends’ 27th is also well by filing June beyond the thirty-day period during parties may which request rehearing. Sprenger’s filings are still further beyond thirty-day period the which during parties may request rehearing.

‘Clipper complied with all of procedural the elements of Certificate Public Convenience and Necessity (“CPCN”) process, including provisions of COMAR 20.79.01.03, § and also complied with the Exam- Hearing iner’s direction to pre-hearing advertise the conference and the public hearings in local County newspa- pers. The four requesting entities rehearing had suffi- cient notice and opportunity intervene as parties; since 9. "COMAR 20.07.02.08 states: Rehearings. '.08 Applications submission, 'A. reopening a cause after final or for order, rehearing after final petition shall be made writing, stating specifically grounds upon application which the is based. evidence, application 'B. If reopen is to the cause for further stated, purpose nature and may of the evidence shall be not be merely cumulative. application rehearing, ‘C. If the specify is for a shall erroneous, findings of fact or of law together claimed to be with a ground brief statement of alleged the of the error. decision, order, petition seeking 'D. A modify to reverse or a or requirement of the Commission shall: ‘(1) facts, circumstances, Fully set forth the consequences and upon; relied and ‘(2) Allege: ‘(a) The facts and circumstances which have arisen after the hear- modification; ing justify or order which the reversal or or '(b) decision, consequences resulting compliance from with the order, requirement justify applicant which or entitle the to the ” reversal or modification.' I,

Clipper 399 Md. at 547-48 n. 924 A.2d at 1165 n. 10. rehear- not, standing request have do not they did they ... ing. the stated, advertised Clipper properly already

‘... as in local hearings public and the conference pre-hearing sufficient providing thus County newspapers, This intervention. timely prompt notice to enable have inter- Friends could of whether question not a is issue of rather an in but process,” vened “sooner during to intervene attempted Friends whether attempt- that the finds all. The Commission process cannot be process, outside the ed intervention at- to the prior closed proceeding since granted intervention.’ tempted omitted). Thus, (internal footnotes No.

Order in ‘party not a Friends was that concluded Commission properly not it had 3-114 because under PUC interest’ also de- The Commission § 3-106. under PUC intervened the issues considered already fully it had that termined it proceedings original rehearing presented them or to address readdress them necessary to was not further. behalf, on and not

“Thereafter, on his own Tribbey, ... review of the Friends, judicial petition filed a behalf and, day, on the same No. Order Commission’s review of the Commission’s judicial separate Bounds, and respondents] Sprenger, filed Order was consolidated, the peti having been The actions Gnegy.[10] petitions dismiss the a motion to filed tioners each Court, did respondents Before the Circuit untimely. just proceeding, to the “parties” they were not contend interest.’[11] Tribbey argued, ‘persons were on Clipper I were filed review in petitions for 10. Both of the City. for Baltimore the Circuit Court September counsel, not ‘You're respondents’ "Specifically, the court asked party to the [respondents] here was claiming that either 'No, replied, I'm not.’ respondents' counsel which proceedings?' To addition, interest,’ although Friends was not a ‘party its for application rehearing filing tolled the for a deadline judicial for review. City]

“The Circuit Court Baltimore [for dismissed both 31, 2004], actions March ruling respon- [on that none of the timely dents had a request rehearing filed and that their petitions judicial similarly review were untimely____ [According to the City, Circuit Court for Baltimore even though] Friends’ request rehearing may have been filed, timely its request was invalid because Friends was not and, ‘party thus, in interest’ was not entitled a rehear- under ing PUC 3-114.

“Thereafter, respondents appealed the Court of which, Special Appeals, in an unreported opinion, July [filed 27, 2005,] reversed the judgment Circuit Court [for City]. Baltimore appellate [The intermediate court found] that the missed judicial untimely.... review action should not have been dis ^[12] The court concluded that ‘it would be form exalting over substance to hypothesize that Mr. Tribbey made the request rehearing for a as a “solely” representative of the Friends of Backbone Mountain.’ On this premise, that, the court held ‘as a result of timely request rehearing filed Mr. all of Tribbey, appellants 8, days August had 30 from 2003 to file their actions for review of the Commission’s March ” 2003 order.’ I, (some Clipper Md. at 924 A.2d at 1163-66 omitted). footnotes ”

Respondents I, 'persons claimed were Clipper interest.' 399 Md. at 549 n. 924 A.2d at 1166 n. 12. "The Sprenger court that Mr. 'party [reasoned] was not a in interest’ proceeding to the ‘party’ because he was not a proceeding. to the Moreover, respondents none of the 'party would be a in interest’ personally ‘because specifically none was way affected ” public generally.’ different from the I, Clipper 399 Md. at 551 n. 924 A.2d at 1167 n. 13. The latter criteria Clipper was determined in "wrong I to be the standard” to apply to review regard. of Commission decisions in this Id. at 562 n. 924 A.2d at 1173 n. 20. peti- Clipper’s both the Commission’s granting After and reviewed certiorari, them we consolidated for tions I: Clipper in following question 3—114(c) right request to § limits PUC

“Whether properly that has in interest” party to “a rehearing solely proceedings, such in the Commission’s intervened 3-202(a) provides § which from PUC distinguishable thus ... in interest or party person to “a review right judicial to of the Commission or order a final decision dissatisfied (footnote I, 542-44, 1162 924 A.2d at Clipper affirmative, we de- omitted). in the Answering question timely not was judicial for review petition termined filed, stating: nor Friends that neither instant case show facts of the

“The Friends to intervene. application an timely filed Tribbey 2003, to 27, attempted it had after to intervene on June filed timely it have after would been rehearing and well apply for Failing (i.e., proceedings). close of to the prior to intervene therefore, and, not a intervene, party, Friends was to timely interest,’ rehearing April on it filed for when ‘party not a appli of Friends’ Thus, denial 24, the Commission’s 2003. Similarly, Tribbey rehearing appropriate. was cation for and, thus, also right in his own never filed to intervene interest.’[13] result, As a party ‘party or never became Tribbey’s representation if were to consider even we for filing personal his own satisfy to somehow Friends filed, as he never properly not have he still would rehearing, party. to become a intervened adjoining Tribbey landowner and was an "The fact that

13. 2003, not, January in and of hearing does adjudicatory at the Tribbey itself, ‘party’ become a ‘party.’ In order to have make him a intervene, pursuant PUC 3-106. It is apply would have had that he did not.” evident I, at 1170 n. 17. 556 n. Clipper 399 Md. at 13 apply rehearing not or “Tribbey timely properly did ‘party because he was not himself a interest.’ ‘party’ Therefore, Special erred in its deter Appeals’ Court judicial respondents’ petitions mination as to the review. not have '30 from 2003 respondents days August did judicial to file their actions for review of the Commission’s order.’[14] Rather, March had 30 from days March

“None respondents[15] judicial filed a and, hence, period petitions review within that time their review, being not were denied.” timely, properly I, Clipper Md. at A.2d at 1173-74.

Clipper II16 25, 2005, or April On about Paul Sprenger, C. Russell W. Bounds, Roderick, Tribbey, Eric Paul M. Harvey and Rebecca for petition filed a relief in the for Circuit Court respondents argue application rehearing "The also that Friends’ for 14. stayed filing petition judicial the time for a for review for all entities ruling August Mary- until the Commission had made its on 2003. (1998), 3-204(c) Utility § Companies land Code of the Public Article for, provides: rehearing by applied proceed- a'If the Commission is a ing judicial may for review be filed after service the decision of the may rehearing.' Commission that denies the This be when true a proper application (by entity sought permit- an who has and has been party) rehearing timely ted to intervene as a for filed. In the case, however, supra, timely appli- instant as discussed there was no Thus, by 'party' ‘party rehearing. cation a or in interest’ for the time filing petition judicial stayed.” for for review was not I, Clipper 399 Md. at 924 A.2d at 1173-74. clearly petition 15. "It is also evident that Friends never filed a I, judicial Clipper review.” 399 Md. at 564 n. A.2d at 1174 n. 26. Throughout opinion required Utility we are to discuss the Public Companies Proceedings Article and the Courts and Judicial Article of "CJP,” Maryland the Code. We will abbreviate them as "PUC” and respectively, possible. clarity when In the interests of and ease of reading, may we simply sometimes use the entire citation or cite to the relevant section of the Code in context. Mary pursuant was brought The action County.17 (1998), Utility Companies § 3-201 of the Public land Code (1984, or, Article,18 alternatively, Maryland under Code Article,19 or Vol.), § 10-125 of the State Government Repl. appealed to the began Clipper I had been present case after 17. The may helpful review a brief chronolo- Special Appeals. It be Court of 3, 2003, September proceedings thus far. On gy of the combined Circuit Court for judicial review were filed in the Clipper petitions I for Baltimore City; the Circuit Court on March Baltimore and, shortly petitions for review City the consolidated dismissed thereafter, Special Clipper I to the Court of appeal was noted in an opinion Clipper Special Appeals not file its did Appeals. The Court action for declara- July months I until 2005—three after tory relief was filed. (1998), § Maryland 3-201 of hearing, Code of the initial 18. At the time Article, part, provided: Utility Companies in relevant Public "(a) validity regulation Commis- of a general.—(1) The In declaratory judgment may on a sion be determined actually application, or regulation, or its appears that the whenever it impairs legal rights privileges or potentially interferes with petitioner.” (1998, § Supp.), 3-201 of the Public Maryland 2006 Cumm. Code Article, 1, 2004, provides: June Utility Companies effective "(a) § State Govern- general.-—Notwithstanding 10-120 of the Article, be validity regulation of the Commission shall ment § Government with 10-125 of the State challenged in accordance Article.” § of PUC 3- clear under which version Petitioners did not make however, is, 201(a) seeking relief. It irrelevant were version, First, analysis would have under either two reasons. pre-June seeking relief under the petitioners If were been the same. 3-201(a), § that section would have controlled of PUC version sought under 10-125 of the State not have been and relief could hand, If, seeking petitioners were on the other Government Article. 3-201(a), § version of PUC that section post-June the relief under § brought be under 10-125 controlling, requires the action to is still but Article, substantially same as the which is State Government of the 3-201(a). the distinction is § The second reason pre-June 2004 PUC that, case, of we do not reach the merits in the irrelevant only with whether the arguments because we are concerned petitioners' dismissing relief. the action for judge was correct in trial Vol.), (1984, Repl. § of the State Maryland 2004 10-125 Code 19. part: reads in relevant Government Article authorized.—(1) "(a) person may petition file Petition A any or validity regulation, whether declaratory judgment on the of validity of the the unit to consider the person has asked not the regulation.” seq. et (1973, VoL), § Repl. 3-401 Maryland Code the trial Article.20 Before Proceedings and Judicial Courts parties court, asserted that were interested petitioners would Facility construction of the essentially because also asserted They values. adversely property affect their way of existing right to an seeking expand that Clipper purposes. it for impermissible consent and use without level, attack Petitioners, pronged trial mounted a two at the Clipper the manner which Commission against to hearing related regarding to them provided notice prong The first Facility. to build the Clipper’s application (which construe, more we will a constitutional violation alleged violation). to According alleged process as an due specifically, 7-207(c)(l)21 (1998), §§ and 7- Code petitioners, Maryland 208(d)22 Article, required Utility Companies of the Public Article, Proceedings 3-401-415 of the Courts and Judicial 20. Sections Declaratory will be comprise Judgment portions Act. The relevant discussed infra. (1998), 7-207(c)(l) Utility Companies § Maryland Code of the Public Article, provides: interested, “(c) receipt application persons.—(1) On of an Notice to necessity public under this for a certificate of section, convenience and provide Planning of the Commission shall notice to the Office persons.” and to all other interested juncture, accepting rejecting argument, it 22. Without their at this (d)(2)(i) petitioners erroneously § appears that cite to PUC 7-208 standing proposition persons are to receive for the interested p. petitioners’ p. original 4 of notice. See brief and (d)(2)(i) appear relief. Section 7-208 does not to be at all petitioners’ argument. petitioners We think intended to cite relevant 7-208(d)(l)(i) 7-208(d) reading entirety § § both from in its 7—208(d)()(i) (as petitioners’ reproduced just opposed § from how 7—208(d)(2)(i)) appendix App. at 5. in the to their brief. See 7-208(d) only entirety, § We have transcribed in its but we will 7—208(d)(l)(i),infra, discuss because we deem the remainder of that subsection irrelevant under the circumstances: "(d) hearing.—(1) receipt application public Notice and On an section, request- together any under this with additional information section, (c)(2) shall ed under subsection the Commission provide notice to: (i) persons; all interested (ii) Department Agriculture; hearing they notice of the because they personal be given of to or within one half mile the property contiguous owned to the prong, closely The second related proposed facility. first, statutory the violated the re- alleged that Commission the “re- by giving of those same sections not quirements personal notice. quired” 26, 2005, May Clipper both the Commission and

On about petition to dismiss the for relief. filed motions under petitioners’ challenge that the Respondents argued Article § § 3-201 and 10-125 of the State Government PUC of a they challenge validity should fail did not the because the standing, petition lacked and regulation, the untimely. The motions also asserted judicata it “mere- by relief was barred res because already litigated ly re-labels the Petition Judicial Review City....” for Baltimore the Circuit Court L. of At oral before the Honorable James Sherbin argument County on August the Circuit Court Sherbin, arguments. Judge summarized these Commission I II Clipper Clipper referring to the similarities between “I judgment his ultimate said: haven’t foreshadowing I’m petitioners], ... from but anything heard [counsel (iii) Department Development; of Business and Economic Environment; (iv) Department Resources; (v) Department of Natural (vi) Department Transportation; of (vii) Planning. the Office of (2) public hearing application Commission shall hold a on the subtitle, after; required 7-207 of (i) any requested receipt additional under subsec- information (c)(2) necessary; the Commission considers tion this section that (ii) any publication of the Commission considers to be notice proper. (3)(i) public hearing, presenta- At the the Commission shall ensure the State units tion of the information and recommendations (1) specified paragraph of this subsection and shall allow the parties. representative during hearing unit to sit of all official each concern, (ii) relating the evidence to the unit’s areas of Based on days allow each unit 15 after the conclusion of the Commission shall modify hearing the units initial recommendations.” or affirm added.) added.) (Emphasis (Bolding are in this court.... So why now we wonder beginning that, for ...” petitioners.] note of [counsel make a Judge to response to and response arguments, these to concern, attempted explain for petitioners counsel Sherbin’s in the being brought relief was an action for why County: Circuit Court properties very and residential

“[M]y clients own farms by visual and impacted by to the that will be project, near impact, they and are concerned about impact, the noise received notice they think that should have they and potential impact of on and what its going advance what was be, wasn’t I don’t want to given. and that notice would claiming, essentially, we’re but our the merits of what argue statute, is that the Public Utilities Commission position to interest says copy application go[es] when it that a to very proximity within near persons, people ed these they should have persons, are interested project filed.[23] notice was given application when been that this constitutionally, pro- our “Secondly, position it’s property, an on their and since ject impact will have at least property, they’re to an on their going impact have position to their on hearing entitled to notice and a searching remedy, have been for a but their side it. We remedy the Public Service Commission every try, we says, right remedy. that is not the Clipper “Essentially, position proceedings our is that certificate, conducted, [were] that resulted [were] to the statute on they comply flawed because failed with notice, on as to requirements notice and the Constitutional Well, if our clients aren’t notice of the given our client. to an from the appeal it’s kind hard file proceedings, the time all that water’s over the proceedings, because dam, on, too late to file going then find out what’s it’s you appeal. may project Presumably, encompassed 10.8 miles. there have 23. This hundreds, thousands, persons proximity in close to a been or even project of this size. “Now, case, Eric participants in this one of the was Tribbey, and on behalf of himself and Backbone—Friends Mountain, request rehearing. he filed Backbone for the rehearing stays appeal, time request time, information with the during that we filed additional they to convince them that try get—try Commission have notice and that should allow us given should and those motions were participate proceedings, denied, denied, and that request rehearing and the in our of the case to the Circuit Court for appeal resulted City. Baltimore Baltimore

“The issues raised in the Circuit Court for I City exactly are almost the same issues that raised in ... County. I mean there’s no secret there. Garret Maryland says you “The law in that cannot have the same issues in two different Circuit Courts at the same pending aren’t in the for pending time. Our issues Circuit Court dismissed. If there City anymore. They’ve Baltimore been is no for and the case is remanded petition certfiorari] [ ] City, for Baltimore then there back to the Circuit Court jurisdictions in and the pending would be similar issues both is to the proper remedy point probably at that combine now, in Balti- right pending cases. But the issues are not added.) City.” (Emphasis more I petitioners for that

Additionally, argued Clipper Counsel for Baltimore longer City, was no before the Circuit Court therefore, for still a filing petition declaratory relief was not, Clipper because and the Commission had option viable time, that decided to to review the petition whether Court Thus, Appeals of the of I. judgment Special Clipper Court case, according petitioners to in the begin- action to from judgment necessary prevent Clipper was clearly of un- ning Facility. Judge construction Sherbin action posed by allowing petitioners’ derstood the dilemma continue, for declaratory relief demonstrated following colloquy: folly for someone

THE COURT: “Wouldn’t be items when the case very expensive construct these State, Appeals on to the Court [potentially] appeal equally wouldn’t it foolish for Circuit Court and be deciding [potentially] issues which are County to be maybe in front of of this State? And Appeals the Court wouldn’t, correct, maybe we get identically we’d it didn’t, precedence[?] if who would take guess we would, Hon- you for “I think Your petitioners]: [Counsel or. “No, prevail

THE I don’t think I would with the COURT: Appeals Court of of this State.” opinion issued an August Judge

On Sherbin relief. The trial dismissing petition order was, on the grounds petition court based the dismissal that the essence, untimely petition judicial an review 26, 2003, order, Clipper Commission’s March see I. The trial also it not in interests of opined court economy County the Circuit Court for Garrett consider potential being litigated the same issues that still had the I Clipper if or the Commission chose to file a Clipper (which they ultimately for a writ of certiorari to this Court did). appealed

Petitioners the decision of the Circuit Court County Special Appeals. Sprenger, Garrett to the Court (2006). 444, 171 544 Md.App. Special 910 A.2d The Court of Appeals County determined that the Circuit Court for Garrett not err in finding declaratory did relief equivalent appeal, stating: was the functional of a belated “Declaratory relief under the Act does not afford a failsafe to who fail to parties satisfy procedural requirements statutory Failure to their remedy. timely statutory exercise not remedy appellants declaratory does entitle to now obtain relief under the Act.” Id. at 910 A.2d at 550. That court also determined that the trial court was correct concluding that claim petitioners’ was barred because

20 another Court pending before Circuit

same issue Maryland: is relief [petitioners’] petition

“Assuming remands assuming Appeals that the Court proper, filed, timely two cases to the circuit court [Clipper ]7] [ on the merits. The proceed identical issues would involving con- County aptly stated: “What Circuit Court have, in that we integrity process, cerns me is ... in two different areas seemingly, complaint the same items, the same litigations, covering can’t have two and we time.’...” going on at the same 458, 910 A.2d at 552-53.

Id. at of Review

II. Standard 3^09(a) (1973, Vol.), § Maryland Repl. Code 2006 that a Proceedings provides Article the Courts and Judicial in a civil declaratory judgment or decree “may grant court case____” added). “declaratory It follows (Emphasis discretionary type is a of relief.” Con generally judgment Curran, 462, 477, v. Md. 860 A.2d verge Group 383 Services (2004). 871, its discretion 879 If the Circuit Court abuses relief, this an order for Court refusing grant 477, (citing court. Id. at 860 A.2d at 879 will reverse the lower 77, 715, 720, v. 274 Md. 337 A.2d Sweeney, A.S. Abell Co. “ (1975) is left to the courts’ (concluding that ‘some discretion ”) County granting declaratory (quoting relief Grimm 250 A.2d Washington County, Md. Comm’rs of (1969))). 866, 869 hand, courts to one we have admonished trial

On the it judgment petitioned when has been grant declaratory it. controversy and the circumstances of the warrant Con 880; 383 Md. at 860 A.2d verge Group, Services Co., n. Ins. Progressive Salamon v. Classic (2004). hand, “is the 862 n. 7 On the other converse, is, action is declaratory judgment that when a logical not for resolution brought controversy appropriate and the compelled, the trial court is neither by declaratory judgment,

21 judgment.” Converge to enter a expected, nor 477, (citing 860 A.2d at 880 Group, Services 383 Md. Co., 136, Ins. n. v. Farm Mut. 333 Md. 140-41 Popham State (1993)). Thus, 2, 28, generally 2 we review 634 A.2d 30 n. judgment deny declaratory grant trial court’s decision standard. under an abuse of discretion reach the case, trial court did not

In the it because declaratory judgment petition merits of the law, could not be held, that as a matter instance, then, respon granted in the first maintained and dismiss, motion to reviewing dents’ motions to dismiss. and reasonable complaint, all facts accept well-pled “we them, to the light in a most favorable inferences drawn from 475, Group, 383 Md. at non-moving party,” Converge Services II, Inc., Mascari v. 374 Md. (citing 860 A.2d at 878 Porterfield 590, (2003)), of a 402, 414, object 597 because the 823 A.2d granted that relief could not be argue motion to dismiss is to Services Converge on the facts as a matter of law. alleged 475, (citing at 878 Paul Group, 383 Md. at 860 A.2d V. Schuett, Maryland Commentary, Rules & M. Niemeyer Linda (3d 2003)). find that dismissal was only ed. We will “ inferences, proper alleged permissible ‘if the facts and so viewed, would, proven, if nonetheless fail to afford relief to State, Pendleton v. 398 Md. 921 A.2d 196 plaintiff.’” Ricketts, (2007) 479, 491-92, 903 (quoting Ricketts v. 393 Md. (2006)). of a reviewing grant A.2d 864-65 When dismiss, with appellate motion to an court is concerned deter correct. Pendleton the trial mining legally whether court State, (2007) v. Benson (citing 398 Md. 921 A.2d 196 State, (2005)).

III. Discussion un- appropriate Petitioners assert relief der the circumstances of this case because were “entitled result, notice, and, denied notice as a denied re- argue view.” the Commission’s Essentially, petitioners sufficient alleged provide individually failure to them with 7-8, 2003, hearing administrative denied January notice They in ability participate proceedings. the to those them knowledge proceed their lack of of the further contend that resulting order denied them ings and the Commission’s (1998), ability judicial Maryland to seek review under Code Utility Companies § of the Article24 which is 3-202 Public of the provided judicial means for review Commis legislatively Thus, they to should be according petitioners, sion’s orders. Declaratory relief under the permitted seek Vol.), Act, (1973, §§ 3- Maryland Repl. Code Judgment Article. Proceedings 401-3-415 of the Courts Judicial argue in the instant case that Clipper and the Commission Article Utility Companies of the Public portions the relevant publication notice and that is satisfac- require personal do not long-established providing it “is the means of tory because projects to interested individuals where development notice onto or invasion of their physical entry there will be no that, Additionally, respondents although assert property.” 7-207(e) 7-208(d) notice to require parties §§ PUC interest, is no in those sections that individ- requirement there Respondents argue is to also that when given. ual notice be (1998), Utility Companies § Maryland 3-202 of the Public Code provides part: in relevant Article Commission, "(a) general.—Except party a for the staff of the interest, Counsel, People’s person including the that is dissatisfied may judicial by seek a final decision or order the Commission provided decision or order as in this subtitle review of the provide specific period § Although does not a time within which 3-202 review, judicial Maryland person must seek Rule 7-203 a in interest provides: "(a) by Generally. Except provided in Rule or as otherwise . statute, petition days a review shall be filed within 30 of: after the latest (1) sought; the date of the order or action of which review is (2) agency sent the order or the date the administrative notice of required by petitioner, action if notice was law to be sent to the petitioner; or (3) petitioner agency’s the date the received notice of the order or action, required by by petitioner. law to be received if notice was (b) party. party timely petition, any other If one files a Petition days person may ten after the date the other file within filing petition, agency mailed notice of the of the first or within the (a), period set forth in section whichever is later.” petition- means for statutory Assembly provides the General addressed, § it in PUC did grievances ers’ be not invoked because Judgment may Act be Declaratory specialized procedure a more provided has “legislature the onus was on assert that They review.” seeking judicial provided process to avail themselves petitioners so, regardless to do fact that failed 3-202 and the PUC under the reason, them to seek relief permit does not now contend that Respondents Act. Declaratory Judgment an action under the bring if entitled to are petitioners even Act, so because the they cannot do Declaratory Judgment by the duplicate presented case those presented in this claims I. parties Clipper complaining Exhaustion Declaratory

A. and Relief25 Remedies Administrative of to “settle Declaratory Act is Judgment of the purpose insecurity respect uncertainty and with relief from and afford status, Maryland relations.” Code legal other rights, and (1973, Vol.), § 3-402 of the Courts and Judicial Repl. 2006 in nature and The Act “is remedial” Article. Proceedings § 3-402. CJP liberally construed and administered.” “shall be the broad remedial recognized have repeatedly cases Our Maryland- Act. See Declaratory Judgment purpose of Washington v. Nat’l Planning Park Com’n Capital Nat’l & (1978) Arena, 595, 1216, (recogniz- 588, 386 A.2d 1222 282 Md. use and policy favoring the liberal strong legislative “the ing ”); Act ... Declaratory Judgments of interpretation (1969) 197, 206, 181, 186 254 A.2d Day, Himes v. 254 Md. Vol.), (1973, Repl. the Courts and Maryland Code 2006 3-406 of Proceedings Article states: Judicial will, trust, deed, patent, land “Any person a interested under contract, contract, writing constituting a or whose other written or statute, status, by legal a rights, relations are affected or other ordinance, contract, regulation, municipal or administrative rule or franchise, may any of question construction or have determined instrument, statute, ordinance, validity arising administra- under contract, regulation, patent, and obtain tive or land or franchise rule status, legal under rights, or other relations it.” a declaration 24 “

(stating object declaratory that ‘the act judgment is to enlarge procedural a supplement wholly relief field not or adequately occupied by remedies of law subsisting ”) equity.’ (quoting Kaplan, 402, Schultz v. Md. A.2d 189 56 17 (1947)). Declaratory

Even Act though Judgment is to liberal be construed, ly there are certain restrictions in its application. 3-409(b) of Declaratory Section Act that: Judgment states provides special remedy specifíc “If statute a form a for a case, type statutory remedy shall be followed in lieu proceeding of a under this subtitle.” added) (Em (Bolding added). This phasis Court has that requirement echoed on several occasions: “It is well in Maryland settled that when is a special statutory remedy specific case, there a type remedy primary, intended be exclusive party ‘may not circumvent those [special statutory] proceed action____’” by Utilities, ings declaratory ... judgment Comm’n, v. Washington 37, Inc. Suburban Sanitary 362 Md. 45, (2000) A.2d 133 763 v. (quoting Montgomery County Equities, Broadcast 360 Md. 1005- (2000)); Assoc’s, Maryland see Reclamation Inc. Har (2004) County, A.2d ford (recognizing that when a statute provides administrative remedies, pursued those remedies must be of pursuing instead relief). Thus, relief “is barred statutory judicially-crafted some and restrictions in limited Converge 478, circumstances.” at Group, Services 383 Md. 860 A.2d at 880. general

It is the rule in this State that when an remedy administrative is provided by the General Assembly, administrative be process must exhausted the ag before grieved may party resort to the courts other relief. Cars, George’s County Ray’s 632, 642, Prince v. Used 398 Md. 495, (2007); Co., 922 Liberty A.2d 501 v. Zappone Ins. 349 Life 45, 63, (1998) 1060, Md. 706 A.2d 1069 (stating that there is a “presumption remedy that the is administrative intended be a primary, and claimant cannot [] maintain the alternative

25 exhausting ad invoking and the action first without Maryland Reclamation As e.g., See remedy.”). ministrative (“[WJhen soc’s, 362, at administrative 855 A.2d 359 382 Md. at cases, be exhausted before zoning they must exist in remedies actions, declaratory judgments, including requests other relief, brought.” (citing mandamus, may be injunctive 674-78, 667, 728 A.2d City Annapolis, v. 353 Md. Josephson Ltd., Design, v. Panoramic (1998))); 376 Fosler 690, 693-95 (2003) (“[T]he 128, 271, presumption 277 118, A.2d Md. 829 is remedy primary is reflected that a administrative statutory Act.”).26 Judgment Declaratory Article, the Gen- Utility Companies Public enacting the By remedy specific form of Assembly special provided eral The fact that petition- one. types present of cases such legislatively provided of that ers failed to avail themselves deny existence of does not enable them to remedy exceptions bars general to the rule that recognized have several 26. We requires be administrative remedies to relief when statute Assoc’s, Maryland 382 Md. at 362 pursued Reclamation and exhausted. 5, validity of a challenge facial n. A.2d 359 n. When the 855 at made, often, always, exception to though make an we will not statute requirement. Human Relations v. Mass Comm’n on the exhaustion 232, 385, (1982). 225, Admin., have Md. 449 A.2d 388 We Transit 294 expresses Assembly an intent the General also determined when exhausted, the remedy need be invoked or that the administrative not 4, apply. 449 at 388 requirement may not Id. at 232 n. A.2d exhaustion Co., George’s A.2d (citing 387 n. 260, v. Prince 4 White Arena, (1978); Washington A.2d Nat’l 282 Md. at 386 265 Furthermore, 1222-23). may admin- not be a need to exhaust there jurisdiction. on agency is Comm’n remedies when an without istrative 19, Inc., 2, Express/Domegold, 375 v. Freedom Md. Human Relations (2003); Corp. Equipment Mass SEFAC & 825 A.2d Lift (2002). Admin., Md. Transit they argument Although petitioners vague unavailing make a process by not constitutionally guaranteed due deprived been have proposed Facility, receiving personal hearings notice on the of the therefore, and, any constitutionality challenge statute do not ad- exception We relief via the first described above. cannot obtain intent, exception, Assembly's regarding the General dressed the second again exception is raised Clipper I do so The third not infra. event, not, present its petitioners any case in and is relevant Thus, exceptions permitting an posture. action current none pursued prior to be to the exhaustion administra- relief applicable in the case. tive remedies are found in remedy Utility Companies the Public Article nor does it entitle them to relief lieu the administra- remedy. tive Were we allow for petitioners’ action declara- (and tory to proceed, relief the Commission other similar agencies) administrative would never be have a able to final litigation decision and could continue as geographically each successive owner of in the of such property vicinity large a facility action, scale files his or her own declaratory judgment ad infinitum. resolved,

At the time this action filed was peti had applicable tioners failed to exhaust administrative found in remedy Utility Companies the Public Article because Clipper I was still pending Special before Court of Ap I, In Clipper peals. the central issue was the respon whether dents in that properly applied rehearing case if such application timely, was then whether the application stayed for petitioning judicial time Until a review. final I, Clipper was decision reached in it was still possible that the final decision of that case in a finding would result judicial timely review was filed. If that result I occurred, (some Clipper were to have respondents case) whom plaintiffs were below in this would not have exhausted their administrative remedies because would have succeeded in a obtaining new hearing before Com and, scheme, mission under the statutory only would have been able seek review after another adverse ruling Therefore, the Commission. this action for declaratory (and decided) relief at premature the time it was filed under the doctrine of exhaustion of administrative remedies. importantly,

Most we have previously determined that, rule, it general inappropriate court a declaratory judgment “entertain ‘if action there is pending, the time the commencement of the action for declaratory relief, another action or proceeding involving parties the same and in which the identical issues are involved ” v. Bregman, declaratory action may Post adjudicated.’ be (1998) Waicker (quoting (1997)). The Colbert, are, be, In obvious. this limitation or should reasons for one, parties where identical present situations the such courts, limited claims in two different bring identical that con possibility in to the are wasted addition resources the courts different flicting could be entered judgments involved.27 I and this case Clipper in

Initially, parties note that the we action that each was substantially same at the time were the Tribbey, Eric plaintiffs In were: original filed. the Clipper I, Bounds, the Troy Gnegy. and Sprenger, Paul Russell action, case, original the present declaratory judgment Bounds, Sprenger, Eric Paul Russell Tribbey, were: plaintiffs Roderick, The two cases have Harvey. Paul and Rebecca in plaintiffs The both in common. original plaintiffs three of Some represented by the same counsel. actions were I dropped in this case out original plaintiffs Clipper both and appeals proceeded litigation through as each case that the not alter our conclusion but fact does process, for the deter- substantially purposes the same parties were appropriate. mining declaratory judgment whether the was I was still explained, As we already supra, Clipper have was the time relief filed pending petition declaratory at decided) (and petition- in though this case. Even counsel for Garrett argued, ers before the Circuit Court incorrectly, I County not still conceded that: Clipper pending, was he City are “The raised in the Circuit Baltimore issues Court for the same issues that I raised in Garret Coun- exactly almost added). I mean ... (Emphasis there’s no secret there.” ty. admission, but the ethically was make that Counsel bound demonstrates, present degree, 27. The case to a the amount time and money litigation. Judge by duplicitous though Even Sherbin consumed declaratory very petitioners quickly action for relief determined that it, duplicitous correctly subsequent filing and and was dismissed decision, appeals Clipper I still his that of the trial court in have County of the Circuit Courts for Garrett consumed the resources (twice), City, Special Appeals and this Court Baltimore the Court of (twice). concession is fatal to action petitioners relief. I and this Clipper parties substantially case are same, the issues both cases were identical the time filed, were and at the time the for declaratory action filed, Clipper I relief was still pending. Judge was Sherbin correct legally dismissing relief.

B. Notice28 erroneously Petitioners conclude that certain language 7-207(c) 7-208(d) §§ required PUC that notice of the adjudicatory hearing dates be served on them personally. They publication that imply newspaper general of circula- tion, case, which occurred in is this not proper. language on is: rely

“(c) Notice to interested persons.—(1) On receipt of an application for a of public certificate convenience and neces- section, this sity provide under the Commission shall notice of Planning the Office and to all other per- interested sons.” 7-207(c) added). § (emphasis

PUC also point Petitioners and rely language on similar in the section immediately follow- 7-208(d): ing,

“(d) and public hearing.—(1) Notice the receipt On of section, an application under this with together any addi- (c)(2) tional information under requested subsection of this section, the Commission provide shall notice to:

(i) added.) persons;____” all interested (Emphasis arguendo, Assuming, that are petitioners persons interested 7-207(c) § § within meaning 7-208(d), of both we must only determine those require personal whether sections parties. service of notice to doing interested so we will also Judge Eldridge concurring opinion "Although states in his that: I fully agree given by with the Court that the notice the Public Service statutory requirement, met the Commission notice it is not an issue appropriate 3-409(b) judgment consideration. Section simply prohibits judgment agree. action.” We

29 newspapers general in the of local publication whether address “notice” as it used meaning of is jurisdiction is within the 7-208(d) 7-207(c) Utility Arti- Company of the Public §§ cle. “ of statuto have ‘the cardinal rule often said

We of the intent to ascertain and effectuate interpretation is ry ” Howard, Human Resources v. Dep’t legislature^]’ of (2007) 361, 441, 353, (quoting Mayor & 918 A.2d 446 397 Md. Town v. & Council Mayor Council Oakland Town of of 1036, Park, A.2d 1045 Lake 392 Md. 896 Mountain 476, 743, State, 471, 746 (2006)); Melton v. (2004). determining the intent the General step The first “ statute, it giving ‘to the Assembly language look ” Howard, 397 meaning.’ Md. ordinary natural and its Dep’t Assessments & Taxation (quoting A.2d at 446-47 918 Comm’n, Planning Park & Maryland-Nat’l Capital (1997)). Although we have A.2d Md. repeatedly, our cases principle construction expressed slightly differently: have articulated it as to may language add nor delete so

“A court neither plain unambiguous an not evidenced in the reflect intent statute; nor construe may it the statute language limit its interpretations or extend with forced subtle Dutcher, 399, 365 416- v. Md. County Council application. (2001). short, if the 17, 1137, In of 780 A.2d 1147 words clearly unambiguously legislative and delineate the statute intent, We investi ephemeral enterprise. ours is an need it simply no the statute as reads. apply further but gate [325, 335,] [478,] State], at 748 A.2d at 483 358 Md. Derry[ v. Baltimore, 505, [(2000)]; City v. 309 Md. Kaczorowski of (1987).” 515, 628, 525 A.2d 633 (2003). 1221, State, 378, 387, A.2d 1226 Price v. 378 Md. 835 said Chow v. State: We

“ is when construed statutory language unambiguous ‘If to and then we according ordinary everyday meaning, its State], it to is written. give Collins[ effect the statute 383 Md. ^[684] at 688-89, 861 A.2d ^[727] at 730 [(2004)]. If 30 ambiguity

there is no in that either or language, inherently circumstances, other or by reference to relevant laws ends; legislative intent we do to inquiry as to not need various, inconsistent, resort to sometimes external construction, rules of to presumed “the Legislature Arundel have it said it meant.” meant what and said what Marie, (2004) Corp. v. 489, 502, 886, 383 Md. 860 A.2d 894 Azarian, 160, (quoting Witte v. 369 801 Md. A.2d ” (2002)).’ Chow, (2006) 443-44, 903 A.2d (quoting Resources, Kushell v. Natural 576-77, Dep’t Md. of (2005)). 193-94 to language issue, of the sections at we Returning find no There is no ambiguity. requirement either PUC 7-207(c) 7-208(d) service § § personal notice or that PUC of given be to persons. only interested Those sections require notice that to interested If given persons. be we were agree with petitioners required personal these sections notice, be, best, forcing service of would at an interpreta we tion that may given. limits the manner which notice At be worst, we adding would be text to the statute that would alter Doing its either meaning. contrary would be to the above expressed principles statutory construction that we so have frequently espoused, rendering nothing them more than guidelines to be cast to the wind.

Moreover, it is reasonable assume the General Assembly, had it intended to mean personal service notice 7-207(c) 7-208(d), § § in PUC have language would used to that effect as it did earlier in the same subtitle. PUC Assembly the General that: provided

“(a) owners.—(1) notice to Required property Notwith- article, standing any provision other days least 30 a public company before a shall hearing, provide service mail, land, written each notice owner of certified on, intent or over, to run a line similar device transmission added.) (Emphasis under the land.” 7-207(c) §§ No such specific language was 7- used 208(d). Instead, General Assembly used the more broad assertion petitioners’ If notice.”29 provide “shall language 7—208(d) 7-207(c) individualized service require §§ and mail) correct, is certified (presumably notice written required Assembly expressly that the General mean would person with parties the affected provide that the Commission 7-204, specific language less §in then used of notice al service 7-207(c) 7-208(d), intended all three and somehow and § § notice. service of individualized personal to require sections principles contrary to the established theory Such found PUC requirement notice construction. The statutory 7-208(d) 7-207(c) service personal not require does § § and according to judged reasonable notice only requires notice. It the circumstances. all inter theory, petitioners’

In case and under of notice. Peti sendee personal should receive persons ested per define interested tioners, explanation, without substantive Facility contiguous to owning property as those sons Despite petitioners’ project.30 those within half a mile demarcation, persuad we are the half mile attempts justify in law or fact no basis arbitrary boundary it is an with ed that (none by our own and none revealed by petitioners provided limit, research). how then half mile arbitrary Without persons? interested who are determine would Commission whose this should individuals In circumstances of case Commission, arguing the Circuit Court for before 29. Counsel for the point: County, summarized supposed it’s [L]egislature [how] told the Commission "The has 7-208, by publication in a it’s provide ]7-207 notice[] [in] [§§. [L]egislature knows how to do newspaper. we do it. The That’s how' 7-204, differently, [L]egislature did it differently. [s]ection it section, give property- actual notice to ... under that we do have applies only going there’s to be a when owners .... That section over, on, property under the land of the goes line that transmission us, circumstance, that we [Legislature tells in that owner.... The notice, notice, property to these give actual direct individual must otherwise, us, using [L]egislature [§§ ]7-207 tells owners. did.” you by publication, and that’s what the Commission do it many property owners or resi- how The record does not indicate facility. mile of this 10.8 linear mile dents live within a half lines are sight by affected the towers be included? They could be five miles or more located in the away mountainous terrain Facility where the is sited. Would environmental in groups protecting interested creatures or habitats in the area be considered interested persons? What about those in groups interested protecting migrate creatures area, the the through group headquartered but is half a away? continent And what about those thousands who might be, claim to or to pass, within earshot of the blades? spinning others, persons Would all of such and groups, many be “personal” entitled to individualized service notice? on, clear, go could but the is point especially

We when the present situation is contrasted with the circumstances envi 7-204(a) § by sioned and the express language PUC therein requiring personal service of notice certified mail to by prop over, erty power on, owners who are to have going placed lines 7-204(a) property. or under their Such property owners known, definite, will always be a and certain group-the per sons over property go. Presumably, whose the lines will utility will know where are In placing their own lines. 7-207(c) situation, present governed by §§ 7- PUC 208(d), potential pool of interested no persons, matter how interested, remotely virtually limitless. The extent of pool of persons interested could never be determined. Per sonal potentially notification of all such persons, interested (or cases), under the of this circumstances case similar would impossible. be The agency could never be sure it had served notice, otherwise, by certified mail or on all parties. interested essence, the business of the effectively Commission could Thus, to a brought be halt. unless the General Assembly otherwise, specifies notification in newspa advertisement in per general circulation the area of the proposed project is sufficient to meet the notice in requirement contained PUC 7-207(c) 7-208(d) § § of the Public Utility Companies Article.31 Bounds, point Tribbey

31. We plaintiffs out that both Eric and Russell below, present hearing question. action were It IY. Conclusion reasons, hold that the Circuit Court we foregoing

For the mo- respondents’ County granting was correct petition relief. The declaratory petition tion to dismiss the because the properly dismissed relief cases remedies resolve Assembly provided specific General remedies, nature, those did not exhaust petitioners of this duplicative. relief was because case, hold, circumstances of that under the We also met the general circulation newspapers advertisement 7-207(c) 7- §§ contained PUC requirement notice 208(d). THE SPECIAL APPEALS OF COURT OF

JUDGMENT THE AND IN IN COURT AFFIRMED. COSTS THIS BE PAID BY PETI- APPEALS TO COURT OF SPECIAL TIONERS.

ELDRIDGE, J., joined by concurring opinion files a HARRELL, JJ., JJ. RAKER and

ELDRIDGE, Judge, concurring: opinion.

I the Court’s judgment concur both the Nonetheless, petitioners’ arguments, I believe that some based, warrant addi- premises upon they and the which are tional comment. brought have this action under Declara- petitioners

The (1974, Vol.), Act, Repl. 2006 tory Judgments Maryland Code Arti- seq. 3-401 et Proceedings §§ of the Courts Judicial cle, adjudicatory an administrative decision challenge simple, dispositive short and Public Service Commission. is that no such petitioners’ arguments answer to all of the hearing received notice that the was seems safe to assume that going place notice advertisement was sufficient in to take and that Moreover, hearing “standing the attendance at the was their cases. 544-46, I, only.’’ Appar- Clipper 399 Md. at 924 A.2d at 1163. room newspapers ently, advertising meeting in the was of notice effective. 34 expressly action mil lie. It has been

declaratory judgment Assembly. precluded by the General (1998, §§ 2006 3-101 3-209 Maryland Supp.), through Code Article, Companies special sets forth a Utility the Public Commission, remedy administrative before the Public Service review, provisions judicial encompassing with detailed Intercom, In Bell Atlantic v. such one. cases (2001), A.2d 791 comprehensively Court statutory provisions and held that the statuto- reviewed these administrative-judicial rily specified remedy “pri- review was not mary” litigant “may statutory and that a circumvent” the judicial action,” Bell Atlan- remedy “by filing independent an Intercom, swpra, tic v. Md. at A.2d at 805-806. administrative-judicial statutory remedy Since the review exclusive, Bell Atlantic rather than the Court primary, that, remedy further held when the administrative had been exhausted, fully judicial invoked and and a review action had filed, together been the Circuit Court could entertain common tort judicial previously stayed review action and law of contract action. The reason for permitting breach both together actions to be considered when the administrative- exclusive, primary, action was rather than review actions, may, under the common be litigant law Commission,” to “remedies of the beyond scope entitled Atlantic, also, Bell 28, e.g., 807. See at 782 A.2d at 366 Md. County, Reclamation v. 348, 367, Maryland 382 Md. Harford Kim Comptroller, (2004); 527, v. 351, 855 A.2d 362 350 Md. Wittner, 176, 180 (1998); McCullough v. 714 A.2d 314 Md.-Nat’l P. 602, 612-613, 881, (1989); Cap. Md. 552 A.2d 886 P. v. 1079, Crawford, & Comm’n Md. 511 307 A.2d (1986). 1087-1088 Neither Bell Atlantic nor any of the other above- however, opinions, separate declaratory cited held that a judgment challenge action would lie to the administrative decision; in declaratory judgment brought any no action was of these cases. 3-409(b) Act, §in Declaratory Judgments

The of the Courts Article, Proceedings unambiguously and Judicial states as follows:

35 statute.—If a stat- remedy provided by “Special of form type for a of remedy specific form of provides special ute a in case, followed lieu of a statutory remedy shall be this subtitle.” proceeding under that, statutory where a consistently

This has held Court remedy primary, review is exclusive or administrative-judicial Declaratory Judgments Act above-quoted provision brought challenge action prohibits declaratory judgment a within the an administrative decision rendered adjudicatory jurisdiction. type a common law or other agency’s Although along action sometimes be entertained with statutory may administrative-judicial review action when the exclusive, remedy primary review instead of a lan- judgment proceeding may brought. plain not be statute, Court, opinions as well as the of this guage make this clear.

For in Hartman v. 264 example, George’s County, Prince 320, (1972), 286 of an opponents Md. A.2d 88 administrative decision, case, petitioners attempted like the bring declaratory judgment challenging action the decision. Court, Hammond, opinion by Judge This an after Chief 3-409(b) § now Declar- quoting language codified (then (1957, atory Judgments Repl. Act codified as Code 1971 (264 89): VoL), 31A, 6), 323, § Art. stated at Md. consistently “This Court has the rule of 6 that applied declarations will not be where £a statute given provides special remedy form of for a specific type case’ because ‘that form of must remedy Reiling be followed.’ See 261; 201 94 Comptroller, Md. A.2d Tanner v. McKel- din, (right Md. A.2d 449 to vote must be provides liability determined as Art. 33 to income tax must be determined as the Tax provides); Income Act Commission, Albert v. Public Service A.2d 346....”

Similarly, v. Board Gingell County Commissioners 374, 377, 903, Prince 249 George’s County, Md. 239 A.2d 905 (1968), this Court affirmed declaratory the dismissal of a

36 adjudicatory an administrative challenging action judgment alia, saying, inter decision, in a remedy a form of provides specific

“where a statute remedy must be followed. Code case then specific ” 31A, (1957), 6.... Article Section unanimously reaffirmed the inter recently, this Court Very that, Act where a Declaratory Judgments of the pretation administrative-judicial review rem primary a provides statute case, declaratory judgment a action type for a edy specific case, in such a rendered an administrative decision challenging Prince jurisdiction, prohibited. agency's within the Cars, 632, County Ray’s v. Used 398 Md. 922 A.2d George’s also, v. e.g., there cited.1 See Fertitta (2007), 495 and eases Brown, 212, 214, 594, 598, 599-600, 215 252 Md. (1969) (“We instances relatively think this is one of those rare proper in which a demurrer of a relief filed, of the challenge availability to the ly justified challenge used an administrative remedy sought [to be * * * not intended Declaratory Proceedings were decision]. review or appellate should not serve as a substitute to and City, Poe v. Baltimore 315- Md. appeal”); a belated (1966) (discussing applying A.2d 713-714 precluding Act an Declaratory Judgments provision has Legislature provided statute where the action under that Seabolt, Baltimore v. remedy); form of specific (1956) (same).2 204, 210, 123 A.2d statutory administrative-judicial review 1. It should be noted Cars, Hartman, Ray's Gingell proceedings applicable in the Used holding exclusive. The that no action cases have not been held to be Declaratory Judgments brought under the Act was deemed could be administrative-judicial pro- review applicable regardless of whether the primary. George's ceedings exclusive or See Prince Coun- were deemed Cars, ty Ray’s supra. Used "exceptions” principle to the that a are a few There action, challenging adjudicatory judgment an administrative decision however, jurisdiction, reality, agency’s will not lie. made within the may principle. they may "exceptions” but be consistent with the not be Thus, agency's declaratory, judgment challenge is not to the where the jurisdiction, at the sphere of its valid but is directed decision within the I although agree with the Court that this Consequently, judicial linked” to review action be- inexorably case “is the challenges both actions are to the same administrative cause Commission, decision in this by decision the Public Service the dependent upon case is not or linked to the decision the 3-409(b) § of the Declarato- judicial light review action. Act, declaratory judgment the instant action ry Judgments regardless will not lie of whether the Public Service Commis- judicial upheld sion’s in the review action is or decision overturned. that, petitioners rely on the fact at the time this action brought, judicial pending

was review action was no longer Nevertheless, at opinions the circuit court level. as numerous illustrate, judicial this Court the status of the review action is It immaterial. does not matter whether the review filed, action pending agency, had even been before the court, or was pending pending before a circuit or was before court, an appellate or had been terminated. precludes What an Declaratory Judgments action under the Act is the fact Assembly the General has enacted “a form of special 3-409(b) remedy ease,” § specific type of of the [this] Courts and Judicial Article. The Proceedings existence providing special remedy, statute a form of not the status a case, statute, if any, brought under that is precludes what a declaratory judgment action.

Similarly, it is also immaterial parties whether the Instead, two actions are the same or are different. it is the whole, legislative validity of agency the enactment as a which the applying, declaratory judgment a will lie under some circumstances. See, 438, e.g., Montgomery County Equities, v. Broadcast 360 Md. 452- 995, (2000); 758 A.2d 1002-1007 Harbor Island Marina Calvert 303, 308-309, (1979); of Com’rs, Co. Bd. 286 Md. 407 A.2d Commission, 78, 83-84, Pressman v. State Tax 204 Md. 102 A.2d (1954). Also, agency ultimately 824-825 an when decides that has no it case, jurisdiction particular type over a and that decision is not review, upon judicial stayed declaratory judgment reversed action involving controversy may proceed in court. State v. State Board of 446, 458-459, (2001). Appeals, Contract 511-512 3-409(b) "exceptions” The case bar falls within no of the Declaratory Judgments Act. not who remedy, form of statutory special of a provision case takes the remedy, to invoke that which happens Act.3 Declaratory Judgments scope of the outside argu “notice” regarding petitioners’ is true The same notice that the I with the Court Although fully agree ment. statutory Commission met the Public Service given by for declara appropriate it is not an issue requirement, notice 3-409(b) prohib simply consideration. Section tory judgment case, If, in action. some other declaratory judgment its to violate agency were an administrative given by notice aggrieved and an requirements, statutory or constitutional unable, of notice and by the lack prejudiced were person notice, agen insufficient appear to before of such because require to might mandamus action well lie a common law cy, Murrell the law. comply officials with that administrative Cf. Baltimore, 192-199, 829 A.2d 561-565 v. Md. Elec City Supervisors Board Gisriel Ocean (2003); (1997), tions, Declaratory Judg An cited. action under cases there Act, however, lie. does not ments join concurring RAKER and HARRELL

Judges opinion. conceivable, suppose, aggrieved administrative I that one It is but, court, challenge because may standing to that action action have agency, relating standing before the peculiar limiting statute of a adjudicatory standing appear at the administrative not have would circumstances, may person be entitled proceedings. Under such challenging the equitable action in court bring a common law or not, however, bring a person could decision. Such administrative declaratory judgment action.

Case Details

Case Name: Sprenger v. Public Service Commission

Court Name: Court of Appeals of Maryland

Date Published: Jun 21, 2007

Citation: 926 A.2d 238

Docket Number: 125 Sept. Term, 2006

Court Abbreviation: Md.