Nearly a dozen civil rights groups have come out in support of a disabled Marylander’s high court argument that the state’s appellate courts must be open to alleged victims of public-accommodations discrimination whenever a judge upholds what the groups call the Maryland Commission on Civil Rights’ all-too-often dismissals of bias claims.
The groups told the Maryland Court of Appeals this month that the state’s administrative procedure law should be read broadly to permit appellate review of circuit court decisions that generally defer to MCCR, thus foreclosing potentially valid bias claims from being litigated.
The commission has “fallen short” of its goal of protecting victims of discrimination in public accommodations, the groups wrote in their high court filing.
“Among other things, significant delays, failure to conduct impartial investigations, and the overwhelming majority of public-accommodation complaints resulting in findings of no probable cause or being dismissed outright mean that Marylanders’ rights to be free from public-accommodation discrimination (are) often illusory,” wrote the groups’ attorneys, Andrew D. Levy and Anthony J. May.
MCCR’s “flawed process for evaluating probable cause together with rising incidents of public accommodation discrimination highlight the importance of increased judicial oversight” added Levy and May, of Brown, Goldstein & Levy LLP in Baltimore. “Meaningful judicial review by the state’s appellate courts is critical to ensure that all of MCCR’s actions are accurate, reasonable, and follow the appropriate procedural safeguards.”
The commission denied the allegation of laxity in telling the Court of Appeals that appellate review is unavailable because Maryland law contains no express provision for appealing circuit court rulings that uphold the agency’s dismissal of a public-accommodations discrimination claim.
The Court of Appeals on Dec. 5 will hear Jennifer Rowe’s challenge to the Court of Special Appeals’ conclusion that it lacked jurisdiction to review a judge’s affirmance of MCCR’s finding of no probable cause for Rowe’s claim of public-accommodations bias against a gym that canceled her membership.
Pressing Rowe’s appeal, attorney Hayley Hahn told the high court that § 20-1005 of Maryland’s State Government Article, which governs judicial review of MCCR decisions, incorporates by reference § 10-223, which expressly permits appellate review of circuit court rulings.
Appellate review also achieves the General Assembly’s goal of protecting Marylanders against discrimination in public accommodations by providing for statewide decisions instead of circuit court rulings that can vary from judge to judge, Hahn wrote.
“This means that absent published opinions by the appellate courts, circuit courts can, and will, reach different conclusions in substantially similar cases,” added Hahn, a Murnaghan Appellate Advocacy Fellow at Public Justice Center in Baltimore. “Section 20-1005(d)(2) therefore furthers the commission’s work by providing a path to judicial review in the Court of Special Appeals, charged with issuing opinions that bind all of Maryland’s circuit courts. Such a scheme helps to ensure the just and consistent application of Maryland’s public accommodations protections.”
MCCR countered through counsel that § 20-1005 contains no express right to appellate review of a circuit court judge’s decision.
“Here, when the General Assembly wrote that no-probable cause decisions are ‘appealable to the circuit court,’ the specific reference to the circuit court excluded further judicial review by other courts,” Assistant Maryland Attorney General Justin E. Fine wrote.
Fine also disagreed with Hahn’s contention that the General Assembly intended MCCR to be a stalwart defender of alleged victims of public-accommodations bias, saying the legislature has rejected bills that would have enabled the commission itself to bring suit under the public-accommodations law.
“If Ms. Rowe is suggesting (through counsel) that the commission is supposed to be an advocate for complainants like her, she is mistaken,” Fine wrote.
“The commission’s role in investigating public-accommodation claims is neutral: It investigates allegations and refers probable cases of discrimination to its general counsel’s office to litigate before an administrative law judge,” Fine added. “And while the commission’s investigatory process helps claimants who faced discrimination, it also protects respondents from frivolous claims.”
In her underlying claim, Rowe alleged that Krav Maga of Maryland, a mixed martial arts gym, canceled her membership because she suffers from post-traumatic stress disorder and its resulting anxiety. The gym countered that the cancellation was based on Rowe’s rude behavior after the facility deleted what it believed was an inappropriate comment on the company’s website but which Rowe said was a simple statement that “some of us have mental/emotional disabilities.”
MCCR investigated and issued a no probable cause finding after concluding the gym “had a legitimate, non-discriminatory business reason, not based on (Rowe’s) disability, for terminating her membership.”
Baltimore City Circuit Judge John S. Nugent upheld the commission’s finding.
When the Court of Special Appeals concluded it had no jurisdiction to hear her appeal, Rowe sought review by the Court of Appeals.
The groups supporting Rowe are the American Civil Liberties Union of Maryland, Asian Pacific American Bar Association of Maryland, CASA, Council on American-Islamic Relations, Disability Rights Maryland, Equal Rights Center, FreeState Justice, Homeless Persons Representation Project, National Alliance of Mental Illness Maryland, National Federation of the Blind, and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
The Court of Appeals is expected to render its decision by Aug. 31 in the case, Jennifer Rowe v. Maryland Commission on Civil Rights, No. 17 September Term 2022.