Petition for Writ of Certiorari — Friedman v. Maryland Insurance Administration (No. 08-1020)

Supreme Cotut U1.

\ : 081020 FEB 6- 2009

()) OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

WILBUR H. FRIEDMAN, JR..,

Petitioner,

MARYLAND INSURANCE ADMINISTRATION, et ai,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF SPECIAL APPEALS OF MARYLAND

PETITION FOR A WRIT OF CERTIORARI

WILBUR H. FRIEDMAN, JR.

16303 Spring Water Court

Rockville, Maryland

20853-3210

(301) 260-8283

Petitioner Pro Se.

Wathington,D.C. © THIEL PRESS «© (202) 328-3286

(1)

QUESTIONS PRESENTED FOR REVIEW

1. Whether Maryland Rule 1-104, Unreported Opinions,

is, on its face or in its application here, a denial of due

process and equal protection.

2. Whether a rule of the Maryland Insurance Adminis-

tration, COMAR 31.02.01.10-2.H, Effect of Summary

Affirmance, is, on its face or in its application here,

a denial of due process and equal protection.

(it)

PARTIES TO THE PROCEEDING

The parties to this proceeding are: Wilbur H. Fried-

man, dr., an individual, (below, without the “dr.”’),

the Maryland Insurance Administration and Govern-

ment Employees Insurance Company (herein GEICO), a

wholly owned subsidiary of Berkshire Hathaway.

(iii)

TABLE OF CONTENTS

Questions Presented For Review

Parties To The Proceeding

Cpinions Below

Jurisdictional Statement

Statutes and Regulations Involved

Statement Of The Case

Departures From Established Precedent

Reasons For Granting The Petition

Conclusion

TABLE OF AUTHORITIES

Cases:

Bereano v. State Ethics Commission, 403 Md. 716,

944 A.2d 538 (2008)

Blades v. Swords, 107 Md.App. 178, 667 A.2d 917

(Md.App. 1995)

Bowman Transportation, Inc, v. Arkansas-Best

Freight System, Inc., 419 U.S. 281 (1974),

rehearing denied, 420 U.S. 956

Brodie v. Motor Vehicle Administration of Mary-

land, 367 Md. 1, 785 A.2d 747 (2001)

Burlington Truck Lines v. U.S., 371 U.S. 156

(1962) 18, 25, 26, 27

Chow v. State, 393 Md. 431, 903 A.2d 388

(2006)

Christopher v. Department of Health, 381 Md. 188,

849 A.2d 40 (2004)

(tv)

Cases, continued:

Duvall v. Wells, 4 H. & MH. 114 (1798)

Ehrlich v. Grove, 396 Md. 550, 914 A.2d 783

(2007)

Essgee Co. v. U.S., 262 U.S. 151 (1923)

Harvey v. Marshall, 389 Md. 243, 884 A.2d 1171

(2005)

Helle v. Public Utilities Commission of Ohio, 110

Ohio St. 434, 161 N.E. 282 (1928)

Hill v. Wilson, 134 Md. App. 472, 760 A.2d 294

(2000)

International Union (UAW) v. N.L.R.B., 459 F.2d

1329 (D.C. Cir. 1972)

Mehrling v. Nationwide Ins. Company, 371 Md.

40, 806 A.2d 662 (2002)

In re Timothy C., 376 Md. 414, 829 A.2d 1024

(2003)

Maryland Ice Co. v. Arctic Ice-Mach. Manuf’g.

Co., 30 A. 633 (1894)

Motor Vehicle Administration v. Jones, 380 Md.

164, 844 A.2d 388 (2004)

Motor Vehicle Administration v, Shepard, 399

Md. 241, 923 A.2d 100 (2007)

Oakland v. Mountain Lake Park, 392 Md. 301,

896 A.2d 1036 (2006)

Peralta v, Heights Medical Center, 485 U.S. 80

(1988)

Simon Moskowitz v. Maryland Department of the

Environment, OAH No. MDE-LHD-055-06-

48463, May 18, 2007

(v)

Cases, continued:

Summers v. Mosely, 2 Cr. & M. 477, 149 Eng.

Rep. 849 (1834)

Tanis v. Crocker, 110 Md.App. 559, 678 A.2d

88 (1996)

Thompson v. City of Louisville, 362 U.S. 199

(1960)

United Steelworkeis v. Bethlehem Steel, 298 Md.

665, 472 A.2d 62 (1984)

U.S. v. Palmer, 864 F.2d 524 (7th Cir. 1988),

cert, denied, 490 U.S. 1110

Viandis v. Klein, 412 U.S. 441 (1973)

Wilson-v. U.S., 221 U.S. 361 (1911)

Statutes:

18 U.S.C. Section 1702

18 U.S.C. Section 1708

Maryland Corporations and Associations Article,

Sec. 2-414

Maryland Insurance Article, Section 2-210

Maryland Insurance Article, Section 2-215

Maryland Insurance Article, Title 27, Subtitle

Maryland Insurance Article, Section 27-301

a Si ya et ea 12,13, 14, 15, 16, 19, 24

Maryland Insurance Article, Section 27-303

5, 7, 10,11, 18, 19

Maryland State Government Article, Section 9-

1602 ff.

(vi)

Statutes, continued:

Maryland State Government Article, Section

Maryland Transportation Article, Section 17-

103(b){2)

Regulations: ,

Federal Rule of Appellate Procedure 32.1.......... 28

Maryland Rule 1-104 i ye

Code of Maryland Regulations (COMAR):

COMAR Section 28.02.01.08.B(8)

COMAR Section 28.02.01.10

COMAR Section 28.02.01.11

COMAR Section 28.02.01.16.B(1)

COMAR Section 31.02.01.10-2.D

COMAR Section 31.02.01.10-2.H

Other:

Commentaries on the Laws of England, Proceedings

in the nature of Appeals, Book the Third, Chap-

ter the Twenty-Fifth, (Yale Avalon Project on

the Internet)

OPINIONS BELOW

The decisions of the Office of Administrative Hearings

Administrative Law Judge, the Maryland Insurance

Administration (MIA), the Circuit Court for Montgom-

ery County, and the Maryland Court of Special Appeals

(CSA) are all unreported. However, the date of the CSA

decision appears at http:courts.state.md.us/unreport-

ed_opinions.html] for May 13, 2008. The Maryland

Court of Appeals order denying the petition for certior-

ari, dated August 25, 2008, is reported at 405 Md. 506

(2008). The November 12, 2008 order denying the mo-

tion for reconsideration is apparently unreported. See

406 Md. 443-444 (2008).

JURISDICTIONAL STATEMENT

The state proceedings are set forth above. As noted,

Maryland’s Court of Appeals denied a motion for recon-

sideration on November 12, 2008. This Court has juris-

diction under 28 U.S.C. Sec. 1257(a). The Attorney

General of the State of Maryland, by an assistant attor-

ney general, has been a party to this proceeding.

STATUTES AND REGULATIONS INVOLVED

1. Maryland Rule 1-104, Unreported Opinions:

(a) Not authority. — An unreported opinion of the

Court of Appeals or Court of Special Appeals is neither

precedent within the rule of stare decisis nor persuasive

authority.

(b) Citation. — An unreported opinion of either Court

may be cited in either Court for any purpose other

than as precedent within the rule of stare decisis or as

persuasive authority.

2

In any other court, an unreported opinion of either

Court may be cited only (1) when relevant under the

doctrine of the law of the case, res judicata or collat-

eral estoppel, (2) in a criminal action or related pro-

ceeding involving the same defendint, or (3) in a

disciplinary action involving the same respondent.

A party who cites an unreported decision shall attach

a copy of it to the pleading, brief, or paper in which

it is cited,

2. Maryland Insurance Administration Rule, COMAR

31.02.01.10-2.H (Effect of Summary Affirmance):

(1) If the Commissioner issues a final order that

summarily affirms the proposed order of an admin-

istrative law judge without discussing the facts and

legal issues and without expressly adopting the ad-

ministrative law judge’s legal analysis and proposed

conclusions of law, neither the final order nor the

proposed order is precedent within the meaning of

stare decisis.

(2) Notwithstanding Section H(1) of this regulation,

a final order of the Commissioner that summarily

affirms the proposed order of an administrative law

judge without discussing the facts and legal issues and

without expressly adopting the administrative law

judge’s legal analysis and proposed conclusions of law

may be cited and relied on in a proceeding before the

Commissioner, the Office [of Administrative Hear-

ing=! or a court:

(a) Yen relevant under the doctrine of the law

“i the case, res judicata, or collateral estoppel; or

(b) In any subsequent disciplinary proceeding in-

volving a party to the final order.

* * *

3

3. The following statutes are set forth in the Appendix:

— Maryland Insurance Article, Title 27, Subtitle 3,

Sections 301; 302 (excerpt); 303 (excerpt); 304

(excerpt); 305 (excerpt); 306 (Appendix CC)

— Maryland Insurance Article, Section 2-210(a)(2)

and (c) (Appendix DD)

— Maryland Insurance Article, Section 2-215(a)

(excerpt); (c) (excerpt); (h) (Appendix EE)

— Maryland State Government Article, Sections 9-

1602, 9-1603, 9-1604, 9-1606 (excerpts) (Appendix

FF)

— Maryland State Government Article, Section 10-

206(a) (excerpt) (Appendix GG)

— Maryland Corporations and Associations Article,

Section 2-414 (Appendix HH)

— 18 U.S.C. Section 1702, Obstruction of corres-

pondence (Appendix IIT)

— 18 U.S.C. Section 1708, Theft or receipt of stolen

property generally (excerpt) (Appendix JJ)

STATEMENT OF THE CASE

Respondent Government Employees Insurance Com-

pany (herein GEICO), insures a car of Mr. Vinh Phuc

Nguyen. GEICO’s press release dated March 1, 2007

(App. Y, p. 90a), reveals that GEICO has 7 million policy

holders. GEICO.COM/ABOUT/CORPORATE/AT-A-

GLANCE/, the current website version, reveals that

GEICO has 23,000 employees and 12 major offices

around the country. GEICO handles Maryland auto

claims at its Fredericksburg, Virginia facility. As set

forth below, in 2006, the Maryland Insurance Adminis-

4

tration treated David H. Pushman, a GEICO vice-presi-

dent, as its point of contact at Fredericksburg. A Feb-

ruary 1, 2008, affidavit from GEICO’s vice-president

Stewart, App. Z, p. 91a, states that Mr. Pushman was

in charge of the Fredericksburg office, went on sick

leave on June 27, 2006, and did not report to work

thereafter.

Nonetheless, the GEICO press release (App. Y, p.

90a) announced that after June 2006, GEICO trans-

ferred Mr. Pushman to Washington, D.C. headquarters

in a different position and retained him as vice-presi-

dent, and that he was scheduled to retire sometime after

March 1, 2007.

As set forth in the opinion of the Court of Special

Appeals (CSA) herein at Appendix C (p. 6a), on May

16, 2006, Petitioner’s car was unloading its passengers.

Mr. Nguyen’s car collided with Petitioner’s car, caus-

ing property damage for which GEICO, by claims exam-

iner Christinia Krech, refused to pay. On June 23, Peti-

tioner complained to Respondent Maryland Insurance

Administration (MIA). Appendix X, p. 88a.

By letter dated July 6, App. W, p. 86a, addressed to

vice-president Pushman at GEICO’s Fredericksburg

location, MIA requested information about the collision.

By letter dated July 13, App. V, p. 84a, GEICO’s Re-

gional Liability Director Herbert replied that the July

6 letter had been referred to him. The director sent MIA

GEICO’s computer log and other “pertinent confidential

documents.”’ By letter dated July 25, App. U, p. 82a,

MIA informed Petitioner, copy to Mr. Herbert, that its

administrative investigation has disclosed no violation

but that Petitioner enjoyed a right to hearing under

Section 2-210 of the Maryland Insurance Article, App.

4)

DD, p. 105a. By letter dated August 14, App. T, p.

80a, Petitioner requested a hearing. It referenced Peti-

tioner’s June 23 letter to MIA, in which Petitioner

alleged that GEICO had a pattern of refusing to pay

claims which, as here, alleged only property damage

when, again as here, the witnesses lived out of state

and trial was improbable. By letter dated September

20, App. S, p. 78a, addressed to Petitioner and vice-presi-

dent Pushman, MIA informed them that a hearing would

be held. By letter dated October 4, App. R, pp. 76a-77a,

MIA informed Petitioner and GEICO — GEICO addressee

not given ~- that it had delegated hearing authority to

Maryland’s Office of Administrative Hearings (OAH).

The letter says:

Take notice that specific attention at the hearing

will be directed to Maryland Code Annotated,

Section 27-303.

In the meantime, Petitioner had complained to a Mary-

land district court that Mr. Nguyen had committed a mis-

demeanor by reckless driving. At an August 31 hearing,

App. Q, pp. 73a-75a, Mr. Nguyen spoke through an

interpreter and showed extremely limited English pro-

ficiency. The court found that the evidence against Mr.

Nguyen did not meet the criminal standard of proof.

State Government Article, Sec. 10-206(a), App. GG,

p. 110a, authorizes OAH to make rules governing the

procedures in OAH-conducted hearings, and the rules

are set forth in Section 28 of the Code of Maryland

Regulations (COMAR). By letter dated October 11,

App. P. pp. 7la-72a, OAH informed Petitioner that

6

hearing would be on December 5. It informed him of

OAH subpoena rules.’

By letters dated November 1 and 6, App. O, pp. 69a-

70a, addressed to vice-president Pushman, Petitioner

requested, under COMAR Section 28.02.01.10? that

GEICO produce certain records. John Edmonds, Con-

tinuing Claims Supervisor at Fredericksburg, sent a let-

ter dated November 2, App. N, p. 67a, to Petitioner.

He acknowledged receipt of Petitioner’s request, but

declined to produce any of the documents. There was

no response to the second request.

‘In relevant part, COMAR 28.02.01.11, Subpoenas, provides:

A, Issuance of Subpoenas: On request of a party, or at the

direction of a judge, the Office may issue subpoenas requir-

ing the attendance and testimony of witnesses and the pro-

duction at the hearing of any tangible item in the possession

or under the contzol of the witness.

kk *

C, Service of subpoenas,

(1) Subpoenas may be served by:

* *

(b) Certified mail to the person at the address specified in

the subpoenas request.

*x* *

E, Objections to Subpoenas: A person may cbject to the sub-

poena by filing a motion to quash or for other relief.

“In relevant part, COMAR 28.02.01.10, Discovery, reads:

A. By written request filed not tater than 30 days before

a scheduled hearing, a party may require any other party

to produce within 15 days, for inspection or copying, any

file, memorandum, correspondence, document, object or

tangible thing:

(1) Relevant to the subject matter of the case; and

(2) Not privileged.

7

By letter dated November 6, App. M. pp. 62a-66a,

pursuant to OAH COMAR Rule 28.02.01.11, Petitioner

requested OAH to serve the following subpoenas: On Mr.

Nguyen and GEICO claims examiner Krech, to attend

and testify; on vice-President Pushman, to produce

tangible items at the hearing. The last sought, in num-

bered item 7, “All records... relating to” the collision

of May 16. It also sought records which reveal the

organizational structure and the names of the individuals

who occupied the positions at the Fredericksburg, Va.

claims office on May 25, 2006 and date, names of the

custodians of the records, and evidence of the existence

of general rules under which GEICO would deny meri-

torious claims. By registered ietters dated November

9, OAH mistakenly served identical subpoenas ad testi-

ficandum and duces tecum on Mr. Nguyen, vice-president

Pushman, and examiner Krech. GEICO Fredericksburg

employee Amy Vandevender signed the receipts for

vice-president Pushman and Ms. Krech. Apps. L and

K, pp. 56a-61a.

On November 16 and 21, App. J, pp. 53a-55a, GEICO

filed its motions for a protective order and to quash the

subpoena. It claimed that the documents sought were

irrelevant, overly broad, unduly burdensome, and con-

tained requests for privileged information, and that

Petitioner was attempting both to litigate his negligence

case as well as harass and inconvenience both GEICO and

Mr. Nguyen. Finally, GEICO’s counsel argued that the

sole relevant issue was whether GEICO violated Section

27-303(2).

At the December 5 hearing, App. I, pp. 50a-52a,

GEICO elected to bring examiner Krech to testify, but

8

declined to produce any of the subpoenaed documents.

The ALJ asked examiner Krech how she settled claims:

TR. 39: |. 8: Q: Are you governed by any GEICO

procedures or policy letters or anything that tells

you one way or another how to settle a claim?

1.11: A: No, sir.

1. 12: Q: You’re free to settle them the way you see

them?

1, 24: A: Fee, Oe...

], 17: Q: You review the facts and you make the

call?

1.19: A: Yes, sir.

As noted, Petitioner had subpoenaed records on this

issue. At the hearing, he put the same kind of questions

to Ms. Krech. She answered that there was no manual

governing claims procedures and that she attended no

training sessions, other than those required by the State

of Delaware, on that subject. App. I, p. 51a. Ms. Krech

also said of her conversation with Mr. Nguyen, the

insured, TR. 22, line 8 ff.

I had to listen to him carefully, I did repeat one

question, but he came off clear to me. * * * I

didn’t need a translator when J was talking to

him. * * * We had a good communication, I

thought.

Both Petitioner and GEICQO’s counsel had brought

translators to the hearing. TR. 5, 1. 21. And as noted,

at the criminal proceeding Mr. Nguyen showed limited

English proficiency.

GEICO moved to quash the subpoena duces tecum on

vice-president Pushman on several grounds. One was that

he had been replaced by October 2nd and therefore was

9

no longer at GEICO to get the subpoena. The ALJ

agreed, TR 65, 1. 7 ff., that the subpoena duces tecum

required the physical presence of vice-president Pushman

at the hearing, and that inasmuch as he had been replaced

due to illness, the service of the subpoena was ineffective.

No. The subpoena to produce tangible documents

at the hearing, so it means he had to come up here

with the documents. So even though it’s not tech-

nically the way you wanted it, in my judgment it’s

the same thing. So that cures that. He had to be

here, right?

At the hearing, the ALJ quashed the subpoena for the

statement that Mr. Nguyen had given to GEICO, other

records of the collision, and GEICO’s manuals and prac-

tices. TR. 16, lt. 22. He found irrelevant: “what hap-

pened at the accident,” TR 58, 1. 16; and the testimony

of Mr. Nguyen, App. I, TR 61, 1. 8, p. 52a. The ALJD

incorporated into the hearing record only the documents

from the MIA investigatory file and one exhibit that

GEICO introduced, but none of the documents relating

to the information request and the subpoenas.

On December 12, App. H, pp. 48a-49a, Petitioner

moved the ALJ to make, in his ALJ decision, certain

explicit findings and to state reasons for certain rulings.

He also moved the ALJ to make part of the record the

information and subpoena requests and motions regard-

ing them.

On December 26, 2006, App. F, pp. 37a-45a, the ALJ

issued his proposed decision. It found the testimony

of the claims examiner fully credible and that GEICO had

performed a reasonable investigation and properly

decided that the conduct of Petitioner’s passenger was

solely responsible for the collision. The ALJD limited

the decision to the issue of whether GEICO’s conduct

10

had been arbitrary or capricious, and said that that test

is confined to the test of whether the decision is sup-

ported by substantial evidence. The ALJD makes no

reference to Ms. Krech’s testimony that she is not sub-

ject to instructions on how to resolve claims. The ALJD

denied Petitioner’s post-hearing motions as untimely. It

relied on COMAR Section 28.02.01.16.B(1), which reads,

in its entirety, ““A party may move for appropriate relief

before or during a hearing.”

When Petitioner got his copy of the transcript, he

filed a motion to correct errors in transcript, a first

alternative motion to remand to ALJ to correct errors,

and a second alternative motion to adopt other just and

proper procedure to correct errors in transcript.

Petitioner also filed timely exceptions and a support-

ing brief. App. G, pp. 46a-47a. He argued that the fol-

lowing ALJD rulings were all error:

(1) Vice-president Pushman’s incapacity made the

subpoena a nullity; (2, 3, 9, 10) The records Petitioner

sought, the testimony of Mr. Nguyen, the transcript of

the related criminal proceeding, and the content of an

offer of proof were all irrelevant; (4) Title 27 subtitle 3,

App. CC, pp. 102a-104a, of the Insurance Article

did not create an adjudicatory process to allow

claimants to dispute liability in accidents; liability

disputes properly belong in the constitutional

courts.

(5) The terms “arbitrary” and “capricious,” as used in

Section 27-303(2) are narrower than the well established

judicial definition; (6) The ALJ’s findings of fact were

supported by the credible evidence; (7) The ALJ prop-

erly failed to incorporate the documents relating to the

11

discovery and subpoenas; (8) Petitioner’s motions made

after the record was closed were untimely; and (11) the

adverse inference rule was inapplicable. Petitioner also

argued that by placing impermissible burdens on the exer-

cise by Petitioner of his statutory right, the ALJ com-

mitted a constitutional tort.

On February 5, 2007, App. E, pp. 27a-36a, MIA

affirmed the ALJD. It ruled: The only issue before the

ALJ was whether GEICO had violated Section 27-303(2)

of the Insurance Article (pp. 29a-30a); MIA did not

enjoy the power to correct or to cause the correction of

errors in the transcript. Petitioner was litigating his dis-

pute in the wrong forum; The subpoena was not prop-

erly served on Mr. Pushman;

Complainant did not address his subpoena to a

records custodian or a corporate officer, but rather

to an individual. * * * What Complainant fails to

recognize is that even if the subpoena had been

served, it would have been quashed as being oppres-

sive, burdensome, and a request for irrelevant docu-

ments.

The information requested in numbered item 7, and

all records relating to the collision, were made available

at the hearing;® Petitioner’s assertion that claims exam-

iner Krech committed perjury was scurrilous; The testi-

mony of Mr. Nguyen could not possibly bear on the issue

before the ALJ; Petitioner must prove that arbitrary and

capricious actions “‘were directed specifically to him”’;

3 However, as MIA’s brief in the Court of Special Appeals notes,

p. 12, GEICO took a recorded statement from Mr. Nguyen. GEICO

never produced it.

12

Petitioner was not entitled to have the prehearing plead-

ings made part of the record, but the issue is moot

because they had already been made part of it; The ALJ

properly ruled that the evidence Petitioner sought to

introduce was irrelevant; And finally that this decision

is not stare decisis, as

A Recommended Decision summarily affirmed

under COMAR 31.02.02.10-2.H is not precedent

within the meaning of stare decisis in other cases.

On February 23, 2007, Petitioner filed an appeal with

the Circuit Court for Montgomery County. By order

dated June 18, App. D, p. 26a, that court affirmed MIA.

Petitioner says nothing else about that proceeding be-

cause under well settled Maryland law, appellate courts

review the decision of the agency and not that of the cir-

cuit court: E.g., Mehrling v. Nationwide Ins. Company,

371 Md. 40, 57, 806 A.2d 662 (2002).

On July 13, 2007, Petitioner appealed to the Court

of Special Appeals (CSA). Thereafter, in his main brief,

he argued, pp. 1-2, that:

1. COMAR rule 31.02.01.10-2.H (Effect of Sum-

mary Affirmance) is invalid on its face as (1.1)

beyond the power of the Maryland Insurance

Administration (MIA) to make, (1.2) arbitrary

and/or capricious, and (1.3) a denial of due process

and/or equal protection;

2. MIA, to the prejudice of Complainant, departed

from its own rule by failing to make its decision

herein one with precedential effect;

3. MIA has implemented a conclusive presumption,

one in direct conflict with the statutory commands

of Sections 27-301 ff. of the Insurance Article and

Section 17-103(b)(2) of the Transportation Article;

13

4.MIA implemented its conclusive presumption

above by refusing to discredit a witness, the GEICO

claims agent, and by ruling irrelevant evidence as

would further discredit her;

5. MIA improperly made findings of fact and con-

clusions of law based on an unlawful and uncon-

stitutional procedure;

6. MIA improperly disclaimed power both to cor-

rect errors in the transcript and to remand the case

to OAH for the ALJ to make the corrections;

7. MIA found improper the service of a subpoena on

a vice-president of GEICO.4

On May 14, 2008, App. C, pp. 3a-25a, CSA issued an

unreported opinion. It there said tnat: Petitioner was

“abusing the judicial process and dissipating judicial

resources” by pursuing his appeal; The standard of review

consists of the substantial evidence and error of law tests;

‘‘Administrative agencies are entitled to deference as to

their interpretation of statutes they are charged with

administering”; Petitioner had waived reliance on other

sections of Section 27-301 ff.; MLA had properly adopted

a narrow definition of the tezms “arbitrary” and “‘capri-

cious”: and, p. 19a,

Evidently, appellant expected the ALJ and MIA

to conduct a trial and to assess the credibility of the

witnesses. It is beyond the authority of these

administrative bodies to adjudicate tort claims

and to award monetary damages under an adminis-

trative action initiated for the purpose of deter-

mining the reasonableness of an insurance com-

pany’s actions. These fora were not proper for the

type of redress sought by appellant.

4Petitioner should have said: MIA improperly found improp-

__ ae

14

CSA also ruled as follows:

The ALJ properly excluded evidence as irrelevant;

Ms. Krech did not commit perjury; “GEICO’s dealing

with other customers was not the issue’’; The issue was

whether Petitioner ‘‘was contributorily negligent”; The

ALJ properly refused to consider Petitioner’s post-hear-

ing motions as untimely; The subpoena on vice-president

Pushman was not properly served; and, p. 25a, that

‘There is no right to a decision that has prospective

effect.”’

Petitioner filed a petition for certiorari with the Mary-

land Court of Appeals. The issues he presented there

were:

1. Whether MIA has subverted the legislative intent

by implementing evidentiary and other rules which

make it impossible to prove that insurance com-

panies violate Section 27-301 ff. of the Insurance .

Article; and

2. Whether COMAR Rule 31.02.01.10-2.H (Effect

of Summary Affirmance) is invalid on its face as

beyond the power of MIA to make, arbitrary and/or

capricious, and/or a denial of due process and/or

equal protection.

The petition argued, p. 16, that CSA erred in providing

a justification for MIA’s action. It disputed CSA’s rul-

ing that there is no right to a decision that has stare deci-

sis precedential effect. At p. 21, Petitioner said that he

“respectfully submits that due process requires more of

the CSA.”

On August 25, 2008, App. B, p. 2a, the Court denied

the petition.

15

On September 19, 2008, Petitioner filed a timely

motion for reconsideration, which argued:

Il. By its denial of certiorari, this Court is toler-

ating gross violations of equal protection.

* Ok Ok

III. By its denial of certiorari, this Court is permit-

ting the maintenance and implementation by

Special Appeals and MIA of a secret law. This court

should use this case as a vehicle to replace Rule

1-104 with Federal Rule [of Appellate Procedure |

31.2.

* * *

IV. By its denial of certiorari, this court has toler-

ated a number of gross violations of due process.

On November 12, 2008, App. A, p. la, the court

denied the motion for reconsideration.

Insurance Article Title 27 Subtitle 3, App. CC, pp.

102a-104a, is entitled ‘““Unfair Claim Settlement Prac-

tices.”” 301(a) recites the intent of the subtitle: to

provide an additional administrative remedy for claim-

ants. 302 provides that it applies to all insurance pol-

icies issued in Maryland. 303 outlines unfair claim

settlement practices. They include: (1) misrepresenta-

tion of pertinent facts or policy provisions that relate

to the ‘claim at issue; (2) refusal to pay a claim for an

arbitrary or capricious reason based on ail available

information; and (6) failure to provide promptly on

request a reasonable explanation of the basis for denial

of a claim. 27-304 outlines unlawful general practices;

the equivalents of 303(1), (2) and (6) are Sections

304(1), (15) and (14). Section 27-305 sets forth pen-

alties, which are much higher for unlawful general prac-

tices.

16

At all times, Petitioner has contended that GEICO’s

insured was responsible for the collision and that GEICO

gave a false reason for its denial of the claim. Petitioner

sought by his discovery request, subpoena, and ‘his

attempted examination of the GEICO claims examiner

to determine what facts GEICO had at the time it denied

the claim, and that the decision to deny was motivated

by other reasons, particularly that GEICO’s actions

towards him were part of a pattern — denials of small

claims for property danage when the witnesses resided

in other states and were unlikely to appear in court —

and not directed solely to him. Thus Petitioner was

claiming that GEICO violated Sections 27-303(1), (2)

and (6) and their Section 304 counterparts.

DEPARTURES FROM ESTABLISHED PRECEDENT

Below, Petitioner will show — by the following eleven

numbered items — that CSA, MIA, and OAH made rul-

ings herein that clearly would not have been made in

reported decisions with precedential stare decisis effect.

Some would not have been made in reported decisions

because they depart from one or more established Mary-

land rules; others would not have been made in report-

ed decisions because they would embarrass the judicial

system and the institutions of government. Petitioner

raised all of these issues to the CSA, except for CSA’s

having supplied reasons for the conduct of MIA; and

that he brought to the attention of Maryland’s Court

of Appeals.

1. As to the ruling that Petitioner was not entitled to

introduce evidence and to cross-examine, first, the stated

legislative intent of Sections 27-301 ff. is to give claim-

17

ants an additional remedy for unfair settlement claims

practices. And:

The cardinal rule of statutory construction is to

ascertain and effectuate the intent of the Legis-

lature .... [I]f the plain language of the statute

is unambiguous and consistent with the statute’s

apparent purpose, we give effect to the statute as

it is written.°

Here the statement of legislative intent and language of

the statute are clear. But ALJ and MIA made it diffi-

cult, if not impossible, to establish a violation of Section

27-301 ff.

Second, the general rule as to cross examination, as

stated in Hill v. Wilson, 184 Md. App. 472, 480, 760

A.2d 294 (2000), is:

A witness generaliy may be cross-examined on *:y

matter relevant to the issues, and the witness’s cred-

ibility is always relevant. . ,

But here CSA said that Petitioner was not entitled to

assess the credibility of the witnesses. In addition, in a

reported decision, unlike here, a court would avoid

constitutional issues. But here the denial of cross exam-

ination also implicates due process; this Court has said:

Indeed, the due process clause forbids an agency

to use evidence in a way that forecloses an oppor-

tunity to offer a contrary presentation.®

°Oakland v, Mountain Lake Park, 392 Md. 301, 316, 896 A.2d

1036 (2006); Motor Vehicle Administration v, Shepard, 399 Md.

241, 254, 923 A.2d 100 (2007); Chow v. State, 393 Md. 431, 443,

903 A.2d 388 (2006) (same, but “statutory interpretation”’),

5 Bowman Transportation, Inc. v. Arkansas-Best Freight System,

Inc., 419 U.S. 281, 288 (1974), rehearing denied 420 U.S. 956.

18

As noted, Petitioner also argued that the denial of

cross examination in substance created a conclusive

presumption. In Vlandis v. Klein, 412 U.S. 441, 446

(1973), this Court said:

Statutes creating permanent irrebuttable presump-

tions have long been disfavored under the Due

Process Clauses of the Fifth and Fourteenth Amend-

ments.

Third, the Burlington Truck administrative law rules

that a

reviewing court may not uphold the agency order

unless it is sustainable on the agency’s findings and

for the reasons stated by the agency .... The

courts may not accept appellate counsel’s post hoc

rationalizations for agency action...”

are settled law in Maryland. MIA and the Ald had ruled

piecemeal that various evidence Petitioner sought to

introduce was all irrelevant. They gave no reason why.

But CSA supplied a general (albeit not a felicitous) reason

why, that this type of administrative proceeding is not

the kind of proceeding in which a complainant is entit-

led to have MIA assess the credibility of the witnesses.

2. As to MIA’s limitation of the complaint to a viola-

tion of Section 27-303(2), Insurance Article Section

2-210(a)(2), App. DD, p. 105a, provides that the Mary-

land Insurance Commissioner shall hold a hearing on

7United Steelworkers v, Bethlehem Steel, 298 Md. 665, 679,

472 A.2d 62 (1984), citing Burlington Truck Lines v, U.S., 371

U.S. 156, 167-168 (1962); Brodie v. Motor Vehicle Administration

of Maryland, 367 Md. 1, 3-4, 785 A.2d 747 (2001), Mehrling,

above, p. 65; Bereano vu, State Ethics Commission, 403 Md. 716,

743,944 A.2d 538 (2008).

19

written demand by any person aggrieved by an action

of the Commissioner. There is nothing in the statute

that limits the hearing to Section 27-303(2) and MIA’s

order directing a hearing said only that specific atten-

tion would be devoted to Section 27-303. The inves-

tigator, Appendix U, p. 83a, and GEICO’s counsel,

Appendix J, p. 53a, sought to limit the litigation to

303(2). That ALJ agreed and ruled irrelevant evidence

that would show violations of other sections of Sec.

27-303 and 304, namely that GEICO’s explanation of

its action was false, and that GEICO misrepresented the

facts. CSA ultimately ruled that Petitioner waived

reliance on any other part of Section 27-301 ff. and

was confined to litigating Section 27-303(2). Peti-

tioner continued to argue that the rejected evidence

should have been admitted.

On these facts, the substantial evidence rule bars the

conclusion that one who claims that the rejection of

evidence was error somehow waives the argument which

the evidence would support. The substantial evidence

rule requires a finding that the only waiver that may

even arguably be attributable to Petitioner was his

failure to move to strike representations of GEICO’s

counsel that vice-president Pushman was on sick leave;

OAH treated these representations as evidence.

3. Rulings in published decisions that tolerate obvi-

ous perjury violate the substantial evidence rule; they

would also embarrass the judiciary. But here MIA and

CSA denied that examiner Krech committed perjury

20

by her statements that there were no manuals nor pro-

cedure letters nor training sessions instructing her how

to resolve claims. In addition, as MIA would have re-

ceived into evidence the transcript of the criminal pro-

ceeding, it would have found that Mr. Nguyen had lim-

ited English proficiency and that Ms. Krech’s statement

that she and he had ‘‘good communication” was also

perjury.

4. As to the burdensomeness of the subpoenas, there

is no Maryland rule that if a subpoena seeks too much,

the one who subpoenas it is entitled to nothing. On

the contrary, Blades v. Swords, 107 Md.App. 178, 182-

183, 667 A.2d 917 (Md.App. 1995), said: “The discov-

ery rules are broad and comprehensive and should be

liberally construed.” Blades was cited with approval

in Ehrlich v. Grove, 396 Md. 550, 560, 914 A.2d 783

(2007). In addition, in Tanis v. Crocker, 110 Md.App.

559, 575, 678 A.2d 88 (1996), the court found that

the lower court abused its discretion in issuing a protec-

tive order. The court foifowed Rule 16(c) of Federal

Rules of Civil Procedure: the party seeking the protec-

tive order has the burden of making a particular and

specific demonstration of fact, as distinguished from

general, conclusory statements, revealing some injus-

tice, prejudice, or consequential harm that will result

if protection is denied. Here, however, GEICO did not

make the demonstration required by Tanis, and yet

ALJ, MIA and CSA ruled inat Petitioner’s subpoena

duces tecum should be quashed in its entirety because

it was burdensome.

21

5. As to the departure from Fredericksburg of vice-

president Pushman, under Sec. 2-414(b) of the Cor-

porations and Associations Article, App. HH, p. 11lla,

a third party’s rights are not affected by changes in an

agent’s duties unless he had knowledge of the com-

pany bylaw or resolution changing them. As to the

validity of the service of the subpoena on vice-president

Pushman, Petitioner restates the facts: Vice-president

Pushman ceased working in June 2006, but continued on

as a vice-president. MIA served letters dated July 6 and

September 20 on him. Petitioner served a discovery

request dated November 1 on him. GEICO treated all

these as communications with the corporation. OAH

served the subpoena on vice-president Pushman on

November 13. MIA said:

Complainant did not address his subpoena to a

records custodian or a corporate officer, but rather

to an individual.

But Petitioner did not know that vice-president Pushman

had been replaced until GEICO’s counsel served the

motions to quash the subpoena. The statement that the

subpoena was not addressed to a corporate officer does

not pass the substantial evidence test.

In addition, the subpoena was issued under OAH and

not MIA rules. And under Maryland law, OAH is a

separate administrative agency. Thus the State Govern-

ment Article provides, Sec. 9-1602 ff. and 10-206(a),

App. FF, GG. pp. 108a-110a, that OAH is an independ-

ent agency, headed by a Chief ALJ, a political appointee.

He is empowered and directed to develop rules and pro-

cedures and those rules govern OAH hearings. A reported

ruling here that OAH’s subpoena powers were ineffective

would undermine OAH procedures and thereby embar-

22

rass OAH. There is no Maryland rule that grants defer-

ence to the construction of one agency’s rule by either

its own ALJ or by another agency. In a reported deci-

sion, CSA would not have found deference to be war-

ranted.

6. As to the timeliness of a motion after the close of

the hearing but before the ALJD issued, in Simon Mos-

kowitz v. Maryland Department of the Environment,

OAH No. MDE-LHD-055-06-48463, May 18, 2007,

App. AA, p. 93a, which Petitioner cited in his main

brief to CSA, an OAH ALJ granted a motion to reopen

a closed hearing for the introduction of more evidence.

Again, COMAR 28.02.01.08.B(8) empowers ALJs to

“Request parties to submit legal memoranda, proposed

findings of fact, and conclusions of law.” By implicz

tion, ALJs enjoy authority to consider post-hearing

motions to extend time for filing documents. More-

over, Sec. 28.02.01.16.B(1) says nothing about motions

between the close of the hearing and the date the ALJ

files his decision. In addition, as shown below, ALJs,

MIA and reviewing courts all enjoy the power to cause

the correction of the record. But the ALJ ruled that

under 16.B(1) post hearing motions were untimely.

As to MIA, COMAR Sec. 31.02.01.10-2.D, Final

Order Following Proposed Decision, relates to cases

where, as here, MIA has delegated authority to OAH

to make a proposed decision. It reads:

Types of Action by the Commissioner. The Com-

missioner may affirm, reverse, or modify the pro-

posed findings of fact, proposed conclusions of

law, or proposed order, or remand the case to the

Office for further proceedings by setting forth,

with particularity, the basis for the Commissioner’s

reversal, modification, or remand.

23

But this clearly empowers MIA to remand to correct the

record. As to CSA, under Sec. 2-215(h) of the Insurance

Article, App. EE, p. 106a, a court can require the agency

to take additional evidence. As to all three, and in any

event, in In re Timothy C., 376 Md. 414, 429-431, 829

A.2d 1024 (2003) n. 10, the court cited with favor to

cases from other jurisdictions, including Helle v. Public

Utilities Commission of Ohio, 110 Ohio St. 434, 439,

161 N.E. 282 (1928), for the proposition that the trial

court has an inherent power to amend the record to

‘make the record speak the truth.” Helle involved

an administrative agency involved in a quasi-judicial

function. Therefore, so far as the Court of Appeals is

concerned, courts and administrative bodies enjoy the

same power to cause corrections.

None of this is recondite. The Maryland rule goes

back at least 210 years: Maryland Ice Co. v. Arctic

Ice-Mach. Manuf’g Co., 30 A. 633, 635 (1894); Duvail

v. Wells, 4 H. & MH. 114 (1798). Thirty years earlier,

Blackstone said in his Commentaries on the Laws of

England, Proceedings in the nature of Appeals, Book the

Third, Chapter the Twenty-Fifth, p. 406 (Yale Avalon

Project on the Internet):

But now, the courts are become more /iberal; and,

where justice requires it, will allow of amendments

at any time while the suit is pending.

In sum, ALJ, MIA, and CSA all clearly enjoy the

power to cause the correction of mistakes in the record.

Here all claimed that they did not. But Maryland follows

the elementary tenet of administrative law that an

agency must either conform to its own precedents

or explain its departure from them.®

8 International Union (UAW) v. N.L.R.B., 459 F.2d 1329,

1341 (D.C. Cir. 1972) (Skelly Wright, J.).

24

An agency changing its course must supply a reas-

oned analysis indicating that prior policies are being

deliberately changed, not casually ignored. . .°

Finally, and as noted, Maryland follows the rule the

reviewing court cannot sustain an agency order except

for the reasons stated by the agency. But here the

reasons given by ALJ and MIA were faulty.

7. Section 2-215(h) of the Insurance Article, App. EE,

pp. 106a-107a, which controls, prescribes six different

standards of judicial review: (i) “violate constitutional

provisions’; (iii) “are made by unlawful procedure’”’;

and (iv) “are affected by other error of law.”’ Petitioner

relied on these, but CSA considered only the substantial

evidence and error of law tests.

8. The terms “arbitrary” and “capricious” may fairly

be said to have plain, albeit not yet perfectly defined,

meanings. Thus, for example, in Harvey v. Marshall, 389

Md. 243, 302-304, 884 A.2d 1171 (2005), the court said

that an agency decision may be arbitrary or capricious if

it is:

contrary to or inconsistent with the enabling stat-

ute’s language or policy goals... . if it is irrationally

inconsistent with previous agency decisions. . . . if

similarly situated individuals are treated differently

without a rational basis for such deviation.

Where words have a plain meaning, Maryland courts give

effect to that meaning. Motor Vehicle Administration

v. Jones, 380 Md. 164, 175-176, 844 A.2d 388 (2004).

But here, CSA deferred to MIA’s far narrower definition

of the terms, as used in Sec. 27-303(2) and 27-304(15).

9. As to CSA’s ruling that MIA has a general power to

opt that its decisions will not have precedential effect,

9Christopher v. Department of Health, 381 Md. 188, 209,

215, 849 A.2d 40 (2004).

25

the facts are as follows: MIA had asserted a right under

COMAR rule 31.02.01.10-2.H (Effect of Summary

Affirmance) to make its decision nonprecedential. But,

by its terms, 10-2.H operates only when MIA does not

discuss the facts and law. Petitioner argued to CSA

that MIA did discuss facts and law. MIA counsel so

admitted, brief p. 23. Thus MIA’s reliance on 10-2.H

was error. CSA did not rely on 10.2.H. It ruled that

there is no right to a precedential decision; otherwise

put, that MIA enjoys a general power to render a non-

precedential decision any time it pleases.

As noted, in Maryland, Burlington Truck bars a re-

viewing court from upholding an agency order unless

the order is sustainable on the agency’s findings and

for the reasons stated by the agency. But CSA supplied

reasons for the conduct of the agency.

More importantly, Mehrling, pp. 64-65 requires admin-

istrative agencies to make meaningful findings of fact

and to state reasons when rendering final decisions.

Thus MIA enjoys the power (a) to make findings of

fact and state reasons (b) to adopt the findings and

reasons from the ALJD, and (c) to adopt some and make

others. Under 10-2.H as written, all of these would

have stare decisis effect. But 10-2.H claims a new

power (d): to make decisions in which MIA neither

expressly adopts the ALJ’s legal analysis nor makes its

own legal analysis. Rule 10-2.H purports to author-

ize MIA to decide cases without making the meaning-

ful findings of fact and without stating reasons required

under Mehrling.

Third, Maryland has a general rule, Motor Vehicle

Administration v. Shepard, above, 399 Md. p. 254, that

26

We should avoid a construction of the statute that

is unreasonable, illogical, or inconsistent with com-

mon sense.

Statutes should be read so that no sentence is ren-

dered “surplusage, superfluous, meaningless, or nuga-

tory.” Ibid. The same principles that govern the in-

terpretation of statutes govern the interpretation of

agency rules and regulations. Christopher v. Depart-

ment of Health, above, 381 Md. p. 209. But the exist-

ence of a general power to make nonprecedentia! deci-

sions renders 10-2.H if nothing else surplusage.

10. Long ago, in Summers v. Mosely, 2 Cr. & M. 477,

149 Eng. Rep. 849 (1834), the court found that a sub-

poena duces tecum did not require the presence in the

forum of the person to whom it was addressed. This

Court agreed: Wilson v. U.S., 221 U.S. 361, 373-374

(1911); Essgee Co. v, U.S., 262 U.S. 151 (1923). This

issue has never been raised in reported Maryland deci-

sions. But, as noted, the ALJ found that a subpoena

duces tecum requires the appearance in the forum of the

individual to whom it was addressed, and further that

his inability to be present excused the Company’s non-

production of the subpoenaed items.

11. Despite the Burlington Truck rule GEICO’s coun-

sel said, brief to CSA p. 8, of the certified mail return

receipts for the subpoenas addressed to Ms. Krech and

GEICO vice-president Pushman,

They were not signed for by either Ms. Krech or

Mr. Pushman as required regulation and as such,

neither Ms. Krech nor Mr. Pushman were properly

served with a subpoena. [sic ]

27

CSA agreed with MIA that the Pushman subpoena was

improperly served, but gave no reason. It did not invoke

Burlington Truck as against GEICO. The service would

be improper if, and only if, Ms. Vandevender lacked

authority to receive the subpoena. But by accepting and

signing for the document, Ms. Vandevender had know-

ingly and falsely represented to the mail deliverer that she

had such authority. GEICO has thereby accused its

own employee of a violation of 18 U.S.C. Sec. 1702 and

1708, App. II and JJ, pp. 112a-114a, which subject to

fine and imprisonment whoever takes mail from a mail

deliverer with knowledge that the person lacks authority

to do so. See, e.g., U.S. v. Palmer, 864 F.2d 524, 526

(7th Cir. 1988), cert. denied, 490 U.S. 1110. CSA

agreed with GEICO.

REASONS FOR GRANTING THE PETITION

Initially, Petitioner submits the table of authorities

of his main brief to the CSA, App. BB, pp. 97a-101a,

to assist this Court in assessing CSA’s statement that

Petitioner argued “without reference to any authority

and without any factual basis to support his allega-

tions.”” More broadly, he understands CSA’s dispar-

agement of his arguments as a statement that CSA

regards him as a disfavored litigant.

Judicial rules that unreported decisions cannot be

cited as either precedent or persuasive authority dis-

courage the public from wasting its time by reading

those decisions. As shown here, the rules allow for a

judicial practice of creating bodies of law, diametric

departures from reported rules of decision. It may

fairly be said that those departures are functionally

equivalent to a secret law, to be applied to disfavored

28

litigants. It is inconceivable that Petitioner is the only

disfavored litigant in Maryland, or in the United States.

Instead, this case differs from many others only in that

here at all stages, Petitioner demonstrated the depar-

tures at the previous level, and he thereby occasioned an

administrative and judicial response: still further depar-

tures from precedent.

By its creation of FRAP Rule 32.1, this Court has

shown awareness that there exists a judicial practice of

unreported rules of decision. The magnitude of the prac-

tice will only become known when the legal commun-

ity — scholars, law schools, and bar associations — begin

to scrutinize the unreported decisions in Maryland and

other states. By granting certiorari here, and airing

CSA’s practices, this Court will engender an interest

in the legal community and hasten the examination

of unreported decisions in all states. That examination

will help bring the practices complained of here to an

end. Thus this case is an ideal vehicle for advancing the

principles of equal protection, fairness, and predicta-

bility.

This Court has granted review where little money is

involved, Thompson v, City of Louisville, 362 U.S.

199 (1960), and where the underlying merits are unclear,

Peralta v. Heights Medical Center, 485 U.S. 80. 86-87

(1988).

29

CONCLUSION

For the foregoing reasons, Petitioner respectfully re-

quests the Court to grant the writ of certiorari herein

to the unreported opinion of the Maryland Court of

Special Appeals.

Respectfully submitted,

WILBUR H. FRIEDMAN, JR.

16303 Spring Water Court

Rockville, MD. 20853-3210

(301) 260-8283

Petitioner Pro Se.