author: Moore, J.,

text:
    STATE OF MARYLAND v. STANLEY HIKEN
    [No. 953,
    September Term, 1978.]

      Decided September 6, 1979.

    The cause was argued before Moylan, Moore and MacDaniel, JJ.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Haven Kodeck, Assistant State’s Attorney for Baltimore City, on the brief, for appellant.

      Joseph F. Murphy, Jr., for appellee.
   Moore, J.,

delivered the opinion of the Court.

In compliance with Maryland Rule 746, the trial of appellee, Stanley Hiken, under four indictments charging him with arson and related crimes, was scheduled for December 19, 1977 in the Criminal Court of Baltimore, 3 months and 12 days from the date of the indictments. The trial did not take place as scheduled, however, essentially because the State’s evidence — in the possession of the Baltimore Police Department Arson Squad — was subpoenaed approximately 2 weeks before the trial date by the United States District Court for the District of New Jersey in connection with a grand jury investigation in that jurisdiction of the same occurrence. Nine months and 23 days from the date of Mr. Hiken’s arrest, the court below (Allen, J.) granted appellee’s second motion to dismiss for lack of a speedy trial. The State seeks a reversal. Finding no error, we will affirm.

I

There was no evidentiary hearing below. Appellee’s motion to dismiss for lack of a speedy trial was granted at the last of five proceedings in open court on June 30, 1978 after extensive colloquies between court and counsel and upon a proffer of evidence with which the State substantially agreed. The operative facts may be summarized as follows:

Appellee, Stanley Hiken, conducted a formal men’s wear business in Baltimore City. In connection with this business, Hiken maintained a warehouse for formal wear storage at 1640 East Baltimore Street which was owned by S. Hiken Formal Wear, Inc. A fire occurred at the warehouse on December 11,1976. A 9-month investigation into the fire was conducted by the Office of the State’s Attorney and the Arson Squad of the Baltimore City Police Department. During this 9-month period, Mr. Hiken’s records were subpoenaed as were members of his family and other individuals who appeared and testified before the grand jury. Mr. Hiken ultimately was charged, in four separate indictments, with arson of the warehouse, conspiracy, solicitation, and insurance fraud.

On September 7, 1977, the date of the indictments, Hiken was arrested at his place of business in the 3600 block of Eastern Avenue in Baltimore City. Detective John Dillon of the Arson Squad took him from his establishment in handcuffs and drove him to the Southeastern District of the Baltimore City Police Department. There, after the prosecution pressed for the surrender of his passport, he was released on his own recognizance.

A trial date was set for December 19,1977. In November, the United States District Court for the District of New Jersey subpoenaed appellee’s business records. An Assistant United States Attorney in New Jersey, Thomas McKay, III, was aware of Mr. Hiken’s Maryland trial date. Nevertheless, at a meeting in his office in Camden, New Jersey on December 7,1977, attended by appellee’s counsel, James F. Murphy, Jr., by Assistant State’s Attorney Haven Kodeck of Baltimore City, and Detective John Dillon of the Baltimore City Police Department, Mr. McKay served a subpoena duces tecum upon Detective Dillon, returnable before the grand jury in Camden on December 13, 1977. Mr. Dillon was ordered to bring “all documents, reports, physical evidence, or other materials in [his] possession pertaining to the investigation of a fire at 1640 E[ast] Baltimore Street, Baltimore, Maryland, on 12/11/76.”

Detective Dillon delivered documentary and physical evidence to the New Jersey grand jury on December 13,1977, as required by the subpoena. Thereupon, Mr. Kodeck indicated to Mr. Murphy that a request for a change of Mr. Hiken’s trial date of December 19, 1977 would be made. No motion was filed. Mr. Murphy requested a formal hearing, on the record, in the chambers of'the Honorable Anselm Sodaro, then Administrative Judge.

Proceedings before Judge Sodaro, December 16, 1977.

Appellee’s counsel assured Judge Sodaro that he was ready and desirous to proceed to trial. The court suggested to Mr. Kodeck that xerox copies of the State’s evidence be obtained but the latter responded that copies could not be provided “at this late date.” With extreme reluctance, Judge Sodaro removed the case from the-.trial calendar, preserving, however, the December 19th trial date for the hearing of motions, filed on December 14th and December 16th, to dismiss all but the arson indictment. Judge Sodaro stated:

“Imust agree with counsel\ for both parties, that the United States Attorney acted highhandedly, and not only did he act high-handedly, but he has, in fact, caused embarrassment to the defense and the State, and the administration of justice of this city, because, obviously, it’s an important case. It was especially set for trial for a particular court.” (Emphasis added.)

He also stated that upon the return of the evidence from New Jersey, forecast by Mr. Kodeck for the following month, he would “make available, the Court to which this case has been assigned, Criminal Court Part XI, at anytime, even including the postponement of cases and assignments that have been scheduled for the Court so that this case may proceed expeditiously.”

Proceedings before Judge Allen, December 19, 1977.

When appellee’s motions came on for consideration by the court (Allen, J.) on December 19,1977 — the date which was to have been the trial date — counsel for Mr. Hiken informed the court at the outset that his motions were addressed to the related charges but not the “substantive indictment,” the arson indictment. He said, “We request an immediate trial on that issue.” Subsequently, he informed Judge Allen: “[I] sincerely believe that my client is entitled to an immediate trial. The defense is ready to proceed and indicated to the chief judge on Friday that we were ready to proceed.” The court observed that the matters presented were of some complexity and that the State should file a reply. The State requested, and received, a period of three weeks for that purpose.

Proceedings before Judge Allen, January 17, 1978.

When the case came again before the court on the pending motions on January 17, 1978, Judge Allen stated at the very outset:

“Mr. Kodeck, Mr. Murphy has made his position very clear, he insists on trial for his client, as he calls it, immediate trial. ” (Emphasis added.)

The State then advised the court that it had been unable to complete the research necessary to respond to the defense’s motions. An additional two-week period of time was requested. Judge Allen granted the request but ordered that “the material” be submitted to him by January 31 and that the hearing be held on February 7th. Before the conclusion of the proceedings, counsel for Mr. Hiken restated his objections to the original postponement of the trial and informed Judge Allen of the proceedings in New Jersey which had been the occasion of the change of the trial date by Judge Sodaro. Counsel stated that “extraordinary cause” within the meaning of Rule 746 had not been shown and that the State should have moved to quash the subpoena served upon Detective Dillon. The court ordered that a transcript of the proceedings before Judge Sodaro be obtained. The court also ruled, “at this time I’m going to deny Mr. Murphy’s motion for an immediate trial. I guess it it’s a motion for speedy trial.”

Proceedings before Judge Allen, February 8, 1978.

The court, having read the State’s memorandum in response to appellee’s pending motions addressed to the indictment charging conspiracy, solicitation, and insurance fraud, questioned the State’s Attorney and defense counsel extensively with respect to the matters of law and fact involved before taking the' motions under advisement. He assured counsel that he would rule expeditiously upon the motions. Before adjournment, the court inquired of counsel whether the case had been continued indefinitely by Judge Sodaro or merely “postponed.” The State replied, “It was just continued until such time as the evidence that was subpoenaed from [the] Baltimore City Police Department to [the] New Jersey authorities was returned to the Baltimore City Police Department.” Counsel for the defendant confirmed this statement but added, “But it’s a situation, I think, you know, a rose by any other name and regardless of whether it’s characterized as a postponement or a continuance, I continue to insist upon an immediate trial for my client and have done so at every juncture.”

The court then rejoined:

“Mr. Murphy [defense counsel], it’s very clear that you are laying the groundwork brick-by-brick. You always ask for an immediate trial and what I’m concerned about is this: maybe I really shouldn’t be concerned about it but we don’t have any control over this continuance if we are dependent upon another jurisdiction and another court system to release some documents and we are now, how many months since indictment?
MR. MURPHY: September was the indictment.
THE COURT: September 7th, October, November, December, January, five months, and with Mr. Murphy insisting very strongly at every meeting, insisting on an immediate trial we may be moving towards the point that our courts are going to say that, appellate courts are going to say that a continuance is a postponement. I really think. I don’t know what could be done about it but it seems to me the State ought to make some sort of demand for the return of these records. I think the burden is on the state to make some motion in that direction.
Have you done that as yet?
MR. KODECK-.Not as yet, Your Honor. I believe that the prospects of getting them back are very imminent.
THE COURT: Because when Mr. Murphy gets up around six months he’s going to be talking about speedy trial and things like that and I don’t know what the Court of Appeals would do in a situation where we have allowed, not we, but the State has allowed instruments to get out of its hands that delay the trial and have not insisted on getting them back. So, I’ll dispose of all your motions within a day or so and let you know.
MR. MURPHY: Thank you, Your Honor. Again, the issue where the evidence is and why it’s unavailable to the State has again come up and Your Honor is familiar with the history of how it got there and the prejudicial effect it has on my client as proffered the last time we were in court. So, it is for that reason that I request that the indictment be dismissed and that the dismissal order entered very shortly.
THE COURT: I will rule on your motions. That’s the best I can do. I will rule on your motions —.” (Emphasis added.)

The court’s ruling on the motions was almost immediately forthcoming. On February 15,1978, Judge Allen (a) dismissed the indictment charging solicitation to commit arson; (b) denied the motion to dismiss the insurance fraud indictment; (c) denied a motion to suppress certain financial records allegedly acquired contrary to Md. Ann. Code art. 11, §§ 224-227 (Supp. 1978); and (d) denied the motion to dismiss the conspiracy indictment, granting the State leave to amend that indictment “by interlineation to add the names of co-conspirators whose identities were known or should have been known to the Grand Jury at the time of indictment.”

Further Motions to Dismiss Indictments.

On March 2, 1978, counsel for Mr. Hiken filed a motion to dismiss the remaining three indictments, claiming that the State’s “action and inaction” had violated Mr. Hiken’s right to a speedy trial. The motion stated in part:

“7. Nearly six months have passed since the Defendant has been indicted, and the State has taken no action to set these charges for trial on the merits. Defendant again alleges that none of the postponements or continuances requested by the State have been for ‘extraordinary cause’ within the meaning of the above-captioned Rule [746 (b)] because the State has taken no steps to prevent the actions of the federal government which the State alleges to have caused its inability to present its case to a trier o f fact. ” (Emphasis added.)

The record contains no response by the State to this motion. It appears that some time in March the evidence was returned by the New Jersey federal authorities. We are told that the defendant’s counsel was not informed of their receipt. The record does not reflect any action by the State, at that juncture, to obtain a new trial date in accordance with Judge Sodaro’s instructions of December 16, 1977.

On May 2, 1978, essentially on the basis of a denial of due process, counsel for Hiken filed a motion to dismiss the indictments and a comprehensive supporting memorandum. The principal grounds for the motion were that: (1) one Monty Artwell, who had previously given testimony under oath before the Baltimore grand jury, and whom Mr. Hiken intended to subpoena as a witness, had given false testimony in New Jersey involving the fire and was subject to a perjury indictment there; and (2) the Maryland State authorities and the New Jersey federal authorities were “engaged in a joint investigation which caused the first postponement of this case and subsequent violations of Defendant’s rights.” The latter violations, as particularized in the motion, were serious, alleging that: State and federal authorities were engaged in an abuse of the grand jury process, the end result of which was to enable Maryland authorities to gather evidence for criminal charges pending before the Criminal Court of Baltimore, which it would not otherwise constitutionally be able to obtain. “The facts of the instant case clearly cry out for the intervention of this Honorable Court,” the memorandum insisted.

Judge Allen instructed the State to respond in writing. Although a reply memorandum was apparently submitted, it is not contained in the record before us.

On June 22, 1978, however, Hiken filed a “Second Motion To Dismiss For Lack Of Speedy Trial,” in which it was stated that the State’s answer to the defendant’s May 2nd motion “simply argued that the matters raised therein be deferred until trial.” Appellee’s motion continued:

“Specifically and of paramount importance to the instant Motion, the State’s response to the aforegoing Motion mentions absolutely nothing about the Defendant’s claim that the office of the State’s Attorney for Baltimore City and the Baltimore City Police Department has engaged in a deliberate strategy to delay the trial in order to work with the office of the United States Attorney for the District of New Jersey in the hope that the latter law-enforcement agency shall develop evidence not now in the possession of the State. Therefore, the Defendant’s allegations must be taken as true for purposes of the Court’s disposition of this Motion.” (Emphasis in original.)

Proceedings before Judge Allen, June 30, 1978.

In open court on June 30,1978, extensive colloquies again took place between the court and counsel with respect to the pending motions. During the course of this hearing, Hiken’s counsel complained again, as he had at virtually every other hearing, that the action of the federal authorities in New Jersey not only made possible the discovery of evidence against Mr. Hiken which normally would not have been available to the State, but that it was also contrary to stated policy of the Department of Justice in connection with the exercise of the power to prosecute a defendant under both federal and state law for the same act or acts. See Claybrooks v. State, 36 Md. App. 295, 304-05, n. 5, 374 A.2d 365, 371 (1977). That policy, as disclosed in Claybrooks, was based upon a 1959 Memorandum to United States Attorneys from then Attorney General William O. Rogers. It stated that the power to conduct a federal prosecution after a State prosecution "has been used sparingly by the Department of Justice in the past. The purpose of this memorandum is to insure that in the future we continue that policy. After a State prosecution there should be no federal trial for the same act or acts unless the reasons are compelling.” The federal policy, as represented to the lower court by counsel for Hiken, was, however, that “once there’s a completed State prosecution' the Justice Department will not permit an indictment unless the Attorney General himself authorizes it, so had this case proceeded to trial on December 19, 1977, for better or for worse, whatever the result was for Mr. Hiken, the Justice Department’s policy would have precluded his indictment in New Jersey absent the actual written authorization of the Attorney General of the United States.” The latter statement is not supported by the policy memorandum quoted above from the opinion of this Court in Claybrooks,

As previously indicated, there was no evidentiary hearing on June 30, 1978, but counsel for the defendant made a proffer of facts with which the State substantially concurred.

At the conclusion of the hearing, appellee’s due process motion filed on May 2, 1978 was denied. The second motion to dismiss for lack of a speedy trial filed on June 22,1978 was granted. The court observed that what “makes the nine months different from any other nine months was the loss to the federal authorities of the evidence required to proceed here, when they really didn’t have to do it and when they could have fought the subpoena and went ahead and tried his case.” Judge Allen concluded that the Barker analysis had been triggered, that appellee’s right to a speedy trial had been repeatedly asserted and that the State’s Attorney had not rebutted the presumption of prejudice which arose from the 9-month, 23-day delay. In so concluding, Judge Allen stated in part from the bench:

“The State has failed to even suggest or the State has suggested there’s no prejudice, but there is a substantial representation by the defense that prejudice is very substantial, and in fact the defense feels that the Defendant is going to be indicted almost momentarily, and that once he is indicted the prejudice will be insurmountable because then he will stand for trial in two jurisdictions, perhaps. And the defense attaches even more lurid motiyes to the State’s saying what they intend to do is simply to hold Mr. Hiken in some sort of suspended animation down here in Maryland until he’s indicted in New Jersey and nol pros the cases down here.
Of course, that is just speculation; isn’t it, Mr. Murphy, speculation. But the facts come through loud and clear that this case is nine months old, almost ten months old and that the Defendant at the behest of another jurisdiction without ever any attempt to fight the seizure, not seizure, but the subpoenaing of certain documents to protect its own prosecution has allowed the case to be delayed a very substantial length of time,
I think the delay is prejudicial, and I’m going to grant the Defendant’s motion to dismiss on the grounds of denial of speedy trial.” (Emphasis added.)

II

As we noted at the outset, the Court of Appeals in State v. Hicks, No. 130, Sept. Term, 1978 (filed June 25,1979), and on motion for reconsideration, filed July 19, 1979, has held that Maryland Rule 746 is mandatory and not directory but that this new interpretation is “entirely prospective.” In cases like the instant appeal, not affected by the court’s holding, Rule 746 remains directory only, not mandatory. The starting point, in our appraisal of the State’s claims of error, is the familiar case of Barker v. Wingo, 407 U.S. 514 (1972). The court in Barker held that four factors should be balanced in determining whether a defendant has been denied a speedy trial: the “length of delay; the reason for the delay; the defendant’s assertion of the right; and prejudice to the defendant.” Id. at 530.

1. Length of Delay.

The duration of the delay is the mechanism which triggers the analysis and is itself one of the factors to be balanced. State v. Wilson, 35 Md. App. 111, 371 A.2d 140 (1977), aff’d, 281 Md. 640, 382 A.2d 1053 (1978), cert. denied, 439 U.S. 839 (1978). Here, the period of delay extends from September 7, 1977, the date when Mr. Hiken was indicted and arrested, to at least June 30,1978, when his motion to dismiss for lack of a speedy trial was granted, a period of 9 months and 23 days.

We firmly reject the State’s contention that the delay is not of constitutional dimension. As Barker held, “[T]he length of delay that will provoke such an inquiry is necessarily dependent on the peculiar circumstances of the case.” Id. at 530-31. While the State correctly points out that the crimes charged here were not “ordinary street crimes” but crimes of greater complexity, it fails utterly to acknowledge the fact that a 9-month investigation by the police arson squad and the Office of the State’s Attorney had preceded Mr. Hiken’s indictment and arrest. Under these circumstances, the State was, or certainly should have been, ready for trial within a very short time after the indictments and the almost 10-month period involved is surely of constitutional dimension.

2. Reason for the Delay.

A “brooding omnipresence” here is the subpoena issued by the United States District Court in New Jersey, almost two weeks before the trial date of December 19th in Part X of the Criminal Court of Baltimore. As we read the record, the Office of the State’s Attorney for Baltimore City capitulated to an Assistant United States Attorney in Camden, New Jersey, showing little consideration for the orderly administration of justice in Maryland. We find no evidence that the top echelons of the Office of the State’s Attorney of Baltimore City were in any way involved or concerned. It does not appear that any effort was made, at appropriate levels, to moderate the demands of the Camden office so as to postpone compliance with the subpoena until after the trial in Maryland had occurred. No motion to quash was, it appears, even contemplated. Detective Dillon had no alternative but to deliver to the Camden office of the United States Attorney for the District of New Jersey everything that Maryland had as a result of nine months of investigation. The power of a court was invoked only after the evidence had been surrendered — and then only to pray a continuance.

Judge Sodaro very properly spoke of the “embarrassment” and “handicap” to the State of Maryland “because of the actions of the United States Attorney’s Office in Camden, New Jersey____” On the other hand, the Office of the State’s Attorney for Baltimore City became clearly vulnerable to the charge, in appellee’s brief, that it “did not want to begin Appellee’s prosecution on December 19, 1977, and used the federal subpoena as an excuse not to do so.”

The record does not disclose when the evidence came back from Camden except that it occurred some time in March 1978. We are told that the State made no effort to notify Mr. Hiken’s counsel of its receipt. Patently, it made no effort to set the case for trial. The State, in its brief, argues that “the delay without a trial date being set from March 1978, when the evidence was returned, to May 2, 1978 [the date of appellee’s motion to dismiss on due process grounds] again cannot be deemed anything but the orderly administration of justice [which] Epps v. State, [276 Md. 96, 345 A.2d 62 (1975)] labeled as neutral, not chargeable to either party.” We reject this argument. Similarly, we reject the further statement in appellant’s brief that:

“The time period from May 2, 1978 to June 30, 1978 was taken up by the preparation, as ordered by the trial court, by the prosecution of a reply to defense counsel’s May 2 motion and by the normal delay in the scheduling of a hearing on the motion. This time period is thus chargeable to Appellee.”

The undeniable truth is that the absence of State’s evidence, not the intervening motions, was the cause of the delay. Surely, an accused who properly asserts by motion “technical defect defenses” should not be penalized in the evaluation by the court of his claim that he was denied his right to a speedy trial.

In our judgment, on the record before us, the responsibility for substantially all of the delay in this case must rest on the doorstep of the State.

3. Assertion of the Right.

The transcripts of the five court proceedings before Judge Allen abundantly support his conclusion that Hiken, through counsel, clearly and forcefully asserted his right to a speedy trial “at every possible turn.”

The State argues that his assertion of the right was deficient because no written motion for a speedy trial was ever filed. This argument is untenable. Oral assertions of the right, on the record, are clearly sufficient. The State further contends that appellee’s motions to dismiss for lack of a speedy trial do not support his claims of assertion of the right. The State’s reliance, in this respect, on Nocera v. State, 36 Md. App. 317, 374 A.2d 608 (1977) is altogether misplaced. It is true that we stated there, in language quoted in the State’s brief, that a motion to dismiss is “not a motion to be tried, but a motion not to be tried ... and, therefore, does not tend to support appellant’s argument that he effectively demanded a speedy trial.” Id. at 321; 374 A.2d at 611. But the motion to dismiss in Nocera was not made until the day of trial. Here, the written motions were made in March and again in June of 1978, before any new trial date had been obtained by the State, despite the fact that the State’s evidence had, at long last, been returned to Maryland from the federal authorities in New Jersey.

4. Prejudice to the Accused.

In Barker v. Wingo, the Court identified three interests of defendants “which the speedy trial right was designed to protect...: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. 407 U.S. at 532. As Judge Moylan carefully explained for this Court in State v. Wilson, whenever the delay is of “constitutional dimension,” as here, prejudice will be presumed. This presumption “is not conclusive but rebuttable.” As Judge Moylan expressed it:

“The State, for its part, may come forward and meet its burden of producing evidence and negate the presumed prejudice.”

35 Md. App. at 124; 371 A.2d at 149.

Although there was no pretrial incarceration here, the trial court’s characterization of the prejudice to the appellee as “very substantial” was amply supported. The anxiety and concern of the accused had to be extreme. All during the period of the delay, he was under a constant threat of indictment by the grand jury in New Jersey, an indictment ultimately returned but one which, as appellee argues with persuasive effect, might not have resulted if the case had proceeded to trial as scheduled in Maryland. Indeed, it was precisely the threat of a federal indictment which appellee’s counsel cited, at every turn, in urging an “immediate trial” in Baltimore.

Again, although not relied upon by the trial court, there was evidence of impairment of the defense. In advance of the original trial date, counsel for Hiken applied for an intrastate subpoena for Monty Artwell. In testimony before the grand jury in Baltimore, Artwell said that an individual named Levin in New Jersey had sent Artwell to Baltimore to burn the appellee’s warehouse and to make the appellee the scapegoat. This testimony was recanted by Artwell after the original trial date in this case and he was indicted for perjury. The State offered no response below to appellee’s proffer that his defense had been prejudiced by the loss of Artwell as a witness; and, although the circumstances are somewhat bizarre, we do not accept the State’s rationalization in its brief that “as of June 30,1978 the substance of Artwell’s testimony was speculative at best.” The crucial date was December 19, 1977, the original trial date.

The court below properly held that the appellee was denied his right to a speedy trial and dismissed the remaining three indictments.

Judgments affirmed; Mayor and City Council of Baltimore to pay the costs.

      . Maryland Rule 746, effective July 1,1977, provides in subsection (a) that a trial date must be set “within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), [and that] a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723.” Under subsection (b) the county administrative judge or his designee may grant a change of the trial date upon motion in writing or in open court and “for extraordinary cause shown.” (Appellee’s counsel entered his appearance on Sept. 27, 1977.)

      . Subsequent to oral argument in this appeal, we were informed that appellee was indicted on May 23,1979 in the United States District Court for the District of New Jersey, in a five-count indictment. The charges included conspiracy, wire-fraud, and racketeering, all arising out of a fire in Baltimore on December 11, 1976.

      . The case of State v. Hicks. 285 Md. 310, 403 A.2d 356 (1979) held that Md. Rule 746 is mandatory and not directory, overruling Young v. State, 15 Md. App. 707, 292 A.2d 137, summarily aff'd, 266 Md. 438, 294 A.2d 467 (1972), and that dismissal of the indictment is ordinarily the appropriate sanction for violation of the 120-day trial date requirement. The Hicks case could not be determinative of this appeal, however, because,_ as the Court of Appeals ruled — on motion for reconsideration — in a per curiam opinion filed on July 19, 1979, the holdings in Hicks “will be entirely prospective, applying only to future criminal prosecutions and only to those pending cases where, as of our mandate in this case, there have been no appearances of counsel or first appearances of defendant pursuant to Rule 723.” Id. at 338.

      . These proceedings took place on December 16,1977, December 19,1977, January 17,1978, February 8,1978, and June 30,1978. The first proceeding was occasioned by the State’s motion for a continuance of the trial date to which the defendant objected. The subsequent hearings were in connection with motions addressed to the indictments by the appellee, culminating in the second motion to dismiss for lack of a speedy trial.

      . Md. Ann. Code art. 27, §§ 7, 10 (a), 111 (1976 & Supp. 1978).

      . Id, § 38 (1976).

      . Id, art. 48A, § 233 (1979).

      . We glean from the record that the United States Attorney’s Office and the Grand Jury in the United States District Court for New Jersey were investigating the possible involvement in the Baltimore arson of two individuals also engaged in the formal wear business in Pennsauken, New Jersey.

      . Xerox copies were later obtained by Mr. Hiken’s counsel and were in his possession in time for the trial date of December 19, 1977.

      . The purpose of the meeting was to review tapes that might contain exculpatory evidence in Mr. Hiken’s case and that of a co-defendant in the Maryland proceedings.

      . Although set by Judge Allen for February 7 at the hearing on January 17, the date was changed Dy the Criminal Assignment Office to February

      . As indicated infra, the court issued its order with respect to the motions, a week later, on February 15, 1978.

      . It appears that Artwell was, indeed, later indicted for perjury.

      . The transcript of this proceeding discloses that the attorneys and Judge Allen conferred in chambers on June 29,1978 concerning the motions to be heard the following day and that the Assistant State’s Attorney and defense counsel agreed mat a trial date would be selected after disposition of the motions, if necessary.

      . The State’s brief on this appeal points out that the Justice Department’s policy on this subject at the time of the hearing in this case was contained m a memorandum of then Attorney General Edward H. Levi, dated January 18, 1977, reprinted in 24 Crim.L. Rptr. 3001 (Nov. 22, 1978), stating in part:

        “Prosecution in another jurisdiction — The nature of the offense may be such that the federal interest in prosecution is less substantial than the interest of state or local authorities. In such cases it is entirely appropriate for the attorney for the government to consider deferring to state or local prosecution, especially if it appears that the state or local prosecution would be successful and would result in the imposition of an appropriate sentence.”
      Mr. Levi emphasised that the above was not to be construed in the nature of “guidelines” and that “they impose no obligations on United States Attorneys, their assistants, or other attorneys for the government [nor do] they confer any rights or benefits, substantive or procedural, enforceable at law by any party to litigation with the United States.”

      . Barker v. Wingo, 407 U.S. 514 (1972).

      . See note 1, supra.

      . We observe that, even where there has been full compliance with Rule 746, the Barker analysis may well result in a finding that the accused’s speedy trial rights were denied. In the instant case, as in Hicks, there was compliance with subsection (a) of Rule 746. It also appears that as of the date of the proceedings in chambers before. Judge Sodaro, 3 days before trial, there was “extraordinary cause” for a change of the trial date.

      . A somewhat longer period of time may arguably be involved because no new trial had been set as of June 30, 1978, when the motion to dismiss was heard, and in all likelihood no such trial date could have been set without some additional delay.

      . Wilson v. State, 281 Md. 640, 382 A.2d 1053 (1978) (4-year, 2-month delay was presumptively prejudicial); Jones v. State, 279 Md. 1, 367 A.2d 1 (1976), cert. denied, 431 U.S. 915 (1977) (2-year, 5-month delay was presumptively prejudicial); Epps v. State, 276 Md. 96, 345 A.2d 62 (1975) (1-year, 14-day delay was presumptively prejudicial); Smith v. State, 276 Md. 521, 350 A.2d 628 (1976) (16-month delay was prejudicial); State v. Dean, No. 591, Sept. Term 1978 (Ct. Spec. App. filed April 12, 1979) (2-year period prejudicial); State v. Statchuk, 38 Md. App. 175, 380 A.2d 225 (1977) (10-month, 21-day delay was prejudicial); Dorsey v. State, 34 Md. App. 525, 368 A.2d 1036 (1977) (11-month delay was prejudicial when case was relatively uncomplicated); Pyle v. State, 34 Md. App. 60, 366 A.2d 90 (1976) (11-month delay was prejudicial when case was relatively uncomplicated); Lee v. State, 32 Md. App. 671, 363 A.2d 542 (1976) (19-month delay was sufficient to trigger the Barker analysis); State v. Becker, 24 Md. App. 549, 332 A.2d 272 (1975) (9y2-month delay was prejudicial); Matthews v. State, 23 Md. App. 59, 325 A.2d 897 (1974) (12-month delay was not prejudicial); McIntyre v. State, 17 Md. App. 526, 302 A.2d 672 (1973) (6½-month delay was prejudicial); State v. Hunter, 16 Md. App. 306, 295 A.2d 779 (1972) (5A-month delay was not prejudicial); Thompson v. State, 15 Md. App. 335, 290 A.2d 565 (1972) (5y2-month delay was not prejudicial).


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    SECRETARY OF HEALTH AND MENTAL HYGIENE v. JESSE T. CROWDER
    [No. 251,
    September Term, 1979.]

      Per Curiam Order August 13, 1979.

      Opinion Filed September 6, 1979.

      The cause was argued before Gilbert, C. J., and Morton and Couch, JJ.

      Standish McCleary, III, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.

      Harry T. deMoll, with whom were Blomquist & deMoll, P.A. on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

On August 13, 1979, following oral argument in this case, we issued the following per curiam order:

“This cause, having come before this Court on argument after an order of advancement, it is this 13th day of August, 1979, by the Court of Special Appeals of Maryland,
ORDERED, that the judgment hereinbefore entered by the Circuit Court for Frederick County be, and the same is hereby, reversed.
The reasons for this per curiam order to be stated in an opinion to be filed at a later date. Costs to be paid by appellee. The mandate shall issue forthwith.”

We now explain why we took that action.

This is the story of Treasure Mountain. It is the saga of Jesse T. Crowder’s venture into real estate development of his own small tract of property and his entanglement in the regulations of the Maryland Department of Health and Mental Hygiene. The complex web of governmental rules, the Department’s denial of permission to use septic tank sewage in the venture, together with the resultant administrative appeals, must have at times seemed to Crowder to have removed all expectation of “Treasure” from the Mountain. Indeed, “Treasure Mountain” might be better named “Heartbreak Hill.” The Circuit Court for Frederick County cut through the strands of the regulatory web, reversed the decision of the Secretary of Health and Mental Hygiene as well as that Department’s Board of Review, and placed its judicial stamp of approval on Crowder’s project.

Unmistakably aggrieved by the circuit court’s action, the Secretary appealed. We, after discussion with counsel for the parties litigant, sua sponte advanced the matter for hearing.

The Secretary vigorously asserts to us that “the denial of subdivision approval” by the agency over which he presides was “in accordance with legally sufficient regulatory standards,” and that the denial was “supported by substantial evidence.”

The facts giving birth to this appeal commenced with plans to subdivide sixteen acres of land located in Frederick County into sixteen residential building lots. Four of the lots failed to pass the necessary percolation test, and two lots were combined into one because of the slope of the lots. The percolation tests were relatively fast. As a result of the tests, the subdivision was reduced to eleven lots on the final revised plat that was submitted to the Supervisor of the Environmental Health Services of the Frederick County Health Department. The Supervisor disapproved the plat and Crowder set out on his journey to court.

First he appealed to the Deputy State Health Officer of Frederick County. Following a lack of success at that level, Crowder appealed to the Secretary of the Maryland Department of Health and Mental Hygiene. The Secretary designated a hearing officer to conduct the hearing and make recommendations to the Secretary. Upon receipt of the hearing officer’s findings and recommendations, the Secretary affirmed the Deputy State Health Officer’s disapproval of the subdivision plan. Crowder then appealed to the Board of Review of the State Health and Mental Hygiene Department. Following oral argument, the Board of Review affirmed the order of the Secretary and adopted the findings of fact and conclusions of the hearing officer. Once more Crowder appealed. He sought relief in the Frederick County Circuit Court. That tribunal agreed with Crowder. It found that the hearing officer’s findings of fact were not supported by the record before her, and that “there was no evidence in the case that could reasonably sustain the decision” of the Secretary. Accordingly, the court reversed the Secretary and “approved” the subdivision.

Before we begin our discussion of the law, certain fundamental principles applicable to appeals from administrative agencies must be recalled:

1. Judicial review of decisions made by an administrative board is narrow in scope because of the recognized expertise of the board in a particular field of endeavor. Annapolis v. Annapolis Waterfront Co., 284 Md. 383. 395, 396 A.2d 1080, 1087 (1979); Finney v. Halle, 241 Md. 224, 241, 216 A.2d 530, 539 (1966).

2. Decisions of administrative boards carry a presumption of validity and will not be disturbed on appeal if there is a showing within the record of substantial evidence to sustain the findings. Heaps v. Cobb, 185 Md. 372, 378-79, 45 A.2d 73, 76 (1945); Commissioner v. Cason, 34 Md. App. 487, 499, 368 A.2d 1067, 1074, cert. denied, 280 Md. 728 (1977); Toland v. State Board of Education, 35 Md. App. 389, 395-96, 371 A.2d 161, 164-65 (1977).

3. State administrative “agencies are created in order to perform activities which the Legislature deems desirable and necessary” to further the public health, safety, welfare, and morals. Department of Natural Resources v. Linchester, 274 Md. 211, 222, 334 A.2d 514, 522 (1975); Commissioner v. Cason, supra.

4. With or without legislative enactment, courts have an inherent constitutional duty to review, within limits, decisions of administrative bodies. Department of Natural Resources v. Linchester, supra; Baltimore Import Car v. Maryland Port Authority, 258 Md. 335, 342-43, 265 A.2d 866, 869-70 (1970); Commissioner v. Cason, supra.

5. The powers vested in the courts, by statute or inherence, to review administrative decisions does not carry with it the right to substitute its fact finding process for that of an agency. Oxon Hill Recreation Club v. Water Resources Administration, 281 Md. 110, 114, 375 A.2d 567, 569 (1977); Insurance Commissioner v. National Bureau, 248 Md. 292, 309-10, 236 A .2d 282, 291-92 (1967); Snowden v. Mayor and City Council of Baltimore, 224 Md. 443, 445, 168 A.2d 390, 391 (1961); Toland v. State Board of Education, supra; Nelson v. Real Estate Commission, 35 Md. App. 334, 344-45, 370 A.2d 608, 615, cert. denied, 280 Md. 733 (1977); Commissioner v. Cason, supra. See also, Prof. E. A. Tomlinson, Constitutional Limits on the Decisional Powers of Courts and Administrative Agencies in Maryland, 35 Md. L. R. 414 (1976).

6. The court will correct illegal, arbitrary, and unreasonable acts of the administrative agencies “because those acts are not based on substantial evidence.” Snowden v. Mayor and City Council of Baltimore, supra, 224 Md. at 445; Commissioner v. Cason, supra.

7. The court may not set aside a decision of an administrative agency merely because the court might weigh the evidence differently. Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467. 476, 84 A.2d 847. 851 (1951). See also Board v. Oak Hill Farms, 232 Md. 274, 192 A.2d 761 (1963).

An excellent and relatively brief summary of the functions of the courts in reviewing a decision of an administrative agency was penned by Judge Jerrold V. Powers for this Court in the Cason case:

“A reviewing court may, and should, examine any inference, drawn by an agency, of the existence of a fact not shown by direct proof, to see if that inference reasonably follows from other facts which are shown by direct proof. If it does, even though the agency might reasonably have drawn a different inference, the court has no power to disagree with the fact so inferred.
A reviewing court may, and should, examine any conclusion reached by an agency, to see whether reasoning minds could reasonably reach that conclusion from facts in the record before the agency, by direct proof, or by permissible inference. If the conclusion could be so reached, then it is based upon substantial evidence, and the court has no power to reject that conclusion.
A reviewing court may, and should, examine facts found by an agency, to see if there was evidence to support each fact found. If there was evidence of the fact in the record before the agency, no matter how conflicting, or how questionable the credibility, of the source of the evidence, the court has no power to substitute its assessment of credibility for that made by the agency, and by doing so, reject the fact.” 34 Md. App. at 508.

We turn now to the case sub judice.

While the hearing examiner's findings are not, in our view, as factually comprehensive as they should have been and, thus, invited the circuit court’s reversal, the record, when reviewed, shows that the examiner was correct, even if for the wrong reason.

There was evidence that, although the majority of the lots passed the percolation test, the “rock formulation” in the area where the septic systems were to be located would not fulfill the expectations of a septic system. In short the sewage would not be properly attenuated before it reached ground water.

Mr. Robert T. Dutrow, Supervisor of the Environmental Health Department for Frederick County, testified that he had been performing that “sort of work” for “[nineteen and a half years.” He personally examined Treasure Mountain on several occasions. It was Mr. Dutrow’s judgment that the septic system was not satisfactory if there were to be wells for water rather than a public water system. Dutrow believed that the proposed sewerage system might result in the infiltration of the ground water. He opined that it was the Health Department’s job “to do its utmost to protect the public health and not wait until a contamination exists.” Dutrow said that in an area such as that of Treasure Mountain, with its “fast percolation” that “there is more possibility for the water supply to be contaminated....” The witness further stated that with a rocky soil structure such as here that septic system’s effluent is “more apt to reach the water supply in an unfiltered state.” He repeated that in his “opinion” there was a possibility of contamination of the water supply if the septic system as proposed was put on the lots. Dutrow also noted that other developments in the area had experienced “problems” with “contaminated water.”

Another witness, Mr. Harry F. Sandberg, told the hearing examiner that he was “a Regional Consultant with the Environmental Health Administration, State Health Department.” Mr. Sandberg testified that a fast percolation rate “in a fractured rock area [such as that at Treasure Mountain]” is essentially because of channery material. “Channery material,” Mr. Sandberg defined as “cobblestones.” He expressed the opinion that when “you have these various fast rates [for percolation], you are not going to get the renovation [of waste] and that sewage is essentially going to get into the ground water in inner spaces of the rocks without any attenuation.” The witness went on to say that:

“I believe that if the subdivision was [,s/c] built, I think [that] within a reasonable period of time we would have problems with the wells because there is not going to be any renovation. The sewage is going to get into the inner spaces of the rock. The fractures [in the rocks] are hydrologically connected. It doesn’t matter where the wells are. If you don't have that renovation of the sewage, then you can’t be sure that the quality of the water will be of a potable quality.”

We think the reasonable inference to be drawn from the testimony of Messrs. Dutrow and Sandberg is that because of the strata of the soil, there is a definite possibility that the proposed septic systems will contaminate the proposed wells with unattenuated human waste.

The trial judge saw the record as not containing the necessary substantial evidence to support the Secretary’s findings. We, however, view the record differently. We think that the testimony of Messrs. Dutrow and Sandberg was sufficient to satisfy the substantial evidence test applicable to proceedings before administrative bodies. At minimum, the issue was “fairly debatable.” In our opinion, the circuit court erred in holding that there was no such evidence. It appears that the circuit judge did not believe the State’s witnesses, or else he could not have reached the conclusion that he did. In any event it is clear to us that the judge substituted his judgment for that of the agency, and that he may not do.

Crowder suggests, indeed, he urges, that we hold that when the percolation test is passed, it is unreasonable for the Department of Health to deny a permit. The “perk test,” he advances, satisfies the rule and there is nothing else for the Department to do but ministerially issue the necessary permit. We, however, have an entirely different point of view.

COMAR 10.17.03.03 A provides:

"In all subdivisions, individual water supply and sewage disposal facilities may be permitted when in conformance with the county plan and where the following acceptable physical conditions are present: topography, soil types, surface and subsurface drainage, and the absence of a fluctuating high water table. These determinations shall be based upon available information which shall include the history of individual water supply and individual sewerage systems, information obtained from the soil survey for the jurisdiction, standard percolation tests, available geologic and hydrologic data and any other information which may be available.” (Emphasis supplied.)

The rule makes unmistakable that the passing of the percolation test is not the end of the matter. It is only one of the factors, among many, to be considered. Moreover, in those instances where a preliminary plan is submitted by the developer, a subdivision "may not be considered, where, in the opinion of the approving authority, the infiltration of individual sewerage system wastes may result in the contamination of the ground water. ” COMAR 10.17.03.02 A. (Emphasis supplied.) A reference to the testimony of Messrs. Dutrow and Sandberg, above, indicates that the “approving authority” was of the opinion that the individual sewerage systems as proposed by Crowder might result in contamination of the ground water. That testimony, if believed, justified the Department’s refusal to issue the necessary permits. The hearing officer, Secretary, and Board of Review did not err in affirming that Department’s declination to issue the permit. The circuit court erred in reversing that decision.

Judgment reversed.

Costs to be paid by appellee.

      . Code of Maryland Regulations (COMAR), Title 10, Department of Health and Mental Hygiene, Subtitle 17. ch. 02, .01 E provides:
      “E. Where public water supply and sewage disposal systems are not available, any person contemplating the construction of a building for human occupancy or use, or addition to or alteration of any existing water supply or sewage disposal system shall, previous to beginning any construction, make application to the approving authority for a written permit to make the desired installation. The length of time a permit is to run shall be specified in the permit and may not exceed 3 years. The permit shall become inoperative at the expiration of the period of time prescribed, without notice to that effect having been given by the approving authority.”

      . The original plat received “preliminary” approval from the Frederick County Planning Commission on December 14, 1976.

      . COMAR, 10.17.02.02 H defines “percolation test” to mean “the determination of the suitability of an area for subsoil effluent disposal by testing for the rate at which the undisturbed soil in an excavated pit of standard size will absorb water per unit of surface area.” Put in simpler terms, a percolation test measures the rate at which a given quantity of water will seep from a hole of specific size that has been dug in the ground for that purpose.

      . The results of the “perk” tests are set out in the “SYNOPSIS OF CASE, FINDINGS OF FACTS, QUESTIONS PRESENTED, STATUTES AND REGULATIONS INVOLVED, CONCLUSIONS AND RECOMMENDATION” of a hearing officer designee of the Secretary of Health and Mental Hygiene. We quote therefrom:
      “Testimony by Thomas Mohler, Jr., based upon his method of performance of percolation testing resulted in the following: (They are entered here as results and not as acceptance of failing or passing.)...
      Lot #1 — failed percolation testing — no perk and was not included on Revised Preliminary Plat...
      Lot #2 —• gave a one minute perk. This was said to meet the standard and passed.

      Lot #3 — one minute perk, said to meet the standard and passed.

      Lot #4 — one minute perk — passed.

      Lot #5 —■ forty (40) second test then retested to 1% minute and this was rounded out to two minutes — passed.

      Lot #8 — 3 minute perk ... not retested — passed — had a problem of 25 percent slope or more. The septic system area was too close to this slope and Lot 8 and 9 on prefiminary plot... were combined.
      Lot #9 — first test was 4 minute perk and second was 8 minute perk — passed.

      Lot #10 —• first perk was r/„ inches in 30 minutes of testing. The next day on February 15, two other test holes produced 4 minute tests and were passed.

      Lot #11 — first test was 40 seconds retested and resulted in two minute test when rounded off passed.

      Lot #12 — tested for tile fields after failing the pit test. The tile field test was then averaged out to declare 2 minute and passed.

      Lot #13 — did not pass —■ exclude the sidewalls — were very wet....
      Lot #14 — testing was averaged to 3 minutes.
      Lot #15 — did not pass

      Lot #16 — did not pass”

      For reasons not apparent to us, the test results for Lots 6 and 7 are not included.

      . If the reader is intent on tracing the methodology of proceedings before the Secretary, he or she should read Clinton Com. Hos. v. Md. Comp. Health, 31 Md. App. 265, 355 A.2d 775 (1976).

      . State Department of Assessments and Taxation v. Clark, 281 Md. 385, 402, 380 A.2d 28, 38 (1977); Board of Medical Examiners v. Steward, 203 Md. 574, 580-81, 102 A.2d 248, 251 (1954); Prince George’s County v. Fahey, 28 Md. App. 312, 316, 345 A.2d 102, 105 (1975).

      . See n. 3, supra.

      8. “ ‘Potable water’ means water which is safe for human consumption.” COMAR 10.17.02.02 J.


text:
    ANNAPOLIS URBAN RENEWAL AUTHORITY v. INTERLINK, INCORPORATED
    [No. 1071,
    September Term, 1978.]

      Decided September 7, 1979.

    The cause was argued before Moylan, Moore and MacDaniel, JJ.

      Nicholas J. Fotos and Robert deV. Frierson for appellant.

      Benjamin Michaelson, Jr., with whom was Mark S. Hoffmann on the brief; for appellee.
   Moore, J.,

delivered the opinion of the Court.

This appeal involves the falling-out between the Annapolis Urban Renewal Authority (AURA) and Interlink, Incorporated, which was selected by AURA in December 1973 as the developer of Parcel #15 of the Town Center Urban Renewal Area of the City of Annapolis. The project was designated as Martin Luther King Village. Under a contract with AURA, and in conformity with certain plans and specifications, Interlink undertook to construct 22 residential townhouses on the parcel. Inevitably, disputes arose between the parties before the project was completed. In November 1974, to avoid a work stoppage, and “fight about it later on,” the parties entered into an “escrow agreement,” each contributing to a fund aggregating $7,948.10, “pending the outcome of negotiations.” Counsel for AURA, Nicholas J. Fotos, Esq., was designated as “escrow agent.” Although he was not a party to the agreement, the instrument provided that the “escrow agent agrees not to disburse the funds without being so authorized by both parties... or in the event the. parties cannot agree, by order of Court or appropriate order by an arbitrator in the event the parties agree to arbitrate.”

The escrow agreement — which has given rise to this appeal — apparently went into eclipse when the job was completed. Interlink sued AURA and the Mayor and Aldermen of the City of Annapolis on June 30, 1975 for damages in the amount of $100,000 for breach of contract. Neither party made any reference to the escrow account in its pleadings. Eventually, AURA interposed a motion under Md. Rule 323 raising a preliminary objection — that of sovereign immunity. The Circuit Court for Anne Arundel County (Beardmore, J.), on October 18, 1976, sustained the objection, finding that AURA was an “agency of the state performing a governmental function, and that defense has not been expressly or impliedly waived.” Judgment was entered for AURA, Interlink did not appeal.

It appears that AURA thereafter requested Interlink’s concurrence to the disbursement of the escrow money to AURA. Interlink refused. On May 19, 1977, AURA filed a declaratory judgment action, requesting that the Circuit Court for Anne Arundel County declare that it was entitled to the proceeds and interest held by the escrow agent. AURA alleged that the basis for the action was that “[t]he funds in the escrow account were part of the damages sought in [Interlink’s abortive breach of contract action] and as a result of the Court’s ruling and the expiration of the appeal time such damages cannot be recovered____” A motion for summary judgment, based on the theory of res judicata accompanied the declaration. The lower court (Williams, J.) denied the motion. Interlink thereafter amended its plea and prayed a declaratory judgment that it was entitled to the escrow fund.

At a subsequent court trial on the merits of the declaratory judgment action before Judge Williams, appellant called Mr. Fotos, the escrow agent, as its sole witness. Through him, it offered the record in the breach of contract action which had been dismissed by order of Judge Beardmore. It was received and appellant rested.

Interlink then called its president, Alexandria Crawford, who was followed to the stand by its vice-president, Ralph Crawford. Over AURA’s objection, Interlink was permitted to relitigate the issue of breach of the 1973 contract. The court allowed the Crawfords to testify concerning the terms of the contract, the failure of AURA to provide utilities in accordance with the agreement and to reimburse Interlink for certain change orders, as well as AURA’s liability under an adjustment clause of the contract for late delivery of each of three sections of the parcel of land under a settlement schedule annexed to the contract. The damages to which they testified exceeded $16,000.

At the close of all the evidence, AURA renewed its motion for summary judgment. Mr. Fotos pointed out to the court that he had not gone into a “meritorious defense” deliberately, although, he asserted, “We could prove they weren’t damaged at all.” He stated: “[T]his is a res judicata situation____[W]e’re not asking the Court to apply the doctrine of sovereign immunity in this case, we’re asking the court now for res judicata.”

In an oral opinion from the bench, followed by a written declaratory judgment order, Judge Williams rejected appellant’s contention that it was entitled to prevail on res judicata grounds. With respect to the merits of the declaratory judgment case, he then said:

“[T]he Court certainly has heard sufficient evidence today to indicate that Interlink has valid claims against Annapolis' Urban Renewal Authority which must be considered before a disbursement of any of the escrow funds can be allowed by the Court.... [Tjhese claims total well in excess of the amount held in escrow so that the Court finds that the full amount held by the escrow agent could be paid to Interlink, Inc., and none of it should be returned to AURA. ” (Emphasis added.)

Although on appeal AURA puts forth three separate contentions, they merge into one: that as a result of Judge Beardmore’s ruling in the breach of contract suit, AURA was entitled to prevail on res judicata grounds and it was error for the court below in the suit on the escrow agreement to allow evidence bearing upon the breach of the contract and to hold that Interlink was entitled to the escrow fund, plus interest.

I

At the outset, we observe that for res judicata analysis, this case is unique. Usually the doctrine is raised by a defendant to defeat a second suit on the same cause of action initiated by the unsuccessful plaintiff in the first suit. Here, however, the defendant in the first suit, in seeking a declaratory judgment as to its entitlement to the escrow account, used the res judicata doctrine offensively when it rested its case on the prior judgment granted in its favor on grounds of sovereign immunity. This is indeed an unusual context in which res judicata is sought to be employed, but we do not find the situation untenable.

In Maryland and elsewhere, the doctrine of res judicata has been defined in myriad cases as:

“[A final] judgment [on the merits] between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit, where the court had jurisdiction, proceedings were regular, and his omission was due to his own negligence.”

Alvey v. Alvey, 225 Md. 386, 390, 171 A.2d 92, 94 (1961). See Southland Corp. v. Shulman, 331 F. Supp. 1024, 1027 (D. Md. 1971); Maicobo Investment Corp. v. Von Der Heide, 243 F. Supp. 885, 890 (D. Md. 1965); Cook v. State, 281 Md. 665, 668-69, 381 A.2d 671, 673 (1978); MPC, Inc. v. Kenny, 279 Md. 29, 32, 367 A.2d 486, 488-89 (1977); Missler v. Anne Arundel County, 271 Md. 70, 77, 314 A.2d 451, 456 (1974); Shoreham Developers, Inc. v. Randolph Hills, Inc., 269 Md. 291, 302, 305 A.2d 465, 472 (1973); Nicholson v. Unsatisfied Claim and Judgment Fund Board, 265 Md. 453, 458-60, 290 A.2d 384, 386-87 (1972); Arundel Asphalt Products, Inc. v. Morrison-Johnson, Inc., 256 Md. 170, 173, 259 A.2d 789, 790-91 (1969); Pat Perusse Realty Co. v. Lingo, 249 Md. 33, 35, 238 A.2d 100, 102 (1968); Sterling v. Local 438, Liberty Association of Steam and Power Pipe Fitters and Helpers Association, 207 Md. 182, 140-41, 113 A.2d 389, 392-93 (1955); Klein v. Whitehead, 40 Md. App. 1, 13-14, 389 A.2d 374, 382-83 (1978); Singer v. Steven Kokes, Inc., 39 Md. App. 180, 182-83, 384 A.2d 463, 465-66 (1978); Felger v. Nichols, 35 Md. App. 182, 183-84, 370 A.2d 141, 142-43 (1977); Tucker v. Tucker, 35 Md. App. 710, 714, 373 A.2d 16, 17-18 (1977).

If a judgment is to be accorded res judicata effect, the first requirement is that it be a final judgment on the merits. Crucial to the resolution of the present controversy, therefore, is whether the judgment entered after the granting of the motion raising preliminary objection, pursuant to Maryland Rule 323 (a), was a judgment on the merits.

Maryland Rule 323 (a) lists ten defenses that “constitute grounds for a motion raising preliminary objection.” Among these, is the defense of sovereign immunity which, unlike some of the other defenses, may be raised at any time. Md. Rule 323 (b). According to one authority, Rule 323 confers “[t]he right to interpose certain defenses which do not go to the merits of the controversy through the use of a motion restricted in its scope and filed before the parties are at issue on any question of law or fact except those specifically raised by the motion.” (Emphasis added.) 3 Poe’s Pleading and Practice § 75 (Sachs ed. 1975). “The purpose of [the Rule] is to have a legal question ... decided before trial of the action on its merits....” Irvine v. Montgomery County, 239 Md. 113, 117, 210 A.2d 359, 361 (1965). Although the “merits” of the underlying cause of action are never heard when a Rule 323 motion is granted on grounds of sovereign immunity, we conclude that the judgment entered is indeed a final judgment on the merits for purposes of res judicata. We shall explain.

Over the years, much scholarly debate has occurred with respect to what constitutes a judgment on the merits. In particular, a great deal of discussion has centered around the effect of various types of judgments entered without a full trial. Some are to be given res judicata effect while others are not. For example, today, in federal practice, and in most states, a dismissal, in the absence of a contrary rule or a statutory exception, is deemed to be with prejudice and on the merits. A dismissal without prejudice is not, of course, an adjudication on the merits. Other types of judgments even though not judgments “on the merits” are given a restricted type of res judicata effect. This is the case with respect to “matters in abatement, such as jurisdiction of the subject matter, federal jurisdiction, jurisdiction over the res, jurisdiction over the defendant, venue, and related matters,” where the policies of res judicata apply although there has been no adjudication on the merits in the traditional sense. IB Moore’s Federal Practice ¶ 0.405[5], at 655-56 (2d. ed. 1974). The application of the doctrine is more limited in these latter situations, in that only the relitigation of the precise issue adjudged is precluded; if the jurisdictional deficiency is removed, the substantive claim may be litigated in a subsequent action.

A judgment on the merits has been defined traditionally as one which rules on “the real or substantial grounds of action or defense as distinguished from matters of practice, procedure, jurisdiction or. form.” Clegg v. United States, 112 F.2d 886, 887 (10th Cir. 1940). See also 1B Moore’s Federal Practice ¶ 0.409, at 1001-43 (2d. ed. 1974). However, as the Supreme Court stated in Angel v. Bullington: 330 U.S. 183, 190 (1947). In Angel, the Supreme Court held that a State court’s prior dismissal of an action on the ground that a State statute precluded recovery of certain types of deficiency judgments was res judicata in a second action brought in the federal courts, challenging the constitutionality of the statute. Thus, in the first action, the finding that the statute did not authorize the recovery sought prevented litigation of the main cause of action, yet, the judgment was a complete bar to the second suit based on the same cause of action.

“It is a misconception of res judicata to assume that the doctrine does not come into operation if a court has not passed on the ‘merits’ in the sense of the ultimate substantive issues of a litigation. An adjudication declining to reach such ultimate substantive issues may bar a second attempt to reach them in another court of the State. Such a situation is presented when the first decision is based not on the ground that the distribution of judicial power among the various courts of the State requires the suit to be brought in another court in the State, but on the inaccessibility of all the courts of the State to such litigation.” (Emphasis added.)

Similarly, a dismissal of an action, for failure to state a cause of action has been held to be a judgment on the merits. As was held in Bell v. Hood:

“[I]t is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.”

327 U.S. 678, 682 (1946).

Bell illustrates a useful distinction — one to which we previously have alluded — as to when judgments that do not derive from the substantive issues or merits of a case, nonetheless are to be considered an adjudication on the merits and a complete as opposed to a limited bar to further litigation. When a court dismisses an action because of jurisdictional, procedural, or venue problems, it is acting for reasons that do not go to the substance of the case. But, when a court decides that it cannot hear the case because of a legal defense such as sovereign immunity, it is deciding that, as a substantive matter, the plaintiff cannot maintain his cause of action.

The case of Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710 (2d Cir. 1977), is illustrative and supportive of this position. There, the New Jersey legislature had enacted a law which barred suits brought in New Jersey courts by real estate brokers seeking commissions if the brokers were not licensed in New Jersey. Pursuant to this law, the federal district court in New Jersey had granted summary judgment against the appellant broker. He did not appeal, instead choosing to institute a new action in the federal district court in New York. That court held that the first unappealed judgment was res judicata to the second action. The Second Circuit affirmed this determination, stating in part:

“It is true that summary judgment was granted in the New Jersey action necessarily before ‘the defendant [had to] incur the inconvenience of preparing to meet the merits’ of Weston’s claim at trial. Costello v. United States, 365 U.S. 265, 286 (1961). The Supreme Court in Costello focused on that consideration as a central factor in the determination of whether a dismissal is for lack of jurisdiction, one of the enumerated exceptions to the general rule, and therefore not on the merits.
But there are other critical factors to consider in determining whether a dismissal is on the merits. The primary one here is whether the court's reason for dismissal was that plaintiff had no cause of action. In Costello the dismissal was for failure of the government to file an affidavit of good cause in a denaturalization proceeding; that failure did not destroy the underlying cause of action but simply constituted nonfulfillment of a prerequisite to the initiation of the proceedings. 365 U.S. at 268.
In contrast, N.J.S.A. § 45:15-3 is intended to bar creation of the debt, not merely to create a precondition to suit. It is not a jurisdictional or procedural provision, see Szantay v. Beech Aircraft Corp., 349 F.2d 60, 63-64 (4 Cir. 1965), but an expression of a significant substantive policy of the state. Stahl v. Township of Teaneck, 162 F.Supp. 661, 667-69 (D.N.J. 1958).” (Emphasis added.)

Id. at 713-14.

Like the statutory policy recognized in Weston, we believe that the legal defense of sovereign immunity represents a “significant substantive policy of [a] state,” and a judgment based upon the defense is a judgment on the merits. This position finds support in the case of Gissen v. Tackman, 401 F. Supp. 310 (D.N.J. 1975), vacated on other grounds, 537 F.2d 784 (3d Cir. 1976). In Gissen, the first case was dismissed pursuant to Fed.R.Civ.P. 12 (b) (6), because of the immunity of the defendants as federal officials. This judgment was determined to be an adjudication on the merits which barred a second action on the same cause of action. The court held as follows:

“It is clear that a judgment is ‘on the merits’ where the substance of the claim, as distinguished from matters of practice, procedure, jurisdiction or form, has been determined. Clegg v. United States, 112 F.2d 886, 887 (10th Cir. 1940); see Etten v. Lovell Mfg. Co., 225 F.2d 844, 846 (3d Cir. 1955); Restatement of Judgments § 49 (1942). Where the Court merely holds that there is some technical or procedural reason why the plaintiff cannot recover on his cause of action, the judgment is not deemed to be ‘on the merits’. Dismissals by reason of lack of jurisdiction or improper venue are examples of those judgments which have consistently been held to be ‘not upon the merits’. Smith v. McNeal, 109 U.S. 426, 3 S. Ct. 319, 27 L.Ed, 986 (1883); Etten v. Lovell Mfg. Co., supra.
It is well settled that a judgment dismissing a complaint pursuant to Fed.R.Civ.P. 12 (b) (6) is presumed to be on the merits for res judicata purposes, unless the contrary appears on the record. In a subsequent suit on the same claim the judgment has the same effect as if it was rendered after trial. See Bartsch v. Chamberlin Co., 266 F.2d 357 (6th Cir. 1959); 1B Moore, Federal Practice ¶ 0.409[1] (2d ed. 1942).
Since the order of dismissal in Gissen I was not based upon lack of jurisdiction (as in the case of Miller v. Saxbe) or improper venue, and did not specify that it was not upon the merits, it operated as an adjudication upon the merits sufficient to allow the application of the doctrine of res judicata. See Bartsch v. Chamberlin, supra.

Id. at 311-12.

Applying the above enunciated principles, we conclude that the judgment entered in this case pursuant to the granting of the motion raising preliminary objection, was a final judgment on the merits. To hold that the first judgment was res judicata to the second action, however, we must satisfy also two additional requirements: (1) the cases must involve the same parties or their privies; and (2) the cause of action in each suit must be the same. It is obvious that the first requirement has been fulfilled. With respect to the second, the test, in Maryland, for determining whether, for res judicata purposes, the causes of action are the same was expressed by Judge Levine in MPC, Inc. v. Kenny:

“Courts elsewhere have applied a variety of tests in determining whether two causes of action are the same for purposes of invoking res judicata. The measure which seems to find favor with most courts, and one which we have appiied, is whether the same evidentiary facts would sustain both actions.” (Citations omitted.) (Emphasis added.)

279 Md. at 33; 367 A.2d at 489.

In the instant case, applying the “same evidence” test, we think it plain that the breach of contract action by Interlink and the declaratory judgment action by AURA, in which Interlink also prays a declaratory judgment, are the same. Undeniably, the evidence received below in support of Interlink’s entitlement to the escrow fund, was the same evidence — even if not all — which would have sustained its breach of contract action, had it proceeded on the merits.

The net result is, in our judgment, that the defense of sovereign immunity, whether correctly decided by Judge Beardmore or not, precludes Interlink from relitigating the breach of contract claims in the declaratory judgment suit. We cannot agree with the trial court that AURA waived this defense by entering into the escrow agreement. Sovereign immunity cannot be waived unless pursuant to express statutory authority. Board of Education v. Alcrymat Corp., 258 Md. 508, 516, 266 A.2d 349, 353 (1970).

Appellee could have challenged on appeal the correctness of the first determination but decided not to pursue an appeal. It now cannot be permitted to argue error in the prior determination. “The doctrine of res judicata does not depend on whether the prior judgment was free from error.” Mitchell v. National Broadcasting Co., 553 F.2d 265, 272 (2d Cir. 1977).

Judgment reversed; each party to pay its own costs.

      . The funds comprising the escrow account consisted of: a) $4,648.10 representing the balance owed to the appellant by the appellee pursuant to the contract and paid into escrow by or on behalf of Interlink; and b) $8800 representing one of the amounts in dispute for sewer and water taps and the cost of a building permit from the City of Annapolis and paid into escrow by AURA.

      . An amended declaration was filed on January 10, 1976 and a second amended declaration on June 17, 1976. None of these pleadings made reference to the escrow agreement. The ad damnum was reduced in the second amended declaration to $84,925.75.

      . In a declaratory judgment action, whether it be at law or in equity, the court has jurisdiction to “declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Md. [Cts. & Jud. Proc.I Code Ann. § 3-403 (1974 & Supp. 1978).

      . See Restatement of Judgments § 48 (1942).

      . See Fed.R.Civ.P. 41. Compare Moodhe v. Schenker, 176 Md. 259, 267, 4 A.2d 453, 457 (1939) (judgment on demurrer is conclusive as an adjudication on the merits unless “the demurrer is directed to formal and technical defects apparent upon the face of the bill.”).

      . Williams v. Snyder, 221 Md. 262, 266-67, 155 A.2d 904, 906-07 (1959).

      . See Acree v. Air Line Pilots Assoc., 390 F.2d 199, 203 (5th Cir.), cert. denied, 393 U.S. 852 (1968); Miller v. Saxbe, 396 F. Supp. 1260, 1261 (D.D.C. 1975); Luker v. Nelson, 341 F. Supp. 111, 114-15 (N.D. Ill. 1972). See generally, 1B Moore’s Federal Practice If 0.405[5], at 655-63 (2d ed. 1974); Restatement of Judgments § 49 (1942).

      . In federal practice, such a dismissal is pursuant to Rule 12 (b) (6). See generally IB Moore’s Federal Practice ¶ 0.409[1], at 1005-08 (2d ed. 1974). Maryland Rule 323 “is patterned after Federal Rule 12(b) but is broader in its scope, some defenses not being available under the Federal rule having been included in the Maryland rule. 3 Poe’s Pleading and Practice § 75C, at 87 (6th ed. Sachs 1975).

      . Because many of the judgments which are deemed to be on the merits for res judicata purposes do not pass “directly on the substance of the claim,” the Restatement Second of Judgments deleted the “on the merits” language to prevent “possibly misleading connotations.” § 48, comment a, at 36 (Tent. Draft 1973).

      . Judge Williams indicated disagreement with the holding that AURA had sovereign immunity. See American Structures, Inc. v. City of Baltimore, in which the Court of Appeals stated:
      “Municipalities and counties have been regularly subject to suit in contract actions, whether the contracts were made in performance of a governmental or proprietary function, as long as the execution of the contract was withm the power of the governmental unit.”
      278 Md. 356, 359-60, 364 A.2d 55, 57 (1976).

      . The escrow contract was entered into in November 1974, prior to the effective date of Chapter 450 of the Acts of 1976 which removed the defense of sovereign immunity to suits against the State based on written contracts.


author: Melvin, J.,

text:
    JOANNA LEE BARRELL v. JOHN MacMILLIAN BARRELL
    [No. 1119,
    September Term, 1978.]

      Decided September 7, 1979.

    The cause was argued before Gilbert, C. J., and Morton and Melvin, JJ.

      Claude L. Callegary for appellant.

      John D. Alexander, Jr., with whom were Allen, Thieblot & Alexander on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

The primary issue in this case is whether an action pursuant to Maryland Code (1957, 1979 Repl. Vol.) Art. 89C, §§ 1, et seq. (Uniform Reciprocal Enforcement of Support Act) (URESA) is the exclusive means in this State of enforcing an alimony decree of another state. We hold that it is not.

The appellant, Joanna Lee Barrell, a resident of Maryland, filed a bill of complaint on February 21, 1978 in the Circuit Court of Baltimore City, praying that the court adopt and enforce the alimony provisions of a Georgia divorce decree dated April 27, 1972. The appellee, John MacMillian Barrell, a non-resident of Maryland, was served with a summons at Baltimore- Washington International Airport when he arrived to celebrate his daughter’s birthday.

In response to the complaint, the appellee filed a motion raising preliminary objections which asserted the following defenses: 1) lack of jurisdiction over the person, 2) insufficiency or illegality of process, 3) insufficiency or illegality of service of process, and 4) lack of jurisdiction over the subject matter. Md. Rule 323 a.

After a brief hearing on the motion on May 9,1978, the trial judge requested that the parties submit memoranda of law on the issues presented. By an order dated September 15, 1978 the appellee’s motion was granted. As a statement of grounds for its decision the court incorporated those grounds set forth in the appellee’s memorandum in support of his motion. The primary thrust of the memorandum was that URESA is the exclusive means of enforcing an alimony decree of another state and that although the appellant had invoked URESA enforcement provisions, she failed to follow those provisions. Sections 31 through 36 of URESA provide for the “Registration of Foreign Support Orders” which, when confirmed, have the same effect and may be enforced as if originally entered in the courts of this State. The manner in which the orders should be registered is prescribed by Section 34, which states:

“The petition for registration shall be verified and shall set forth the amount remaining unpaid and a list of any other states in which the support order is registered and shall have attached to it a certified copy of the support order with all modifications thereof. The foreign support order is registered upon the filing of the petition subject only to subsequent order of confirmation.”

Because the complaint was neither verified nor accompanied by a certified copy of the support order, proper service, according to the lower court, could not issue, and the court was, therefore, unable to obtain jurisdiction over the person or subject matter.

On appeal, as she did below, the appellant contends that her action is “not a proceeding under the Act [URESA]” but is “a proceeding under the Court’s general equity powers as construed in McCabe v. McCabe [210 Md. 308, 123 A.2d 447 (1956)],” and that URESA does not prescribe the exclusive means of enforcing a foreign alimony order.

At the outset, we agree that there is nothing in the bill of complaint to indicate that appellant sought to invoke the enforcement provisions of URESA. Appellee contends that merely because the bill asked that the court “adopt” the Georgia decree “as its own” and “enroll said Decree of Divorce in the records of this court” the appellant was bound at her peril to follow all the enforcement provisions of URESA. We find no merit in this contention. We turn then to the primary issue of whether the provisions of URESA provide the exclusive means of enforcing á foreign alimony decree.

The established law in Maryland, prior to the enactment of URESA in 1951, was that a court in this State will enforce an alimony decree of another state for the amount due and unpaid thereunder. Lee v. Lee, 220 Md. 325, 331-2, 152 A.2d 561 (1959); Rosenberg v. Rosenberg, 152 Md. 49, 51, 135 A. 840 (1927). In McCabe v. McCabe, supra, decided after the original enactment of URESA, the Court of Appeals held:

“We need not and do not decide now the answer to the various problems that may arise in the enforcement in equity of foreign decrees for alimony and support. We decide only that in Maryland an equity court can enforce a decree of another state, both as to alimony accrued and to accrue, and may use for its enforcement the same equitable remedies and sanctions it could use to enforce a decree it had duly entered in the first instance, even as the Legislature has said it may use such remedies and sanctions to enforce orders of support under the Uniform Reciprocal Enforcement of Support Act, Code, 1951, Art. 89C, Sections 13 and 15.” 210 Md. at 317-318.

The appellee argues that the registration provisions of URESA (Sections 31 through 36, enacted in 1965, after McCabe) preclude the obligee of a foreign support order from enforcing the order unless those provisions are followed. The appellee, in effect, claims that the remedy previously provided in this state has been replaced by that now provided by URESA. To the contrary, Section 3 of URESA expressly provides that “the remedies herein provided are in addition to and not in substitution for any other remedies.” That URESA provides an alternate means of enforcing a foreign support order, rather than an exclusive means, was alluded to by the Court in Abb v. Crossfield 23 Md. App. 232, 236, 326 A.2d 234 (1974). In Abb the appellant argued that a URESA action was precluded by his former wife’s right to enforce the decree in Maryland as a foreign judgment. In rejecting the appellant’s argument we said:

“The appellant correctly points out that Mrs. Abb could have sought enforcement of her decree and separation agreement in the Maryland courts as a foreign judgment. It does not follow, however, that the availability of that option should be construed as precluding a URESA action initiated in another jurisdiction.” (Emphasis added).

Likewise, in this case, the availability of a URESA action is an additional means of enforcing the alimony decree, and does not preclude the pursuit of other remedies available to the appellant. Accord, Haas v. Haas, 282 Minn. 420, 424, 165 N.W.2d 240 (1969), and Zelek v. Brosseau, 47 N.J. Super. 521, 136 A.2d 416, 422-423 (1957).

The bill of complaint in this case established subject-matter jurisdiction in the equity court below and the service of process upon the defendant while in Maryland established jurisdiction over his person. The motion raising preliminary objections contending to the contrary was, therefore, granted in error.

Order reversed.

Case remanded for further 'proceedings.

Appellee to pay costs.

      . Under this decree the appellant was entitled to $1,200 per month alimony payments. At the time the bill of complaint was filed, appellee whs allegedly $29,400 in arrears in his payments.