Could Maryland's Office of Administrative Hearings dismiss an appeal because someone failed to pay a required filing fee?

Plain-English summary

Chapter 134 of the Laws of Maryland 1992 let the Chief Administrative Law Judge of Maryland's Office of Administrative Hearings (OAH) charge filing fees for appeals and subpoenas, while exempting state agencies and petitioners the OAH found unable to pay, and requiring a refund of the fee to anyone who filed an appeal and later won. The law did not say what happened if a nonindigent party simply failed to pay the fee. Chief Administrative Law Judge John W. Hardwicke asked the Attorney General whether OAH could dismiss such an appeal for nonpayment.

The Attorney General concluded that OAH could dismiss a nonindigent party's appeal for failing to pay a required filing fee, but only if OAH first adopted a regulation making dismissal the stated consequence of nonpayment. The fee statute did not, on its own, authorize case-by-case dismissal the way some other Maryland fee statutes expressly did. But the Chief Administrative Law Judge already had general authority to "adopt regulations to implement this subtitle," and the opinion reasoned that a dismissal regulation would be a reasonable way to carry out the Legislature's evident goal of securing prompt payment of the new fees, since the statute would not have needed a refund provision for parties who later won if nonpayment were simply irrelevant to whether an appeal proceeded.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could OAH dismiss my appeal automatically just for not paying the filing fee, according to this opinion?
No. The opinion concluded that Chapter 134 itself did not make dismissal an automatic consequence of nonpayment; the Chief Administrative Law Judge first had to adopt a regulation stating that a nonindigent party's failure to pay the fee would result in dismissal of the appeal.

Did this 1992 fee law apply to everyone appealing to Maryland's Office of Administrative Hearings?
No, according to the opinion, Chapter 134 exempted state agencies from the fee entirely, and also exempted petitioners that OAH determined were unable to pay.

What happened to the filing fee if a party won their appeal?
The opinion recounts that Chapter 134 required the fee to be refunded to a party who initiated the appeal and received a favorable decision from the Administrative Law Judge.

Background and statutory framework

Chapter 134 (House Bill 248) of the Laws of Maryland 1992 amended § 9-1604(b) of the State Government Article to authorize the Chief Administrative Law Judge to assess fees covering OAH's administrative expenses, capped at $15 for filing an appeal and $5 for a subpoena, effective July 1, 1992. The new provisions barred charging the fee to state agencies or to petitioners OAH found unable to pay, and required a refund to a party who filed an appeal and later prevailed.

The opinion noted that Chapter 134 did not include language like § 7-201(a) of the Courts and Judicial Proceedings Article, which expressly bars docketing a case or issuing certain writs unless a required court fee is paid. Absent that kind of express consequence, the opinion reasoned that OAH could not treat nonpayment alone as grounds for dismissal without first establishing that consequence by regulation. It drew a comparison to the State Court Administrator's fee-setting authority under § 7-102 of the Courts and Judicial Proceedings Article, where a similarly general grant of authority to set fee amounts had been read to support a schedule requiring advance or concurrent payment, backed by the Maryland Rules governing notices of appeal and petitions for certiorari.

Citations and references

Statutes:

• SG §9-1604(b)(1), (b)(3), State Government Article, OAH filing fee authority and refund requirement
• CJ §7-201(a), Courts and Judicial Proceedings Article, court fee-payment prerequisite for docketing
• CJ §7-102, Courts and Judicial Proceedings Article, State Court Administrator's fee-setting authority
• Rules 8-201(b), 8-303(a), Maryland Rules on notice of appeal and petition for certiorari fee timing
• COMAR 11.11.03.08A(3)
• Chapter 134 (House Bill 248) of the Laws of Maryland 1992

Cases:

• Glanville v. David Hairstylist, 249 Md. 162, 238 A.2d 1917 (1968)
• Parissi v. Telechron, Inc., 349 U.S. 46 (1955)
• Gould v. Members of NJ Div. of Water Policy & Supply, 555 F.2d 340 (3d Cir. 1977)
• In re Marriage of Gray, 144 Ariz. 89, 695 P.2d 1127 (1955)
• Prowswood, Inc. v. Mountain Fuel Supply Co., 676 P.2d 952 (Utah 1984)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed page 3 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ADMINISTRATIVE LAW

CONTESTED CASES - CHIEF ADMINISTRATIVE LAW JUDGE MAY
Provide By Regulation for Dismissal of Appeal for
Nonindigent Party's Failure to Pay Filing Fee

                          May 29, 1992

The Honorable John W. Hardwicke
Chief Administrative Law Judge

   You have requested our opinion whether, upon the effectiveness of

Chapter 134 of the Laws of Maryland 1992, a nonindigent party's request
for a hearing may be dismissed if the party fails to pay a filing fee.

  For the reasons stated below, we conclude that the Chief

Administrative Law Judge has the discretion to provide by regulation that
a nonindigent party's appeal will be dismissed if the party fails to pay a
required filing fee.

                                 I

                          Chapter 134

  Chapter 134 (House Bill 248) of the Laws of Maryland 1992 was

enacted, according to the bill title, for "the purpose of authorizing the
Chief Administrative Law Judge to assess fees to cover certain
administrative expenses." When the law becomes effective on July 1,
1992, §9-1604(b)(1) of the State Government Article ("SG" Article) will
contain the following new grant of authority:

          The Chief Administrative Law Judge may:

          (vi) Assess fees to cover administrative expenses as
      follows:

              1. To file an appeal, a fee not exceeding $15;
      and a subpoena, a fee not exceeding $5.

Chapter 134 also adds the following new paragraphs to SG §9-1604(b):

         (2) Fees charged under paragraph (1) of this
      subsection for administrative expenses may not be
      charged to:

            (i) State agencies; or

            (ii) Petitioners who are determined by the Office
      of Administrative Hearings to be unable to pay the
      fees.

          (3) A fee charged under paragraph (1) of this
      subsection for filing an appeal shall be refunded to a
      party who initiates the appeal if the party receives a
      favorable decision from the Administrative Law Judge.


                                 II

                              Analysis

  Chapter 134 does not expressly state the consequence of a

nonindigent party's failure to pay a fee that has been assessed for the filing
of an appeal. That is, Chapter 134 did not enact a provision akin to §7-
201(a) of the Courts and Judicial Proceedings Article ("CJ" Article), which
provides that, with certain exceptions, "no case may be docketed and no
writ of attachment, fieri facias, or execution on judgment may be issued
unless the plaintiff or appellant pays the required fee." In the absence of
such a provision, the mere fact that fees are payable does not itself
authorize the Office of Administrative Hearings to dismiss an appeal upon
a party's failure to pay the filing fee. See Glanville v. David Hairstylist,
249 Md. 162, 238 A.2d 1917 (1968). Cf. Parissi v. Telechron, Inc., 349
U.S. 46 (1955); Gould v. Members of NJ Div. of Water Policy & Supply,
555 F.2d 340 (3d Cir. 1977); In re Marriage of Gray, 144 Ariz. 89, 695
P.2d 1127 (1955). But see Prowswood, Inc. v. Mountain Fuel Supply Co.,
676 P.2d 952 (Utah 1984).

   In our view, however, the Office of Administrative Hearings may

dismiss an appeal because of an unpaid filing fee if you first adopt a
regulation stating that a nonindigent party's failure to pay the fee will result
in dismissal of an appeal. The Chief Administrative Law Judge has
authority to "adopt regulations to implement this subtitle." SG §9-
1604(b)(1)(v). A regulation imposing the sanction of dismissal for
nonpayment would be a reasonable implementation of this new component
of the OAH subtitle, because the manifest legislative objective underlying
Chapter 134 is to secure prompt payment of the fees. Otherwise, Chapter
134 would not have provided that a fee "shall be refunded to a party who
initiates the appeal if the party receives a favorable decision from the
Administrative Law Judge." SG §9-1604(b)(3) (emphasis added).1

   A similar grant of fee-setting authority to the State Court

Administrator has been authoritatively construed to encompass more than
the mere designation of amounts. Under CJ §7-102, "The State Court
Administrator shall determine the amount of fees to be charged by the
Clerk of the Court of Appeals and the Clerk of the Court of Special
Appeals, with the approval of the Board of Public Works." The statute
does not expressly require payment in advance. Nevertheless, acting under
this authority, the State Court Administrator has not only determined the
amount of the fees but also provided that "[e]ach fee set forth in this
schedule shall be paid in advance of or concurrently with the filing or
delivery of the record, document, copy, or certificate specified. No fee is
refundable." Revised Schedule of Fees IJIIIA.2

                                      III

                                 Conclusion

  In summary, it is our opinion that the Chief Administrative Law

Judge has the discretion to adopt a regulation providing that a nonindigent
party's failure to pay a filing fee will result in the dismissal of the party's
appeal.3

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                           Jack Schwartz
                                           Chief Counsel
                                           Opinions & Advice

1
Of course, other regulatory choices - for example, a regulation stating
that no hearing would be scheduled until the fee was paid - would also serve the
legislative objective. The General Assembly has left this policy decision to your
discretion. See also note 3 below.

2
This aspect of the appellate fee schedule is underscored by provisions in
the Maryland Rules requiring an appellant or petitioner to pay the required fee at
the time of filing a notice of appeal in a civil case or at the time of filing a petition
for a writ of certiorari. See Rules 8-201(b) and 8-303(a).

3
We recognize that, given the large numbers of appeals involving the
suspension of a driver's license, the mechanics of implementing such a regulation
will require careful coordination with the Motor Vehicle Administration. We also
note that a delay in a hearing caused by a party's failure to pay the prescribed fee,
with the result that a suspension of the party's driver's license would take effect,
would not be a case of "the Administration's delay or oversight." Hence, the
dismissal sanction in COMAR 11.11.03.08A(3) would not apply.